Solicitor and Senior Lecturer in Law
Department of Academic Legal Studies
Nottingham Trent University
Copyright © 1998 M E Rodgers.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
The case of In Re L (By his Next Friend GE)  3 All ER 289, HL, concerning an autistic adult, is possibly one of the most important cases on the interpretation of the Mental Health Act 1983 to reach the House of Lords for some considerable time. The speed with which the case was heard after the Court of Appeal's decision on 2 December 1997 is indicative of the case's significance. The decision itself is not surprising, but the opinions of their Lordships suggest a level of confusion that may necessitate action by the legislature to resolve and clarify the meaning of the 1983 Act.
The meaning of Mental Health Act 1983, s 131
L, the respondent, is a 48 year old suffering from autism. His mental capacity, his level of communication and understanding, is severely limited. For much of his life his care had been provided by the Bournewood Community and Mental Health NHS Trust (the Trust). In 1994 L had been placed with carers, a Mr and Mrs E, attending a day centre on a regular basis. L has a history of self harming and is known to have `tantrums'. On 22 July 1997 whilst at the day centre L became agitated and began to self harm (principally by head banging against a wall). Mr and Mrs E, although in the past had been able to control and calm L were not contactable. Hence a local doctor was called to attend to him, with a sedative being administered. L was subsequently admitted to the Bournewood Hospital, initially to the Accident and Emergency unit and thereafter to the Behavioural unit. L did not resist this admission and it was deemed unnecessary to utilise the provisions of the Mental Health Act 1983 (MHA). Proceedings were commenced by Mr and Mrs E on behalf of L for (1)judicial review of the Trust's decision to admit and detain L, (2) a writ of habeas corpus and (3) damages for false imprisonment.
At first instance Owen J dismissed the action. On appeal, the Court of Appeal overturned that decision, and held that L had been unlawfully detained and awarded damages of £1 (reported  2 WLR 764). The Habeas Corpus action was irrelevant as L had by this time been discharged from hospital. Leave to appeal to the House of Lords was granted to the Trust, with the Secretary of State for Health intervening.
Appeal allowed. Under the correct interpretation of the MHA there had been no unlawful detention of L and hence there could be no action for false imprisonment. The detention of a compliant but non-consensual adult fell within the common law doctrine of `necessity' as expounded in such cases as In re F (Mental Patient:Sterilisation)  1 AC 1 (per Lords Goff, Lloyd and Hope) and was not detention in fact (per Lord Goff). The actions of the Trust were not inconsistent with the mischief that the MHA (in its 1959 and 1983 form) was to remedy and hence were justifiable. The actual treatment that was provided to L again, due to L's inability to consent, could be justified under the common law doctrine of necessity. Lords Nolan and Steyn, whilst both agreeing that the appeal should be allowed did not agree that L had not been detained. Both Law Lords believed this to be the case, but both were able to justify such detention making it lawful.
The questions that the House of Lords were required to answer within this appeal primarily concerned the interpretation, and thereby the scope, of the MHA 1983 s 131. Implicit within this interpretation was the question of whether L had been detained by the appellant NHS Trust. The manner in which these questions were answered differed between the 3 Lords delivering opinions. Lord Goff commenced by interpreting the section and then considering if L had been detained, whereas Lord Steyn began by dealing with the detention point before turning to the statute. Lord Nolan too reflected upon detention but said little, if nothing, on the interpretation of the MHA.
It is well accepted amongst academics that `Determining the ratio of the decision of an appellate court where separate judgments are given can be a difficult task' (Bailey and Gunn 1996, p 420). Within the case of Re L, whilst the overall decision is clear - that the appellant NHS Trust had not acted unlawfully in relation to the respondent - there is a degree of uncertainty in establishing why that was so. The three opinions delivered lack cohesion, and indeed it may be suggested that Lord Nolan's opinion added little to the overall discussion reading as it does as a half opinion. By default, Lord Goff was in the majority as both Lords Lloyd and Hope concurred with his reasoning. However, in some respects it is submitted that the majorities reasoning is flawed and that those of the minority are preferable.
The issue of detention was one which formed the central argument and hence legal reasoning within the Court of Appeal's decision in this case. For the House of Lords, discussion on detention resulted in clear differences of opinion and therefore conclusion. The need to establish detention in both courts was directed to the question of L being subject to the tort of false imprisonment.
The Court of Appeals decision on this matter was that L had been detained unlawfully - he had been imprisoned. Lord Woolf MR in giving the judgment of the court referred to the evidence of the NHS Trust when it was stated:
If Mr [L] had resisted admission I would certainly have detained him under the act. ( 2 WLR 764 at 770)
Lord Woolf concluded:
We think that it is plain that had he attempted to leave the hospital those in charge of him would not have permitted him to do so (ibid at page 770).
