Lawyers set to test ‘Bournewood’ rules

Government plans to introduce safeguards for people who are detained in a hospital or care home but lack the capacity to object could be subject to legal challenges, a lawyers’ group has warned the government.

The Law Society, which represents solicitors in England and Wales, said proposals to close the so-called “Bournewood gap”, officially unveiled last week, would fail to comply with human rights laws.

The proposals, which were leaked to Community Care last month (news, page 6, 8 June), could lead to people being detained for up to one year.

In 2004, the European Court of Human Rights ruled that the five-month detention of HL, an autistic man who could not speak, at Bournewood psychiatric hospital in Surrey breached his human rights.

The court listed six factors needed to address the human rights breach, including fixed rules governing the admission and detention of incapacitated people.

But in a letter to the Department of Health, the society said the latest proposals failed to satisfy these standards.

Policy adviser Tim Spencer-Lane said: “Lawyers are going to be challenging this from day one.”

The society also raised concerns that, under the proposals, the care home or hospital where an incapacitated person is living would be left to decide whether they were being deprived of their liberty.

The new measures will be introduced into the Mental Capacity Act 2005 through a bill that will also amend the Mental Health Act 1983.