R v Bournewood Community and Mental Health NHS Trust

Last updated

In R v Bournewood Community and Mental Health NHS Trust the House of Lords ruled that a man who had been admitted to a psychiatric hospital without capable consent had not been unlawfully detained under the common law. A later European Court of Human Rights ruling, however, found that the man had been unlawfully deprived of his liberty in the meaning of Article 5 of the European Convention on Human Rights.

Contents

Facts

HL was an adult male who was autistic and had profound learning disabilities. He had lived in Bournewood Hospital from the age of 13 for over thirty years. In 1994 he was discharged into the community to live in an adult foster placement with carers Mr and Mrs 'E'. On 22 July 1997 HL became agitated at a day centre he attended and was admitted to the Accident and Emergency Department at Bournewood Hospital under sedation. Due to the sedative, HL was compliant and did not resist admission, so doctors chose not to admit him using powers of detention under the Mental Health Act. HL never attempted to leave the hospital, but his carers were prevented from visiting him in order to prevent him leaving with them. A report by the Health Service Ombudsman [1] heard evidence from a range of professionals that the standard of HL's care had been poor in the hospital, and he had become distressed and agitated. Mr and Mrs 'E' sought from the court a judicial review of the decision of the Bournewood Community and Mental Health NHS Trust "to detain the appellant on 22 July 1997 and the Trust's ongoing decision to continue the Appellant's retention" and a writ of Habeas Corpus Ad Subjiciendum to direct that HL be discharged and returned to their care.

Judgment

Appeals

In the High Court the judge considered whether HL had been unlawfully detained under the common law. He reasoned that 'there will be no restraint of the applicant until he has attempted to leave and the respondent, by its agent, has done something to prevent this'. The Court of Appeal, however, held that the actions of the Trust had been based on a false premise that they were 'entitled to treat L as an in-patient without his consent as long as he did not dissent'. The court held that HL should have been detained under the Mental Health Act 1983, as the common law only provided for situations not already encompassed by statute. The Court also commented that a troubling feature of the appeal was that the respondent Trust was not alone in misinterpreting the Act, and potentially the judgement could apply to many patients informally detained like HL. They stated that the practice of informal detention in cases like HL could not justify disregarding the Act, especially in light of this bypassing its safeguards to detained patients. [2]

House of Lords

The House of Lords considered whether HL had been unlawfully detained under the common law. They heard evidence that the ruling of the Court of Appeal might mean several tens of thousands of patients would have to be detained under the Mental Health Act. They considered that this might excessively stigmatise informal patients and have dire resource implications due to the costs of administering the Mental Health Act. In assessing whether HL had been detained, they concluded by a majority verdict that he had not been detained in the meaning of the common law tort of false imprisonment because there must be actual and not just potential restraint to engage the tort. Some commentators [3] have suggested this reasoning might be at odds with other false imprisonment precedents. [4] Lord Steyn dissented from this aspect of the judgement, stating that the Trust's argument that HL, not being formally detained, was always free to go 'stretched credulity to breaking point' and was 'a fairytale'. Unanimously their Lordships also held that even if HL had been found to have been detained, it would have been justified under the common law doctrine of necessity. Although concurring with this finding, Lord Steyn commented that this was an 'unfortunate' result as it left compliant but incapacitated patients without the safeguards of patients detained formally under the Mental Health Act. [5]

European Court of Human Rights

Although HL was in fact released back into the care of Mr. and Mrs. E in December 1997 after being held in hospital for five months, the case was pursued at the European Court of Human Rights(ECtHR) for a declaration that HL had been deprived of his liberty unlawfully in the meaning of Article 5 of the European Convention on Human Rights ('the Convention'). The ECtHR concurred with Lord Steyn that HL had in fact been detained, finding that the distinction relied upon by the House of Lords between actual and potential restraint was not 'of central importance under the Convention'. They further found that the common law doctrine of necessity did not provide the requisite safeguards for informal detention of compliant but incapacitated patients to be described as 'in accordance with a procedure described by law' as required under Article 5(1)(e). [6]

Response of the UK government to 'the Bournewood judgment'

