R (L) v Bournewood Community and Mental Health NHS Trust  EWHC Admin 850
Judgment (Crown Copyright)
L v Bournewood Community and Mental Health NHS Trust
CO/3436/97, (Transcript: Smith Bernal)
QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
9 OCTOBER 1997
P Bowen for the Applicant
J Grace for the Respondent
Scott, Moncrieff, Harbour & Sinclair; Treasury Solicitors
The Applicant by his next friend and relative challenges;
(1)The decision of the Respondent to detain the Applicant on 22.7.97 and;
(2)The Respondent's ongoing decision to continue to detain the Applicant.
In addition the Applicant brings Habeas Corpus proceedings which have not featured in the argument and which de-pend for their outcome on the finding in the judicial review proceedings.
The Applicant is 48, he has suffered from autism since birth. He cannot speak. Until March 1994 he had been a long-term resident - not subject to any compulsory admission under the Mental Health Act 1983- at the Bournewood Hospital under the care of the Respondent. He had been there nearly 30 years. From March 1994 until 22 July 1997 he lived with Mr& Mrs Enderby, his carers, at their home in Send, Surrey. He is considered by the Enderbys, their children and the other professionals responsible for his care at Send to be "one of the family". The Enderbys say they love him very much and there is every reason to accept this statement. There has been some friction between the Enderbys and Dr Manju and her team but there is no evidence upon which Dr Manju's decisions as to the applicant's treatment may be properly challenged from a medical viewpoint.
On 22 July 1997, the Applicant was at the Cranstock Day Centre which he was attending on a weekly basis. During the course of the day he became agitated. His condition is such that he does, on occasions, become agitated. This happens on average about every four days. He screams, bangs his head with his fists or against the wall. Whilst he has been liv-ing with the Enderbys there has never been such an incident with which they were not able to cope. The police have never been called and he has not been required to be admitted to hospital. However, on this day neither Mr nor Mrs Enderby could be found until 1pm by which time the trouble had started.
The Cranstock Centre called a local GP who attended and administered medication. The Centre then called Ailsa Flin-ders, the care worker who has had overall responsibility for the Applicant for many years. She recommended that he be taken to the Accident and Emergency Unit at Bournewood Hospital. Upon his arrival at the Accident and Emergency Department the Applicant again became agitated. Dr Perrera, a psychiatrist employed by the Respondent, arrived with two assistants. The Applicant became more agitated and was taken to the Behavioural Unit.
The Applicant has remained in hospital ever since. Dr Manju, the Clinical Director (Learning Disabilities) and Deputy Medical Director for the Trust, says that the Applicant's best interests required, have continued to require and are likely for some time to require, in-patient treatment in order to prevent deterioration in his health.
The case is put forward on behalf of the Applicant, that he has been "detained" in hospital and, since he did not con-sent to detention, or for that matter to an informal admission, his detention and treatment have been unlawful. The Respondent's case is that the Applicant has not been detained, his admission was informal and his treatment has been justified by common law.
For the Applicant it is conceded that the Applicant has not dissented and that very probably he has, without objection, allowed the hospital staff to treat and care for him. The fact, it is said, that he does not know that he is detained is of no matter since "a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is uncon-scious and while he is a lunatic": per Atkin LJ in Meering v Graham White Aviation Co.Ltd.  122 Law Times 44. Mr Bowen argues, as does Mr Grace, that whether a person is detained or not is an objective fact. Thereafter, however, they part company. Mr Bowen says that the vital question is; is he free to leave? Having posed this question Mr Bowen cites six reasons which he claims demonstrate that the Applicant was not and is not free to leave. They are set out at the second page of the Applicant's reply. They amount to an assertion that he was physically taken into detention by Dr Perrera and his two assistants who undoubtedly "supported" him from the Accident and Emergency Department to a minibus, and then and thereafter his condition and institutionalisation rendered him unable to express dissent or sub-sequently leave. Mr Bowen then emphasises what would seem to be his strongest point, that "if the Applicant were to try to leave, he would be compulsorily detained; "if Mr Leboff had resisted admission I would certainly have detained him under the Act" (Dr Manju).
