Law Report: 5 December 1997: Necessity cannot justify detention of mental patient

A person suffering from a mental disorder may only be detained in hospital for treatment for that disorder either with his consent or under the provisions of the Mental Health Act 1983, and not under the common law doctrine of necessity.

R v Bournewood Community and Mental Health Trust, ex parte L; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Phillips and Lord Justice Chadwick) 2 December 1997

The Court of Appeal allowed the applicant's appeal against the decision of Mr Justice Owen (Case Summaries, 3 November 1997), who dismissed his application for judicial review of the decision of the Bournewood Community and Mental Health NHS Trust to detain him on 22 July 1997 and to continue that detention.

The applicant, a 48-year-old autistic man who was unable to speak, had been a long-term resident at a hospital run by the trust. In March 1994 he had gone to live with a couple who were his carers. They regarded him as one of the family. On 22 July 1997, while at a day centre, the applicant had become agitated. His carers could not be contacted so the care worker who had had overall responsibility for him for many years had been called. She had recommended that he should be taken to the hospital's Accident and Emergency Unit. Whilst there he had become increasingly agitated and, under a doctor's supervision, had been taken to the mental health behavioural unit. He had remained at the hospital ever since.

Richard Gordon QC and Paul Bowen (Scott-Moncrieff Harbour & Sinclair) for the applicant; John Grace QC (Beachcroft Stanleys) for the trust.

Lord Woolf MR, handing down the judgment of the court, said that for the purposes of the appeal the applicant had been regarded as being unable to express either consent or dissent to detention. The trust's consultant psychiatrist had taken the view that because the applicant had been "quite compliant" on 22 July and had "not attempted to run away", he could be admitted to the hospital as an informal patient and need not be detained under the Mental Health Act 1983. Had he resisted admission, however, she would certainly have detained him under the Act, being firmly of the view that he required in-patient treatment.

The trust denied that the applicant had been detained; he had simply not chosen to leave the hospital. However, a person was detained in law if those who had control over the premises where he was had the intention that he should not be permitted to leave, and had the ability to prevent him from leaving. That was the applicant's position. The judge had been wrong to conclude that he was "free to leave" the hospital. It was plain that, had he attempted to do so, those in charge of him would not have permitted it.

The alternative contention of the trust was that if the applicant were detained, such detention was not unlawful because they could rely on the common law doctine of necessity to justify giving treatment to the applicant in accordance with his own best interests.

It was clear from the authorities that the right of a hospital to detain a patient for treatment for mental disorder was to be found in, and only in, the 1983 Act, whose provisions applied to the exclusion of the common law principle of necessity. The trust contended that section 131 of the Act entitled them to admit the applicant as an "informal patient", but that section addressed the position of a patient who was admitted and treated with consent. The trust had admitted and detained the applicant for treatment for mental disorder without his consent and without the formalities required by the Act. It followed that they had acted unlawfully.

It should be made clear that in the present case the court had been concerned with the admission and detention in hospital of a patient for treatment for mental disorder. Nothing in the judgment should be taken as applicable to the situation where a mentally impaired person was subjected to restraints amounting to detention which were imposed simply to prevent him from sustaining harm.

A troubling feature of the appeal was that the trust was not alone in misinterpreting the effect of the Act. Apparently there could be many patients, especially those suffering from dementia, who were in the same position as the applicant. The current practice could not justify a disregard of the Act.