Safeguarding the rights of patients who lack capacity in general hospitals. Do the Bournewood proposals for England and Wales help or hinder?

Abstract

The UK government has now published its intentions for England and Wales regarding the Bournewood judgement. This concerns the many people who lack the capacity to consent to admission to hospitals or care homes, and who are, in effect, prevented from leaving, even when they do not object to remaining. In 2005, the European Court of Human Rights held that this could constitute deprivation of liberty under Article 5 of the European Convention on Human Rights. Detention of ‘persons of unsound mind’ is permitted, but only when appropriate standards and right of appeal are in place. The government has not yet published draft legislation, but has indicated its intention to amend the Mental Capacity Act, 2005 [1]. This will require hospital and care home staff to identify, at the time of admission (or later if circumstances change), whether an individual lacks capacity, and assess if their liberty might be defined as deprived. The Mental Health Act (MHA), 1983, should be used if its criteria apply (suffering from treatable mental disorder, and a danger to himor hereself, or others) and the person objects to admission (or staying) [1]. Otherwise, the hospital must apply to a ‘supervisory body’ (Primary Care Trust or Local Authority in England or the National Assembly for Wales) for authorisation to accommodate the individual (arrangements for Scotland and Northern Ireland are not yet published). The supervisory body will obtain assessments of the person’s capacity and best interests, and will determine if detention is required to prevent harm, and is a proportionate response to the harm prevented. The hospital must reapply if circumstances change, and patients or relatives can appeal. In an emergency, the hospital can admit with immediate effect, but must apply for authorisation within 7 days. The impact of the Bournewood amendments on general hospitals is potentially substantial. Many people with delirium, dementia, severe aphasia, or in coma are admitted to hospital, but lack the capacity to consent to admission. Clinicians will understandably wish to ensure that patients do not leave hospital in advance of recovery or the setting up of appropriate community support. Currently, clinicians rely on lack of objection to allow implementation of sensible and pragmatic solutions to a patient’s problems. All may now require ‘authorisation’ to remain in hospital. Moreover, the provisions may apply in unexpected places. For example, all people sedated in an intensive care unit lack capacity and are not free to leave by definition. Applications for authorisation would be legally required for such patients, despite clear ‘common sense’ arguments to the contrary. The new provisions will increase the use of the MHA. The current MHA Code of Practice recommends avoiding it if an individual lacking capacity does not object to informal admission. The proposals require the use of the MHA when individuals ‘object or would object, if they were in a position to do so’ [1]. Managing patients detained under the MHA will be a new departure for general hospitals, and something previous judgements in the Bournewood case were at pains to avoid. It is far from obvious that this is desirable. The most significant safeguard of the MHA is the Review Tribunal, which is instigated by the patient. Ill in-patients lacking capacity are unlikely to do so. These people may end up with fewer protections than similar patients who did not object. The process itself will be demanding. Staff will have to assess the capacity, assess deprivation of liberty, document decisions, apply for authorisation, prepare documentation for the various assessments commissioned by the supervisory body, monitor patients’ status, and constantly reassess