by Allan Norman
It is more than a decade now since the application for judicial review on behalf of HL, of Bournewood Hospital in Surrey began the sequence of litigation that eventually became the seminal ruling of the European Court of Human Rights, which overturned the judgements of every court in this country and held the informal arrangements for holding and treating certain people lacking capacity to consent or object contravened their human rights.
On 13th December 2007, the government published the timetable by which it proposes to bring into force the provisions of the Mental Health Act 2007, some of which are its answer to the European Court’s ruling. Should it be any surprise that the “Bournewood Gap” provisions, those which are intended to restore human rights to this vulnerable group, are among the very last to be brought into force – with the key provisions coming into force in more than a year’s time in April 2009.
Quietly in the background, the High Court has been re-discovering its powers to step in and make Orders in the best interests of vulnerable adults. It is a fascinating branch of the law, sometime termed the “inherent jurisdiction”, a title that reflects the fact that the court’s powers in this area do not come from any Act of Parliament, but from the ancient principle that the monarch, through the Courts, can make such Orders as are in the best interests of his or her subjects – hence sometimes alternatively coined the “best interests” jurisdiction.
Years before the European Court gave its ruling, judges exercising this “best interests jurisdiction observed that “the court itself can do much to close the so-called Bournewood gap in the protection of those without capacity”; after the European Court ruling, they commented that “proper compliance with section 6 of the Human Rights Act 1998 requires the judges to mould and adapt the inherent jurisdiction so that it is compatible [with human rights post-Bournewood]”, see PS (an adult) , Re [2007] EWHC 623 (Fam) (09 March 2007).
In effect, the courts have been maneuvering to give themselves the powers to protect people lacking capacity to consent to or object to their detention, that Parliament has been taking so long to sort out. Who knows, by April 2009 we may be wondering whether there is any need for these provisions in the Mental Health Act; and if people can’t wait that long, they may find that best interests beats human rights!
Allan Norman is Principal Social Worker & Solicitor at Celtic Knot, an independent law firm and social work practice.
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