R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health intervening)

JurisdictionUK Non-devolved
Judgment Date25 June 1998
Judgment citation (vLex)[1998] UKHL J0625-1
Date25 June 1998
CourtHouse of Lords

[1998] UKHL J0625-1


Lord Goff of Chieveley

Lord Lloyd of Berwick

Lord Nolan

Lord Steyn

Lord hope of Craighead

(By his Next Friend GE) (Respondent)

My Lords,


The respondent, Mr. L, is 48 years old. He is autistic, and is profoundly mentally retarded. He is unable to speak, and his level of understanding is severely limited. It follows that he has always been incapable of consenting to medical treatment. He is frequently agitated; he has no sense of danger, and has a history of self-harming behaviour.


From the age of 13, for a period of over 30 years, he was a resident at the Bournewood Hospital, which is now run by the appellant NHS Trust. In March 1994, however, he was discharged on a trial basis into the community. He went to live with paid carers, Mr. and Mrs. E.; but since he had not been finally discharged, the appellant Trust remained responsible for his care and treatment. Mr. and Mrs. E. became very fond of him and, with their children, regarded him as one of the family.


On 22 July 1997, at the Cranstock Day Centre which was regularly attended by him, Mr. L became particularly agitated, hitting himself on the head with his fists and banging his head against a wall. Mr. and Mrs. E. could not be contacted. The Day Centre got in touch with a local doctor, who attended and administered a sedative. The social worker who had overall responsibility for him was also contacted. She attended and, on her recommendation, he was taken by ambulance to the Accident and Emergency Department at the Bournewood Hospital. As a result of the sedative given to him, he became calm and relaxed; but while at the Department he became increasingly agitated. He was assessed by a psychiatrist as being in need of in-patient treatment. He made no attempt to leave, and was transferred to the behavioural unit at the Hospital. His consultant, Dr. Manjubhashini, decided that his best interests required that he should be readmitted for in-patient treatment. She considered whether it was necessary to detain him under the provisions of the Mental Health Act 1983 but decided that this was not necessary because he appeared to be fully compliant and did not resist admission. I shall have to refer to her evidence in more detail at a later stage. He was therefore admitted informally.


The doctors and staff at the Hospital responsible for treating Mr. L regarded it as very important for his future that he should be returned to live with Mr. and Mrs. E. as soon as practical. But Mr. and Mrs. E. have unfortunately not been satisfied as to the Trust's motives. Dr. Manjubhashini wrote to Mr. and Mrs. E. explaining what was proposed, discussing meetings and visits by Mr. and Mrs E. to see Mr. L, but no programme of visits was achieved. In the result, proceedings were commenced in the name of Mr. L against the Trust. I add in parenthesis that, when this matter was coming before the Court of Appeal, the Court adjourned the hearing of the appeal to see if a suitable third party could achieve a reconciliation between Mr. and Mrs E. and those responsible for treating Mr. L; but Mr. and Mrs E. took the view that it would still be preferable if the legal position was clarified and so the appeal proceeded.


I should however first refer to the proceedings before the judge of first instance, Owen J. Mr. L applied for (1) judicial review of the appellant's decision to detain him on 22 July 1997, and the appellant Trust's ongoing decision to continue the respondent's detention; (2) a writ of habeas corpus ad subjiciendum directed to the appellant Trust; and (3) damages for false imprisonment and assault. On 9 October 1997 Owen J. refused Mr. L's applications. On 29 October 1997, after a hearing on that day, the Court of Appeal (Lord Woolf M.R., Phillips and Chadwick L.JJ.) [1998] 2 W.L.R. 764 indicated that the appeal would be allowed. The judgment of the Court was handed down on 2 December 1997. They held that Mr. L had been detained by the appellant Trust, and that his detention was unlawful. They awarded Mr. L £1 damages, and granted the appellant Trust leave to appeal to your Lordships' House.


