Feature

posted 9 Dec 2004 in Volume 10 Issue 1

The Bournewood gap: The conclusion

The judgement has been heard and now published by the European Court of Human Rights in respect of the Bournewood case1, which has a major impact on the detention of compliant but mentally incapable individuals for the purposes of receiving mental-heath assessments and treatment. CAROLINE BIELANSKA reports.

The facts

The applicant, L, suffered from autism since birth, was unable to speak, and his level of understanding was limited. He frequently became agitated and had a history of self-harming behaviour. He also lacked the mental capacity to consent or object to medical treatment. For over 30 years he was cared for in Bournewood Hospital, and from about 1987 was an in-patient at the hospital’s intensive behavioural unit (IBU).

Between March 1994 and 22 July 1997, L successfully lived with Mr and Mrs E, who were paid carers. He was not formally discharged by the hospital, which remained responsible for his care and treatment. He attended a day-care centre on a weekly basis and it is was while at the centre on 22 July that he became particularly agitated, hyperventilating, pacing up and down, hitting himself on the head with his fists and banging his head against the wall. Unsuccessful efforts were made to get in touch with his carers and eventually, the staff contacted a local doctor. Despite being given a sedative, L remained agitated and, on the recommendation of the local-authority care services manager with overall responsibility for him, he was taken to the accident and emergency unit at Bournewood Hospital. L remained agitated and anxious.

He was assessed and considered by Dr P to need admission as an in-patient for treatment in his best interests. L was transferred to the IBU, on an unlocked ward in the IBU and made no attempt to leave. Nurses were instructed to keep him under continuous observation.

L’s responsible medical officer was Dr M (consultant psychiatrist) who considered sectioning L for assessment and treatment under the Mental Health Act 1983 (the 1983 Act) but she felt it to be unnecessary as he was compliant, did not resist admission or make any attempt to leave. As such, he was admitted as an ‘informal patient’ under Section 131 of the 1983 Act. The psychiatrist vetoed visits by Mr and Mrs E to ensure that L did not try to leave with them. The psychiatrist told the carers that L would be released only when she and other health-care professionals, deemed it appropriate.

In September 1997, L’s cousin (as his next friend) commenced judicial review of the decision to detain him for a writ of habeas corpus and damages for false imprisonment and assault. Following the Court of Appeal hearing in his favour on 29 October 1997, L was detained in the hospital initially under Section 5(2) (72-hour detention) and subsequently on 31 October 1997, for treatment under Section 3 of the 1983 Act.

Mr and Mrs E visited L (for the first time since July) on 2 November 1997. Two days later, his legal representatives applied for a review of his detention by a Mental Health Review Tribunal.

An independent psychiatrist report was prepared jointly by a consultant psychiatrist and a registrar in the psychiatry of learning disability, which recommended L’s discharge because they were of the opinion that his mental disorder was “currently neither of a nature or degree to warrant continued detention in hospital, nor is it necessary for his health or safety or for the protection of others”.

Following a multidisciplinary team meeting, L was released on 5 December 1997 on a leave of absence (under Section 17 of the 1983 Act) to the care of Mr and Mrs E, as he had settled enough to be managed at home. L was formally discharged to his carers on 12 December 1997.

The House of Lords decision

A patient can be detained in hospital for assessment under Section 2 and/or treatment under Section 3 of the 1983 Act, without the patient’s consent (irrespective of their capacity to do so).

It is common for the individual to be assessed initially under Section 2 and subsequently sectioned under Section 3 for treatment. The person must be suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder must be of a nature or degree which makes it appropriate for him to be admitted to hospital for an assessment and/or receive medical treatment in hospital. It must also be established that it is necessary for the health or safety of the patient, or for the protection of other persons, that he should be assessed and/or receive treatment, which cannot be provided unless statutorily detained. In the case of psychopathic disorder or mental impairment, the treatment must also be likely to alleviate or prevent a deterioration of his condition. A strict procedure has to be met for sectioning to take place (emergency admissions apart).

The 1983 Act contains provisions that allow the patient or his or her nearest relative to challenge and appeal to the Mental Health Review Tribunal the decision made by the doctors, which provides a safeguard against misjudgements and professional lapses. Furthermore, a former Section 3 detainee has access to aftercare services under Section 117 provided free from means-testing of the individual².

Due to the stigma attached to sectioning, there is provision for informal admission to hospital for treatment and care under Section 131(1) of the 1983 Act. The majority of mental-health patients are admitted as informal patients. Section 13¹ provides: “(1) Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or mental nursing home in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or mental nursing home in pursuance of such arrangements after he has ceased to be so liable to be detained.”

