BBC Radio 4

  • BBC Radio 4 is airing a drama called Test Case – Bournewood.
  • It tells the story of a young autistic man who was detained in an inpatient hospital without being sectioned under the Mental Health Act.
  • The legal case resulted in the Deprivation of Liberty Safeguards being introduced (DoLS).
  • Now, in 2017, this legal debate continues as the Government is considering reforms to DoLS.

 

Today, BBC Radio 4 is airing a drama called Test Case – Bournewood. It tells the story of an autistic man known as “HL” (for legal reasons). He lacked capacity to make decisions about his care and, in 1997, was detained in an inpatient hospital without being sectioned under the Mental Health Act. 

The legal case to get him out, brought about by HL’s carers (Mr and Mrs E) and decided in 2004, started a long and complicated legal debate about how decisions on care should be made in the best interests of those who lack capacity to make some of those decisions. The legal case resulted in the Deprivation of Liberty Safeguards (DoLS) being introduced in 2009. 

These safeguards ensure a clear process around who makes decisions about someone’s care and means to challenge those decisions. 

Now, in 2017, this legal debate continues as the Government is considering reforming DoLS. 

HL’s story

Mr and Mrs E, had been caring for HL since 1994, as part of a programme to support people with learning disabilities living in the local Bournewood long-stay hospital to move into the community. On 22 July 1997, just as HL was about to be fully discharged into their care, he became very distressed on the way to his day centre, because of the change in driver and route. When he arrived at the day centre, HL was unable to go to the soft room to calm down, because someone else was using it. The staff decided to clear the main hall for him, but the open space of the main hall made him more anxious.

The day centre staff tried to call Mr and Mrs E but, when they could not get hold of them, HL was taken to Accident and Emergency. Within 20 minutes of arriving at the hospital, he was readmitted to Bournewood’s ‘intensive behavioural unit’, where he had previously been an inpatient. 

The hospital refused to let Mr and Mrs E see HL for the next four months ‘for clinical reasons’. 

Mr and Mrs E went to court and, in October 1997 the Court of Appeal decided that HL’s detention was illegal. The hospital trust then tried to section HL under the Mental Health Act, but he didn’t meet the threshold for this. He was released from the hospital in December 1997.

But the hospital trust appealed to the House of Lords, saying that HL’s detention was in his ‘best interests’. The House of Lords agreed. One Judge, Lord Steyn, dissented saying there was an “indefensible gap” in the law, meaning that the rights of people in situations like HL weren’t properly protected. So Mr and Mrs E went to the European Court of Human Rights. That court agreed with Lord Steyn. 

The UK Government had to think up new legal protections, which resulted in - DoLS.

Why HL’s story is so important

HL, and the case that Mr and Mrs E brought helped change the law for people who lack capacity to make decisions about their care, including many autistic people. Following the case, the Government had to create safeguards to fill the gap in legal rights – this became known as the “Bournewood Gap”.

These new safeguards, DoLS, have also been criticised and the Government is looking to reform them. However, it was this case that showed the need for having safeguards and it remains a very important case in the law around care and support.

You can listen today

The play about the story behind DoLs will be on BBC Radio 4 at 2.15pm today (Tuesday 29 August). You can listen or catch up on the BBC’s website. We will be listening and tweeting our thoughts on The National Autistic Society’s Twitter account.

If you have questions about DoLS and how the Mental Capacity Act works, you might find this guide useful. If you would like any more information, please contact our Helpline