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Re: LD PMPs & Bournewood

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can somebody please highlight how bournewood influences 'detention' of LD cases?

thanks in advance :)

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How about the Royal College's Explanation?

Response to the Bournewood Consultation


- Comment on the Bournewoood Consultation issued by the Department of Health on 23rd March 2005.

- This response has been prepared in consultation with the College Faculties, particularly the two Faculties of Old Age Psychiatry and the Psychiatry of Learning Disabilities.

- On 5th October 2004 the European Court of Human Rights (ECtHR) ruled that in the case of H.L. v. the United Kingdom, H.L. had been deprived of his liberty contrary to Article 5(1) of the European Convention on Human Rights (ECHR) because his admission was not 'in accordance with a procedure prescribed by law' and was contrary to article 5(4) of the ECHR because he was unable 'to take proceedings by which the lawfulness of his detention shall be decided speedily by a court'.

(Case details of H.L. vs UK:


H.L. was admitted to a hospital run by Bournewood NHS Trust following an episode of disturbed behaviour at the day centre he attended, the staff at the Centre had contacted the hospital having been unable to contact his carers, Mr and Mrs E. He was known to have severe learning disabilities and autism and had no spoken language. Although not formally stated, it was presumed that he lacked the capacity to consent to hospital admission and he had been admitted informally on the grounds of necessity, under common law, having not dissented to such a course of action. Following admission his paid carers wished for him to return home but this was refused by the Responsible Medical Officer (RMO). The RMO also advised at that time that it was best that visits by the carers were limited.


His carers challenged the fact that Mr H.L. was being kept in hospital and hearings subsequently took place in the High Court, Court of Appeal, and the House of Lords. The High Court ruled in favour of the Trust. However, the Court of Appeal subsequently ruled that H.L.'s detention was unlawful and he was therefore placed on Section 3 of the Mental Health Act (MHA) 1983, as it was considered necessary that he remain in hospital. He was subsequently discharged following an independent psychiatric report that did not support the case for continuing detention under the MHA. A subsequent ruling by the House of Lords argued that the use of the MHA had not been necessary, providing that he was assenting. The grounds for this decision were that Section 131 of the MHA states that nothing should impede the possibility of a voluntary admission. The House of Lords however recognised that the lack of appropriate statute left a 'gap' in English and Welsh law.

The person with potential incapacity.

- Ensure that there is due process when freedom is restricted, for whatever reason, for those lacking decision-making capacity given the likelihood that they themselves will not be able to challenge the decision.

- A ready means of appeal if there is disagreement as to the best course of action. From the

if all those people with incapacity presently admitted to hospital informally (e.g., those with advanced dementia being admitted to hospital for observation or respite) had to be detained under the MHA, this would be both stigmatising and overly bureaucratic and potentially hinder access to treatment, when such treatment might in everyone's view be clearly necessary.

Mental Capacity Act (MCA)

- 'best interests' and

- 'the least restrictive option'.

The intention of the MCA is to enable people who may lack decision-making capacity to make those decisions which they are able to make and to ensure that the process to be followed when the person concerned lacks capacity, involves the person him/herself and other relevant people, and is the least restrictive option.

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College conclusions and recommendations

General principles

- People who lack the capacity to consent or not to admission to hospital for treatment for his/her mental disorder and are resisting, should be admitted under the MHA.

- This would give the protections available under the MHA to this group of patients.

- It is recognised that there remains a difficulty in ensuring those patients who lack capacity have equal rights to those who retain capacity (Re (MH) v Health Secretary 2004). However, - We do not see any distinction with respect to the likely permanent or temporary nature of a person's incapacity.

- If a person who lacks capacity, for example, because of a severe psychotic illness, comes into hospital apparently voluntarily (even though on assessment he may lack capacity) this would be similar to present arrangements and in the future would be covered by the MCA.

- The MHA should not be used simply because the person is likely to recover capacity. However, having recovered capacity the options would be for that person to decide for him/herself whether to remain in voluntarily or to leave hospital. If the person wished to leave, whether capable or not, the doctor in charge of the patient's care would need then to consider whether the MHA should be applied.

