HL v UK 45508/99  ECHR 471
'Informal' compliant incapacitated patient was deprived of his liberty, with lack of procedural safeguards or access to court, in breach of Art 5(1) and (4).
This case is commonly known as the Bournewood case.
HL, who suffered from severe autism and challenging behaviour, lacked capacity to decide where he wanted to live. After many years in a psychiatric hospital he lived with carers for three years. Then while at a day centre his behaviour deteriorated and he was informally admitted to hospital. He was denied contact with his carers for three months and the intention was to keep him in hospital. Because he was "compliant" it was asserted that he was not deprived of his liberty.
The ECHR held that he had been deprived of his liberty. He had no recourse to the protections offered by the MHA 1983 (such as the ability to challenge detention and the restrictions on treatment). The absence of procedural safeguards and access to the court amounted to a breach of Article 5(1) and (4).
The House of Lords had considered the issue of unlawful detention under English common law whereas the ECHR were concerned with deprivation of liberty under Article 5.