ABSTRACT
The law relating to the confinement of people with mental disorders provides an illustration of the resulting tensions. Roughly 26,000 people are "sectioned" annually in England, and approximately 13,000 people in hospital on any given day are subject to involuntary detention by reason of mental illness. In this context, R v Bournewood can be seen as a privileging of the views of the medical profession over those of carers, in cases of informal admission of incapacitated patients. Capacity has assumed an increasingly important place in the study of health law, particularly in the context of treatment provision. The unexamined premise in R v Bournewood was that an objecting incompetent patient would not be admitted as a voluntary patient, but only subject to a section of the Act. In this regard, the legal action for wrongful confinement misses many of the subtleties of psychiatric admissions and care of those lacking capacity.