Hence, using the authority of Meering v Grahame-White Aviation Co. Ltd  122 LT 44 and Murray v Ministry of Defence  2 All ER 521 (themselves cited by counsel for the Trust) the Court of Appeal felt that:
If they [the Trust] 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. (p 771).
In the House of Lords, Lord Goff reviewed the question of detention after lengthy discussion of the effects of the Court of Appeals conclusion and his interpretation of the MHA, s 131. In so doing it is suggested that Goff may have prejudged the issue. As he himself stated at page 301 para d-e:
[T]he readmission of Mr L to hospital as an informal patient under s 131 (1) of the Act...could not, in my opinion, constitute the tort of false imprisonment.
The correct approach to this matter, it is suggested is that expounded by the minority thus:
In my view, the two issues should be considered separately, and that the issue of detention must be considered and determined before one can turn to the issue of justification."( per Lord Steyn at p 306 para a-b).
Both Lords Goff and Steyn utilised the cases on detention cited in the Court of Appeal. Lord Goff agreed with Atkins LJ in Meering v Grahame -White that there is a distinction between a
restraint upon the plaintiff's liberty which is conditional upon his seeking to exercise his freedom (which would not amount to false imprisonment) and an actual restraint upon his liberty, as where the defendant decided to restrain the plaintiff within a room and placed a policemen outside the door to stop him leaving (which would amount to false imprisonment) (p 298 para g-h).
Applying this to L, it was decided that L fell into the former category and so was not detained.
By contrast, Lord Steyn referring to Lord Atkins in Meering v Grahame-White and also Murray v Ministry of Defence  2 All ER 521 decided that L had been detained. In Meering it was stated:
It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic...It is quite unnecessary to go on to show that in fact the man knew that he was imprisoned (per Atkin LJ (1919) 122 LT 44 at pp 53-54).
This statement of law was approved in Murray v Ministry of Defence, a House of Lords decision, hence it is difficult to see how Lord Goff could reach an alternative conclusion.
If a man may be falsely imprisoned whilst unconscious it is impossible for him to seek to exercise his right to freedom, thereby making a mockery of the principle expounded by Lord Goff. In addition, as L was unlikely to ever be in a position to seek the right to leave is it correct to apply this reasoning? The unconscious or drunk individual may potentially move from the state of no knowledge on detention to one of realising that freedom can be obtained. L could not do so and hence it is submitted must have been detained. One means to explain this distinction and lack of adherence to a previous House of Lords decision would be that the reasoning on false imprisonment in Murray was merely obiter. This is suggested as being so in Winfield and Jolowicz on Tort (1994) at page 65 as "on the facts the plaintiff was aware she was under restraint". However, it is interesting to note that Lord Goff does not refer to this 1988 decision in his opinion. This may be due to the fact that he had already decided that L could be kept in hospital under the provisions of the Act, and so in reality did not even need to consider the question of detention. However, in so doing, Lord Goff may have introduced a high degree of uncertainty to the previously perceived wisdom on false imprisonment. To this end, it is submitted that the reasoning of Lord Steyn and the conclusion by Lord Nolan on detention should be preferred.
The interpretation of this section (and particularly sub-section1) was crucial to establish if any detention of L was legally justified, or as Lord Goff would prefer, that L's treatment in hospital was legally acceptable. In this regard, the reasoning of Lord Goff is preferred as he clearly explores the history behind the section. The section 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 home 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.
This promotes the ideal of `informal admission' to hospital whereby patients retain the right to discharge themselves from care, retain the right to consent to treatment, unless they are deemed incapable of so consenting, and do not gain the perceived stigma of a mental health act sectioning order. As Brenda Hoggett comments `the proportion of compulsory admissions still hovers around 8 per cent of all admissions (1996, p 8) indicating the high number of patients that are admitted under s 131.
The difficulty that arose in the Court of Appeal was whether a patient who lacked the capacity to consent to an admission could be admitted under s 131 as they could not be said to be admitted voluntarily. Their conclusion was:
...the right of a hospital to detain a patient for treatment mental disorder is to be found in, and only in, the 1983 Act, whose provisions apply to the exclusion of the common law principle of necessity. Section 131, which preserves the right to admit a patient informally, addresses the position of a patient who is admitted and treated with consent" ( 1 All ER 634 at p 645).
Therefore L would have to be sectioned under other provisions for his treatment in hospital to be legally valid.
