The purpose of this paper is to evaluate the Law Commission's recommendations concerning the power of removal contained in section 47 of the National Assistance Act 1948. That provision applies to certain people who are seriously ill, living in squalor, or not receiving proper care and it enables them to be taken to hospital or a care home and detained there.
The Law Commission's final report on adult social care law was considered and compared with earlier Commission publications that addressed this issue, and also with other sources (such as a paper published by the Department of Health in 2000).
The Law Commission calls for the repeal of section 47, because it is hard to interpret, difficult to implement and seems to breach the European Convention on Human Rights. The Commission says other provisions, such as those in environmental health legislation, the Mental Health Act 1983, and the Mental Capacity Act 2005, provide a more appropriate means of caring for people in distress and that more information is needed before a decision can be taken as to what, if anything, should replace section 47. Some of these criticisms, and also the call for more information, were made by the Department of Health.
The Law Commission's findings and recommendations concerning section 47 have not otherwise been widely reported, nor has much been done to analyse their development or antecedence. The paper also offers a modest critique of this aspect of the Commission's report.
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