Informal Admission to Hospital

Individuals who are willing to be admitted into hospital and receive treatment for their mental disorder can be admitted ‘informally’, that is, without the need to be compulsorily admitted under the MHA.

In 1998, the House of Lords ruled that people who lack the capacity to agree, but do not object, to their admission to hospital for treatment for their mental disorder may also be admitted informally (R v Bournewood Community and Mental Health Trust). This means that none of the safeguards available to patients detained under the MHA are available to such individuals. For example, there is no independent review of the decision to admit them to hospital nor do they fall under the remit of the Mental Health Act Commission (MHAC), which oversees the implementation of the MHA and visits detained patients.

Following the House of Lords’ decision a complaint was made to the European Court of Human Rights on the grounds that the informal admission breached Article 5 of the European Convention on Human Rights (the Convention), which protects against unjustified detention, and Article 14, which prohibits discrimination (it was argued that it is discriminatory to offer those patients admitted informally fewer protections than those admitted compulsorily). The European Court reached the view that patients in the situation of HL were denied protections offered to patients detained under the MHA and thus their Article 5 rights had been breached. In response the Department of Health has now issued guidelines concerning these patients. More recently a case concerning the residence of an elderly patient JE has further widened the definition of a deprivation of liberty and thus the test is now very wide.
Further changes have also been introduced as a result of the Mental Capacity Act. This allows for patients to be lawfully deprived of their liberty in order to live in a care home or hospital whilst not formally detained under the MHA.

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