UK: The European Court of Human Rights Overturns the House of Lords Decision on Bournewood

Last Updated: 17 January 2005
Article by Andrew Parsons

Originally published October 2004

The European Court of Human Rights has just published its judgment in the appeal from the decision of the House of Lords on Bournewood. The Court held that detaining an involuntary patient for treatment under the common law violated his rights under Article 5 of the European Convention on Human Rights.

Background facts

In 1998 the House of Lords ruled in R v Bournewood Community and Mental Health Trust (in re L) that patients who lack the capacity to agree, but do not object, to their admission to hospital for treatment may be admitted informally. The judgment was given before the Human Rights Act 1998 came into force.

The case concerned Mr L, a 40 year old autistic man who had been admitted to Bournewood hospital (a National Health Service Trust hospital), where he had been cared for for over 30 years. He was an inpatient at the hospital’s Intensive Behavioural Unit and had been admitted to the hospital informally on the basis that he was "quite compliant" and had "not attempted to run away". He was later discharged on a trial basis to paid carers and then in 1995 began attending a day care center on a weekly basis.

On 22 July 1997, while at the day-centre, he became particularly agitated, hitting himself on the head with his fists and banging his head against the wall. Staff could not contact his carers, so called a local doctor, who gave him a sedative. The applicant remained agitated and, on the recommendation of his social worker, was taken to hospital. A consultant psychiatrist diagnosed him as requiring in-patient treatment. With the help of two nurses, he was transferred to the hospital’s IBU as an "informal patient".

Dr M., the medical officer responsible for Mr L since 1977, considered detaining him compulsorily under the Mental Health Act 1983, but concluded that it was not necessary, as Mr L was compliant and had not resisted admission or tried to run away.

In or around September 1997 the applicant sought leave to apply for judicial review of the hospital’s decision to admit him. The High Court rejected his application, finding that he had not been "detained" but had been informally admitted in accordance with the common law doctrine of necessity. The applicant appealed.

Following an indication from the Court of Appeal (on 29 October 1997) that the appeal would be decided in the applicant’s favour, Mr L was admitted for treatment in the hospital as an involuntary patient under the 1983 Act.

The Court of Appeal found that the applicant had been "detained" in July 1997 and that, as a patient could only be lawfully detained for the treatment of a mental disorder under the 1983 Act, he had been unlawfully detained. The relevant health-care authorities appealed.

The applicant had applied, in the meantime, to the Mental Health Review Tribunal for a review of his detention. An independent psychiatric report was prepared, recommending his discharge. He was released from the hospital on 5 December 1997 and officially discharged to his carers on 12 December 1997.

On 25 June 1998 the House of Lords ruled, by a majority, that the applicant had not been detained and that he had been lawfully admitted as an informal patient on the basis of the common law doctrine of necessity.

Summary of the European Court judgment


The applicant mainly alleged that his treatment as an informal patient in a psychiatric institution amounted to detention and that this detention was unlawful, in violation of Article 5(1) of the Human Rights Act (right to liberty and security), and that the procedures available to him for a review of the legality of his detention did not satisfy the requirements of Article 5(4). In addition, relying on Article 14 (prohibition of discrimination), he alleged that he was discriminated against as an "informal patient".

Decision of the Court

Article 5(1): The Right to Liberty

Was the applicant detained?

The Court observed that, between 22 July to 29 October 1997, the applicant was under continuous supervision and control and was not free to leave. It made no difference whether the ward in which he was being treated was locked or lockable. The Court therefore concluded that the applicant was "deprived of his liberty", within the meaning of Article 5(1), during this period.

Was his detention lawful?

The Court noted that it was not disputed that the applicant was suffering from a mental disorder on 22 July 1997, that he was agitated, self-harming and controllable with sedation only while in the day-care centre or that he had given rise to an emergency situation on that day. Having regard to the detailed consideration of the matter by Dr M (who had cared for the applicant since 1977) and by the other health care professionals on that day, together with the day-care centre’s report, the Court considered there was adequate evidence justifying the initial decision to detain the applicant on 22 July 1997.

The Court further found that the applicant had been reliably shown to have been suffering from a mental disorder of a kind or degree warranting compulsory confinement which persisted during his detention between 22 July and 5 December 1997.

In determining whether the applicant’s detention was lawful, the Court considered it clear that the domestic legal basis for the applicant’s detention between 22 July and 29 October 1997 was the common law doctrine of necessity. This doctrine, in particular the test of what was in the applicant’s best interests, was still developing at the time of the applicant’s detention.

Whether or not the applicant, with appropriate advice, could reasonably have foreseen his detention, the Court found that a further requirement for lawfulness under Article 5(1), namely that any deprivation of liberty should not be arbitrary, had not been met.

The Court found striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated patients was conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act was, in the Court’s view, significant.

In particular and most obviously, the Court 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 assessments and conclusions. There was no requirement to fix the exact purpose of admission (for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attached to that admission. Nor was there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention.

The nomination of a representative of a patient who could make certain objections and applications on his or her behalf was a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for legally incapacitated patients with, as in the applicant’s case, extremely limited communication abilities.

As a result of the lack of procedural regulation and limits, the Court observed that the hospital’s health care professionals 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. While the Court did not question the good faith of those professionals or that they acted in what they considered to be the applicant’s best interests, the very purpose of procedural safeguards was to protect individuals against any misjudgement or professional lapse.

The Court therefore found that this absence of procedural safeguards failed to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Article 5(1). The Court therefore held, unanimously, that there had been a violation of Article 5(1).

Article 5(4): The Right of a person to have his Detention Reviewed

Finding that it had not been demonstrated that the applicant had available to him a procedure to have the lawfulness of his detention reviewed by a court, the Court held, unanimously, that there had been a violation of Article 5(4).

Article 14: The Prohibition against Discrimination

The Court considered that the applicant’s complaint that he was discriminated against as an informal patient did not give rise to any separate issue not already examined under Article 5(1) and (4).

The European Court awarded €29,500 for costs and expenses, amounting to an award of approximately £20,000. It also held unanimously that the finding of the violation under Article 5 was sufficient (just satisfaction) for any non-pecuniary damage sustained by the Applicant. No further damages were therefore awarded.


The implications of this Judgment are potentially far reaching and it has been reported that it may result in a review of 50,000 people being cared for in UK nursing homes and hospitals.1 Serious consideration will have to be given regarding the circumstances in which involuntary patients are held depending on whether they are "detained" or whether they are free to leave the premises. Given the European Court’s emphasis on the lack of procedure to review the detention and protect the rights of involuntary incapacitated patients, in contrast to the protection received by similar patients who are detained under the Mental Health Act, it currently seems likely that the Judgment will result in a greater number of patients being formally detained under the Mental Health Act. Reliance on the "best interests" principle will now expose those treating incapacitated voluntary patients to claims of unlawfulness. The Mental Capacity Bill, currently before Parliament, is likely to be of considerable relevance to voluntary incapacitated patients and it will be interesting to see whether the Government puts forward proposals to amend the Mental Capacity Bill to take into account the Judgment of the European Court.

RadcliffesLeBrasseur are currently considering the full implications of the European Court’s Judgment and will be producing a further briefing to address those issues.


1 Report in the Independent by Robert Verkaik on 6 October 2004

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.