Bournewood: an indefensible gap in mental health law

BMJ 1998; 317 doi: https://doi.org/10.1136/bmj.317.7151.94 (Published 11 July 1998) Cite this as: BMJ 1998;317:94

Capacity is set to become a major clinicolegal issue

  1. Nigel Eastman, Senior lecturer in forensic psychiatry,
  2. Jill Peay, Senior lecturer in law
  1. St George's Hospital Medical School, London SW17 ORE
  2. London School of Economics, London WC2A 2AE

    In December 1997 the Court of Appeal ruled that it was unlawful to admit an autistic adult to a psychiatric hospital on an informal basis when the patient lacked the capacity to take part in that admission, even if he did not object. In so doing the court determined that any patient who was incapable of consenting to informal admission could only lawfully be admitted under the statutory procedures of the Mental Health Act 1983, thereby enjoying the protections afforded by the act. The judgment has now been overturned by the House of Lords,1 seemingly assuaging the concern of professionals and the Department of Health that having to detain all such patients would have major resource implications (through increasing the average number of detained patients from 13 000 to 35 0001). The House of Lords' judgment turned on a legal technicality, as well as discussing at length whether the patient was “detained” and, if he was, whether such detention could be justified in terms of the common law doctrine of “necessity.” Yet, an ethical and legal gap remains, since, as Lord Steyn argued, “there can …

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