No right in rushed plan

Our exclusive story this week on developments following the landmark Bournewood case raises some fundamental human rights issues. Under new government proposals people who lack the capacity to consent to hospital treatment could be locked away for a year or more without adequate access to redress.

Two years ago the European Court of Human Rights finally ruled that HL, a man with severe learning difficulties, was wrongly detained at the former Bournewood psychiatric hospital.

The issue at the heart of the case was how to protect the rights of people who lack the capacity to consent to treatment in an institution.

Now the government has come up with new proposals aimed at closing the “Bournewood Gap”. But instead of consulting on them properly and seeking a wide range of views the Department of Health has asked for comments from a handful of organisations and given them just a matter of days to respond. True, with the demise of the draft Mental Health Bill, officials have probably realised they need to do something to be seen to be addressing concerns raised by the European Court. But that doesn’t justify cobbling some plans together and trying to rush them through in a bid to bypass critics.

It’s all very well for the government to say anyone who wishes to challenge their detention can go to the Court of Protection. That is a very bureaucratic process and the court’s main expertise is financial matters not human rights.

And where will the trained advocates come from to help people navigate the murky legal waters? Needless to say, HL’s carers, Graham and Wendy Enderby, who have devoted years to fighting an unjust system on his behalf, knew nothing of these new proposals. After such a long battle, and when the European ruling gave them hope that their struggle has not been in vain, it must be a bitter disappointment to discover the government’s intentions.

Far from closing the Bournewood Gap these new proposals open up an even wider chasm when it comes to protecting the human rights of some of society’s most vulnerable members.