The Bournewood gap is not as wide as it sometimes seems

In response to Singhal et al (Psychiatric Bulletin, January 2008, 32, 17–20), I would like to point out a common misunderstanding with regards to the European Court of Justice judgement on the Bournewood case [H.L. v. UK, 2005]. The authors give a good description of the case itself, but they then confuse its specifics with the details of the so-called ‘Bournewood gap’. This, however, fails to take account of the actual judgement, which concludes that the reason why the court ruled against the Bournewood Trust in that particular case was because of the specific circumstances that amounted to a deprivation of liberty under Article 5 of the Human Rights Act 1998. They listed a number of points regarding complete control over the patient's movements and choices including not allowing visitors and home visits to his carers. It was the completeness of control exercised by the treating team that was the issue at hand rather than the more general point of H.L. lacking capacity to consent to his stay in hospital. The court specifically pointed out that this case should not be considered as a precedent but should be considered on its merits alone. While appreciating that one English judge in particular has given the meaning of de facto detention a broader interpretation in his particular judgement, the original European Court of Justice ruling should not be ignored.

When the Ministry of Justice introduced the deprivation of liberty safeguards in the Mental Health Act 2007 (thus amending the Mental Capacity Act 2005) they failed to give any reasonable explanation why the safeguards were necessary. Their official argument that the amendment will bridge the so-called Bournewood gap has to be viewed with some scepticism. This is because the definition of people who fall within the deprivation of liberty safeguards goes much beyond the original case brought to the European Court of Justice. An easier interpretation would have been to use the Mental Capacity Act 2005 to make decisions in the best interests of a patient and thus bridge the Bournewood gap. There was no specific need for additional legislation in this area but it falls in line with a number of local and national decisions taken with anticipatory obedience in order not to fall foul of some perceived legal obligation.

This anticipatory obedience or defensiveness has certainly contributed to giving the Human Rights Act a bad name and the same is potentially possible with the Mental Capacity Act if people get the impression that they have to do unreasonable and additional paperwork in order to comply with the Act. Acting in anticipatory obedience therefore has negative consequences for the perception of perfectly reasonable legislation on top of creating a lot of additional administrative work and costs for the respective authorities who are charged with the execution of the new amendments. As clinicians we ought to contribute to a sensitive interpretation of the new legislation and prevent a situation where staff on the ground consider far too many people to be in danger of potential Human Rights Act breaches.