R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health intervening)
| Jurisdiction | England & Wales |
| Judgment Date | 02 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1202-1 |
| Docket Number | QBCOF 97/1427/D |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 1997 |
[1997] EWCA Civ J1202-1
IN THE SUPREME COURT OF JUDICATURE]
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(MR JUSTICE OWEN)
Royal Courts of Justice
Strand
London WC2
The Master of the Rolls
(Lord Woolf)
Lord Justice Phillips
Lord Justice Chadwick
QBCOF 97/1427/D
In the Matter of
MR GORDON QC and MR P BOWEN (Instructed by Messrs Scott-Moncrieff, Harbour & Sinclair, London EC1M 3JB) appeared on behalf of the Appellant.
MR J GRACE QC (Instructed by Messrs Beachcroft Stanleys, London, EC4A 1BN) appeared on behalf of the Respondent
LORD WOOLF, MR: This is a judgment of the Court. This appeal raises difficult issues which could have a far reaching effect on the present approach to the reception, care and treatment of many mentally disordered patients. It also raises issues of considerable significance to the appellant "L" who is 48 and who has suffered from autism since his birth. The appeal is against the dismissal by Owen J. on 9th October 1997 of L's application for:
(1) Judicial Review of:
(i) the decision of the Bournewood Community and Mental Health NHS Trust "to detain the appellant on 22 July 1997 and the Trust's ongoing decision to continue the Appellant's retention", and
(ii) a writ of Habeas Corpus Ad Subjiciendum directed to the Respondent.
On the application for Judicial Review the relief sought was certiorari to quash the decisions of the Trust, a declaration that the Trust's retention of the appellant is unlawful and mandamus requiring the Trust to release L forthwith. Damages for false imprisonment and assault are also claimed.
Owen J. granted leave to appeal against his decision on 10 October 1997 and a Notice of Appeal was served on 15 October 1997. The appeal was heard on 30 October 1997 and at the end of the appeal the Court intimated that the appeal would be allowed but having regard to the importance of the issues involved the Reasons would be delivered later. This Judgment sets out those Reasons.
At the centre of this appeal are L's unfortunate disabilities. He cannot speak and he lacks the capacity to instruct Solicitors and so these proceedings are being brought by DF, his cousin and next friend. L's needs are complex and he requires 24 hour care. He sometimes injures himself, he has no sense of danger, he cannot go out alone, he needs to be reminded to go to the toilet and he may occasionally push people with his hands. He has no ability to communicate consent or dissent to treatment (though he can manifest unhappiness as to specific treatment). He is unable to express preference to residing at one place rather than another. For the purposes of the issues on this appeal L was regarded as being unable to express either consent or dissent to detention.
The facts giving rise to the present proceedings are largely not in dispute and are set out in detail in the papers which are before the Court. The position can be summarised as follows:
For a period approaching 30 years prior to March 1994 L had been a long-term resident at the Bournewood Hospital which is now run by the Trust. In March 1994 he went to live with Mr & Mrs Enderby at their home in Send, Surrey. They were his carers. They are very fond of him and together with their children and other professionals responsible for his care regarded L as "one of the family". On 22 July 1997 L was at the Cranstock Day Centre. He had been attending there on a weekly basis. He can on occasions become agitated and this happened on that day. Mrs Enderby called them his "tantrums" and it appears that a tantrum can happen about every four days. However Mr and Mrs Enderby are capable of coping with incidents when they occur. During the four years L was living with them Police were not called and L had not needed to be admitted to hospital.
On 22 July 1997 while L was at the Cranstock Day Centre Mr and Mrs Enderby could not be contacted. The day centre, when L became agitated, contacted a local doctor who attended and administered a sedative. Ailsa Flinders, the care worker who had overall responsibility for L for many years, was also contacted. She attended and recommended that he should be taken to the St. Peter's Accident and Emergency Unit at the Bournewood Hospital. As a result of the sedative that he had been given L had become calm and relaxed; but while at the accident and emergency unit he became increasingly agitated and eventually under supervision of the doctor he was taken to the part of the mental health behavioural unit at the hospital. He has remained at the hospital ever since.
