The Bournewood judgment: a way forward?

In this article we provide a commentary on the various reasonings behind the Law Lords' unanimous judgements in their recent decision (25 June 1998) in Regina v. Bournewood Community and Mental Health NHS Trust, Ex parte L. After summarizing the judgment and commenting on its important implications, we suggest a way forward. The 1995 Law Commission incapacity proposals, on which the 1997 consultation paper Who Decides? was based, do afford a mechanism which could resolve much of the practical difficulty which practitioners feared from the Appeal Court decision, whilst at the same time affording the sorts of rights which the House of Lords decision denies.