Law Report: Patient who does not object can be admitted

Tuesday Law Report; 30 June 1998 Regina v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) House of Lords (Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Nolan, Lord Steyn and Lord Hope of Craighead) 25 June 1998
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A PATIENT who, although unable to consent, did not object, might be admitted to hospital for treatment under section 131(1) of the Mental Health Act 1983, and a patient thus admitted who was accommodated on an unlocked ward and who had made no attempt to leave could not be said to have been unlawfully detained.

The House of Lords allowed the appeal of the Bournewood Community and Mental Health NHS Trust against the decision of the Court of Appeal that it had unlawfully detained the respondent, L.

L, a 48-year-old man, was autistic, profoundly mentally retarded, and unable to speak. He had always been incapable of consenting to medical treatment. After having been a resident of a hospital run by the appellant trust for over 30 years, he had been discharged into the community in 1994 and had gone to live with paid carers.

Whilst at a day centre which he attended regularly, he had become particularly agitated. His carers could not be contacted, and L was sedated and taken by ambulance to hospital. He was assessed by a psychiatrist as being in need of in- patient treatment. It was decided that it was unnecessary to detain him under the provisions of the Mental Health Act 1983, as he appeared fully compliant and did not resist admission.

L applied for, inter alia, judicial review of the trust's decision to detain him, and to continue to do so. The applications were dismissed. L appealed.

The Court of Appeal held that he had been detained by the trust; that the 1983 Act created a complete regime which excluded the application of the common law doctrine of necessity; and that section 131(1) of the Act addressed only the position of a patient who was admitted and treated with consent; and that L's detention had, therefore been unlawful. The trust appealed.

Richard Gordon QC and Paul Bowen (Scott Moncieff Harbour & Sinclair) for L; John Grace QC and Andrew Grubb (Beachcroft Stanleys) for the trust; Nigel Pleming QC and Rabinder Singh (Solicitor, Department of Health and Social Security) for the Secretary of State for Health; Michael Heywood (Lester Aldridge, Bournemouth) for the National Association of Nursing Homes; the Mental Health Commission made written submissions only.

Lord Goff said that section 131(1) of the 1983 Act was in identical terms to section 5(1) of the Mental Health Act 1959, which had been designed to cure the mischief caused by the assumption that compulsory powers must be used unless the patient could express a positive desire for treatment, and to replace that by the offer of care, without deprivation of liberty, to all who needed it and were not unwilling to receive it. The Court of Appeal had therefore been wrong to hold that the section applied only to patients who consented.

The issue of L's detention depended on whether the tort of false imprisonment, which required complete deprivation of, or restraint upon, a plaintiff's liberty, had been committed against him. Since he had, in fact, made no attempt to leave, and had been accommodated on an unlocked ward, it could not be said that he had actually been deprived of his liberty.

Although L had been discharged into the community, the trust remained responsible for his treatment. It was plainly the statutory intention that "informal patients" admitted under section 131(1) should receive such treatment might be in their best interests. Such treatment could be justified on the basis of the common law doctrine of necessity. All the steps taken in the present case had been taken in L's best interests, and, in so far as they might otherwise have constituted an invasion of his civil rights, had, accordingly, been justified.

Kate O'Hanlon, Barrister