L, In re

The Appellate Committee considered whether the informal admission and subsequent treatment of an incapacitated but compliant patient (Mr L) amounted to false imprisonment and whether the Mental Health Act 1983 displaced the common law doctrine of necessity. The court held that (1) the question of detention is one of fact and must be distinguished from the separate question of lawful justification; (2) the common law doctrine of necessity can justify the admission, confinement and treatment of an incapacitated patient who does not object; and (3) section 131(1) of the Mental Health Act 1983 (re-enacting section 5(1) of the Mental Health Act 1959) permits informal admission of patients who lack capacity but do not object, so as to preserve the common law necessity safeguard. The appeal by the Trust was allowed because the steps taken were justified in Mr L's best interests and no actionable false imprisonment was made out.

Background and parties:

• The respondent (Mr L) was an autistic, profoundly mentally retarded adult who had been resident in hospital for many years and was on trial discharge to live with paid carers, Mr and Mrs E. He lacked capacity to consent to treatment.
• After a severe episode of self-harm and agitation on 22 July 1997 he was taken to the Accident and Emergency Department and then admitted to the hospital behavioural unit. The Trust responsible for his care admitted him informally and treated him while he remained compliant.

Procedural posture and relief sought:

• At first instance Mr L sought judicial review of the decision to detain him, habeas corpus, and damages for false imprisonment and assault; Owen J refused the applications.
• The Court of Appeal held that Mr L had been detained and that his detention was unlawful, awarded nominal damages and granted the Trust leave to appeal to the House of Lords.
• The Trust regularised the position by admitting Mr L under section 3 of the Mental Health Act 1983 after the Court of Appeal's indication; he was discharged in December 1997. The Trust appealed to the House of Lords with intervention by the Secretary of State for Health, the Mental Health Act Commission and the Registered Nursing Homes Association.

Issues framed:

1. Was Mr L "detained" in the common law sense so as to make out the tort of false imprisonment?
2. If detained, was that detention lawful: does section 131(1) of the Mental Health Act 1983 permit informal admission and treatment of incapacitated but compliant patients, and/or does the common law doctrine of necessity provide justification?

Court's reasoning:

• The House emphasised that the factual question of detention must be determined first, and then the legal issue of justification. The histories of the 1959 and 1983 Acts and the Percy Commission recommendations show that section 131(1) re-enacts section 5(1) of the 1959 Act and was intended to preserve the ability to admit patients "without legal formality".
• The court held that treatment and care of incapacitated but compliant patients can be justified by the common law doctrine of necessity (as established in In re F) and that section 131(1) did not narrow the scope of informal admission to capacitated consenting patients.
• Applying the facts, the clinical interventions, removal by ambulance and close supervision were in Mr L's best interests and justified by necessity; the informal readmission under section 131(1) did not in itself amount to actionable detention given the lawful necessity for the steps taken.

Wider context noted: The House acknowledged the practical and policy difficulties of leaving a class of diagnostically indistinguishable but vulnerable patients outside the statutory safeguards of the 1983 Act, and recorded that reform was under active consideration by the Secretary of State. The court nonetheless construed the statute as preserving the common law necessity doctrine.

Appeal allowed. The House held that (1) the factual question of detention must be decided separately from the question of justification; (2) section 131(1) of the Mental Health Act 1983 re-enacts section 5(1) of the 1959 Act and permits informal admission of incapacitated but compliant patients; and (3) the common law doctrine of necessity can justify the admission, treatment and confinement of such patients when acting in their best interests, so that no actionable false imprisonment arose on the facts.

Owen J (first instance) refused Mr L's applications. The Court of Appeal ([1998] 2 W.L.R. 764) allowed Mr L's appeal, held his detention unlawful and awarded nominal damages; the Trust obtained leave to appeal to the House of Lords. The House of Lords ([1998] UKHL 24) allowed the Trust's appeal. After the Court of Appeal's indication, the Trust admitted Mr L under section 3 (31 October 1997) and he was discharged in December 1997.