LORD NOLAN

My Lords,

      I too agree that this appeal should be allowed. For the reasons given by my noble and l earned friend Lord Goff of Chieveley I am satisfied that the respondent Trust and its medical staff behaved throughout not only in what they judged to be the best interests of Mr. L, but in strict accordance with their common law duty of care and the common law principle of necessity.

      The first question before your Lordships, however, is whether it is correct to describe Mr. L as having been detained during the period of his informal admission to the Bournewood Hospital: for if not, the appellant Trust has no case to answer. Owen J. considered that Mr. L was not detained. He said that Mr. L "has at all times been free to leave because that is a consequence of an informal admission, and he will continue to be free to leave until Dr. Manjubhashini or somebody else takes steps to 'section' him or otherwise prevent him leaving."

      The Court of Appeal did not accept this view. They said (see (1998) 2 W.L.R. 764, 770):

 "We do not consider that the judge was correct to conclude that "L" was 'free to leave'. We think that it is plain that, had he attempted to leave the hospital, those in charge of him would not have permitted him to do so."

      My Lords, upon this point I agree with the Court of Appeal. Mr. L, was closely monitored at all times so as to ensure that he came to no harm. It would have been wholly irresponsible for those monitoring him to let him leave the Hospital until he had been judged fit to do so.

      Before your Lordships counsel for the appellant trust accepted that Owen J. might have been wrong in describing Mr. L as being "free to leave". He submitted, however, that in so far as Mr. L's liberty was constrained, the constraint arose from his illness rather than from the wishes or actions of the hospital staff. Alternatively he submitted that the question of detention could not arise unless and until Mr. L tried to leave.

      My Lords, in my judgment these submissions must fail in the light of the appellant Trust's own evidence, part of which is set out by the Court of Appeal at pp. 770-771 of the report. It will be sufficient for my purpose to quote from the letter written to Mr. and Mrs E. by Dr. Manjubhashini on 6 August 1997 in which she said, amongst other things:

 "I would like to take the opportunity to stress, through this correspondence, that we, as a Clinical Team, within the Behavioural Unit of Bournewood NHS Trust, are here, primarily to provide the treatment for (L) who was admitted under our care, as an emergency. It will be extremely irresponsible of us not to provide (L) with the care and the clinical input that he deserves and is in need of. His disposal/discharge from within the unit is dependant (sic) on the Multidisciplinary Clinical Professionals' considered views, following their Assessment and the work that they intend doing with (L), specifically, in relation to his challenging behaviour and/or Mental Health needs. As I have stressed, in my earlier correspondence, these things do take time and unfortunately we have to be a little patient to allow the professionals some room and space to carry on with their work in the provision of care. . . . (L) has been admitted to the Behavioural Unit on an 'informal' basis and this is not a time-limited admission. I am not sure if you have misunderstood his status and are under the impression that perhaps he was admitted and held under 'the Mental Health Act'. Even then, there is no 'one month' time limit, as it all depends on the patient's fitness for discharge . . . . On behalf of the Clinical Team, I would like to stress that (L) is being treated within the Behavioural Unit and once he is fit for discharge, he will be discharged back to the address from where he was admitted, with a 'Treatment Plan' which will include all aspects of his care and a 'maintenance plan' prescribed."

      After quoting from this and other letters the Court of Appeal concluded, at p. 771 of the report:

 "Mr. and Mrs E. had looked after L, as one of the family, for over three years. They had made it plain that they wanted to take him back into their care. It is clear that the hospital was not prepared to countenance this. If they were not prepared to release L into the custody of his carers they were not prepared to let him leave the hospital at all. He was and is detained there."

      My Lords, with that conclusion too I agree. I have laid some stress on the point not only because the individual's right to liberty, and the remedy of habeas corpus, lie at the heart of our law but because if Mr. L, in the circumstances which I have described, was not detained then (leaving aside the question of his treatment, which is not in issue) there was no ground in law upon which the hospital and its staff could be called upon to justify their unwillingness to release him. I find it hard to believe that the medical profession in general would regard that as a satisfactory state of affairs.

      In the event, as I have said, I am satisfied that this justification has been fully made out, and I would allow the appeal on that basis.

LORD STEYN

My Lords,

      Fewer than 10 per cent. of mentally disordered patients cared for in hospitals and mental nursing homes are admitted under the provisions of the Mental Health Act 1983. The rest of this group can be sub-divided into two sub-groups: the first and larger sub-group consists of patients capable of consenting to admission, who have so consented; the second subgroup comprises compliant but incapacitated patients, i.e. patients who are incapable of giving consent but do not express unwillingness to be admitted. Diagnostically there is usually no or virtually no difference between patients in the second sub-group (compliant incapacitated patients) and patients compulsorily admitted under the Act of 1983. If considerations of financial resources are put to one side, there can be no justification for not giving to compliant incapacitated patients the same quality and degree of protection as is given to patients admitted under the Act of 1983.

