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posted 1 Jul 1998 in Volume 3 Issue 5
Bournewood & Beyond
The House of Lord's decision in the
case of L v Bournewood Community and Mental Health Trust1 may have been met with
a sigh of relief by professionals working in the mental health field2, but
anyone expecting a return to the pre-Court of Appeal position is likely to be
disappointed.
Although the House of Lords has overruled the Court of Appeal by
deciding that people who are incapable of giving consent to their admission to
hospital can be admitted and cared for without using the Mental Health
Act 1983 (`the Act') the judgement has reinforced the calls to provide
safeguards for people admitted to hospital in such circumstances.
Background -
Consequences of the Court of Appeal's Judgement
The case of L v Bournewood Community
and Mental Health Trust concerned Mr L a 48 year old autistic man who was
admitted to Bournewood Hospital after becoming agitated at the day centre he
regularly attended. The doctor responsible for Mr L's care did not think it
necessary to detain Mr L under the Act because he appeared to be fully compliant
and did not resist admission. Mr L's carers took action against the NHS Trust
responsible for the management of the hospital, claiming that Mr L was
unlawfully detained.
The Court of Appeal considered that Mr L had been unlawfully detained
ruling that individuals who are not capable of giving consent to their admission
to hospital for treatment for their mental disorder must be formally detained
under the Act3. The Trust appealed to the House of Lords.
The main judgement was given by Lord
Goff of Chieveley, who described Mr L:
`The respondent Mr L, is 48 years old.
He is autistic, and is profoundly mentally retarded. He is unable to speak, and
his level of understanding is severely limited. It follows that he has always
been incapable of consenting to medical treatment. He is frequently agitated; he
has no sense of danger, and has a history of self-harming behaviour.`
After setting out the
facts of the case and summarising the decisions of the first instance judge and
the Court of Appeal, Lord Goff noted:
`There can be no doubt that the
decision of the Court of Appeal has caused grave concern among those involved in
the care and treatment of mentally disordered persons.'
Given the concern, the Secretary of
State for Health, the Mental Health Act Commission (`the Commission') and the
Registered Nursing Homes Association applied for, and were granted, leave to
intervene in the appeal. Having considered their submissions Lord Goff described
the consequences following from the Court of Appeal's decision that people
without capacity to consent to their admission to hospital for treatment for
their mental disorder would need to be detained under the Act as follows:
`First and foremost, the
effect of the judgement is that large numbers of mental patients who would
formerly not have to be compulsorily detained under the Act of 1983 will now
have to be so detained. Enquiries by the Mental Health Act
Commission suggest that "there will be an additional 22,000 detained patients
resident on any one day as a consequence of the Court of Appeal judgement plus
an additional 48,000 admissions per year under the Act." This estimate should be
set against the background that the average number of detained patients resident
on any one day in England and Wales is 13,000.
Lord Goff noted that the increase in
the number of patients detained under the Act would have a substantial impact on
available resources. Furthermore the Commission's submission to the House of
Lords highlighted a number of `legal uncertainties' arising from the Court of
Appeal's judgement. Two such issues concerned the position of nursing homes. The
first questions was whether nursing homes were required to be registered to
receive patients detained under the Act before receiving patients like Mr L. The
second question was whether homes not registered to receive detained patients
were obliged to register or discharge patients such as Mr L from their care.
These questions were of particular importance because nursing homes can only
detain people under the Act if they are registered mental nursing homes under
the Registered Homes Act 1984.
Against such practical difficulties,
Lord Goff referred to the Commissions concerns about the lack of safeguards if
patients such as Mr L were not detained under the Act, but felt that this was
not an issue the Lords should address:
`However, under section 121(4) of the
Act of 1983 there is a vested in the Secretary of state the power to "direct the
Commission to keep under review the care and treatment, or any aspect of the
care and treatment, in hospitals and mental nursing homes of patients who are
not liable to be detained under this Act". During the course of the hearing, the
Appellate Committee was assured by counsel for the Secretary of State that he
has had the matter under consideration, but that hitherto he has not thought it
right to exercise his power in that respect. In this connection, it is plain
that he has to have regard to the resource implications of extension to the very
much larger numbers of patients who are informally admitted. At all events, this
is a matter which is entirely for the Secretary of Stare, and not for your
Lordships' House whose task it is to construe, and to apply the Act as it
stands.'
Accordingly, Lord Goff turned to consider the scope of the Act.