On 31 October 1997, following the indication by the Court of Appeal that Mr. L's appeal would be allowed, the appellant Trust regularised the position of Mr. L by admitting him to the Hospital for treatment under section 3 of the Mental Health Act 1983, with the effect that he could be detained there for a period not exceeding 6 months (see section 20). On 5 November 1997 an application was made for his discharge; on 5 December 1997 he was released into the care of the Mr. and Mrs E., and on 12 December he was discharged from the hospital.


Before Owen J. and the Court of Appeal, the matter proceeded as follows. For Mr. L, it was submitted that he had been wrongfully detained in the hospital without his consent. In answer to that submission, the appellant Trust argued, first, that he had been informally admitted under section 131(1) of the Act of 1983, which provides as follows:

"Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or mental nursing home in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or mental nursing home in pursuance of such arrangements after he has ceased to be so liable to be detained."


It was further submitted that informal admission under section 131(1) does not require consent on the part of the patient, it being enough that he does not dissent from being admitted. Next, the appellant Trust submitted that, once Mr. L had been lawfully admitted, the treatment he received was lawful under the common law doctrine of necessity. For Mr. L, it was submitted that detention was a question of objective fact. On the evidence, he had in fact been detained. He had been physically taken to the Hospital; and Dr. Manjubhashini had made it plain that, if he had resisted admission, she would certainly have detained him under the Act. Furthermore the comprehensive statutory regime ousted any common law jurisdiction under the doctrine of necessity. The judge accepted the argument of the appellant Trust. He held that Mr. L had not in fact been detained; he had been informally admitted under section 131(1), which applied not only to persons who consented but also to those who, like him, did not dissent from their admission, and he had been free to leave until Dr. Manjubhashini or somebody else took steps to "section" him or otherwise prevent him from leaving. Furthermore, the statutory scheme under the Act of 1983 included section 131(1), which contemplated the exercise of common law powers.


The Court of Appeal, however, took a different view. They held that Mr. L had in fact been detained. They said [1998] 2 W.L.R. 764, 769:

"In our judgment a person is detained in law if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving. We have concluded that this was and is the position of L."


Next they concluded that the Act did indeed create a complete regime which excluded the application of the common law doctrine of necessity. In so holding, they invoked the decision of your Lordships' House in the Scottish case of B. v. Forsey 1988 S.C. (H.L.) 28. Section 131(1), they held, did not assist the appellant Trust, because it addresses only the position of a patient who is admitted and treated with consent. This seemed to them to be implicit from the wording of section 131(2). They accordingly allowed Mr. L's appeal. It is from that decision that the appellant Trust now appeals to this House, with the leave of the Court of Appeal.


The impact of the Court of Appeal's judgment


There can be no doubt that the decision of the Court of Appeal has caused grave concern among those involved in the care and treatment of mentally disordered persons. As a result, three parties applied for, and were granted, leave to intervene in the appeal before this House. They were the Secretary of State for Health, the Mental Health Act Commission ("the Commission") and the Registered Nursing Homes Association ("the RNHA"). At the hearing of the appeal, the Secretary of State and the RNHA were represented by counsel (though counsel for the RNHA was in the event content to adopt the argument of counsel for the Secretary of State), and the Commission provided a written submission for the assistance of the Appellate Committee. I wish to express the gratitude of the Committee for the assistance provided to them in this way.


In the light of this assistance, I am able to summarise the position which has arisen following the Court of Appeal's judgment as follows. First and foremost, the effect of the judgment is that large numbers of mental patients who would formerly not have to be compulsorily detained under the Act of 1983 will now have to be so detained. Enquiries by the Commission suggest that "there will be an additional 22,000 detained patients resident on any one day as a consequence of the Court of Appeal judgment plus an additional 48,000 admissions per year under the Act." This estimate should be set against the background that the average number of detained patients resident on any one day in England and Wales is approximately 13,000. (Andrea Humphrey, a civil servant of the Department of Health, gave a figure of 11,000 for those detained under the Act at any time prior to the judgment). The Commission considered it to be very likely that the majority of patients to whom the Court of Appeal judgment applied would be...

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