The European Court of Human Rights Overturns the House of Lords Decision on Bournewood

Originally published October 2004

The European Court of Human Rights has just published its judgment in the appeal from the decision of the House of Lords on Bournewood. The Court held that detaining an involuntary patient for treatment under the common law violated his rights under Article 5 of the European Convention on Human Rights.

Background facts

In 1998 the House of Lords ruled in R v Bournewood Community and Mental Health Trust (in re L) that patients who lack the capacity to agree, but do not object, to their admission to hospital for treatment may be admitted informally. The judgment was given before the Human Rights Act 1998 came into force.

The case concerned Mr L, a 40 year old autistic man who had been admitted to Bournewood hospital (a National Health Service Trust hospital), where he had been cared for for over 30 years. He was an inpatient at the hospital's Intensive Behavioural Unit and had been admitted to the hospital informally on the basis that he was "quite compliant" and had "not attempted to run away". He was later discharged on a trial basis to paid carers and then in 1995 began attending a day care center on a weekly basis.

On 22 July 1997, while at the day-centre, he became particularly agitated, hitting himself on the head with his fists and banging his head against the wall. Staff could not contact his carers, so called a local doctor, who gave him a sedative. The applicant remained agitated and, on the recommendation of his social worker, was taken to hospital. A consultant psychiatrist diagnosed him as requiring in-patient treatment. With the help of two nurses, he was transferred to the hospital's IBU as an "informal patient".

Dr M., the medical officer responsible for Mr L since 1977, considered detaining him compulsorily under the Mental Health Act 1983, but concluded that it was not necessary, as Mr L was compliant and had not resisted admission or tried to run away.

In or around September 1997 the applicant sought leave to apply for judicial review of the hospital's decision to admit him. The High Court rejected his application, finding that he had not been "detained" but had been informally admitted in accordance with the common law doctrine of necessity. The applicant appealed.

Following an indication from the Court of Appeal (on 29 October 1997) that the appeal would be decided in the applicant's favour, Mr L was admitted for treatment in the hospital as an involuntary patient under the 1983 Act.

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