BMJ  2006;332:237 (28 January), doi:10.1136/bmj.332.7535.237-b

Letter

Incapable patients and the law

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

Editor—Stewart writes that patients with dementia can be judged to be lacking capacity by a single medical opinion and transferred to an institutional facility "in their best interests," with little chance of being able to leave and little or no access to appeal.1 The law says that shouldn't happen, and in time, there will be legislation to prevent it.

In the Bournewood case, the European Court of Human Rights said that where best interests was used to deprive incapable patients of their liberty, it breached article 5 of the European Convention on Human Rights. The court did that at least partly for the reason Stewart mentions: the lack of an effective right of appeal.

The best interests justification is, of course, a product of the common law doctrine of necessity. Although the fact that the doctrine can breach the European convention is not mentioned by Doyal and Sheather,2 it is . . . [Full text of this article]

David W Hewitt, partner

Hempsons Solicitors, Manchester M1 3LF dwh@hempsons.co.uk


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