The Respondents argue that detention, whether under the Act or not, is to be contrasted with informal admission in accordance with s.131 of the Mental Health Act; "nothing shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital ...... in pursuance of arrangements made in that be-half and without any application, order or direction rending him liable to be detained under the Act."
Thus it would seem that informal admission does not constitute detention. Mr Grace further argues that informal ad-mission does not pre-suppose capacity to consent. He relies on the commentary in the Mental Health Act Manual, Jones, 5 Edn. (1996) at p 340:
"It is therefore possible to admit a patient on an informal basis as long as that person is not indicating either verbally or through his actions that he objects to the admission."
It is pointed out in Mr Jones' work that the Royal Commission stated that:
"Patients should be assumed to be content to enter hospital unless they positively object."
Further the commentary reveals that the Mental Health Act Commission has advised that;
"The majority of older people with dementia who are mentally incapacitated are willing to accept the care and treatment offered to them. If admission is felt to be necessary they can at present be admitted as informal patients."
The wording of these quotations covers the Applicant's position. Mr Bowen, however, says that Professor Hoggett (who has written in similar vein), Mr Jones and presumably the Royal Commission and the Mental Health Act Commission, are in error. His argument is that s.131 does not create or purport to create any new power, nor does it confer any new immunity. It merely preserves and confirms what was there before "(Lloyd LJ in R v Kirklees MBC, ex parte 'C' (CA) [ 2 FCR 381,  2 FLR 187Not on Bailii! at p 190F). What was there before? Mr Bowen says there was a common law which did not have any concept of non-dissent but only that of consent which, as is accepted, the Applicant could not give. As an example Mr Bowen argues that consent renders lawful a detention or any physical contact which would otherwise be an assault except where a person lacks capacity to give such consent when clearly there can be no consent and accordingly the physical contact or detention must be an assault and unlawful. Interestingly he contends that lack of capacity vitiates both consent and dissent; dissent and consent merely being the two sides of a coin. I am not pre-pared to accept this dichotomy since it seems to me that whilst consent requires proof of conduct and a reasoning ca-pacity (as defined in re: 'C') dissent may be indicated by the conduct of a person without such capacity. An example of such dissent being possible is the Applicant himself. Further, it is possible to postulate the person who neither con-sents nor dissents.
However, Mr Bowen is not without some support. Paragraph 8.4 of the Mental Health Act 1983 (Code of Practice) under the heading "Doctors holding power (s.5(2)) provides that:
"An informal patient, for the purposes of this section, is one who has understood and accepted the offer of a bed, who has freely appeared on the ward and who has co-operated in the admission procedure."
It seems very likely that the Applicant could not have come within this definition of "informal patient" and so I accept. However, in his notes, Mr Jones having commented:
"Only patients who are both mentally competent and willing to co-operate with the admission process would come within the scope of this definition."
"As the wording of the Act does not support an approach which would have the effect of excluding patients who do not possess such characteristics from the application of the holding power, a better definition would be; 'an informal in-patient for the purposes of this section, is one who has arrived on the ward and who has offered no resistance to the admission procedure'."
Neither definition has any statutory authority. Taking a purposive stand and accepting the distinction, which I do, be-tween consenting and dissenting I accept the Jones interpretation which, as I understand, is that which is generally ac-cepted in the medical profession. Consequently I do not accept that positive consent has to be shown before there can be an informal admission.
It is now necessary to return to the question of whether the Applicant has been detained or not. Detention is defined (OED) as kept in confinement or custody. I agree that if in fact the Applicant has been detained it matters not whether he knows it or not but there must be some present restraint within defined bounds. In some ways the position may be likened to that when a suspect attends a police station to "help with police enquiries". At that stage he is not detained although detention might follow on very quickly after an indication by the suspect that he was leaving. Likewise, only more strongly, here it can be said that the Applicant has at all times been free to leave because that is a consequence of an informal admission, and he will continue to be free to leave until Dr Manju or somebody else takes steps to section him or otherwise prevent him leaving. In other words there will be no restraint of the Applicant until he has attempted to leave and the Respondent, by its agent, has done something to prevent this.
