Will new government safeguards close the Bournewood gap? David Hewitt expresses some doubts
In October 2004, in the so-called Bournewood case, the European Court of Human Rights (ECtHR) held that it would breach the European Convention on Human Rights (the Convention) for the common law doctrine of necessity to be used to deprive an incapable person of his liberty (see HL v United Kingdom Application 45508/99 [2004] All ER (D) 39 (Oct)). It said the common law was too vague and had too few safeguards to comply with Arts 5(1) and (4) (see 154 NLJ 7149, p 1553).
The absence of a codified framework that would both permit an incapable person to be confined in his own best interests and protect him from the consequences of confinement had come to be known as the “Bournewood gap”. The government has recently introduced safeguards to close that gap. They are likely to be controversial (see 156 NLJ 7236, p 1234), but they might also have a rather inconvenient flaw.
NEW SAFEGUARDS
The new safeguards were included in Schedule 7 of the Mental Health Act 2007, which inserted
