Intended for healthcare professionals


Bournewood: an indefensible gap in mental health law

BMJ 1999; 318 doi: (Published 09 January 1999) Cite this as: BMJ 1999;318:126

Law Commission's proposals for incapacity jurisdiction strike reasonable balance

  1. Donna Dickenson, Leverhulme senior lecturer in medical ethics and law.,
  2. Ajit Shah, Honorary senior lecturer in old age psychiatry
  1. Imperial College School of Medicine, London W2 1PG
  2. Maudsley Hospital, London SE5 8AZ

    EDITOR—We agree with Eastman and Peay that capacity will become a major issue for mental health services,1 particularly in the light of the consultation paper Who Decides?.2 The Law Commission's proposals on which the paper was based3 afford a mechanism that could resolve much of the practical difficulty arising from the Appeal Court's decision while also affording the rights that the House of Lords' decision denies.4

    The Law Commission proposed an incapacity jurisdiction, to provide an integrated framework for decisions concerning personal welfare, health, or financial matters of incapacitated people. As with similar provisions,5 the court was intended to be a jurisdiction of last resort. Its jurisdiction would be invoked only if the making of an order would be of greater benefit to the incapacitated person than would no order.

    The recommendation for the incapacity jurisdiction covered giving or refusing approval for particular forms of health care, appointing managers to give or refuse such consent, …

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