Section 131 is silent on whether the individual has to have mental capacity to consent to being an informal patient. But, the House of Lords held that such treatment and care could be justified on the basis of the common law doctrine of necessity, which could be applied where the patient does not have the capacity to consent³. The function of the common law doctrine of necessity justifies actions, which might otherwise be tortuous (such as false imprisonment), with the effect of providing a defence. Informal admission does not detail who can propose admission, for what reasons, or for what type of medical and other assessments and treatments, with no limit as to time, treatment or care attached to that admission. Nor is there any specific provision requiring continuous clinical assessment of the persistence of a disorder warranting detention.

In contrast, for those who have been compulsorily detained under the 1983 Act, the patient’s nominated representative can make objections and applications on his or her behalf, which is, in effect, a procedural protection. Such protection is of equal importance for legally incapacitated patients, who have the inability to consent or object to assessment and/or treatment. The effect of the House of Lords’ judgment was to leave compliant incapacitated patients who may be diagnostically indistinguishable from compulsory patients, without the safeguards contained in the 1983 Act. This created what is often referred to as ‘the Bournewood gap’.

Complaint made to the Health Services Commissioner

In March 2000, Mr and Mrs E complained to the ombudsman that the clinical decision to admit the applicant on 22 July 1997 was unreasonable and that the clinical management of his admission was inadequate. The ombudsman concluded that admission to the IBU was “probably unavoidable”. However, serious consideration should have been given to sending the applicant home on the day Mr and Mrs E had been located or, at least, the following day. Furthermore, the process of assessment of the applicant had been too long and resources should have been available to speed up that process.

The human rights issues

L complained to the European Court of Human Rights (ECHR) that his human rights had been violated during the time he was an informal patient in the hospital, which amounted to a “deprivation of liberty” within the meaning of Article 5(1) of the Convention, which provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:.. (e) the lawful detention ... of persons of unsound mind…”

L asserted that his detention was neither “in accordance with a procedure prescribed by law” nor “lawful” because: (i) he was not of unsound mind; (ii) the doctrine of necessity did not reflect the criteria for a valid detention under Article 5 (1)(e) and lacked precision; and (iii) there were insufficient safeguards against arbitrary detention on the grounds of necessity.

L further complained that the procedures available to him as an informal patient for the review of the legality of his detention (judicial review combined with a writ of habeas corpus) did not comply with the requirements of Article 5(4) of the Convention, which states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

In addition, relying on Article 14 (prohibition of discrimination), L alleged that he was discriminated against as an “informal patient”.

The ECHR findings

1. L was "deprived of his liberty” within the meaning of Article 5(1) of the Convention between 22 July 1997 and 29 October 1997

The House of Lords had considered detention from the point of view of the tort of false imprisonment rather than the Convention concept of "deprivation of liberty". The criteria for assessing UK and Convention issues are different. The distinction between a deprivation of, and restriction upon, liberty is one of degree or intensity and not one of nature or substance⁴. Deprivation of liberty is determined by considering the type of deprivation (such as being detained in hospital), the duration, its effects (such as a decline in mental health), and the manner the detention is implemented.

The House of Lords held that one has to specifically distinguish between actual restraint (which would amount to false imprisonment) and restraint, which was conditional upon one seeking to leave (which would not constitute false imprisonment). The court said that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that a legally incapable, but compliant, person may have given himself up to be taken into detention.

Dr M and the other relevant healthcare professionals exercised strict continuous control over L’s assessment, treatment, contacts, movement and residence. He would only be released from the hospital to the care of Mr and Mrs E as and when those professionals considered it appropriate.

It does not matter that the ward was locked or lockable⁵. The fact that the hospital had to rely on the doctrine of necessity and, subsequently, on the involuntary detention provisions of the 1983 Act demonstrated that the hospital did not have legal authority to act on L's behalf.

2. The absence of procedural safeguards failed to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, there had been a violation of Article 5(1) of the Convention.

Medical evidence showed L to have been suffering from a mental disorder of a kind or degree warranting both the initial detainment and compulsory confinement, which persisted between 22 July and 5 December 1997.

The UK legal basis for L’s detention between 22 July and 29 October 1997 was the common law doctrine of necessity. That is: (i) there must be a necessity to act when it is not practicable to communicate with the assisted person; and (ii) that the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person (the test of what is in someone’s best interest was still being developed at the time.) An individual cannot be deprived of his liberty on the basis of unsoundness of mind unless the following three minimum conditions are satisfied: (i) he must reliably be shown to be of unsound mind; (ii) the mental disorder must be of a kind or degree warranting compulsory confinement; (iii) and the mental disorder must continue throughout the period of confinement for the detention to be valid⁶. For the detention to be lawful however, it should not be arbitrarily applied.

There is a lack of any fixed procedural rules and limits by which the admission and detention of compliant, incapacitated persons is conducted, which is in contrast to committals covered by the 1983 Act. The healthcare professionals had assumed full control of L’s liberty and treatment based on their own clinical judgment. Although they were acting in good faith and did what they thought was in L’s best interest, there was no safeguard for L against a bad decision.

3. There was a violation of Article 5(4) as there was no available procedure to review the lawfulness of L’s detention by a court.

