50,000 psychiatric cases may face review after court ruling

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The Independent Online

The cases of thousands of people receiving psychiatric treatment will have to be reviewed following a landmark European court ruling yesterday.

The cases of thousands of people receiving psychiatric treatment will have to be reviewed following a landmark European court ruling yesterday.

Judges in Strasbourg said legal safeguards protecting people who do not understand why they are detained for treatment were insufficient. The European Court of Human Rights ruled that the detention under common law of a man with autism was a breach of human rights.

The ruling may have implications for 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 sectioned under the Mental Health Act, where an appeal for release may be made to a tribunal.

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

Yesterday's ruling would mean a second doctor and a specialist social worker would have to approve a patient's detention. Mentally incapacitated patients would also have the right to have their case reviewed by a mental health tribunal.

The ruling represents a victory for the carers of a mentally-ill man held against his will in a psychiatric hospital in breach of his human rights. His solicitor, Robert Robinson, said yesterday that the judgment gave mentally incapacitated patients the same rights as those who were able to express opposition to their detention for treatment.

Identified as "HL", the 55-year-old man is autistic and unable to speak, with a "limited" level of understanding, the court heard. He is frequently agitated and has a history of self-harming. Crucially, he lacks the capacity to consent or object to medical treatment. For 30 years he was cared for in Bournewood NHS Trust hospital until he was discharged in March 1994 on a trial basis to paid carers.

He lived with them until July 1997, when, during a visit to a day centre, he was excessively aggressive towards himself. A doctor gave him a sedative and he was transferred as an "informal patient" to Bournewood hospital's intensive behavioural unit. Because of his mental incapacity, "HL" was held under common law, and not formally detained under the Mental Health Act, which would have given him the right to apply for release.

When his carers appealed against the detention two months later, the High Court rejected the move, ruling that he had not been officially "detained" but informally admitted under common law "necessity". The Appeal Court overturned that decision - but the House of Lords finally ruled that holding "HL" under common law was sufficient and that it was not necessary to use the provisions of the Mental Health Act.

Jo Williams, the chief executive of Mencap, welcomed the verdict: "We hope the Government will use this judgment to ensure the Mental Capacity Bill - currently before Parliament - closes this indefensible gap in mental health law."

The judges ruled that HL's detention breached his rights to liberty and security, and his right to a review of the legality of his detention. He was awarded £20,000 costs.