The strange deaths of section 47
| Pages | 39-48 |
| DOI | https://doi.org/10.1108/14668201211200790 |
| Published date | 10 February 2012 |
| Date | 10 February 2012 |
| Author | David Hewitt |
| Subject Matter | Health & social care,Sociology |
The strange deaths of section 47
David Hewitt
Abstract
Purpose – 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.
Design/methodology/approach – The Law Commission’s final report on adult social care law was
considered and compared with earlier Commission publications that addressedthis issue, and also with
other sources (such as a paper published by the Department of Health in 2000).
Findings – 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.
Originality/value – 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’sreport.
Keywords Section 47, National Assistance Act, Detention, Grave chronic disease, Infirm,
Unsanitary conditions, Proper care and attention, Hospitals, Patient care
Paper type General review
Section 47 of the National Assistance Act (NAA) 1948 should be repealed. That, at least, is
the conclusion of the Law Commission (LC) (2011b), in its final report on adult social care
law. In many circumstances, section 47 permits the compulsory removal to hospital of
anyone who is seriously ill, living in squalor or not receiving proper care. It has been
wreathed in mystery, and controversy, for quite some time.
The LC’s report is the culmination of a lengthy consultation that was itself preceded by a
special paper (LC, 2010) and followed by a detailed analysis (LC, 2011b). The Commission
received 231 responses, 79 of which concerned section 47 (and 56 of these said the
provision should be abolished) (LC, 2011a, paragraph 12.143).
This result is not, perhaps, surprising: section 47 was first consigned to the dustbin more
than a decade ago, only to be revived in 2008. As we shall see, the LC’sown conclusion is far
from unequivocal.
What does it do?
Under section 47 of the NAA 1948, a local authority may apply to a magistrates’ court for an
order permitting it to remove a person to ‘‘suitable premises’’, such as a hospital or a care
home. Such an application may be made in the case of someone who is:
DOI 10.1108/14668201211200790 VOL. 14 NO. 1 2012, pp. 39-48, QEmerald Group Publishing Limited, ISSN 1466-8203
j
THE JOURNAL OF ADULT PROTECTION
j
PAGE 39
David Hewitt is a Judge of
the First-tier Tribunal and a
Visiting Fellow at the
University of Northumbria,
Newcastle, UK and at the
University of Lincoln,
Lincoln, UK.
To continue reading
Request your trial