Following the ruling of the ECtHR, the UK government launched a widespread consultation about the potential consequences of 'the Bournewood judgment', as it became known. [7] During this consultation it was considered that compliant but incapacitated adults in care homes, as well as hospitals, might be deprived of their liberty in the meaning of the Convention. This consultation resulted in the amendment of the Mental Capacity Act 2005 to contain the 'deprivation of liberty safeguards'. The deprivation of liberty safeguards were intended to plug the 'Bournewood gap' by providing administrative and judicial safeguards for adults who lack mental capacity who are deprived of their liberty in care homes and hospitals. The safeguards came into force in April 2009, but their uptake has not been as widespread as expected and their implementation has been subject to criticism from a wide range of interested parties. [8]

See also

Notes

  1. ↑ Health Service Ombudsman, (2001) 'Case No. E. 2280/98-99 '
  2. ↑ R. v Bournewood Community and Mental Health NHS Trust Ex p. L [1997] EWCA Civ 2879
  3. ↑ K Horsey and E Rackley, Tort Law (Oxford University Press, Oxford 2009) p 396
  4. ↑ Meering v Graham-White Aviation [1920] 122 LT 24 (CA)
  5. ↑ R. v Bournewood Community and Mental Health NHS Trust Ex p. L [1998] UKHL 24
  6. ↑ HL v. UK (2004) - App no 45508/99; 40 EHRR 761
  7. ↑ Department of Health, '“Bournewood” Consultation: The approach to be taken in response to the judgment of the European Court of Human Rights in the Bournewood” case ' (Gateway Ref 267902 2005); Department of Health, Protecting the Vulnerable: the “Bournewood” Consultation (London 2006)
  8. ↑ R Hargreaves, 'Deprivation of Liberty Safeguards: an initial review of implementation' (Briefing Paper 1, Mental Health Alliance, London 2010)

Related Research Articles

Habeas corpus is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.

A patient's bill of rights is a list of guarantees for those receiving medical care. It may take the form of a law or a non-binding declaration. Typically a patient's bill of rights guarantees patients information, fair treatment, and autonomy over medical decisions, among other rights.

<span class="mw-page-title-main">Liberty (advocacy group)</span> UK advocacy group and membership organisation

Liberty, formerly, and still formally, called the National Council for Civil Liberties (NCCL), is an advocacy group and membership organisation based in the United Kingdom, which challenges unjust laws, protects civil liberties and promotes human rights. It does this through the courts, in Parliament and in the wider community. Liberty also aims to engender a "rights culture" within British society. The NCCL was founded in 1934 by Ronald Kidd and Sylvia Crowther-Smith, motivated by their humanist convictions.

Anthony David Bland was a supporter of Liverpool F.C. injured in the Hillsborough disaster. He suffered severe brain damage that left him in a persistent vegetative state as a consequence of which the hospital, with the support of his parents, applied for a court order allowing him to "die with dignity". As a result, he became the first patient in English legal history to be allowed to die by the courts through the withdrawal of life-prolonging treatment including food and water for the injuries.

<span class="mw-page-title-main">Mental Health Act 1983</span> Law in England and Wales

The Mental Health Act 1983 is an Act of the Parliament of the United Kingdom. It covers the reception, care and treatment of mentally disordered people, the management of their property and other related matters, forming part of the mental health law for the people in England and Wales. In particular, it provides the legislation by which people diagnosed with a mental disorder can be detained in a hospital or police custody and have their disorder assessed or treated against their wishes, informally known as "sectioning". Its use is reviewed and regulated by the Care Quality Commission. The Act was significantly amended by the Mental Health Act 2007. A white paper proposing changes to the act was published in 2021 following an independent review of the act by Simon Wessely.

In England, the First-tier Tribunal , more commonly known as the Mental Health Tribunal, is an independent quasi-judicial body established to safeguard the rights of persons subject to the Mental Health Act 1983. It provides for consideration of appeals against the medical detention or forced treatment of a person who was deemed to be suffering from a mental disorder that was associated with a risk to the health or safety of that person or others.

<span class="mw-page-title-main">Chase Farm Hospital</span> Hospital in London, England

Chase Farm Hospital is a hospital in The Ridgeway, in Gordon Hill, Enfield, run by the Royal Free London NHS Foundation Trust.

