Bournewood: an indefensible gap in mental health law

BMJ 1999;318:126 ( 9 January )

Letters

Bournewood: an indefensible gap in mental health law

Law Commission's proposals for incapacity jurisdiction strike reasonable balance

Law is inappropriate for patients admitted informally but who lack capacity

Law Commission's proposals for incapacity jurisdiction strike reasonable balance

The first 150 words of the full text of this article appear below.

EDITOR $---$ We agree with Eastman and Peay that capacity will become a major issue for mental health services,¹ particularlyin the light of the consultation paper Who Decides?.² The LawCommission's proposals on which the paper was based³ afforda mechanism that could resolve much of the practical difficultyarising from the Appeal Court's decision while also affordingthe rights that the House of Lords' decision denies.⁴

The Law Commission proposed an incapacity jurisdiction, to provide an integrated framework for decisions concerning personalwelfare, health, or financial matters of incapacitated people.As with similar provisions,⁵ the court was intended to be ajurisdiction of last resort. Its jurisdiction would be invokedonly if the making of an order would be of greater benefit tothe incapacitated person than would noorder.

The recommendation for the incapacity jurisdiction covered giving or refusing approval for particular forms of health care,. . . [Full text of this article]