Introductions
The bournewood case was initiated in July 1997 and it concerned a 49 years old man known as HL suffering from autism, who was admitted to a Bournewood Psychiatric Hospital after a stressful day at a daycare center. Mr. and Mrs. E the man’s guardians had brought him to the day center where the staff observed the man and saw signs of agitation and depression and took him to Bournewood Hospital where he would be treated by a psychiatrist but he was detained (Shah, & Dickenson, 1998).
The detention at the hospital was because HL did not communicate effectively and had no consent or dissent to what was happening (Jenkins, 2007). It was as a result of this that his right of liberty was taken away because he was kept in the hospital and refused visits from the people who knew him resulting in the guardians taking actions against the hospital.
Deprivation of liberty
Therefore deprivation of liberty applies because he was not able to make decisions for himself. Mr. and Mrs. E saw that the hospital had detained HL illegally and deprived him of his liberty, since he would not be allowed to go home and they had administered drugs against his wish; they insisted on his release (Shah and Dickenson, 1998).
Judicial proceedings
As a result of the detention Mr. and Mrs. E started judicial proceedings to the high court where they used a solicitor to protest the unlawful detention of HL. The high court ruled in favor of the hospital and extended HL’s detention. Mr. and Mrs. E decided to appeal the decision at the court of appeal where the ruling was overturned and HL was sectioned and later discharged and allowed to go home. His condition at this time was pathetic and prove of abuse was evident (Lawler, 2005).
The likes of HL had no safeguarding of their rights since the law had loopholes that allowed their detention which was illegal. This case was one of the most important cases about the interpretation of Mental Health Act 1983 which reached the House of Lords for some considerable time. The carers of HL took the case to the European Court of Human Rights to re-appeal the decision of the House of Lords against HL and the European court ruled in favor of HL. According to (Jenkins, 2007) p.49 the European court ordered the government to pay €29,500 to cover the legal cost of the proceedings and never awarded him any compensation.
The ruling of the case
The ruling came to many, not as a surprise but the House of Lord’s ideas that brought disarray and could be the main cause of governments actions to clarify on issues and meaning of Mental Health Act 1983. HL was deprived of his liberty and he was not able to do what he used to do or go to places he enjoyed being at (Shah, & Dickenson, 1998). The signs were such as; staff making all the decisions for the person, not being allowed to leave the precincts of the place being detained and being restricted to seeing friends and family.
The European Court of Human Rights (ECtHR) and the House of Lords were the courts that gave judgment on the case and the findings were; Bournewood Hospital had not applied the Mental Health Act and it had denied HL his right to liberty and security (Shah, & Dickenson, 1998).
The Bournewood case made the government review the mental health act of 1983 and introduced the deprivation of liberty safeguards that would be the guidelines that would govern the medical sector against detaining people such as HL illegally. The government continues to take precautions for those who are in the sector not to abuse their abilities in all professions especially the medical sector since it is very sensitive to follow set standards that lower risks of patients being incapacitated or deprived of their liberty like HL (Lawler, 2005).
Amendment of Mental Health Act
The Mental Health Act is also being amended on issues of assessing capacity, relevant advocates involvement, reviews that should be done on admissions, ongoing reviews, and access to independent reviews to protect patients from being deprived of their liberty and safeguarding it. These processes should be consequent to ensure patients welfare is safeguarded without exposing him to unnecessary detainment or even releasing the patient when he needs more mental care (Jenkins, 2007). This move is best to fight for the rights of those individuals who are detained without review of their cases which aims at avoiding misjudging patients.
The deprivation of liberty safeguards has provisions for protection for the rights of people such as HL who are not able to express themselves and hence are deprived of their liberty. With the effectiveness of the deprivation of liberty safeguards, the health center must prove without any doubt that compulsory detention suits the interest of the patient and no other interests are being pursued (Jenkins, 2007).
The act provides for good practice and to avoid the risks of legal battles it ensures that decisions made are reviewed systematically and structurally, informing the patient and family members or friends on anything, and effective communication between doctors and family (Lawler, 2005).
References
- Jenkins, P, 2007. Counselling, Psychotherapy and the Law. 2nd Ed. London, Sage Publications Ltd.
- Shah, A., & Dickenson, D., 1998. The Bournewood case and its implications for health and social services. Journal of the Royal Society of Medicine , 91 (6), pp. 349-351