<span class="mw-page-title-main">Mental Capacity Act 2005</span> United Kingdom legislation

The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves.

The Care Quality Commission (CQC) is an executive non-departmental public body of the Department of Health and Social Care of the United Kingdom. It was established in 2009 to regulate and inspect health and social care providers in England.

The Mental Health Act Commission was an NHS special health authority that provided a safeguard for people detained in hospital under the powers of the Mental Health Act 1983 in England and Wales. Mental health care is the only part of health care where patients can be treated under compulsion, and necessarily there are very clear legal requirements on hospitals and the other services involved - primarily local authority social services. The Commission was abolished on 31 March 2009.

Removal to a place of safety is a form of detention.

In the case HL v United Kingdom (45508/99) the European Court of Human Rights found that the informal admission to a psychiatric hospital of a compliant but incapacitated adult was in contravention of Article 5 of the European Convention on Human Rights. The court found that the distinction between actual and potential detention relied upon by the UK House of Lords in their ruling that HL had not been detained in R v Bournewood Community and Mental Health NHS Trust was not of central importance under Article 5. The European Court also held that the practice of informal admission of compliant but incapacitated adults who were de facto detained was not 'in accordance with a procedure described by law' and thus was not lawful under the Convention.

This disability rights timeline lists events outside the United States relating to the civil rights of people with disabilities, including court decisions, the passage of legislation, activists' actions, significant abuses of people with disabilities, and the founding of various organizations. Although the disability rights movement itself began in the 1960s, advocacy for the rights of people with disabilities started much earlier and continues to the present.

<span class="mw-page-title-main">Mental health in Russia</span>

Mental health in Russia is covered by a law, known under its official name—the Law of the Russian Federation "On Psychiatric Care and Guarantees of Citizens' Rights during Its Provision", which is the basic legal act that regulates psychiatric care in the Russian Federation and applies not only to persons with mental disorders but all citizens. A notable exception of this rule is those vested with parliamentary or judicial immunity. Providing psychiatric care is regulated by a special law regarding guarantees of citizens' rights.

AH vs West London Mental Health Trust was a landmark case in England, which established a legal precedent in 2011 when Albert Laszlo Haines (AH), a patient in Broadmoor Hospital, a high security psychiatric hospital, was able to exercise a right to a fully open a public mental health review tribunal to hear his appeal for release. The case and the legal principles it affirmed have been described as opening up the secret world of tribunals and National Health Service secure units, and as having substantial ramifications for mental health professionals and solicitors, though how frequently patients will be willing or able to exercise the right is not yet clear.

<span class="mw-page-title-main">Mental health tribunal</span> Tribunal hearing for mental health treatment disputes

A mental health tribunal is a specialist tribunal (hearing) empowered by law to adjudicate disputes about mental health treatment and detention, primarily by conducting independent reviews of patients diagnosed with mental disorders who are detained in psychiatric hospitals, or under outpatient commitment, and who may be subject to involuntary treatment.

Nottinghamshire Healthcare NHS Foundation Trust, based in Nottinghamshire, England, manages the UK’s largest and most integrated Forensic High Secure facility Rampton Hospital near Retford, High Secure Women’s, High Secure Deaf, High Secure Learning Disability and Autistic as well as High Secure Men’s Mental Health), two medium secure units, Arnold Lodge in Leicester and Wathwood Hospital in Rotherham, and a low Secure Unit, the Wells Road Centre at Mapperley in Nottingham.

In the Law of England and Wales, best interest decisions are decisions made on behalf of people who do not have mental capacity to make them for themselves at the time the decision needs to be taken. Someone who has the capacity to make a decision is said to be "capacitous". Since 2007, there has been a dedicated court with jurisdiction over mental capacity: the Court of Protection, although it mostly deals with adults. Most applications to make decisions on behalf of a child are still dealt with by the Family Court.

<span class="mw-page-title-main">Gordon Hospital</span> Hospital in Westminster, England

The Gordon Hospital is a 55-bed acute adult mental health hospital located in Westminster, London. It is managed by the Central and North West London NHS Foundation Trust.

North West Lancashire Health Authority v A, D and G was a legal case in England that occurred in 1999. In it, the North West Lancashire Health Authority did not fund gender reassignment surgery for three transgender women.

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.