MANY thousands of people who are given psychiatric hospital treatment they do not fully understand have had their plight highlighted by a ruling in the European Court of Human Rights.

Each year up to 50,000 people with mental incapacity are given such treatment without their consent or statutory safeguards. This month the European court found that “HL”, a man in his fifties with autism and severe learning disability who had been admitted to hospital, kept under sedation, and not allowed to see the carers he normally lived with, had been deprived of human rights protections against unlawful detention and treatment in hospital.

Those protections are provided via the Mental Health Act. No one can be compulsorily treated in hospital unless two doctors have agreed in writing that statutory conditions defining the disorder and the need for compulsory care have been met. This is called sectioning and means that medication can be given forcibly and that the patient cannot leave hospital without being discharged by the doctor in charge or by the Mental Health Review Tribunal . These safeguards are in the Act, and meet the requirements of the human rights convention.

In mental hospitals there is an almost diametric distinction between formal (ie, sectioned) and informal patients. A key issue in deciding whether to section a patient is whether they agree to accept treatment voluntarily.

So far, so clear. But maintaining this distinction has depended on a conspiracy of silence over the true willingness of many patients who lack mental capacity, but who are compliant, to accept treatment in hospital. On some estimates, for every person sectioned someone who lacks mental capacity has treatment forced on them, either because they are given no other option or do not understand their options.

They include people with learning difficulties, older people with dementia and people with severe mental ill health who lose mental capacity at times of crisis. They are usually distressed and traumatised by the impact of hospital admission. It can mean separation from carers, relatives and friends and the familiar surroundings of their home. Even if they wish to, they may feel powerless to resist treatment or to leave hospital, because of their dependence on others.

This is what happened in the case of HL, known as the Bournewood case after the hospital to which he was admitted. After years of living with a married couple appointed as his carers, he became distressed and began banging his head against a wall at a day centre. He was admitted to hospital, where, constantly sedated, he appeared calm during medical assessments. The psychiatrist decided that he should stay in hospital but did not admit him under the Mental Health Act because he did not resist or try to leave. She also decided that he should not be returned to the family until healthcare professionals deemed it appropriate. Indeed, she did not allow them to visit him on the ground that he might try to go home with them. (The Health Service Ombudsman later found that he should have been discharged soon after he was admitted. The initial diagnosis had been wrong.) Soon after the admission, legal proceedings for habeas corpus and a declaration of his best interests were started in the High Court. The application was refused and an appeal went to the Court of Appeal, which found that HL had been unlawfully detained.

Nationally, health trusts and local authorities would need to find the additional resources needed to review about 22,000 cases and possibly place every such patient under the formal regime of the Mental Health Act (including providing access to the Mental Health Review Tribunal). The case went to the House of Lords, the Government presenting evidence that a further 48,000 people each year would come within the provisions of the Act, approaching twice the number of people already sectioned, if the decision went in HL’s favour. The appeal court decision was overturned on the narrow grounds that there had been no detention, and in any event doctors could use the common law doctrine of necessity to give treatment they believed to be in a patient’s best interests.

The Lords’ decision, in effect, preserved a situation in which none of the most elementary mental health safeguards would apply to an incapacitated patient who was detained in all but name in hospital. Concerned relatives had no right to consultation or intervention. There was no right to receive treatment under the Mental Health Act Code of Practice and, most significantly, no special legal forum to review the nature of the detention. The Lords were unanimous that his treatment was lawful. A majority agreed that he had not been detained. But Lord Steyn disagreed. In view of the sedation and close supervision by medical staff, the argument that HL was free to leave the hospital, he said, “stretches credulity to breaking point”.

The European court has agreed with this, stating that there was no doubt that he had been detained. But the detention was unlawful, there being no acceptable safeguards.

The court emphasised the need for two professional opinions (mandatory under the Mental Health Act). The hospital had acted solely on the opinion of one psychiatrist. The judgment states: “While the court does 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 is to protect individuals against misjudgments and professional lapses.”

Government legal representatives promised the House of Lords and European court judges that legislation would be brought forward to resolve the “Bournewood gap” — the lack of protection for such patients. But just as two mental health law reforms go before Parliament, the Government has jettisoned a comprehensive package of safeguards that would have put the mentally incapacitated on a similar footing as everyone else.

The second piece of legislation, the Mental Capacity Bill is now being considered in detail by Parliament. The Government now claims that this legislation will provide the necessary protection. But none of the original safeguards survive. And the very minor provisions in this Bill do not match the requirements laid down by the European court.

The author is policy officer for the mental health charity Mind. For more information about new mental health legislation visit www.mind.org.uk