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The Bournewood case concerns the question as to whether an adult ("L") who lacked capacity was lawfully detained if he did not object to staying on a hospital ward, but would be prevented from leaving if he did object.

In the House of Lords in 1999 the court held, by a majority, that his detention was justified by the principle of necessity. The case on article 3 (right to freedom from degrading or inhuman treatment), and article 5 (right to liberty) is pending in the European Court of Human Rights.

In the meantime, the health service commissioner has considered certain aspects of the case in investigation report No E. 2280/98-99. The complainants were the paid carers of the adult and complained about the decision to admit him, and the failure to discharge him earlier back into their care. In fact he was detained in hospital for the next four months.

The commissioner found that although admitting L was probably unavoidable because of his behavioural difficulties, consideration should have been given to discharging him within 24 hours. The process of assessment in hospital was too long, and there were no compelling reasons preventing him from returning home. The commissioner found that any further assessment could have taken place in the community, but found no malice or irresponsibility on behalf of the clinical staff.

He found that the atmosphere of mistrust that built up between the clinical staff and L's carers had an adverse effect on L's management and delayed his discharge.

The key recommendation by the commissioner was that admissions should be time-limited and that adequate resources should be made available to enable multi-disciplinary assessments to be carried out in a person's home if possible.

Comment: It is very likely that the commissioner's findings will be used in support of the case in the European court.

Stephen Cragg

Doughty Street Chambers