Bournewood and after: evolving standards in provision for and protection of incapacitated adults with mental illness

May 1999

Introduction

For much of 1998, the mental health care profession in England and Wales was in turmoil because of a Court of Appeal ruling in L v Bournewood Community and Mental Health NHS Trust, [1998] 2 WLR 764, in which a widespread practice of informal admission of mental patients to hospital for assessment and treatment was held to be illegal. The case subsequently went on appeal to the House of Lords, who reversed the Appeal Court ruling and effectively affirmed the status quo. But in the course of the litigation a variety of matters of policy and principle were subjected to critical scrutiny. These included questions about appropriate admissions procedures for compliant incapacitated patients with mental illnesses; the adequacy of protections of the rights of mental patients; the role and rights of long-term carers, and the adequacy of levels of communication between health professionals and carers or relatives; the adequacy of Mental Health Act safeguards; and so on. This article reviews the most central of these issues as they have arisen out of Bournewood. It begins by outlining what the case was about (chapter 1), and goes on to analyse in detail the House of Lords decision concerning informal admission (chapter 2), and detention (chapter 3); a final chapter discusses the shape that reformed provisions might take.

Chapter 1: the Bournewood issue

The facts of the House of Lords case R v Bournewood Community NHS Trust, Ex parte L [1998] 3 All ER 289 (previously the Appeal Court case of L v Bournewood Community NHS Trust, [1998] 2 WLR 764) have been widely reported and discussed (The Times, 30 June 1998–and 8 December 1997 for the Appeal Court decision; Dawson, 1999; Fennell, 1998; British Medical Journal, letters, 9 January 1999, 126-7). After spending 30 years as a resident at Bournewood hospital, Mr L–a mentally incapacitated autistic adult–was in 1994 conditionally discharged into the paid community care of Mr and Mrs E. On July 22, 1997, while attending a day centre, he became particularly agitated, banging his head against a wall. Deemed to be at risk of harming himself or others, he was taken by ambulance to the Accident and Emergency unit for emergency treatment; Mr and Mrs E. could not be contacted at this time. In view of L’s continued agitation, he was subsequently admitted and detained at the mental health unit, for observation and treatment of his condition. Mr L was admitted informally, under s.131, although the consultant psychiatrist made clear she would have compulsorily detained him if he had resisted admission; additionally she decided to exclude visits from the carers while L’s condition stabilized. In the following weeks Mr L’s carers, who over the three years of his residence with them had come to regard him as part of the family, became distressed at what they felt to be their exclusion; they also came to distrust the psychiatrists treating L.

At first instance, counsel for Mr L applied for judicial review of the trust’s detention of L as unlawful and in contravention of habeas corpus rights, and sought damages for false imprisonment. Mr Justice Owen refused judicial review on the ground that the appellant was free to leave, and the case advanced to the Appeal Court. Giving the judgement of that court, Lord Woolf MR noted that the case raised difficult issues that could have a far reaching effect on the present approach to the reception, care and treatment of many mentally disordered patients. In view of the enormous implications for the world of residential mental health care that finding for the appellant raised, the Court of Appeal ruling provoked widespread dismay from all professionally involved in mental health care. The Court of Appeal held that a hospital could admit and treat a person via the informal procedure allowed by s.131(1) of the Mental Health Act 1983 only with that person’s consent; that is, s.131 informal patients had to be voluntary and consenting (and not merely compliant or non-dissenting), hence patients with mental capacity. Mr L, by contrast, lacked mental capacity and, though showing no signs of dissent, could not positively consent; in the Appeal Court’s view, he should have been admitted under the statutory procedures of the 1983 Act. In failing to use those procedures, which overrode reliance on the common law principle of necessity, the trust had unlawfully detained Mr L. The court noted also that many trusts and hospitals were acting as Bournewood had, in part influenced by authoritative commentaries (Hoggett, 1996; Jones, 1996). But, particularly in light of the safeguards for formal patients that were as a result being bypassed, the current practice could not justify a disregard of the Act.

