Patient held informally in hospital had his rights violated
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《英国医生杂志》
A man with severe learning disabilities who was held informally in a psychiatric hospital for more than four months without the safeguards applying to patients "sectioned" under the Mental Health Act won a ruling at the European Court of Human Rights in Strasbourg last week that his human rights had been violated.
The ruling has important resource implications for the NHS, which will have to provide extra safeguards for tens of thousands of patients—those who are apparently "compliant," mainly with learning disabilities and dementia—who lack the capacity to consent or to object to treatment.
Lucy Scott-Moncrieff, solicitor for the man, named only as HL, said that the government would have to amend the Mental Capacity Bill, now going through parliament, to give patients without the capacity to consent the same safeguards as those compulsorily sectioned. This would mean a system of formal assessments and access to review tribunals to argue for their release.
The Strasbourg judges said the lack of any fixed rules in UK law governing the admission and detention of "compliant" patients who lack the capacity to consent to treatment was "striking."
They ruled that the circumstances surrounding HL's detention amounted to breaches of his rights to liberty and security, and that the legality of his detention should be reviewed.
HL, aged 55, from Surrey, is autistic, unable to speak, and has "limited" understanding, the court was told. He is often agitated and has a history of self harming behaviour. He had been looked after by paid carers for three years after spending the previous 30 years in an institution.
In July 1997, during a visit to a day centre, he became agitated, hitting himself and banging his head against a wall. Unable to contact his carers, staff called a doctor who sedated him.
He was admitted as an informal patient to Bournewood Community and Mental Health NHS Trust in Chertsey, Surrey. Because of his mental incapacity, he was held under common law, and not formally detained under the Mental Health Act, which would have given him the right to apply to a review tribunal for release.
His carers went to the High Court to try to secure his release, but a judge ruled that he had not been "detained" in law. The Court of Appeal overturned that decision, but the House of Lords finally ruled that he could be held under the common law doctrine of "necessity."
The Strasbourg judges noted "the lack of any formalised admission procedures indicating who could propose admission, for what reasons and on the basis of what kind of medical and other assessment and conclusions."
Healthcare professionals had "assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit."
Without safeguards to protect against misjudgment, said the judges, HL was not protected against "arbitrary deprivations of liberty."(Clare Dyer, legal corresp)
The ruling has important resource implications for the NHS, which will have to provide extra safeguards for tens of thousands of patients—those who are apparently "compliant," mainly with learning disabilities and dementia—who lack the capacity to consent or to object to treatment.
Lucy Scott-Moncrieff, solicitor for the man, named only as HL, said that the government would have to amend the Mental Capacity Bill, now going through parliament, to give patients without the capacity to consent the same safeguards as those compulsorily sectioned. This would mean a system of formal assessments and access to review tribunals to argue for their release.
The Strasbourg judges said the lack of any fixed rules in UK law governing the admission and detention of "compliant" patients who lack the capacity to consent to treatment was "striking."
They ruled that the circumstances surrounding HL's detention amounted to breaches of his rights to liberty and security, and that the legality of his detention should be reviewed.
HL, aged 55, from Surrey, is autistic, unable to speak, and has "limited" understanding, the court was told. He is often agitated and has a history of self harming behaviour. He had been looked after by paid carers for three years after spending the previous 30 years in an institution.
In July 1997, during a visit to a day centre, he became agitated, hitting himself and banging his head against a wall. Unable to contact his carers, staff called a doctor who sedated him.
He was admitted as an informal patient to Bournewood Community and Mental Health NHS Trust in Chertsey, Surrey. Because of his mental incapacity, he was held under common law, and not formally detained under the Mental Health Act, which would have given him the right to apply to a review tribunal for release.
His carers went to the High Court to try to secure his release, but a judge ruled that he had not been "detained" in law. The Court of Appeal overturned that decision, but the House of Lords finally ruled that he could be held under the common law doctrine of "necessity."
The Strasbourg judges noted "the lack of any formalised admission procedures indicating who could propose admission, for what reasons and on the basis of what kind of medical and other assessment and conclusions."
Healthcare professionals had "assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit."
Without safeguards to protect against misjudgment, said the judges, HL was not protected against "arbitrary deprivations of liberty."(Clare Dyer, legal corresp)