Update on the Bournewood case

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