Skip to main content

European Court of Human Rights (Bournewood Judgment)

Volume 448: debated on Thursday 29 June 2006

I should like to set out the Government's proposals for ensuring that the law for England and Wales on the treatment and care of people suffering from a disorder or disability of mind, who lack capacity and who need to be deprived of liberty, is compliant with the European convention on human rights. Our proposals will strengthen the rights of patients and those in care, as well as ensuring compliance with the European convention on human rights (ECHR).

People who suffer from a disorder or disability of the mind—such as dementia or autism—and who lack the mental capacity to consent should be cared for in the least restrictive regime possible. In some cases, members of this vulnerable group need to be deprived of their liberty for treatment or care because this is necessary in their best interests in order to protect them from harm.

The proposals are in response to the 2004 European Court of Human Rights judgment involving an autistic man who lacked the capacity to consent and who was kept at Bournewood hospital by doctors against the wishes of his carers. The court found that he had been deprived of his liberty unlawfully, and the Department of Health committed to introducing new legislation to close the “Bournewood gap”.

In order to inform our response I published a consultation document in March last year that invited comments on options for closing the “Bournewood” gap. I am grateful to all those individuals and organisations who responded. Those who commented on the document were broadly in favour of the Government's proposals.

I am today publishing a report on the outcome of the public consultation and a copy has been placed in the Library.

People likely to be affected by the Bournewood proposals are mainly those with significant learning disabilities, or elderly people suffering from dementia, but include a minority of others who have suffered for example a brain injury. The proposals will apply to those in hospitals or care homes, whether placed under public or private arrangements.

Key features of our proposals are:

hospitals and care homes will have a duty to identify anyone at risk of deprivation of liberty and, if they do not consider that a less restrictive regime is possible, request an authorisation from the supervisory body;

the supervisory body would be the local authority in the case of a care home or, in the case of a hospital, the PCT or in Wales the National Assembly for Wales;

it will be unlawful for a hospital or care home to deprive a person of liberty without obtaining an authorisation;

all involved must act in the best interests of the person concerned and in the least restrictive manner;

the supervisory body will commission assessments including an independent “best interests” assessment which will look at whether the deprivation of liberty is necessary in the person’s best interests;

the best interests assessor, for example a social worker, will set the period for review in each case. This must not be longer than 12 months but we expect it to be shorter in many cases;

family, friends and carers will be consulted as part of the best interests assessment and, if a person is unbefriended, an Independent Mental Capacity Advocate appointed;

the supervisory body will only grant an authorisation if all the assessments recommend it;

authorisation should be obtained in advance, except in circumstances where it is thought to be urgent, in which case authorisation should be obtained within seven days of the start of the deprivation of liberty;

every person detained will have someone appointed to represent their interests who is independent of the supervisory body and the hospital or care home. This may be a family member, a friend or an advocate;

managers of the hospital or care home will have a duty to monitor the person’s circumstances because a change may require them to apply to the supervisory body for the authorisation to be reviewed;

a review can also be triggered at any time by the person concerned or their representative;

it will be easier to challenge deprivation of liberty. The person concerned or their representative, will have right of appeal at any time to the Court of Protection;

if mental health legislation could be used instead, the new procedure will not be able to be used to admit or keep people in hospital for treatment for mental disorder if it is reasonably believed that the person concerned objects to detention for the purposes of such treatment or would object if they were in a position to do so.

We believe that these proposals will ensure compliance with the European convention on human rights and strengthen the safeguards for those who lack capacity. Society is judged on how it treats its most vulnerable, and it is imperative that we have robust legal safeguards in place to ensure that those people who lack capacity are properly protected. The provisions will be introduced into the Mental Capacity Act 2005 through a Bill that will also amend the Mental Health Act 1983.