The “Bournewood” Case

Bournewood Patients; The Commons Law is not
enough

The European Court of Human Rights (‘ECtHR’) recently
gave judgment in HL v United Kingdom – the
“Bournewood” case. 

The case concerned Mr L, a 49- year-old man with autism, who, it
was agreed, lacked capacity.  For about three months in 1997, Mr L
was an in-patient at Bournewood Hospital.  He was not detained
under the Mental Health Act 1983 (‘MHA 1983’); rather,
he was accommodated in his own ‘best interests’ under
the common law doctrine of ‘necessity’.  Mr L brought
legal proceedings against the managers of the hospital, claiming
that he had been unlawfully detained. 

The High Court rejected the claim.  It held that he had not, in
fact, been detained, and that any detention would have been in his
best interests and so lawful under the common law doctrine of
necessity.  However, the Court of Appeal disagreed.  It took the
view that Mr L had been detained, and that such detention would
only have been lawful under MHA 1983.  The House of Lords reversed
this decision – it agreed with the High Court. 

In essence, the ECtHR has agreed with the Court of Appeal.  It
found that Mr L was detained, so that the ‘right to
liberty’ in Article 5 of the ECHR would be engaged.  Further,
it held that detention under the common law was incompatible with
Article 5 because it was too arbitrary and lacked sufficient
safeguards (such as those available to patients detained under MHA
1983).    Finally, the ECtHR held that judicial review –
which was the only way Mr L had been able to challenge his common
law detention – did not provide the kind of rigorous
challenge that was required by ECHR, Article 5(4). 

This is a significant judgment, largely because of the numbers of
patients admitted to hospital in their best interests under the
common law.  The ECtHR has said that in the case of those patients,
the common law is not enough.  As yet, the government has not
issued guidance on the implications of the judgment. However, those
who provide in-patient services to incapable adults should consider
very carefully the basis upon which they do so.  They may also need
to consider detaining so-called ‘Bournewood patients’
under MHA 1983.  In the longer-term, the government will probably
have to change the law so as to ensure that those patients receive
the protection they deserve.

Adam Hartrick
Solicitor  
Hempsons Solicitors