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House of Lords
Session 1997-98
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Judgments - In Re L (By his Next Friend GE)


  Lord Goff of Chieveley   Lord Lloyd of Berwick   Lord Nolan
  Lord Steyn   Lord hope of Craighead   



ON 25 JUNE 1998


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 patients in need of long term care; and further considered that, if the judgment is held to apply to patients receiving medical treatment for mental disorder in mental nursing homes not registered to receive detained patients, the above estimates were likely to be very much higher. It is obvious that there would in the result be a substantial impact on the available resources; the Commission recorded that the resource implications were likely to be considerable, not only for the mental health services and professionals who have to implement the Act, but also for Mental Health Review Tribunals and for the Commission itself. These concerns were also reflected in the affidavit sworn by Andrea Humphrey of the Department of Health, following widespread consultation. Deep concern about the effect of the judgment was expressed, in particular, by the President of the Royal Society of Psychiatrists, and the Chairman of the Faculty for Psychiatry and Old Age of that Society; and also by the Executive Director of the Alzheimer's Disease Society. The various responses referred not only to the impact on the patients themselves, but also to the resource implications and to the effect on relatives and carers.

      The Commission also stated that the Court of Appeal's judgment had given rise to a number of legal uncertainties. Two particular questions, described by the Commission as being "of enormous practical importance", arose with regard to mental nursing homes, viz. whether such homes were required to be registered to receive patients detained under the Act of 1983 before receiving patients like Mr. L, and whether homes not so registered are now obliged to register or to discharge such patients from their care. The RNHA is particularly anxious about the position of elderly patients who lack the capacity to consent. The RNHA is concerned to know whether it is necessary for nursing homes who have or are likely to have such patients in their care to be so registered (which would have significant cost, staffing and other implications for the proprietors of such homes), or to decline to admit or keep such patients. Similar questions were raised by the Commission in relation to residential care homes, respite care and temporary care arrangements.

      On the other hand, as the Commission stressed, another result of the Court of Appeal's judgment was that, if patients such as Mr. L had to be compulsorily detained under the Act of 1983 in order to be admitted to hospital, they would reap the benefit of the safeguards written into the Act for the protection of patients compulsorily detained. It appears from the Commission's written submission that the lack of statutory safeguards for patients informally admitted to hospital has been a matter of concern for the Commission, and that this concern has been expressed not only by the Commission itself but also by the authors of authoritative textbooks on the subject. However, under section 121(4) of the Act of 1983 there is vested in the Secretary of State the power to "direct the Commission to keep under review the care and treatment, or any aspect of the care and treatment, in hospitals and mental nursing homes of patients who are not liable to be detained under this Act." During the course of the hearing, the Appellate Committee was assured by counsel for the Secretary of State that he has had the matter under consideration, but that hitherto he has not thought it right to exercise his power in this respect. In this connection, it is plain that he has to have regard to the resource implications of extension of the statutory safeguards to the very much larger number of patients who are informally admitted. At all events, this is a matter which is entirely for the Secretary of State, and not for your Lordships' House whose task is to construe, and to apply, the Act as it stands. To that task, I now turn.

      Section 131(1) of the Act of 1983

      Central to the argument advanced by Mr. Pleming Q.C. on behalf of the Secretary of State was the submission that, under the Act of 1983, persons suffering from mental disorder who are treated for their condition as in-patients in hospital fall into two categories:

(1) Those patients who are compulsorily, and formally, admitted into hospital, against their will or regardless of their will, who are detained or liable to be detained in hospital. This category may be called 'compulsory patients.' They may be admitted under section 2 of the Act of 1983 (admission for assessment); section 3 (admission for treatment); section 4 (admission for assessment in cases of emergency); or section 5 (admission of patients already in hospital).

(2) Those patients who enter hospital as in-patients for treatment either (a) who, having the capacity to consent, do consent ('voluntary patients') or (b) who, though lacking capacity to consent, do not object ('informal patients'). Both are admitted under section 131(1) without the formalities and procedures for admission necessary for detention under the Act. Strictly speaking, therefore, both groups could be described as informal patients, but it is convenient to confine that description to those who are not voluntary patients.

      As Mr. Pleming stressed, section 131(1) of the Act of 1983 is in identical terms to section 5(1) of the Mental Health Act 1959. Furthermore the Act of 1959 was enacted following the Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency 1954-1957 (1957) Cmnd. 169 ("the Percy Commission"), which recommended that compulsory detention should only be employed in cases where it was necessary to do so. The Percy Commission's views, and recommendation, on this point are to be found in paragraphs 289, 290 and 291 of their Report, which read as follows:

     "289. We consider compulsion and detention quite unnecessary for a large number, probably the great majority, of the patients at present cared for in mental deficiency hospitals, most of whom are childlike and prepared to accept whatever arrangements are made for them. There is no more need to have power to detain these patients in hospital than in their own homes or any other place which they have no wish to leave. We strongly recommend that the principle of treatment without certification should be extended to them. Such a step should help to alter the whole atmosphere of this branch of the mental health services. Many parents of severely sub-normal children at present feel that they lose all their rights as parents when their child is admitted to hospital and automatically becomes subject to compulsory detention there. We have no doubt that the element of coercion also increases the resentment of some feebleminded psychopaths, and of their parents, when they are placed under "statutory supervision" or admitted to mental deficiency hospitals after leaving school, and that this makes it even more difficult than it need be to persuade them to regard these services in the same way as other social services and other types of hospital treatment, as services which are provided for their own benfit. Equally important, if the procedures which authorise detention become the exception rather than the rule, the attitude towards compulsion on the part of those administering the services should change. These procedures will no longer be a formality which must be gone through before any patient can be given the care he needs. It will be possible to consider the need for care and the justification for compulsion as two quite separate questions in a way which is not possible at present.

     "290. Admission to hospital without using compulsory powers should also be possible for considerably more mentally ill patients than are at present admitted as voluntary patients . . .

     "291. We therefore recommend that the the law and its administration should be altered, in relation to all forms of mental disorder, by abandoning the assumption that compulsory powers must be used unless the patient can express a positive desire for treatment, and replacing this by the offer of care, without deprivation of liberty, to all who need it and are not unwilling to receive it. All hospitals providing psychiatric treatment should be free to admit patients for any length of time without any legal formality and without power to detain . . ."

Here we find a central recommendation of the Percy Commission, and the mischief which it was designed to cure. This recommendation was implemented, in particular, by section 5(1) of the Act of 1959. That the Bill was introduced with that recommendation in mind is confirmed by Ministerial statements made in Parliament at the time: see Hansard HL vol.216, columns 668 and 669.

      Following the enactment of the Act of 1959, section 5(1) was duly implemented in the manner foreshadowed by the Percy Commission, a practice which (as is plain from the evidence before the Committee) has been continued under section 131(1) of the Act of 1983, which is in identical terms. It is little wonder therefore that the judgment of the Court of Appeal in the present case, which restricts section 131(1) to voluntary patients, should have caused the grave concern which has been expressed in the evidence, both (1) about the need, following the Court of Appeal's judgment, to invoke the power of compulsory detention in many cases, numbered in their thousands each year, which for nearly 40 years had not been necessary and would, on the view expressed by the Percy Commission, be wholly inappropriate, and (2) about doubts whether some categories of patients would or would not, in consequence of the judgment, require compulsory detention.