Victory in ten years rights struggle

By Elizabeth Choppin

The couple at the centre of the notorious “Bournewood Gap” case have declared victory after a long battle to safeguard people who lack mental capacity from being wrongly detained.

New government proposals unveiled this month mean that care homes and hospitals will have a duty to consult “anyone engaged in caring for the person in question” before an emergency detention.

Since 1995, the couple have been carers for HL, a man with autism, who was held for five months in Bournewood Hospital, Surrey, in 1997. In 2004, the European Court of Human Rights ruled that the detention was unlawful.

Since the incident, HL’s carers have been pushing the government to ensure that carers have the right to challenge emergency detentions at the time of admission.

They argued that provisions in last year’s Mental Health Act, which allowed for a person to be detained for up to seven days without authorisation, could be very harmful to a person with autism.

The most recent proposals, included in a draft code of practice for the Mental Capacity Act 2005, mean that providers would also have to keep a record of the steps taken to consult carers and how carers’ views influenced the final decision.

The couple said the changes go a long way to close the Bournewood Gap, but that it still must be worked out in practice.

“There was nobody who could challenge the decision to keep HL in hospital but now there will be. It’s a victory for us,” said one of the carers. “HL deteriorated because he was being kept against his will. The dramatic downturn in his behaviour was used as an excuse to keep him there, when all he was trying to do was to show he didn’t want to stay.

“We just wanted government to put safeguards in place so that somebody known to the person could speak on their behalf at point of admission - and that’s exactly what we now have. Hopefully it will protect a lot of people in the future.”

Rethink’s head of campaigns, Jane Harris, said the move to consult with carers was “certainly a big step in the right direction” but urged the government to take action to ensure that “information-sharing with carers becomes an integral part of the culture in every trust”.

A Department of Health spokesman said: “It has always been the government’s intention to address the deprivation of liberty issues raised by the Bournewood judgment…the process has taken a long time but the government wanted to make sure that the right response to the judgment was arrived at. The government believes this has been achieved with the deprivation of liberty safeguards legislation.”

Since October 2007, detentions can be appealed in the Court of Protection.

The draft code is before Parliament and is due to come into force in April 2009, subject to approval.
26 June, 2008