Ombudsman criticises detention in Bournewood case

An NHS trust should not have detained a man with a severe
learning difficulty for four months, according to a report by the
health service ombudsman, writes Jonathan
Pearce.

The man ‘L’ – who cannot be named for legal reasons
– was detained in hospital in July 1997 by staff at
Bournewood Community and Mental Health NHS Trust following an
incident at a day centre where he was receiving care.

The day centre staff were unable to contact L’s carers
– Mr and Mrs E – and were unable to contain the
situation, leading to a general practitioner unsuccessfully trying
to calm L down with medication before referring him to the local
hospital where he was seen by a psychiatrist.

The psychiatrist could not tell whether L had a psychiatric
condition or a behavioural problem, and so decided to admit him for
a period of observation. He did not leave care for another four
months, during which time his case was the subject of high profile
litigation over the legality of his detention.

While in Bournewood’s care, the court of appeal ruled that
L’s informal admission to hospital was unlawful, even though
he was incapable of agreeing to or refusing treatment. But in 1998
the House of Lords overturned the decision, thus ending the
situation where people with conditions such as Alzheimer’s
disease, dementia or learning difficulties would have to be
sectioned under the Mental Health Act before being admitted to care
for short periods of treatment.

The trust sectioned L after the court of appeal ruling, before
releasing him in December 1997 with a care plan and monitoring
arrangements.

But the ombudsman’s report – which was only
concerned with whether the trust acted reasonably in connection
with the clinical aspects of L’s case – supports the
findings of the court of appeal rather than the House of Lords.

The ombudsman agreed with Mr and Mrs E’s complaint of
inadequate clinical management, but disagreed that L’s
initial admission had been unreasonable.

“Even if it was felt to keep him overnight, it is difficult to
see why he was not discharged the next day. Any further assessment
could have been conducted in the community,” says the report.

“I find it unsatisfactory, especially given the background and
nature of the incident in question, that L was not discharged back
into Mr and Mrs E’s care for another four months,” it
continues.

The ombudsman has recommended that Bournewood implement
independent assessors’ recommendations that admissions to the
intensive behavioural unit should be strictly time-limited, and
that adequate resources should be available for multi-disciplinary
assessments to be carried out in people’s homes.