      If the judgment of the Court of Appeal is upheld it would mean that in practice compliant incapacitated patients, such as "L", could only be admitted to hospitals and mental nursing homes under the Act of 1983: Regina v. Bournewood Community and Mental Health N.H.S. Trust, Ex parte "L"[1998] 2 W.L.R. 764. On that basis the statutory safeguards would apply to them. Specifically, the beneficial consequences of the ruling of the Court of Appeal would be as follows: (1) Such patients could then only be admitted for assessment and detained (for 28 days) under section 2 or admitted for treatment and detained (for up to 6 months) under section 3 on the written recommendation of at least two doctors: see also section 4 dealing with emergency cases. (2) Such patients would gain the protection of section 58 which requires either the patient's consent or a second medical opinion before certain forms of medical treatment are given. (3) Such patients would have the advantage of applying to or being automatically referred to Mental Health Review Tribunals in accordance with the provisions of Part V of the 1983 Act. (4) Such patients would become entitled to after-care services provided by Health Authorities and Local Authorities under sections 25A--J and section 117. (5) Such patients would have the benefit of the Code of Practice published by the Secretary of State: see section 118. (6) Such patients would be brought under the supervision of the Mental Health Act Commission: section 121. (For reasons which are not apparent, successive Secretaries of State have to date refused to extend the Commission's terms of reference in this way: see section 121(4).) In any event, this is an extensive scheme of statutory safeguards which, on the basis of the judgment of the Court of Appeal, would also serve to protect compliant incapacitated patients.

      If the House is compelled to reverse the decision of the Court of Appeal, it follows that compliant incapacitated patients will not have specific protections provided by the Act of 1983. It is, of course, true that health care professionals will almost always act in the best interests of patients. But Parliament devised the protective scheme of the Act of 1983 as being necessary in order to guard amongst other things against misjudgment and lapses by the professionals involved in health care. This point requires some explanation. A hospital psychiatrist who decides that a patient ought to be admitted to hospital and treated makes a judgement which may be controversial. The clinical question may arise whether the patient is in truth incapacitated. The importance of this issue is described by Grisso and Applebaum (Assessing Competence to Consent to Treatment: A Guide to Physicians and Other Health Officials, O.U.P., 1998) as follows (at page 1):

 "Competence is a pivotal concept in decision-making about medial treatment. Competent patients' decisions about accepting or rejecting proposed treatment are respected. Incompetent patients' choices, on the other hand, are put to one side, and alternative mechanisms for deciding about their care are sought. Thus, enjoyment of one of the most fundamental rights of a free society--the right to determine what shall be done to one's body--turns on the possession of those characteristics that we view as constituting decision-making competent."

And the same authors have demonstrated how complex such an issue of competence may be: see also Applebaum, Almost a Revolution, Mental Health Law and Limited Change, 1994, O.U.P. Chapter 4. Yet on the issue of competence depends a patient<.'>s right of autonomy: compare, however, the psychiatric argument for a "trade-off" between competence and the consequences of treating or not treating: Eastman and Hope, The Ethics of Enforced Medical Treatment: The Balance Model, Journal of Applied Philosophy, Vol 5, No. 1, 1998, 49. Moreover, the broad question of what is in an incompetent patient's best interests may involve a weighing of conflicting medical and social considerations. And, in regard to treatment, the moral right of the patient to be treated with dignity may pose acute problems. These are no doubt some of the reasons why Parliament thought it necessary to create a system of safeguards for those admitted under the Act of 1983. Parliament was not content in this complex and sensitive area to proceed on the paternalistic basis that the doctor is always right.

      If the decision of the Court of Appeal is reversed almost all the basic protections under the Act of 1983 will be inapplicable to compliant incapacitated patients: see section 57(2) for an exception. The result would be an indefensible gap in our mental health law. In oral argument counsel for the Secretary of State for Health did not seek to justify such differential treatment on the grounds of resource implications. That is understandable. After all, how we address the intractable problems of mental health care for all classes of mentally incapacitated patients must be a touchstone of our maturity as a civilised society. Counsel for the Secretary of State did not seek to justify such differential treatment on the grounds of the views and wishes of health care professionals. That is also understandable. If protection is necessary to guard against misjudgment and professional lapses, the confident contrary views of professionals ought not to prevail. Professions are seldom enthusiastic about protective measures to guard against lapses by their members. And health care professionals are probably no different. But the law would be defective if it failed to afford adequate protective remedies to a vulnerable group of incapacitated mental patients.

      For these reasons I would have wished to uphold the judgment of the Court of Appeal if that were possible. But as the issues were intensively probed in oral argument it became clear to me that, on a contextual interpretation of the Act of 1983, this course was not open to the House. Given the importance of the matter, I will explain my reasons. Two issues arose:

      (1) Was "L" detained?

      (2) If he was detained, was his detention lawful?

The first is a question of fact and the second is a matter of pure law.

The approach to be adopted

      Counsel for "L" submitted that it would be wrong to conflate the two issues. Owen J. and the Court of Appeal considered first the issue of detention in the common law sense and then the issue of justification under the statute. That was how the issues were formulated in the Agreed Statement of Facts and Issues lodged for the purpose of the present appeal. And the parties to the appeal, as well as the Secretary of State, addressed in their printed cases first that the issue of detention and then, on the assumption that there was a detention in the common law sense, the separate question of justification under the statute. In my view, the two issues should be considered separately, and that the issue of detention must be considered and determined before one can turn to the issue of justification: see Reg. v. Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 A.C. 58, at 162C-D, per Lord Bridge of Harwich; and Collins v. Wilcock [1984] 1 W.L.R. 1172, per Robert Goff L.J. This is consistent with the rule that if a plaintiff proves an imprisonment, the burden is on the defendant to show that it was lawful. Moreover, the element of detention or imprisonment is a pure issue of fact for the jury and the element of justification is one in which the judge has a role to play: see Dallinson v. Caffery [1965] 1 Q.B. 348. The two issues must therefore be kept separate. If instead one turns straightaway to the lawfulness of the conduct of a defendant, one is not concentrating on the right question, namely whether conduct which as a matter of fact amounts to detention or imprisonment is justified in law. It is therefore essential in the present case to determine in the first place whether in the common law sense, as explained in the decided cases, there has been a detention of "L". Only if this question is answered in the affirmative, is it right to turn to the question of the lawfulness of the detention. To start with an enquiry into the lawfulness of conduct, or to conflate the two issues, is contrary to legal principle and authority. And such an approach tends to erode legal principles fashioned for the protection of the liberty of the individual.

Detention

      It is unnecessary to attempt a comprehensive definition of detention. In my view, this case falls on the wrong side of any reasonable line that can be drawn between what is or what is not imprisonment or detention. The critical facts are as follows: (1) When on 22 July 1979 at the Day Centre "L" became agitated and started injuring himself, he was sedated and then physically supported and taken to the hospital. Even before sedation he was unable to express dissent to his removal to hospital. (2) Health care professionals exercised effective power over him. If "L" had physically resisted, the psychiatrist would immediately have taken steps to ensure his compulsory admission. (3) In hospital staff regularly sedated him. That ensured that he remained tractable. This contrasts with the position when he was with carers: they seldom resorted to medication and then only in minimal doses. (4) The psychiatrist vetoed visits by the carers to "L". She did so, as she explained to the carers, in order to ensure that "L" did not try to leave with them. The psychiatrist told the carers that "L" would be released only when she, and other health care professionals, deemed it appropriate. (5) While "L" was not in a locked ward, nurses closely monitored his reactions. Nurses were instructed to keep him under continuous observation and did so.

      Counsel for the Trust and the Secretary of State argued that "L" was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of "L", any possible resistance by him was overcome by sedation, by taking him to hospital, and by close supervision of him in hospital. And, if "L" had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that "L" was free to go is a fairy tale.

      At one stage counsel for the Trust suggested that "L" was not detained because he lacked the necessary will, or more precisely the capacity to grant or refuse consent. That argument was misconceived. After all, an unconscious or drugged person can be detained: see Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 L.T. 44, at 53-54, per Atkin L.J., dictum approved in Murray v. Ministry of Defence [1988] 1 W.L.R. 692, at 701F-702F, per Lord Griffiths. In my view "L" was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty.

