On 2 October 2000, our Human Rights Act became law, protecting universal human rights across the UK.  Fifteen years on, this October BIHR has organised 15 days of action, including a tour across the UK to celebrate this important anniversary of our Human Rights Act and the difference it has made to our democracy and to people’s lives across the UK. 

Each day we will be looking at one story from each of the years the Human Rights Act has been in force.  Today is the turn of 2004 and the case of HL v United Kingdom.  This case is important because it led to the creation of the Deprivation of Liberty Safeguards which protects the right to liberty of thousands of people in the UK who lack the capacity to consent to restrictions imposed in their best interests such as being prevented from leaving a care home or hospital.

Sometimes, even with the best of intentions, health and social care professionals can make decisions that risk going too far in imposing restrictions to protect vulnerable people from harm.  The Human Rights Act is an important strengthener of human rights in situations like this, where decisions are made by others, in our best interests, behind the closed doors of a hospital or care home.  The Act places a legal duty on decision-makers everywhere to ensure they weigh up the impact of their actions on our human rights, bringing procedural safeguards into an arena that was formerly heavily reliant on people doing what they thought was right in any given situation.     

Prior to the Bournewood judgment, decisions about the level of supervision and control required to effectively care for people lacking capacity to consent were not based on any formal legal procedure but on principles of common law as interpreted by the few people directly involved in making the best interests decision.  This left many people in the UK in a quandary because they could be denied their basic freedoms for long periods with less protection from the law than others in comparable situations to theirs including prisoners. 

This was certainly the case for HL (from HL v United Kingdom) whose carers took legal action against Bournewood Hospital after he was admitted informally under sedation, with no realistic means of leaving if he should choose to, no definite timeframe to his detention and a ban on any contact with his carers on the grounds that a visit from them might lead to him wanting to leave and return home with them. This arrangement was judged by the European Court of Human Rights as inadequate on the grounds that it did not offer enough protection of the Right to Liberty as it is defined in the HRA. 

So as the impetus for the creation of the Deprivation of Liberty Safeguards, the Bournewood case strengthened the legal protections for the rights of many disabled people in care settings across the UK.  Post-Bournewood procedure is based on human rights law, which recognises that everybody has equal entitlement to their human right to liberty irrespective of their mental capacity, requiring that proper legal safeguards must accompany any intervention by a Public Authority that deprives a person of their liberty.  

It's one of the special properties of the HRA, to be able to not only alert us to gaps in the protections afforded by existing laws but also to change them, improving the quality of life of many others in the process. The safeguards apply to thousands of severely learning disabled people and people affected by advanced dementia or other mental illnesses, whose disability means that they may lack the capacity to agree to being detained or controlled by public services.   

There are a huge number of people currently being cared for in care homes or hospitals who, as a result of their particular disabilities, are considered to lack the mental capacity to consent to decisions impacting on their most basic freedoms.  At the time of the Bournewood case going to court, it was estimated there were around 22,000 people in the UK whose liberty had been deprived in a way that left them without any legal protection.  This case marks a victory for them and the rest of us, because it rejects the idea that it is acceptable to ignore the rights of these people on the grounds of disability, instead of recognising equal entitlement of all to human rights, including the right to liberty.