Making Sense of Bournewood
Robert Robinson(1) and Lucy Scott-Moncrieff(2)
Introduction
The judgment of the European Court of Human Rights (ECtHR) in HL v UK(3) has been understood by some commentators as making it unlawful, without the use of formal legal powers,to give treatment in a psychiatric hospital to a person who lacks capacity to consent and over whom the mental health professionals directly involved are exercising complete and effective control.This understanding follows from a reading of the judgment which equates complete and effective control with deprivation of liberty for the purposes of Article 5 of European Convention on Human Rights (ECHR). If this interpretation is correct, the same principle would apply to people living in nursing homes who require a high level of care and supervision and who lack capacity. While the former could be formally detained in hospital (or a ‘registered establishment’)(4) under theMental Health Act 1983 (MHA), the Act’s detention powers do not extend to other care settings.
This article suggests that to understand the ECtHR’s judgment in HL v UK it is necessary to take account of the unusual facts of the case. It is suggested that it does not follow from the judgmentthat the admission of a compliant incapacitated patient will necessarily deprive that person of liberty for the purpose ofArticle 5. The Government’s initial responses(5) to the judgment fails to distinguish admissions which do engage Article 5 from those which do not. It is suggested that the Government should provide guidance to assist mental health professionals and others to make this distinction in individual cases.
Footnotes:
(1) Solicitor, Scott-Moncrieff, Harbour and Sinclair(London), solicitor for HL
(2) Partner, Scott-Moncrieff, Harbour and Sinclair (London)
(3) HL v The United Kingdom (Application no.45508/99). Judgment 5th October 2004
(4) s.34(2) MHA 1983
(5) Ms R Winterton, Minister, Department of Health to the Standing Committee on the Mental Capacity Billon 28 October 2004; Department of Health Advice –10 December 2004
Price: £3.00
<< Back to previous page