At the hospital he has been under the care of the Clinical Director of Learning Disabilities and Consultant Psychiatrist for the Trust. Her Affidavit is before us. She describes how in the Spring of 1996 an assessment had to be made of L as his self-injurious behaviour had escalated. At that time she was of the view that it was not necessary for him to be re-admitted to hospital and that his care should continue in the community if at all possible. Subsequently it was decided that it could be appropriate to transfer L's care to the Northdowns Community Team. On 22 July, the process of formulating an appropriate care plan involving the Northdowns Community Team was in process of being completed. But there were delays due to the need for the necessary funding arrangements to be put in place. Dr Manjubhashini describes the incident on 22 July 1997 as "serious" but states that because L was "quite compliant" and had "not attempted to run away" the view was taken that he could be admitted as an "informal patient" and that he did not need to be detained under the Mental Health Act 1983. She does say however that if L had resisted admission she would certainly have detained him under that Act since she was "firmly of the view that he required in-patient treatment". Since L has been at the hospital an appropriate framework of care and treatment has been implemented. She goes on to say that:
"As L is an informal patient there has never been any attempt to detain him against his will or carry out any tests, observations or assessments to which he indicated a dislike or with which he refused to co-operate. L has always accepted his medication which has always been administered orally. He was also fully compliant when blood was taken from him for testing. He did not however co-operate with the attempts that were made to carry out a CT scan and EEG, which were necessary in view of his old history of fits and temporal lobe abnormality, on the 5 and 6 August 1997 and so these tests were abandoned."
She refers to other assessments which were made and says that if L showed any signs of distress the assessments were postponed and reviewed. She adds that:
"Although he cannot communicate verbally, patients with disorders such as L's can communicate their distress by, refusing meals, not sleeping, crying, not co-operating with any tasks such as washing and bathing and going up to the door and pushing it or turning the handle. L has not demonstrated distress in any of these forms but has adapted well to his environment and appears contented."
She states in her Affidavit which was sworn on 3 October 1997 "L's behaviour is still fluctuating" and that he still needs further treatment to alleviate his problems.
Mr Grace QC who appears on behalf of the Trust made it clear that the Trust and the doctors and the staff responsible for treating L regard it as being very important for L's future that he should be returned to live with Mr and Mrs Enderby as soon as this is practical. The relationship with Mr and Mrs Enderby is of the greatest importance to him. The plans which were being prepared in July 1997 can then be implemented.
However, understandably but regrettably, Mr and Mrs Enderby are not satisfied as to the Trust's motives. There have been difficulties of communication. There are in evidence the letters which have been written by Dr Manjubhashini to Mr & Mrs Enderby explaining what is proposed, discussing meetings and visits by the Enderbys to see L; but no programme for visits has been achieved, so L has not had the benefit of contact with the Enderbys since he was admitted on 22 July 1997.
Having read the papers for this appeal, the Court was concerned at what appeared to be a breakdown in relations between the Enderbys and those responsible for L at the hospital. There was therefore an adjournment at the suggestion of the Court to see whether a suitable third party could not achieve the reconciliation, which is clearly needed in L's interests, between the Enderbys and those responsible for treating L. The Trust suggested the names of two people who Mr Gordon QC, appearing for L in these proceedings, accepted were of great distinction in the field but he explained that the Enderbys took the view that it would still be preferable if the legal position was clarified and therefore the appeal proceeded. It may be that steps have been taken to resolve this problem between the hearing and the giving of this judgment. If they have not we would strongly urge the parties to take up the offers which have been made in the long-term interests of L.
The Issues
The case made on behalf of L is founded on the premise that he is being detained by the Trust. It is contended that this detention is unlawful in that no authorisation for it can be found either in statute or in the common law.
The Trust deny that L is detained. They contend that the circumstances in which he was admitted to and remains in Bournewood Hospital involve no breach of law on their part. He was informally admitted to the hospital and remains in it without any...
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