Bournewood - Guidance on Implementation

Originally published January 2005

The European Court of Human Rights has recently overruled the decision of the House of Lords in the case of R v Bournewood Community and Mental Health Trust (in ReL) [1998] which ruled that a voluntary incapacitated patient had not been unlawfully detained, having been admitted and remaining in the hospital under the common law doctrine of "necessity".

The essence of the European Court's decision was that although the patient had not been confined to the Bournewood Hospital, the evidence was that had the patient attempted to leave the hospital premises he would have been detained. The court said that the healthcare professionals responsible for the patient had "exercised complete and effective control over his care and movements"; it was not credible to say that he was free to leave. He was de facto detained.

The treating doctors had defended the treatment of the patient on the basis that it was in the patient's "best interests" and thus justified under the common law doctrine of "necessity", to accommodate the patient in the hospital. The European Court held that detention under the common law was in breach of Article 5 of the European Convention on Human Rights (that has been incorporated into English law under the Human Rights Act 1998 since the Judgment of the House of Lords). Article 5 protects the individual's right to liberty and provides that where individuals are detained, e.g. the lawful detention of persons of unsound mind, that detention must accord with a procedure prescribed by law. The European Court pointed to the "arbitrary nature of the detention of Mr L" and specifically emphasised the lack of any "fixed procedural rules by which the admission and detention of compliant incapacitated patients was conducted". This lack of procedural safeguards was noted to be in marked contrast to the safeguards provided to detained patients under the Mental Health Act 1983 ("MHA").

The European Court hold that the Common Law lacked the following qualities essential for a law permitting detention if it is to comply with Article 5:

Formalised admission procedures indicating who could propose admission, for what reasons and the basis of what kind of medical and other assessment and conclusions;

The requirement to fix the exact purpose of admission (for example, for assessment or for treatment);

Limits in terms of time, treatment or care attached to the admission;

Specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention;

The nomination of a representative of a patient who could make objections and applications on his or her behalf and, by this, provide added...