Section 131(1)
of the Act & Informal Admission
On behalf of the Secretary of State it
was argued that there are two categories of people with mental disorder who are
treated for their condition as in-patients:
`(1) Those patients who are
compulsorily, and formally, admitted into hospital, against their will or
regardless of their will, who are detained or liable to be detained in hospital.
This category may be called "compulsory patients"...
(2) Those patients who enter hospital
as in-patients for treatment either (a) who having the capacity to consent, do
consent (`voluntary patients') or (b) who, though lacking capacity to consent,
do not object (`informal patients'). Both are admitted under section 131(1)
without the formalities and procedures for admission necessary for detention
under the Act. Strictly speaking therefore, both groups could be described as
informal patients, but it is convenient to confine that description to those who
are not voluntary patients.'
Accordingly the scope of section
131(1) was crucial to the question whether a person without capacity could be
admitted to hospital without the need to rely on the powers of detention under
the Act. Section 131(1) of the Act states:
`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 homes 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.'
In order to assist in the
interpretation of section 131(1) the House of Lords were asked to consider the
comments made in the Report of the Royal Commission on the Law Relating to
Mental Illness and Mental Deficiency 1954-57 (`the Percy Commission'). The Percy
Commission considered that it was unnecessary to compulsorily detain the
majority of patients cared for in `mental deficiency hospitals':
`....most of whom are
childlike and prepared to accept whatever arrangements are made for them. There
is no more need to have the power to detain these patients in hospital than in
their own homes or any other place which they have no wish to leave.'
Accordingly, the Percy
Commission recommended:
`...that the law and its administration should be altered, in relation
to all forms of mental disorder, by abandoning the assumption that compulsory
powers must be used unless the patient can express a positive desire for
treatment, and replacing this by the offer of care, without depravation of
liberty, to all who need it and are not unwilling to receive it. All hospitals
providing psychiatric treatment should be free to admit patients for any length
of time without the formality and without the power to detain....'
It was accepted by
counsel on behalf of L that the Percy Commission's recommendation was
implemented by section 5(1) of the Mental Health Act 1959.
Given that the same wording is used in section 131(1) of the Act, Lord Goff
considered that the Court of Appeal had been wrong to restrict the meaning of
section 131(1) to those patients who are capable of agreeing to their
admission.
Having
found that section 131(1) covered patients without the capacity to consent to
admission, Lord Goff concluded that in the light of the Re F (Mental Patient:
Sterilisation)4 such patients could be treated in hospital under the `common law
doctrine of necessity'. The Code of Practice to the Mental Health Act
19835 summarises the position:
`A patient can be given treatment
without consent when he is incapable of giving consent provided two conditions
are satisfied. The first condition is that the patient must lack the
capacity...to make a decision and be in need of medical care. The second
condition is that the treatment must be "in the patient's best interests", which
according to the decision of the House of Lords in Re F [1990] 2 AC 1, means
that the treatment is:
· necessary to save life or prevent a deterioration or ensure an
improvement or mental health
· in accordance with a practice
accepted at the time by a responsible body of medical opinion skilled in the
particular form of treatment in question16
Was L
Detained?
The question as to whether L was detained was a cause for some
disagreement between the Lords. Lord Goff concluded that L was not detained. In
the light of previous cases which had established that detention required `a
complete deprivation of, or restraint upon' an individual's liberty, Lord Goff
considered the facts relating to L's admission to and continued stay in,
hospital did not constitute a detention. In reaching his conclusion, Lord Goff
made the following comments:
· L had been discharged from hospital
on a trial basis and therefore the trust remained responsible for L's treatment
and it was in discharge of that responsibility that his doctor acted as she
did.
· When L
became agitated and acted violently, an emergency arose which required his
doctor's intervention, as a matter of necessity in L's best interests and `at
least in the initial stages, to avoid danger to others and it was plainly
appropriate for his doctor to intervene.
· The steps taken were taken in the
best interests of L and `in so far as they might otherwise have constituted an
invasion of his civil rights, were justified on the basis of the common law
doctrine of necessity. Although there were times where it might have been said
that L was `detained', such as the journey by ambulance from the day centre to
the hospital, that was plainly justified by necessity.
· The fact that L's doctor stated that
she would if necessary have taken steps to compulsory detain L under the Act had
no relevance to the conclusion that her actions were justified under common
law.
· L's
readmission to hospital under section 131(1) of the Act could not constitute a
depravation of L's liberty. L was not kept on a locked ward after he was
admitted and the fact that his doctor had in mind that she might subsequently
take steps to detain him under the Act did not give rise to his detention in
fact at an earlier date.
