Hospital Autism Detention 'Wrong'

[Guest Lottie]

The detention of a man with autism under common law was a breach of his human rights, a court has ruled.

The European Court of Human Rights ruling may have implications for as many as 50,000 people being cared for in UK nursing homes and hospitals.

The man was detained at a Surrey hospital in 1997 after he was deemed incapable of consenting to treatment.

He had no right to appeal, unlike if he had been held under the Mental Health Act.

The common law allows a single doctor to recommend the detention of patients incapable of consenting to treatment if it is in their best interests.

Under the Mental Health Act, patients are entitled to appeal to a tribunal for release.

This ruling says it is wrong and denies a person their liberty

Solicitor Robert Robinson

But no such entitlement exists for the thousands of people admitted to hospitals and nursing homes under common law for conditions such as dementia and learning disabilities.

As the man, known as HL, cannot speak, his legal team argued he was incapable of resisting detention and it was against his right to liberty under the European Convention of Human Rights.

Mr L's solicitor Robert Robinson said the decision could have "huge implications" for the UK.

Wrong

"When people are admitted to hospital under common law, doctors will have to consider whether people are being detained.

"The key is whether they are actually detained rather than just admitted under the common law.

"If they are detained, this ruling says it is wrong and denies a person their liberty."

It is more costly and time consuming to admit people under the Mental Health Act and some families prefer patients to be treated under common law because of the stigma associated with detention on mental health grounds.

Mr Robinson said the carers, a family who have looked after Mr L since 1994, were delighted at the decision.

"It has taken a long time and been heard by four different courts, the family are obviously pleased at the result."

No damages were awarded.

Challenge

Mr L was admitted to Bournewood hospital in July 1997 after staff at a day centre became worried about his behaviour.

He was released after nearly five months following a Court of Appeal challenge by his carers.

The court ruled his detention was unlawful but the House of Lords overturned the decision in 1998.

In 2001, the Health Service Ombudsman found there was no justification for detaining Mr L.

Mental health charity Mind agreed the ruling could have a huge impact on the UK.

A spokeswoman said: "As many as 50,000 people in hospital and nursing homes are potentially affected because - either though disability or illness - they lack the mental capacity to give informed consent to their treatment.

"The government has pledged in the past to tackle this issue, although current proposals lack strong enough safeguards to prevent the type of situation faced by Mr L.

"People who would otherwise be to all intents and purposes indefinitely detained need detailed care plans and regular reviews of their treatment.

"They cannot be simply left and forgotten about."

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