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

An incapacitated person who requires treatment for mental disorder may be admitted informally under section 131(1) of the Mental Health Act 1983 if the person does not object. Positive consent is unnecessary.

The common law doctrine of necessity may justify treatment, care and necessary restrictions undertaken in the person’s best interests where communication is impracticable. Informal admission does not itself constitute false imprisonment. By a majority, the House held that false imprisonment requires an actual and complete restraint of liberty; an intention to prevent departure if attempted is merely a potential restraint. Two Law Lords considered that the patient had been detained in fact, but agreed that necessity made the detention lawful.

L lacked capacity to consent to treatment because of profound mental disability. After serious self-harming behaviour, he was taken to hospital and admitted informally under section 131(1) of the Mental Health Act 1983. He did not resist admission or attempt to leave, although the responsible psychiatrist would have invoked compulsory powers had that become necessary.

Owen J refused applications for judicial review and habeas corpus and claims for false imprisonment and assault. The Court of Appeal, reported at [1998] 2 WLR 764, held that L was detained, that the 1983 Act excluded reliance on common law necessity, and that the detention was unlawful. It awarded nominal damages.

The Trust appealed. The central questions were whether section 131(1) permitted the informal admission of a compliant patient lacking capacity, whether L had been detained, and whether necessity justified his admission, care, treatment and any restraint.

1. Appeal allowed unanimously. Lord Goff delivered the leading speech. Lord Lloyd and Lord Hope agreed with it. Lord Nolan and Lord Steyn also allowed the appeal, although they differed from Lord Goff on whether L had been detained.

2. Per Lord Goff, section 131(1) of the Mental Health Act 1983 permits the informal admission both of patients capable of consenting who consent and of patients incapable of consenting who do not object. Its wording reproduced section 5(1) of the Mental Health Act 1959, which implemented the policy that compulsory powers should be a last resort. Section 131(2) did not confine subsection (1) to patients capable of positive consent. Lord Steyn reached the same conclusion by contextual statutory interpretation.

3. Per Lord Goff, the common law doctrine of necessity justified treatment and care reasonably undertaken in L’s best interests when he could not consent. It also justified necessary restrictions upon movement, including his removal to hospital. The 1983 Act did not exclude that doctrine in relation to informal patients. B v Forsey was distinguishable because it concerned an attempt to supplement exhaustive statutory powers of compulsory detention under Scottish legislation.

4. Per Lord Goff, with Lord Lloyd and Lord Hope agreeing, informal admission did not itself deprive L of liberty. False imprisonment requires an actual and complete restraint, rather than a merely potential restraint conditional upon an attempted departure. L was on an unlocked ward, had not attempted to leave and had not been restrained from leaving. The psychiatrist’s intention to use statutory powers if necessary did not create a present detention.

5. Lord Nolan and Lord Steyn considered that L was detained in fact. Staff had assumed effective control over him, continuously monitored him and would not have permitted him to leave. Lord Steyn stressed that detention and legal justification are separate issues. Both nevertheless concluded that necessity fully justified the detention and treatment, so the Trust had committed no wrong.

6. Lord Steyn observed that the result left compliant incapacitated patients without most safeguards applicable to compulsorily detained patients. He regarded that gap as unsatisfactory and important to personal liberty, but accepted that the statutory language compelled the House’s construction. The Court of Appeal’s order and award of nominal damages were displaced.

1. House of Lords: Allowed the Trust’s appeal unanimously and displaced the Court of Appeal’s decision.

2. Court of Appeal: In [1998] 2 WLR 764, allowed L’s appeal. It held that he was unlawfully detained, awarded £1 damages and granted the Trust leave to appeal.

3. High Court: Owen J refused L’s applications for judicial review and habeas corpus and his claims for false imprisonment and assault.