Bookmarkers beware: Bookmarks to pages other than the home page may not work after we change our server in April Editor's Choice | This Week in BMJ | Press releases BMJ No 7130 Volume 316 News Saturday 14 February 1998 Thousands of patients may be being detained illegally The Department of Health is financing an appeal to the House of Lords against a Court of Appeal ruling last December which means that tens of thousands of mentally incapacitated patients are being detained illegally in hospitals and nursing homes. The department is also briefing lawyers to intervene in the case on its behalf to outline to the law lords the implications of the appeal court's judgment for the NHS. It is asking for an expedited appeal, but a judgment is not expected before late spring at the earliest. Three appeal court judges, headed by the Master of the Rolls, Lord Woolf, held that Bournewood Community and Mental Health Trust in Surrey acted unlawfully in holding an unnamed 48 year old autistic man at Bournewood Hospital in Chertsey without sectioning him under the Mental Health Act. The judges ruled that patients who lack capacity to consent cannot be held informally simply because they do not dissent. The ruling means that existing patients with dementia and severe learning disabilities in NHS hospitals and nursing homes that are registered to take detained patients cannot have "treatment for a mental disorder" unless they are sectioned. The number is thought to run into the tens of thousands, although a spokesman said that the department had no reliable figures. The NHS Executive has sent a letter to all trust chief executives, with copies to the Royal College of General Practitioners and the Royal College of Psychiatrists, among others. This states that, pending the appeal to the Lords, "clinical teams should ensure that they comply with the ruling." The guidance confirms that "the ruling applies both to new admissions and to patients who are already in hospital." It goes on: "Steps should be taken to review the position of existing in-patients who lack capacity as soon as practically possible." The letter has confused some trusts because it fails to state baldly that all existing patients who lack capacity must be sectioned. But guidance to be issued this month by the Mental Health Act Commission is expected to make this clear. The judgment, unless reversed on appeal, will have substantial resource implications for the NHS and for the commission, which oversees the treatment of detained patients. Thousands of patients will have to be interviewed, forms filled in, and treatment plans notified to the commission. Patients will also have to have their cases referred regularly to mental health review tribunals for a decision on whether continued detention is justified. Robert Kendell, president of the Royal College of Psychiatrists, said that the college was being inundated with letters, phone calls, and faxes. It had sent out a briefing note to members saying it was "deeply concerned but relatively powerless." He added: "The workload implications are massive for a very large number of people. If the Lords do say this is the law, I think we would be trying to persuade the Department of Health that the law needs changing." Clare Dyer legal correspondent, BMJ Home | Current issue | Past issues | Classified ads | Career Focus | Feedback Collections | About this site | About the BMJ | BMA | Medline