Bournewood: Law and capacity

Abstract

The Law Lords in June 1998 overturned the judgement in the matter of L. v. Bournewood. The Law Lords, on a majority decision, were of the opinion that a compliant incapacitated patient such as L. does not need the formal powers of the Mental Health Act and admission to hospital and subsequent assessment and treatment for mental disorder can be based on the common law principles of necessity. However, this position is quite contrary to the Appeal Court judges' view, “The right of a hospital to detain a patient for treatment for mental disorder is to be found in, and only in, the 1983 Act, whose provisions apply to the exclusion of the common law principle of necessity” (L. v. Bournewood Community Mental Health Trust, 1997).