Behind the headlines

Our regular panel comments on a topic in the

L is a man with severe learning difficulties,
who cannot be named for legal reasons. When he was informally
detained in hospital by Bournewood Community and Mental Health NHS
Trust in 1997, following an incident at a day centre, his case
became the subject of high-profile litigation. He was sectioned
after the appeal court ruled his detention was unlawful, but was
not released back to his carers for four months. The case
highlighted a grey area of both the law and the care and treatment
of people with conditions such as Alzheimer’s disease, dementia or
learning difficulties. The House of Lords overturned the appeal
court decision, but the Health Service Ombudsman has reported that
Bournewood should not have detained L – although the ombudsman was
considering only the clinical aspects of his care and not the
legality of the detention. L’s case is going to the European Court
of Human Rights, but the report has added confusion to the
treatment of a vulnerable group of people who depend on health and
social care services for their well-being.

Julia Ross, social services director
and primary care trust chief executive, London Borough of Barking
and Dagenham

“On this occasion I’m responding as chairperson of Maca (Mental
After Care Association), as well as director of social services.
Maca feels the danger is that this situation can arise again.
However, if the government would give greater priority to its
commitment on general capacity legislation (as evidenced in its
policy statement Making Decisions, October 1999) the whole
situation could be avoided in future. This would also obviate the
need for mental health legislation, as it could be subsumed under a
capacity act.”

Karen Warwick, senior practitioner,

“My initial reaction is that the House of Lords’ decision was made
through ignorance and insufficient knowledge of people living with
severe learning difficulties. By ruling that L’s detainment was
lawful, I feel that the Lords echoed the views of those who believe
disabled people have less rights, and the management of their
disabilities via incarceration is the easiest option. Ironically, a
community-based assessment would have been less of a drain on
resources and would have assisted in upholding L’s rights.”

Martin Green, chief executive, Counsel
and Care for the Elderly

“The different decisions handed down in this case underline the
complexities of delivering services to very vulnerable people. If
the courts and the ombudsman, who have studied the case over many
months – with the benefit of hindsight and without the pressures or
responsibilities of delivering a service – cannot agree, it is not
surprising that practitioners find it difficult to balance rights
and risks. It would be interesting to know the costs of this
process and compare them with the costs of providing the

Bob Hudson, principal research fellow,
Nuffield Institute for Health, University of Leeds
“The Stephen Downing case has shown that the criminal
justice system does not extend the principle of citizenship to
people with learning difficulties. Now the ombudsman’s report in
L’s case confirms the continued influence of a medical model of
care in the NHS in relation to learning difficulty, and raises
questions about the appropriateness of specialist care trusts. Is
it not yet understood that citizenship is an inclusive concept,
which cannot have lines drawn between full and second-class

Bill Badham, programme manager,
Children’s Society
“I welcome the ombudsman’s decision. It promotes justice
and humanity. You need both together. Either on their own can lead
to abuse of power: more sectioning to cover your back with
increased distress to patients and carers; or “we know what’s best
for you” approaches, leading to extended detention without due
process. Respect individuals’ human rights to liberty and a fair
hearing. Get in place systems that assess people fairly and

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