The Bournewood case and its implications for health and social services

Can the absence of dissent be interpreted as informed consent? A case soon to go to the House of Lords is generating much consternation in the UK health and social services. An autistic man, with no ability to communicate consent or dissent to hospital admission, had been informally admitted to the mental health unit of Bournewood Community and Mental Health NHS Trust after agitated behaviour at the day centre. He was admitted because his carers, who were capable of dealing with these episodes, were not contactable at the time. He had been an inpatient at the same hospital for thirty years until 1994, and had since lived with his carers in their home. The Trust admitted him informally because he made no attempt to leave. His carers were reported not to have been allowed to see him because he might have expected to leave with them. The hospital nevertheless had planned to return him to their care once he was judged fit for discharge by the clinical team. An application for judicial review to quash the Trust's decision to detain him was made. The Court of Appeal, on 2 December 1997, announced that the appellant had been unlawfully detained. Reasons for this conclusion were summarized as follows: