R v Bournewood Community and Mental Health NHS Trust, Ex parte L

Detention is an objective question. A person is detained where those controlling the premises intend not to let him leave and can prevent departure, even if he cannot consent, dissent or understand his position. For hospital treatment of mental disorder, authority to detain is found only in the Mental Health Act 1983; common-law necessity cannot bypass its safeguards. Section 131 preserves informal admission only where it is consensual. A person lacking capacity does not consent merely by failing to object. Common-law necessity may remain relevant to situations outside the Act, including restraint to prevent harm, but that wider issue was left open.

L, an autistic adult unable to communicate consent or dissent, was taken to Bournewood Hospital after becoming agitated. The Trust admitted and retained him as an informal patient for treatment, believing that his compliance and failure to attempt departure meant that he was not detained. Owen J dismissed his application for judicial review and habeas corpus on 9 October 1997. The Court of Appeal considered whether L was detained, whether common-law necessity justified his detention despite the Mental Health Act 1983, and what relief should be granted.

1. Detention. The appeal was allowed. A person is detained in law where those controlling the premises intend that the person shall not be permitted to leave and have the ability to prevent departure. The question is objective and does not depend on consent, knowledge or an actual attempt to leave. On the evidence, the hospital would not have released L to his carers and would have prevented him leaving. He was therefore detained.
2. Statutory authority. Although the Mental Health Act 1983 was not an exhaustive code, a hospital’s right to detain a patient for treatment of mental disorder was found in, and only in, that Act. Its statutory procedures operated to the exclusion of common-law necessity where the Act covered the situation. Section 131 preserved informal admission arrangements only where admission and treatment were consensual. L could not consent, and his lack of objection did not authorise detention. The Trust had therefore acted unlawfully by retaining him without complying with the statutory formalities. The reasoning in Re S-C [1996] 1 AER 532, Re F [1990] 2 A.C.1 and Black v Forsey [1988] supported that conclusion.
3. Limits of necessity. Common-law necessity remained available to an individual protecting a person suffering illness, whether physical or mental, where the situation was not catered for by the Act. The court did not determine whether necessity justified restraints amounting to detention imposed solely to prevent a mentally impaired person harming himself.
4. Relief. L was entitled to the declarations sought. Further argument was required before deciding whether habeas corpus should be ordered, because it was unclear whether statutory powers had since been used or whether L had been released. False imprisonment was actionable without special damage. On the judicial review application, the court awarded nominal damages of £1, ordered the respondent to pay the costs below and on appeal, and granted leave to appeal to the House of Lords.

1. Court of Appeal (Civil Division): On 2 December 1997, the appeal was allowed. The court held that L was unlawfully detained and made the consequential costs and nominal-damages orders.
2. Queen’s Bench Division (Crown Office List): Owen J dismissed L’s application on 9 October 1997. Leave to appeal was granted on 10 October 1997.