The Alzheimer’s Society has welcomed a ruling made by the European Court of Human Rights, that the detention under common law of a man with autism was a breach of his human rights. The judgement was made in Strasbourg on Tuesday 5 October 2004 and could have far reaching implications for people with dementia.
The ruling follows a seven-year battle through the courts by the carers of a now 55-year-old man, who was admitted to Bournewood psychiatric hospital in July 1997 after he was deemed incapable of consenting to treatment. He had no right to appeal, unlike if he had been sectioned under the Mental Health Act which would have given him the right to apply to a review tribunal for release.
A large number of people with dementia live in residential and nursing care homes and are effectively detained informally. Many have not given their consent to be placed in a care home. They are an extremely vulnerable group of people and they will find it difficult to speak out or raise concerns about their care and treatment. It is essential that safeguards are put in place to ensure that the rights of people with dementia are protected.
As a member of the Making Decisions Alliance, the Society welcomes the ruling and believes that the Government will need to take a fresh look at their proposals to honour the judgment and close what was described as an indefensible gap in mental health law. The Mental Capacity Bill currently before Parliament does not have sufficient measures in place to safeguard against another Bournewood case and a fresh look by Government is needed. Currently, the Bill makes no provision for a right to care plan, a right to a review of that care plan and a right to advocacy to support that individual.