Mental Health – Bournewood Consultation
(July 2005)
The Department of Health recently consulted on the approach to be taken in response to the judgement of the European Court of Human Rights in the 'Bournewood' case.
The judgement concerned a patient who lacked capacity to consent to treatment in hospital, but who, because he did not object to being admitted for treatment, was admitted informally, i.e. not under the compulsory powers in the Mental Health Act 1993, and therefore did not have a right of appeal to a Mental Health Review Tribunal.
The European Court of Human Rights concluded that the patient had been deprived of his liberty contrary to Article 5 (1) of ECHR because his admission was not 'in accordance with a procedure prescribed by law'; and also contrary to Article 5 (4) of ECHR because he was unable 'to take proceedings by which the lawfulness of his detention shall be decided speedily by a court'.
The Council's primary interest derives from its statutory oversight of the Mental Health Review Tribunal (MHRT) (and future oversight of the prospective new Mental Health and Mental Health Appeal Tribunals). The response therefore focused primarily on the possible impact on the MHRT, the proposals for review of detention and the scope for alleviating pressure on the courts or tribunals.
In its response the Council's overriding view was that the consultation document raised more questions than it proposed solutions, particularly by the lack of clarity in the document about the extent of the population affected. The Council agreed that people lacking capacity may be deprived of their liberty in both hospitals and care homes, but could not estimate how many numbers this would affect, a first order question which needed to be resolved.
The Council also addressed further points including the needs and wishes of the patients' carers, the distinction between public and privately funded deprivations of liberty, the responsibility of where the judicial review of detention lies and the feasibility of proposals for first-tier review and whether these would meet the requirements of Article 5 of ECHR.
The consultation response will be published on the Department of Health's website in due course.