Bournewood: an indefensible gap in mental health law

Editor—We agree with Eastman and Peay that capacity will become a major issue for mental health services,¹ particularly in the light of the consultation paper Who Decides?.² The Law Commission’s proposals on which the paper was based³ afford a mechanism that could resolve much of the practical difficulty arising from the Appeal Court’s decision while also affording the rights that the House of Lords’ decision denies.⁴

The Law Commission proposed an incapacity jurisdiction, to provide an integrated framework for decisions concerning personal welfare, health, or financial matters of incapacitated people. As with similar provisions,⁵ the court was intended to be a jurisdiction of last resort. Its jurisdiction would be invoked only if the making of an order would be of greater benefit to the incapacitated person than would no order.

The recommendation for the incapacity jurisdiction covered giving or refusing approval for particular forms of health care, appointing managers to give or refuse such consent, and requiring people to allow a proxy to take over responsibility for their health care. In relation to mental disorders the Law Commission recommended that the court’s incapacity jurisdiction should extend to the power to order admission to hospital for assessment or treatment of mental disorder if there are grounds for admission under section 2 or 3 of the Mental Health Act and it is in the person’s best interest to be admitted.

Although the existence of another court might seem a further burden on busy clinicians, we believe that it would help considerably. The right to apply to the mental health review tribunal and the right of the nearest relative to obtain the patient’s discharge would not apply during the first period of detention in these circumstances, since a judicial determination would already have been made. This provision would mean that most cases would not need to be reviewed, since the median period for admission of patients with dementia is 5-10 weeks.

Who Decides? asked whether a new provision for compulsory admission to hospital is needed. The House of Lords’ judgment has underlined the urgency of a new procedure, and the Law Commission’s proposals for an incapacity jurisdiction strike a reasonable balance between the rights of incapacitated people and the duties of clinicians. The risk of confusion between the two procedures would be minimised if an NHS directive advised psychiatrists to use the incapacity jurisdiction procedures wherever they would have used informal admission.