Making Sense of Bournewood

The judgment of the European Court of Human Rights in HL v UK has been understood by some commentators as making it unlawful, without the use of formal legal powers, to give treatment in a psychiatric hospital to a person who lacks capacity to consent and over whom the mental health professionals directly involved are exercising complete and effective control. This understanding follows from a reading of the judgment which equates complete and effective control with deprivation of liberty for the purposes of Article 5 of European Convention on Human Rights. If this interpretation is correct, the same principle would apply to people living in nursing homes who require a high level of care and supervision and who lack capacity. While the former could be formally detained in hospital (or a ‘registered establishment’) under the Mental Health Act 1983, the Act’s detention powers do not extend to other care settings. This article suggests that to understand the European Court of Human Rights' judgment in HL v UK it is necessary to take account of the unusual facts of the case. It is suggested that it does not follow from the judgment that the admission of a compliant incapacitated patient will necessarily deprive that person of liberty for the purpose of Article 5. The Government’s initial responses to the judgment fails to distinguish admissions which do engage Article 5 from those which do not. It is suggested that the Government should provide guidance to assist mental health professionals and others to make this distinction in individual cases.