The Bournewood Case

Abstract

Mental health law is governed by a complex interaction of statute and common law backed up by the European Convention of Human Rights.Yet there remains a lack of clarity about the use of the statute over common law where a person is unable to consent to admission but is not actively refusing to go to, and stay in, hospital. When should the Mental Health Act, with all its associated safeguards and checks and balances, be used in preference to common law, which provides no opportunities for review of detention? Will the Government’s review of the Mental Health Act 1983 provide further statutory safeguards for this group of patients? And to what extent will an individual’s detention give rise to a possible application under Article 5 of the Human Rights Act for deprivation of liberty? To address these questions, it is worth dwelling on the limitations of existing law and revisiting the implications of the landmark Bournewood case, in the light of renewed parliamentary and media attention brought about by Helen Clark MP’s Ten Minute Rule Bill. Criticism has been building of the Government’s lack of action to remedy what is now widely called ‘the Bournewood Gap’, also described by Lord Steyn, dissenting judge in the case, as ‘an indefensible gap in our mental health law’. The Patients Without Capacity (Safeguards Bill) represents an attempt by Helen Clark (Member of Parliament for Peterborough) to introduce legislation to amend the scope of the Mental Health Act and provide protection for persons with mental disorders unable to consent to being treated in hospital (R v Bournewood Community and Mental Health NHS Trust ex parte L (1998 All ER319). THE PROBLEM OF INFORMAL DETENTION