The ‘Bournewood case’ in the UK concerned a 49-year-old man with autism, who, it was agreed, lacked capacity (a legal term referring to a person’s competence to understand the nature and consequences of decisions he or she makes).
He was accommodated at Bournewood Hospital “in his own ‘best interests’” under the common law doctrine of ‘necessity’. Subsequently he brought legal proceedings against the managers of the hospital, claiming that he had been unlawfully detained.
The UK High Court rejected his claim, but the Court of Appeal disagreed, taking the view that his detention would only have been lawful under the Mental Health Act 1983. The House of Lords reversed this decision, siding with the High Court’s judgement, but the European Court of Human Rights had the final say, finding that detention under common law was too arbitrary and lacked the safeguards available to patients detained under the act.
As a result of the Bourne-wood case, the Mental Capacity Act 2005 was introduced in the United Kingdom. The introduction of similar legislation in Ireland would not only promote the human rights of the most vulnerable people in our society, but would give a statutory definition of capacity, which Ireland lacks at the moment.
The Bournewood case highlighted concerns about the treatment of people with psychiatric and intellectual disability in Ireland who lack the capacity to consent to treatment. If capacity legislation were introduced in Ireland, it would set clear guidelines on how to obtain informed consent before any “therapeutic detention” is implemented in our hospitals and other approved centres.
Many patients, families, clinicians, guardians and other stakeholders believe that the lack of mental capacity legislation in Ireland could be a potential recipe for abuse. Despite the provisions of the Mental Health Act 2001, there are still challenges in applying mental health law reform to the intellectual disability sector here.
From the point of view of some medical practitioners with a strong belief in the medical model, detaining a patient in ‘his best interest’ or to ‘protect society’ is normal. Such views are not out of character, looking at the history of the medical model of treatment of people with an intellectual disability.
But judging from the merits of alternative care, transparent advocacy and the potential abuse that involuntary detention might trigger, their may not be need to detain any one in the hospital without their consent.
What is needed in Ireland is a transparent advocacy to support a patient who lacks the capacity to make an informed decision, which is lacking in some agencies. Like in the United Kingdom, Ireland should now introduce mental capacity legislation, in addition to encouraging clinicians and other health professionals to adopt an eclectic mixture of interventions.
Equally important is that Ireland should now sign the UN Convention on the Rights of the Child and enshrine the same in the Irish constitution.
Albert Odoemene is a frontline social care practitioner. He is currently undertaking an MSc in Rehabilitation and Disability Studies at UCD