In the case of X v the United Kingdom judgement⁷, the court found that the review conducted in habeas corpus proceedings was inadequate for the purposes of Article 5(4). It did not provide a resolution to cases where there were disputed facts, and did not allow a determination of the merits whether the mental disorder persisted. Equally, reviewing the lawfulness of detention by the ‘super Wednesbury’ principles on judicial review, the bar of unreasonableness would at the time of the UK proceedings have been placed so high that it effectively excludes adequate examination of the clinical views as to the persistence of mental illness justifying detention⁸. Judicial review does not allow the court to substitute its own decision for that of the medics, and so calling and cross-examining medical experts does not occur.

4. The complaint that L was discriminated against as an informal patient, did not give rise to any separate issue not already examined under Article 5(1) & (4).

5. The violations constituted sufficient just satisfaction for non-pecuniary damage sustained by L, his costs and expenses (inclusive of VAT) with interest to be paid.

The implications

In the future (or at least until the Mental Capacity Bill becomes law and is in force), doctors will have to consider whether mentally incapacitated people, who are admitted to hospital without being compulsorily sectioned and admitted under the common law of necessity, are being ‘detained’. Detention is not simply about whether mentally incapacitated people are in a locked ward but will be determined by a careful appraisal of the facts and circumstances. If they are detained, then they will need to be sectioned, otherwise there will have been a breach of the Convention and the Human Rights Act 1998.

The Mental Health Act Commission undertook a survey after the Court of Appeal judgment in 1998 of all National Health Service (NHS) Trust hospitals (and registered nursing homes). Sixty-two per cent responded that there were 22,000 informally detained patients resident on any one day and that these lead to 48,000 additional compulsory admissions each year. Whether this figure is accurate, only time will tell. However, because of the risk of claims, the number of cases of individuals being sectioned under the 1983 Act must increase and with it, the cost implications.

For those who have been unlawfully detained, as in L’s case, damages can be sought for a breach of human rights. However, given that this affects some of the most vulnerable people in our society, it may be that the government is not too concerned as such people are often not mentally in a position to challenge their situation. And what of those who are ‘detained’ in care homes, where they are prevented from leaving? It would appear that they too could claim damages.

The House of Lords’ judgement on 25 June 1998 created a hole in Mental Health Law, part of which the former draft of the Mental Health Bill sought to address.

The changes were dropped, however, when the new draft of the Mental Capacity Bill was introduced to parliament. The government is of the view that Bournewood cases will be covered by the wide powers of the new Court of Protection, which will be able to make decisions relating to the medical welfare of the individual and the availability of the independent consultees.

It is doubtful whether the Mental Capacity Bill will provide the solution, particularly as it is not planned to be brought into force until spring 2007, at the earliest.

The bill allows the Court of Protection to determine questions of where the incapacitated individual must live as well as medical treatment that person should or should not receive. The role of the independent consultees are limited to situations when doctors are proposing “to provide serious medical treatment” (term to be defined in later regulations), or when the NHS or social services intends to provide a change of accommodation and the individual is unbefriended. If the individual has someone, whether they have been appointed or nominated by the donor himself or the Court of Protection, even if the authority is limited to finances, then the independent consultee cannot act. Unlike appeals to the Mental Health Review Tribunals, no legal aid is planned and many families may be put off from funding a case, particularly for those who have limited assets. It is unclear how emergency applications will be dealt with and there may be delays in bringing any matter to court. During this time, the individual may need decisions to be made without agreement of what is in the patient’s best interest.

Although the bill has power for the court to request reports, there are no safeguards, which currently exist in the 1982 Act for second clinical opinions sought in the event of the planned use of specified serious treatment, such as electro convulsive therapy. The Court of Protection will wherever possible make single orders. The process does not allow for the monitoring of care and treatment in hospital or when planning discharge and future care. Clearly, the time is now ripe for the Bournewood gap to finally be closed, but the Mental Capacity Bill will only achieve this in part.

References:

R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] AC 458.
R v Redcar & Cleveland BC ex parte Armstrong: R v Manchester City Council ex parte Stennett R: Harrow London BC ex parte Cobham. House of Lords 25.7.02. See www.publications.parliament.uk for transcript
Re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1.
Guzzardi v Italy (judgment of 6 November 1980).
Ashingdane v the United Kingdom (judgment of 28 May 1985).
Winterwerp v The Netherlands (judgment of 24 October 1979); Luberti v Italy (judgment of 23 February 1984), Johnson v the United Kingdom (judgment of 24 October 1997), and Hutchison Reid v the United Kingdom (ECHR 2003 IV).
Judgement of 5 November 1981.
R (Wilkinson) v RMO Broadmoor Hospital [2001] EWCA Civ 1545.

Caroline Bielanska, solicitor, TEP, lecturer, freelance consultant, and co-chair of Solicitors for the Elderly, can be contacted at: caroline.bielanska@ntlworld.com