No. 26 of #50cases.
This is a story about imprisonment. Not of a criminal, but of a man with autism and severe learning difficulties. Let’s call him HL. HL was incapable of making decisions for himself and would occasionally self-harm. How do you ensure that someone who can’t make decisions for himself is protected from being detained unnecessarily?
For most of his life HL had been looked after in Bournewood Hospital. In 1994, it was felt that it would be fine for him to live outside of residential care. He was discharged to live with a care-family on trial basis and would regularly make visits to a day-centre. One day in the day-centre HL became very agitated and started hitting himself on the head and banging his head against the wall only stopping after a doctor administered a sedative. As a result of this incident a psychiatrist felt that HL should once again become an in-patient at hospital.
HL was kept in the hospital for three months without being given access to his carers. He went to court to complain that he was being held against his will. The UK’s highest appeal court said that the hospital was allowed to detain him as this was allowed under UK law, even though HL didn’t have access to the the same safeguards as others detained under mental health laws .
HL complained to the European Court of Human Rights. The court said that the fact UK law did not make it easy enough for HL to be able to challenge his detention in court did not meet the standards required by the European Convention on Human Rights. The difference in protections available to people like HL and other mentally incapacitated patients became known as the Bournewood Gap. The case resulted in major changes to the procedure for admissions for incapacitated adults to hospitals and care homes. The gap was filled. HL was not protected but thanks to his case, many more have been since.