The local authority sought a declaration as to its rights to control the daily activities of an eighteen year old, who was incapable of managing her own affairs but was not subject to mental health legislation.
Held: There remained an inherent jurisdiction which the court could exercise through the doctrine of necessity. The subject was incapable of making decisions, and was at risk of harm, and mental health legislation was not drawn to attempt to manage the day to day affairs of patients.
It would not be undemocratic or unconstitutional for the courts to step in and fill a gap in the common law, even if Parliament had deliberately left it empty.
Sedley LJ said: ‘One of the advantages of a declaratory remedy, and in particular of an interim declaration, is that the court itself can do much to close the so-called Bournewood gap in the protection of those without capacity.’
Judges:
Sedley LJ
Citations:
Times 25-Jul-2000, Gazette 14-Sep-2000, Gazette 21-Sep-2000, [2001] 1 Fam 38, [2000] 2 FLR 512
Statutes:
Mental Health Act 1983, European Convention on Human Right
Jurisdiction:
England and Wales
Citing:
Cited – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
Cited by:
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Lists of cited by and citing cases may be incomplete.
Health, Family, Human Rights
Updated: 28 April 2022; Ref: scu.81877