`Furthermore his treatment while in hospital was plainly justified on
the basis of the common law doctrine of necessity. It follows that none of these
actions constituted any wrong against Mr L.'
Two judges adopted Lord Goff's
judgement. Lord Nolan and Lord Steyn, while agreeing that the appeal should be
allowed disagreed with Lord Goff on the question whether Mr L was detained.
Although Lord Nolan stated that he was satisfied that NHS Trust and its medical
staff had behaved throughout not only in what they judged to be the best
interests of Mr L but in strict accordance with their common law principle of
necessity, he agreed with the Court of Appeal's view that L was not free to
leave. The Court of Appeal had found that the Trust would not allow Mr L to
return to his carers and Lord Nolan agreed with their conclusion:
`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.'
However, Lord Nolan was
satisfied that the justification for L's detention had been fully made out an
therefore allowed the appeal.
Similarly, Lord Steyn disagreed with
the majority view that L was not detained. Although Lord Steyn agreed that the
Court of Appeal's judgement should be overruled, Lord Steyn came to this
conclusion somewhat reluctantly because he felt that excluding patients such as
Mr L from the safeguards under the Act:
`would be an indefensible gap in our
mental health law.'
Lord Steyn described the safeguards under the Act, which would be
available to patients such as Mr L, if the Court of Appeal's decision was
upheld:
`(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 six 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 being
referred to Mental Health Review Tribunals in accordance with the provisions of
Part V of the Act 1983 Act. (4) Such patients would become entitled to
after-care services provided by Health Authorities and Local Authorities under
section 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...
.....If the House is compelled to
reverse the decision of the Court of Appeal, it follows that compliant
incapacitated patients will not have the specific protections provided by the
Act of 1983.'
For
this reason Lord Steyn considered it important to explain the reason for his
view. While Lord Goff's judgement seemed to confuse the question of detention
with the question whether any such detention is justified, Lord Steyn stressed
the need to keep these two questions separate. He considered that the issue of
detention must be considered and determined before the issue of justification is
examined:
`If
instead one turns straight away to the lawfulness of the conduct of the
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.'
Lord Steyn considered it unnecessary to provide a `comprehensive
definition as he felt that Mr L's case clearly fell within the concept of
detention. His contempt for the argument that L was free to leave the hospital
was clear:
`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 observation 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....
....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 for
Detention
Having found that L was detained, Lord Steyn then considered whether the
detention was justified. Reluctantly Lord Steyn found that section
131(1):
`permits
the admission of compliant incapacitated patients where the requirements of the
principle of necessity are satisfied'
Lord Steyn noted that the parties
agreed, following the case of Re F (Mental Patient: Sterilisation), that the
principle of necessity applies when,
`(1) there must be a "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 the
circumstances take, acting in the best interests of the assisted person"'
In such circumstances,
Lord Steyn considered that the Court of Appeal's interpretation of section
131(1) could not be accepted, the principle of necessity has been preserved by
this section and accordingly the detention and treatment of L was lawful.
The Effect of
the House of Lords Decision
Lord Steyn was clearly concerned about
the consequences of holding, that Mr L could be detained under common law,
without the need to use the Act:
`The general effect of the decision of
the House is to leave compliant incapacitated patients without the safeguard
enshrined in the Act of 1983. This is an unfortunate result.....
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.'
Such comments are welcome in the face
of a decision which would otherwise leave such patients without any independent
review of their treatment and care. On the day of the judgement Paul Boatang,
Health Minister announced that the Department of Health would issue guidance on
the assessment and admission of patients within a fortnight:
`I want to emphasise
that it remains essential for doctors to base their decisions on treatment on a
thorough assessment of a patient's clinical and social needs. Information from
the patient and there carers and relatives should always be taken into
account.'7
The
precise details of the guidance is not known but it is hoped that this is only
the first step in reducing Lord Steyn's `indefensible gap in mental health law'.
The lack of any safeguards can only be addressed properly by legislative
reform.
Camilla Parker, Solicitor & freelance consultant.
Fotenotes
1. The Time 30 June
1998
2. Law Lords
rule against patient "sectioning" The Guardian, 26 June 1998
3. (1998) 1 CCLR 201, CA
For an analysis of the Court of Appeal's judgement, see Ability to Leave?,
Elderly Client Adivser; Vol 3 Issue 3, April 1998.
4. [1990] 2 AC 1
5. 2nd Edition 1993. The revised Code
is likely to be published shortly.
6. Paragraph 15.18.
7. Department of Health
Press Release, 25 June 1998, 98/225
