Bournewood Patients; The Commons Law is not enough

The European Court of Human Rights (‘ECtHR’) recently gave judgment in HL v United Kingdom – the “Bournewood” case. 

The case concerned Mr L, a 49- year-old man with autism, who, it was agreed, lacked capacity.  For about three months in 1997, Mr L was an in-patient at Bournewood Hospital.  He was not detained under the Mental Health Act 1983 (‘MHA 1983’); rather, he was accommodated in his own ‘best interests’ under the common law doctrine of ‘necessity’.  Mr L brought legal proceedings against the managers of the hospital, claiming that he had been unlawfully detained. 

The High Court rejected the claim.  It held that he had not, in fact, been detained, and that any detention would have been in his best interests and so lawful under the common law doctrine of necessity.  However, the Court of Appeal disagreed.  It took the view that Mr L had been detained, and that such detention would only have been lawful under MHA 1983.  The House of Lords reversed this decision - it agreed with the High Court. 

In essence, the ECtHR has agreed with the Court of Appeal.  It found that Mr L was detained, so that the ‘right to liberty’ in Article 5 of the ECHR would be engaged.  Further, it held that detention under the common law was incompatible with Article 5 because it was too arbitrary and lacked sufficient safeguards (such as those available to patients detained under MHA 1983).    Finally, the ECtHR held that judicial review – which was the only way Mr L had been able to challenge his common law detention – did not provide the kind of rigorous challenge that was required by ECHR, Article 5(4). 

This is a significant judgment, largely because of the numbers of patients admitted to hospital in their best interests under the common law.  The ECtHR has said that in the case of those patients, the common law is not enough.  As yet, the government has not issued guidance on the implications of the judgment. However, those who provide in-patient services to incapable adults should consider very carefully the basis upon which they do so.  They may also need to consider detaining so-called ‘Bournewood patients’ under MHA 1983.  In the longer-term, the government will probably have to change the law so as to ensure that those patients receive the protection they deserve.

Adam Hartrick
Solicitor  
Hempsons Solicitors