5.3 Section 5 'Protective care': the College appreciates that the principles of protective care comes into force when deprivation of liberty is being considered. However, we are concerned that this approach is too narrow and we are unclear as to whether this concept adds more than could be achieved by strengthening the MCA. The concept that 'release' from detention could be ordered does not address the problems of restrictive practices in social care settings where people live. Given the varied situations and potential complexities the College remains of the opinion that any solution to the 'Bournewood gap' best sits within the legal framework of the MCA, but with added safeguards. The College would hope that with the strengthening of the MCA, this Act would contain sufficient 'procedures prescribed by law' to satisfy the ECHR.

5.4 The College is of the opinion that any solution that addresses the concerns of the ECtHR needs to be proportionate to the nature and severity of restrictions in the individual case. Whilst the resources in terms of available expertise is an issue, this is more a question of balance between ensuring a sound process that protects individual rights, on the one hand, and ensuring access to hospital and to treatment where appropriate and the maintenance of a safe environment for the person concerned, on the other.

5.5 With respect to restriction of liberty, set out below (5.6 onwards) are circumstances that might lead to different levels of legal protection. In all cases such restrictions would have to be justified on the grounds that they are in that person's best interests and the least restrictive alternative (under the MCA). As part of determining best interests the person's past and, where possible, present wishes should be ascertained and relevant others should be consulted. Those making decisions that result in some limitation on individual liberty should be expected to be able to defend their actions against the standards set out in the MCA and its Code of Practice.

5.6 Level 1: restrictions are placed on a person's movement in his/her place of normal residence on specific occasions where he/she both lacks the capacity to make the relevant decisions for him/herself and it is in his/her best interests on the grounds of his/her health or safety. This might include the person not leaving the house unaccompanied and being led back into the house if he/she wandered. Other freedoms, such as family visits and accompanied trips out, still occurred and were not controlled or limited. As part of the person's care plan these arrangements should be reviewed regularly. If relatives or other relevant parties disagreed there would be an attempt at local resolution and if necessary access to the Court of Protection.

Level 2: restrictions are placed on a person's movements in his/her normal place of residence that go beyond simple restriction of liberty and amount to deprivation of liberty

- For example: the person was confined to the house/hospital and visits out or visits by others were controlled and limited by the care staff.

- An independent mental capacity advocate should be appointed

- e/she and others (such as relatives) would have access to the Court of Protection, if disagreements about the care plan and level of restriction could not be resolved.

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Level 3: transfer from normal place of residence to hospital for assessment or treatment and any associated restriction of liberty

- Under the auspices of the MCA

- Unless it was admission for treatment of a mental disorder and the person was resisting, then the MHA would apply.

- Under the above circumstances (and other than in emergencies) the safeguards would include the duty to consult under best interests, the right of relatives and/or advocates to have discussions with the clinical team particularly where there is disagreement, the rights of others to ask for a second expert opinion, and, if necessary, the right of appeal to the Court of Protection.

Permanent transfer from the normal place or residence

- Responsibility is placed on the local authority to satisfy themselves

- Likely perspective of the person with incapacity has been fairly represented by carer, family member, or independent advocate.

- Where there is the potential for a conflict on interest on the part of a paid or family carer the local authority have a duty to appoint an advocate.

Detention in the context of medical treatment:

- Treatment for a mental disorder under specific situations will be covered by the MCA or MHA (if dissenting).

- Additional safeguards needed

- Resolution of the Bournewood gap with respect to the ECtHR ruling on detention

- Second opinions in the case of

A. specific treatments listed in regulation

B. where treatment is outside recommended clinical guidelines.

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basically the key element is deprivation of liberty

if you have a LD / demented person who is unable to consent but agreeing to treatment

and we are depriving him of his liberty (no contact with parents/ relatives etc ) then section him

if same person , agreeing for treament has access to relatives and has liberty do not section him !

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