On this analysis I am satisfied that the Applicant has not been detained.
Mr Bowen's second proposition was that "the comprehensive statutory regime of the Mental Health Act 1983 ousts any common law jurisdiction the Respondent may have to detain the Applicant for treatment." To support his conten-tion he cited Black v Forsey, [a decision of the House of Lords on 20 May 1988 - unreported] in which it was held that a mental patient, originally detained under s.26 of the Mental Health (Scotland) Act 1984 - which I am told does not differ materially from the 1983 Act - had been unlawfully detained when on the expiry of a s.26 admission order, the hospital purported to detain him under a further s.26 order notwithstanding that the Act specifically prohibited succes-sive periods of detention under s.26. Mr Bowen argued that that case is indistinguishable from this and that any com-mon law jurisdiction, including the doctrine of necessity, the Respondent may have had to detain the Applicant, has been impliedly removed.
There are various reasons for distinguishing Black -v- Forsey. Firstly, the statutory scheme in England & Wales includes informal admissions under s.131 which, as Mr Bowen concedes, rely upon common law powers. Secondly, the case is distinguishable in that:
(a) there the patient was detained;
(b) the detention was against the will of the patient;
(c) the common law of Scotland was restricted in that "anyone is justified without a warrant, in confining a lunatic likely to do harm himself or others, but only until a warrant can be obtained".
I am satisfied, that the Mental Health Act 1983 provides a comprehensive statutory regime for those formally admit-ted but s.131 preserves the common law jurisdiction for those properly admitted informally under s.131. Mr Bowen does not depart from his contention that positive consent is necessary for informal admission and for treatment con-sequent upon such admission and continues to argue that failing such consent admission must be formal with all the consequences which flow from that status. It is interesting that this is the approach followed by Dr Manju. However, as it seems to me, if there has been informal admission on the basis for which the Respondent argues, the common law doctrine of necessity may allow treatment. It is in this context that the quotations from re 'F' have relevance. I shall only quote from Lord Brandon of Oakbrook:
".... a doctor can lawfully operate on, or give other treatment to, adult patients who are incapable, for one reason or an-other, of consenting to his doing so, provided that the operation or other treatment concerned is in the best interests of such patients. The operation or other treatment will be in their best interests if, but only if, it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health."
In these circumstances it seems to me that although there has been no such necessity here and although there has been no detention or treatment against the Applicant's will, when there has been an informal admission treatment in the best interests of the patient who lacks capacity to consent to such treatment may well be lawful.
So the position was that although Dr Manju could have initiated the statutory detention procedure under the Act she chose not to do so in accordance with an accepted general policy (see Professor Hoggett Mental Health Law at page 8) that "compulsory admission under the Act is considered to be a last resort because it constitutes an infringement of a patient's rights." This, and she is supported by the text book, Dr Manju says, "was recognised when the 1983 Mental Health Act was passed which made the requirements of detention much stricter than under the 1959 Act. Consequent-ly, if a patient does not resist admission and treatment he is treated informally." I appreciate Mr Bowen's argument that sectioning could hardly hurt the Applicant since he could not comprehend such procedures or the implied need for them and I also appreciate that statutory admission provides its own safeguards such as the rights of the nearest relative and the possibility of access to a tribunal whereas the only safeguards for the informal patient are the ability to leave, to show dissent and the probity of the staff. However, I cannot think that this indicates any argument for the necessary imposition of the statutory procedure. Of course mistakes can be made but there is nothing to make me suspect that there have been mistakes of treatment here.
Next Mr Bowen claims the protection of the European Convention on Human Rights. Irrespective of the Brind argu-ment I find that this does not avail the Applicant since the Applicant has not been deprived of his liberty.
In conclusion I am satisfied that the Applicant has not been detained and accordingly there has been no decision to continue his detention. For these reasons this application must be dismissed.Application dismissed with costs not to be enforced without leave of the court. Legal aid taxation granted.
Possible Bailii link (not there when last checked, but it might have appeared since 0700 this morning!)