Bournewouldn’t

Date: 16 November 2007
Authors: David Hewitt
Issue: Vol 157, Issue 7297
Categories: Features, Human rights, EU

Will new government safeguards close the Bournewood gap? David Hewitt expresses some doubts

In October 2004, in the so-called Bournewood case, the European Court of Human Rights (ECtHR) held that it would breach the European Convention on Human Rights (the Convention) for the common law doctrine of necessity to be used to deprive an incapable person of his liberty (see HL v United Kingdom Application 45508/99 [2004] All ER (D) 39 (Oct)). It said the common law was too vague and had too few safeguards to comply with Arts 5(1) and (4) (see 154 NLJ 7149, p 1553).

The absence of a codified framework that would both permit an incapable person to be confined in his own best interests and protect him from the consequences of confinement had come to be known as the “Bournewood gap”. The government has recently introduced safeguards to close that gap. They are likely to be controversial (see 156 NLJ 7236, p 1234), but they might also have a rather inconvenient flaw.

NEW SAFEGUARDS

The new safeguards were included in Schedule 7 of the Mental Health Act 2007, which inserted them into the Mental Capacity Act 2005 (MCA 2005).
MCA 2005, which came fully into force on 1 October 2007, provides a statutory basis for the care and treatment given to incapable people. Although, at the moment, MCA 2005 may not be used to deprive such people of liberty (s 6(5)), the deprivation of liberty safeguards (DoLS) will change that. They are expected to come into force in October 2008, but they might not go as far as they should.

The DoLS will apply to an incapable patient accommodated in a hospital or care home if he is “detained [there] in circumstances which amount to deprivation of [his] liberty” (MCA 2005, Sch A1, paras 1(2) and 15).
It seems clear, therefore, that for the DoLS to cover his case, an incapable person will have to be both deprived of liberty and detained. Regrettably, there is no official explanation for this distinction: the draft code of practice on the DoLS doesn’t even mention the need for patients to be detained (Ministry of Justice and Department of Health, September 2007, The Mental Capacity Act 2005: Deprivation of Liberty Safeguards—Draft Addendum to the Mental Capacity Act 2005 Code of Practice, para 1.12). The case law, however, is somewhat clearer.

DETENTION v DEPRIVATION OF LIBERTY

In the domestic courts, Bournewood involved an application for judicial review of Mr L’s detention and for a writ of habeas corpus, but also a claim for damages for false imprisonment. It was accepted that what must first be decided was whether he had been detained (see, for example, R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 1 All ER 634, per Lord Woolf, MR at 638e-640j).

What the common law knows as detention is not the same as what the Convention knows as deprivation of liberty. The ECtHR reached this conclusion when it considered the Bournewood case (supra, at para 90) and, from a domestic perspective, it has been enunciated most recently in the Court of Appeal decision concerning the Oxford Circus demonstrators (see Austin v Metropolitan Police Commissioner [2007] EWCA Civ 989, [2007] All ER (D) 197 (Oct)). In the latter case, the trial judge found “that it is possible for there to be a deprivation of liberty without false imprisonment and vice versa” (per Sir Anthony Clarke, MR at [88]).

This must be so, for in Bournewood, the ECtHR felt able to find that L had been deprived of his liberty even though the House of Lords had ruled that he was not detained (see R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 3 All ER 289). In Austin, meanwhile, the Court of Appeal held that although the claimants were not deprived of their liberty in the Art 5 sense, they were imprisoned (even if not falsely) (ibid, at [105] and [12]). But this essential difference might prove harmful to the DoLS.

If detention is not the same as deprivation of liberty, and if one might exist without the other, it is conceivable that an incapable patient would be found to be labouring under the former but not the latter, and that he would therefore fall outside the DoLS even though he fell firmly within the Strasbourg judgment in Bournewood.

And if some of those whom the ECtHR might have expected to fall within any new safeguards will not, in fact, do so, it is surely arguable that those safeguards do not remedy the problems identified in the case of L; that they do not close the Bournewood gap.

And what of L himself? We know, because the ECtHR told us, that he was deprived of liberty. But of the nine domestic judges that considered the case, only a bare majority felt he had been detained; and their lordships, of course, went the other way. So, is it possible that the new Bournewood safeguards wouldn’t even have applied to the original Bournewood patient?

David Hewitt is a partner in Hempsons. E-mail: dwh@hempsons.co.uk

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