Nine years on, the Bournewood gap remains as wide as ever

It is more than 18 months since a court ruling confirmed that tens of thousands of people with dementia, autism and learning difficulties may have been unlawfully detained in care homes and psychiatric hospitals.

The European Court of Human Rights’ decision in the case of HL, an autistic man treated without his consent at Bournewood Hospital, Surrey, left campaigners expecting the government to close the so-called Bournewood gap.

But nine years after HL’s carers challenged his detention in 1997, the gap remains open.

In March 2005, the Department of Health launched a consultation on how to protect patients who lack capacity who are detained in care homes and psychiatric units. Last month it wrote to interested parties with fresh proposals.

But these were strongly rejected by campaigners (news, page 6, 8 June), especially given the disparity they set up between people who lack capacity and those detained under the Mental Health Act 1983.

Under the proposals, councils, primary care trusts and, in Wales, the Welsh assembly government, would be able to authorise detention for up to a year in care homes or psychiatric hospitals, and renew this after a further assessment.

However, the act only allows detention for up to 28 days and then six months and patients have a right of appeal during these periods. Under the government plans, those lacking capacity would also have the right to appeal, but there are no defined timetables for hearings.

No one knows exactly how many non-compliant patients are being held against their will, but the government estimates it could be as many as 50,000 of those permanently admitted to care homes and 22,000 hospital in-patients.(1)

HL’s carers took his case to the High Court when the severely autistic man, then 49, was admitted to Bournewood after becoming distressed at a day centre.

The case was then considered by the Court of Appeal, which backed HL’s carers, but the House of Lords overturned that decision. The carers took the case to the European Court of Human Rights, which ruled in October 2004 that HL had been deprived of his right to liberty under article 5 of the human rights convention.

It also held that the common law doctrine of necessity used to detain HL was too arbitrary and lacked the safeguards provided to those sectioned under the Mental Health Act.

David Congdon, head of campaigns at learning difficulties charity Mencap, dismisses the DH’s proposal to withhold from those affected by Bournewood the appeal rights afforded to sectioned patients. “The decision is wrong. You still need the right to appeal early on,” he said.

Concern has also been raised over the department’s proposal to refer appeals to the Court of Protection as to whether a detention breaches a patient’s human rights, rather than use mental health review tribunals.

The Court of Protection is a set of courts, based in London, which deals with power of attorney cases for those who lack capacity.

Although the court is due to be extended and incorporated into the county court system as part of the Mental Capacity Act 2005, Congdon says the “jury is still out” over whether the courts have the capacity or knowledge to cope.

Sources in the Mental Health Alliance, a coalition of more than 70 organisations concerned with improving mental health law, are perturbed that the DH will not make use of the existing tribunal system.

“I don’t think it would take much to jam up the Court of Protection,” one alliance source says. “The government seems to assume that there isn’t much of a problem here, when clearly that is not the case.

“There will be a huge rise in the number of cases that will be heard by these courts. Judges used to hearing cases relating to powers of attorney will need extensive training. But the mental health review tribunal, which has considerable experience in dealing with matters of liberty, is already in place.”

The move by the DH to e-mail concerned parties and give them just a few days to respond marks a departure from government practice of holding three-month consultations, and was described as “very disappointing” by one alliance member.

The group has joined forces with a separate body, the Making Decisions Alliance, to lobby against the proposals. The MDA was formed in 2002 to campaign for better mental capacity law.

Many within both alliances are reluctant to go on the record about the issue. Some reported officials to be receptive to the concerns over the 12-month proposal for detention.

But some suggest the DH is less willing to budge over the role given to councils, PCTs and the Welsh assembly government in authorising detention in the first place.

Although campaigners are pleased to see that people will be able to be represented by an independent advocate in their dealings with authorising agencies, one leading charity believes these authorities may not be best placed to authorise deprivation of liberty. In a response to the DH, the charity said councils and PCTs might use the power to deal with challenging clients rather than seek alternatives.

Another concern, voiced by Paul Farmer, chief executive of mental health charity Mind, is the monitoring and inspection of treatment. He says this is vital to protect the rights of individuals and prevent misuse.

The Making Decisions Alliance is calling for a central role for social workers as well as medical practitioners, something it believes the current proposals fail to address. A source says: “As well as a medical assessment, there needs to be a holistic assessment, as is provided under the Mental Health Act. Approved social workers carry that out now, but the government has yet to clarify who will carry that out. It is the Making Decisions Alliance’s position that you can’t admit on a medical decision alone. You need to involve social workers.”

1. Department of Health, Bournewood Consultation, March 2005

Courtroom Dramas

July 1997 The carers of HL, an autistic man admitted to Bournewood Hospital, raise concern that he was detained against his will. They lose a High Court fight to release him.

December 1997 The Court of Appeal find in HL’s carers’ favour.

June 1998 The House of Lords find in favour of the hospital, now backed by the DH.

October 2004 The European Court of Human Rights rules against the DH.

March 2005 The DH launches a consultation on the Bournewood gap.

May 2006 Leaking of confidential DH plans to allow patients to be detained for up to a year.