Some people may have been wrongly ’deprived of their liberty,’ the committee says.

The Mental Health Commission told the committee there was a lack of ’deprivation of liberty safeguards’.

The fear is that a person may ’acquiesce’ rather than ’assent’ to their admission into an in-patient or care facility when they lack the capacity to make such a decision.

That would mean effectively that such persons were admitted as voluntary or informal patients and were, thus, ’deprived of their liberty’ because the process lacked a procedural safeguard.

The European Court of Human Rights has ruled this would constitute a breach of a person’s right to not be deprived of their liberty other than by a legal process and to have access to a review in court

The committee says: ’Deprivations of liberty which are unlawful under Article 5 of the European Convention on Human Rights may have occurred or may be occurring in the context of individuals lacking capacity residing in secure care facilities.’

It recommends laws containing deprivation of liberty safeguards be drafted.

However, the social affairs policy review committee does make clear that powers to order that a person be detained under the Mental Health Act - a different process - have been used correctly.

The deprivation of liberty recommendation is one of seven made by the committee. The others are:

The DHSC should review confidentiality protocols and ’disseminate clear guidance to staff’.

Tynwald will be asked to demand that ’every effort’ is made that patients’ records are retained and referred appropriately and patients and next of kin kept informed where appropriate and practical.

The department should make further provision to support carers.

Clear guidance be given to service users and families on how they can make a complaint.

The mental health service should review its training and give guidance to staff.

The DHSC should submit an annual report to Tynwald giving progress towards the goals of the Mental Health and Well-being, including a focus on waiting times.