The ‘Bournewood Gap’ and the Deprivation of Liberty Safeguards in the Mental Capacity Act 2005

The Deprivation of Liberty Safeguards and Informal Admissions

The Deprivation of Liberty Safeguards (DOLS) were recently introduced into the Mental Capacity Act (MCA) via an amendment to mental health legislation in England and Wales. As Shah (2011) discusses, the rationale behind creating these protocols was to close what is commonly referred to as the ‘Bournewood gap’; a legislative loophole that allowed a severely autistic man (H.L.) who did not initially dissent to admission to be detained in a hospital and deprived of his liberty in his ‘best interests’ as judged by his clinical team. Before the implementation of the DOLS, patients who lacked the capacity to consent to admission or treatment but who were nonetheless compliant could be admitted informally and treated as psychiatrists and health care professionals saw fit, even to the extent of preventing them from leaving the hospital, without any recourse to the stringent safeguards and procedures afforded to those detained under the Mental Health Act (MHA). Such procedures include access to the Mental Health Tribunal to challenge the grounds for detention and entitlement to a second opinion (Diesfield 2000). In the initial Court of Appeal ruling, Lord Steyn referred to the failure of statutory provisions for compliant, incapacitated patients as an “indefensible gap in our mental health law” (R v. Bournewood 1998). The subsequent ruling by the European Court of Human Rights (ECtHR) that H.L.’s detention constituted a breach of his human rights prompted legal reform and resulted in the development of the DOLS. As Lepping (2008) points out, it was the completeness of control exercised over H.L.’s movements, restriction of his visitors, and the fact that he was not permitted to leave the hospital to visit his carers that, combined, amounted to the deprivation that breached his rights under section 5(1) of the European Convention on Human Rights. The safeguards were therefore designed to ensure that any deprivation of liberty that does occur is fully sanctioned and controlled by a procedure prescribed by law, as per the ECtHR ruling. Estimates as to the prevalence of patients falling into this now legislatively plugged gap, namely, those with a mental disorder or learning disability who lack capacity but who comply with admission and treatment, put the figure at around 17% of psychiatric in-patients (Cairns et al. 2005). However, it has also been estimated that between 25% and 33% of adult general inpatients are also compliant but incapacitated (Singhal et al. 2008), indicating that informal admission is not uncommon in a general hospital setting.

Informal admissions have not always been considered a potentially problematic legal or ethical issue. The common law doctrine of necessity was enshrined in s 131(1) of the MHA (1983), itself transposed directly from the previous 1959 Act (s 5(1)), to provide for the fact that the vast majority of patients with a diagnosis of mental disorder need not be forcibly detained in order to be admitted and for treatment to be administered. The intention behind this provision was beneficent, to allow treatment to “all those who need it and are not unwilling to receive it” (Percy Commission 1957, para 291) without the strictures and stigma associated with formal and often lengthy detention. What this provision entailed, therefore, was that if a patient passively complied with admission and treatment, formal sectioning under the MHA (1983) was deemed unnecessary. It was only if a patient resisted or dissented that the legal machinery of the act would come into force. It is understandable that clinicians would avoid formal detention whenever possible, relying instead on the lack of objection to implement a ‘common sense’ and pragmatic approach to treatment for these so-called ‘Bournewood’ patients (Harwood, Stewart, and Bartlett 2007). Indeed, this very approach is recommended in the Code of Practice of the MHA (1983) for compliant individuals.

Compliance and Deprivation of Liberty

Effectively, there is little to diagnostically distinguish ‘Bournewood’ patients from those detained under formal section: the only difference is compliance with admission and treatment in...