Justification

      It is now necessary to consider whether there was lawful authority to justify the detention and any treatment of "L". This is a matter of statutory construction. But it is important to approach the mental health legislation against the context of the principles of the common law. The starting point of the common law is that when a person lacks capacity, for whatever reason, to take decisions about medical treatment, it is necessary for other persons, with appropriate qualifications, to take such decision for him: In Re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1, at 55H, per Lord Brandon of Oakbrook. The principle of necessity may apply. For the purposes of the present case it has been assumed by all counsel that the requirements of the principle are simply that (1) there must be "a necessity to act when it is not practicable to communicate with the assisted person" and (2) "that the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person": Re F, supra, per Lord Goff of Chieveley, at 75H. There was not unanimity on this point in Re. F. But I am content to approach the matter in the same way as counsel did: see, however, David Feldman, Civil Liberties and Human Rights, 1993, 14-150 for a critical appraisal of Re.F. Against this common law background the Percy Report recommended a shift from the "legalism" whereby hospital patients were "certified" by special procedures, to a situation in which most patients would be "informally" received in hospital, the term "informally" signifying "without any legal formality". This was to be achieved by replacing the existing system "by the offer of care, without deprivation of liberty, to all who need it and are not unwilling to receive it": see Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency, (1954-1957) , Cmnd. 169, para. 291. The desired objective was to avoid stigmatising patients and to avoid where possible the adverse effects of "sectioning" patients. Where admission to hospital was required compulsion was to be regarded as a measure of last resort. The Mental Health Act of 1959 introduced the recommended changes. Section 5(1) was the critical provision. The marginal note reads "Informal admission of patients". Section 5(1) provides:

 "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."

Counsel appearing on behalf of "L" accepted that the effect of section 5 was to leave in place the common law principle of necessity as a justification for informally receiving in hospital or mental nursing homes compliant incapacitated patients.

      In 1982 Parliament substantially amended the Act of 1959. In 1983 Parliament enacted a consolidating statute with amendments, namely the Mental Health Act 1983. By section 131(1) of the Act of 1983 the provisions of section 5(1) of the Act of 1959 were re-enacted verbatim. And the same marginal note appears next to section 131. Prima facie section 131(1) must be given the same meaning as section 5(1). On this basis, section 131(1) also preserved the common law principle of necessity as a means of admitting compliant incapacitated individuals. But counsel for "L" submitted that section 131(1), unlike its predecessor, only applies to consenting capacitated patients. He argued that contextual differences between the statutes of 1959 and 1983 required the court to interpret the language of section 131(1) of the Act of 1983 in a narrower sense than section 5(1) of the Act of 1959. He relied in particular on the provisions of Part IV of the Act which are set out under the heading "Consent to Treatment." Part IV undoubtedly contains safeguards going beyond those in the Act of 1959, and also expressly made some of its provisions only applicable to those "liable to be detained under this Act," and others applicable also to "patients not liable to be detained under this Act." These provisions are not inconsistent with the interpretation that the meaning of section 131(1) of the Act of 1983 is the same as the meaning of section 5(1) of the Act of 1959. Making due allowance for the improved safeguards for detained patients in the Act of 1983, the differences relied on do not in truth touch on the issue before the House and do not warrant a radical re-interpretation of identical statutory wording. On orthodox principles of statutory interpretation the conclusion cannot be avoided that section 131(1) permits the admission of compliant incapacitated patients where the requirements of the principle of necessity are satisfied. Having had the benefit of the fuller argument produced by the intervention of the Secretary of State, I have to accept that the view of the Court of Appeal on the meaning of section 131(1) cannot be upheld.

      About the principle of necessity, applied to a case such as that of "L", there is a qualification. It is asserted on behalf of the Secretary of State that such authority lapses if the patient insists on leaving. That is consistent with the Code of Practice: Mental Health Act 1983 (1993): it provides that "it is important that informal patients understand their right to leave hospital": para. 14.1, and see also para. 18.27. But the Code of Practice cannot overrule the width of principle of necessity, which might in some cases authorise further detention of such a patient. If such cases arise, the court will not be able to give effect to the policy of the Code of Practice. This is an unsatisfactory position in an area of supreme importance to personal liberty.

      In any event, it follows from my conclusion that the principle of necessity has been preserved by section 131(i). The detention and treatment of "L" was lawful.

The effect of the decision of the House of Lords

      The general effect of the decision of the House is to leave compliant incapacitated patients without the safeguards enshrined in the Act of 1983. This is an unfortunate result. The Mental Health Act Commission has expressed concern about such informal patients in successive reports. And in a helpful written submission the Commission has again voiced those concerns and explained in detail the beneficial effects of the ruling of the Court of Appeal. The common law principle of necessity is a useful concept, but it contains none of the safeguards of the Act of 1983. It places effective and unqualified control in the hands of the hospital psychiatrist and other health care professionals. It is, of course, true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient. But neither habeas corpus not judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients. Given that such patients are diagnostically indistinguishable from compulsory patients, there is no reason to withhold the specific and effective protections of the Act of 1983 from a large class of vulnerable mentally incapacitated individuals. Their moral right to be treated with dignity requires nothing less. The only comfort is that counsel for the Secretary of State has assured the House that reform of the law is under active consideration.

Conclusion

I would allow the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

      I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Goff of Chieveley. I agree with it, and for the reasons which he has given I also would allow the appeal.