R v Bournewood Community and Mental Health NHS Trust [1997]
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R v Bournewood Community and Mental Health NHS Trust [1997] EWCA Civ 2879 involved the admission of HL, an adult with profound learning disabilities and autism, to a psychiatric hospital without his capable consent. Despite his compliance due to sedation, the European Court of Human Rights (ECtHR) later ruled that HL had been unlawfully deprived of his liberty under Article 5 of the European Convention on Human Rights.
HL, an autistic male adult with profound learning difficulties who had lived in Bournewood Hospital for over thirty years, was discharged into the community in 1994 and placed with foster carers. On July 22, 1997, he became agitated and was admitted to Bournewood Hospital under sedation. While HL did not attempt to leave, his carers were prevented from visiting him. Dissatisfied with the situation, Mr and Mrs E, his foster carers, sought judicial review and a writ of Habeas Corpus Ad Subjiciendum to secure HL's discharge.
In the High Court, it was considered whether HL had been unlawfully detained under common law. The judge emphasised that there would be no restraint until HL attempted to leave and the respondent took action to prevent it. However, the Court of Appeal disagreed, stating that HL should have been detained under the Mental Health Act 1983, as the common law applied only in situations not covered by statute.
The House of Lords, in a majority verdict, concluded that HL had not been detained under the common law tort of false imprisonment because there must be actual, not just potential, restraint. This decision raised concerns about the potential impact on tens of thousands of patients if the ruling of the Court of Appeal were upheld. The House of Lords also asserted that even if HL had been found to be detained, it would have been justified under the common law doctrine of necessity.
The ECtHR, however, concurred with Lord Steyn that HL had indeed been detained. The Court found that the distinction between actual and potential restraint, as emphasised by the House of Lords, was not of central importance under the European Convention on Human Rights (ECHR). Moreover, the common law doctrine of necessity did not provide sufficient safeguards for informal detention, rendering it inconsistent with the ECHR.
In response to the ECtHR's ruling, the UK government initiated a consultation about the potential consequences, leading to the amendment of the Mental Capacity Act 2005. The amended Act included the deprivation of liberty safeguards to address the concerns raised by the Bournewood judgment. These safeguards, aimed at protecting compliant but incapacitated adults in care homes and hospitals, came into force in April 2009. However, their implementation has faced criticism and challenges from various quarters.
HL, an autistic male adult with profound learning difficulties who had lived in Bournewood Hospital for over thirty years, was discharged into the community in 1994 and placed with foster carers. On July 22, 1997, he became agitated and was admitted to Bournewood Hospital under sedation. While HL did not attempt to leave, his carers were prevented from visiting him. Dissatisfied with the situation, Mr and Mrs E, his foster carers, sought judicial review and a writ of Habeas Corpus Ad Subjiciendum to secure HL's discharge.
In the High Court, it was considered whether HL had been unlawfully detained under common law. The judge emphasised that there would be no restraint until HL attempted to leave and the respondent took action to prevent it. However, the Court of Appeal disagreed, stating that HL should have been detained under the Mental Health Act 1983, as the common law applied only in situations not covered by statute.
The House of Lords, in a majority verdict, concluded that HL had not been detained under the common law tort of false imprisonment because there must be actual, not just potential, restraint. This decision raised concerns about the potential impact on tens of thousands of patients if the ruling of the Court of Appeal were upheld. The House of Lords also asserted that even if HL had been found to be detained, it would have been justified under the common law doctrine of necessity.
The ECtHR, however, concurred with Lord Steyn that HL had indeed been detained. The Court found that the distinction between actual and potential restraint, as emphasised by the House of Lords, was not of central importance under the European Convention on Human Rights (ECHR). Moreover, the common law doctrine of necessity did not provide sufficient safeguards for informal detention, rendering it inconsistent with the ECHR.
In response to the ECtHR's ruling, the UK government initiated a consultation about the potential consequences, leading to the amendment of the Mental Capacity Act 2005. The amended Act included the deprivation of liberty safeguards to address the concerns raised by the Bournewood judgment. These safeguards, aimed at protecting compliant but incapacitated adults in care homes and hospitals, came into force in April 2009. However, their implementation has faced criticism and challenges from various quarters.