The House of Lords did not support the conclusion of the Court of Appeal on this point. In reaching his decision, Lord Goff carried out a detailed investigation into the history of s 131. The section was originally found as the Mental Health Act 1959 s 5(1) and was in terms identical to the current section 131. This 1959 Act had followed the Percy Commission of 1957. The Commission concluded:
289.We consider compulsion and detention quite unnecessary for a large number, probably the great majority, of the patients at present cared for in mental deficiency hospital, most of whom are childlike and prepared to accept whatever arrangements are made for them.
291. We therefore recommend 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 deprivation of liberty... (as quoted by Lord Goff at p 296).
As Lord Goff stated, these extracts set out ` a central recommendation of the Percy Commission, and the mischief which it was designed to cure'. In the light of this, and the consequences that would arise if any other interpretation were placed on s 131 which were outlined in depth by Lord Goff in a clearly resource based argument, he felt that L was clearly within the ambit of the Act.
Lord Steyn agreed at p 308 para e-f that
on orthodox principles of statutory interpretation the conclusion cannot be avoided that section 131(1) permits the admission of compliant incapacitated patients where the requirements of the principle of necessity are satisfied.
Whilst there can be little difficulty in accepting the interpretation point, in the light of the mischief rule, it has to be noted that Lord Steyn was somewhat unhappy in having to reach this decision. This being principally due to the lack of `safeguards' that the informal patient has under the Act. If L had been formally sectioned he would have had the ability to apply to the Mental Health Review Tribunal, the right to a second opinion in relation to certain medical treatment and the right to receive after care. However, it is submitted that the safeguards that are present under the Act, are not great, and are limited in any event where a patient does not have the capacity to understand those rights. The right to seek a review of detention by the Tribunal must be triggered by an application, and on the facts L would not have been able to do so himself. In the absence of an application, the hospital must refer the detention automatically after the first six months of detention and if detention continues, every three years (MHA s 68). It is suggested that this is not sufficiently frequent to be deemed a safeguard. Equ ally with treatment, L's only additional protection would be that after 3 months of drug therapy or other treatment, a second opinion on the validity and need for treatment must be obtained (MHA s 58). A second opinion is also needed if Electro-convulsive Therapy is suggested and the patient cannot or will not consent to this. Again, it is suggested that these safeguards are not substantial. Indeed, any safeguards or benefits of sectioning must be viewed against the detriments. There remains a clear stigma from being `sectioned' and a patient will lose some of their rights - for example to consent to treatment since treatment, excluding ECT and those within s 57, can be given for 3 months in the absence of consent (MHA s 63). On balance many professionals involved within the field of mental health would prefer not to section and it is clear from the review of Lord Goff into the impact of the Court of Appeals decision that the non-sectioning option is seen to be more beneficial to a patient, or perhaps more importantly that it has too many resource implications if sectioning became the norm.
The actual outcome of the House of Lords consideration into Mr L's situation is not a surprising one. The ability of health care professionals to use MHA s 131 to ensure patients receive the treatment and care they require without other recourse to the formal procedures has long been accepted as applying to both consensual and incapable patients. In this regard therefore, the case is significant only in the sense that overall it clarifies the approach to be taken by the medical practitioners in relation to patients such as L. But in so doing, it is suggested that the House of Lords has produced a disjointed set of reasons. It is necessary to pick out the sensible and coherent pieces of logic. What is needed is a cut and paste, taking Lord Steyn's approach to the question and his discussion on detention, and then adding in Lord Goff's conclusions on statutory interpretation. What is perhaps more significant, but less obviously so, is the potential impact this case will have on non-medical or mental health cases where the tort of false imprisonment is in issue, for example the residential care home setting or the general geriatric hospital ward. Whilst it can be suggested that the broad thrust of the House of Lords' judgment that restrictions can be imposed for the patient's/individual's best interests, the confusion that may result from the different approaches by the Lords will provide ample scope for legal argument and subsequent appeals. Indeed this confusion and the general concern that has been raised by the L case may perhaps suggest to Parliament that steps should be taken to introduce legislation along the lines of the Green Paper (Cm 3803, 1997).
It should also be noted that the lack of reference to Article 5(1) of the European Convention of Human Rights, which protects the right of the individual to liberty and security of person, may require a subsequent review of the judicial reasoning once the Human Rights Act is fully in force in the domestic sphere.
Bailey, SH and Gunn, MJ (1996) The Modern English Legal System 3rd ed (London: Sweet & Maxwell).
Cm 3803 (1997) Who Decides: Making decisions on behalf of mentally incapacitated adults (London: HMSO).
Hogget, B (1996) Mental Health Law 4th ed (Sweet & Maxwell: London).
Percy Commission 1957 The Report of the Royal Commission of the Law Relating to Mental Illness and Mental Deficiency 1954-1957 (London: HMSO) Cmnd 169.
Rogers, WVH (1994) Winfield and Jolowicz on Tort 14th ed ( London: Sweet & Maxwell).