It is worth noting that independently of dissatisfactions with the working of the Mental Health Act, the Bournewood case arose from mundane difficulties of a kind perhaps beyond legal correction. Thus in the House of Lords judgement, Lord Goff noted without elaboration that when Mr L became agitated at the day centre, his community carers Mr. and Mrs. E. “could not be contacted”. Following L’s informal admission Mr. and Mrs. E. were not satisfied by the psychiatrist’s written explanation to them, nor satisfied as to the health trust’s motives. Evidently the psychiatrist did not meet with the Es in person at this time. Similarly Lord Goff writes of a failed pre-hearing attempt at ‘reconciliation’ between the Es and the psychiatrist. It is reasonable to suppose that what motivated the Es in their pressing of the legal point was their prior and more affecting sense that someone they regarded as a member of the family had been taken from them and treated without their involvement, consultation, or adequate consideration for their concern.

Chapter 2: the House of Lords decision and informal admission

Some of the central questions raised by the Bournewood appeal have been summarized as follows:

May non-consenting but incapacitated patients be treated in hospital on an informal basis? Was L detained as a matter of law? And, if so, could a common law defence of necessity be relied upon by the hospital staff? The general issue was the proper relationship between the common law and the committal regime. (Dawson, 1999: 42)

To answer the first of these questions, both appellate courts scrutinized Section 131(1) of the Act, which provides:

Nothing [in this Act] shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital . . . without any application, order or direction rendering him liable to be detained under [the] Act..

Concerning the first question Dawson has listed, the Court of Appeal interpreted s.131(1) as intended to apply to consenting patients only, and not also compliant non-dissenting patients. In the House of Lords judgement Lord Goff subjected the same section to an extensive and compelling contextualist interpretation. Arguing that there was nothing in the subsection’s wording to suggest that it was intended to be applied differently or more narrowly than s. 5(1) of the Mental Health Act of 1959, itself an implementation of certain recommendations in the Royal Commission on Mental Illness and Mental Deficiency of 1957 (the Percy Commission), he ruled that the wider application, to both consenting and non-dissenting patients, was intended and that therefore the first question could be decided in the trust’s favour.

Over and above the resource implications, it has long been argued, at least since the Percy Commission onwards (and traceable back to the Mental Treatment Act (1930)), that informal admission is often preferable since it circumvents the stigma and potential adverse impact (with regard, e.g., to the patient’s sense of autonomy and self-worth) traditionally associated with being certified or, in more recent terms, ‘sectioned’. Voluntary admission has long been preferred, where applicable, to the ‘excessive legalism’ of formal admission. It may be that the provision recommended by the Percy Commission that has come down to the present day as s.131(1) had, as a broad underlying motivation, our modern awareness that a patient in need of in-hospital treatment for mental illness is by no means by the same token also a person lacking mental capacity, self-insight, and the ability to understand that they are indeed ill. Nor need severe but controlled mental disorder necessarily require hospital-based treatment: it may not always be in the best interests of the patient, where well-supervised community-based residence is possible.

Chapter 3: the House of Lords decision and detention

The second major issue that their lordships had to address was whether L was detained, and if so whether the hospital could rely on the common law defence of necessity. This joint question must be asked twice over: once in relation to the ’emergency’ period when L was removed from the day centre to the A & E unit, and thereafter by ambulance to the residential unit; and a second time in relation to the post-admission period when L remained in hospital, and when his community carers, the E’s, were denied visits. In the Court of Appeal ruling, Lord Woolf similarly separated detention for treatment for mental disorder (which he held must be covered by the MHA alone, with no appeal to common law necessity), from restraint or detention to prevent harm, which might be authorized by common law. In relation to the first, emergency period, there was unanimous acceptance that there was detention, but that the emergency conditions immediately justified the defence of necessity.

The law concerning the post-admission period proved less certain, with five of the nine appellate judges deciding that L was detained (all three in the Appeal Court and two in the Lords). Lord Goff, for the majority, argued that there was no false imprisonment since whatever detention Mr L experienced during, for example, the ambulance journey was justified by necessity (and Lord Goff here uses the word detained with scare quotes).

Counsel for the hospital trust emphasized that Mr L was fully compliant and showed no unwillingness to stay. But consciousness of being imprisoned is not a requirement in the tort of false imprisonment (Meering v Graham-White Aviation (1919) 122 LT 44), so this argument seems not to be decisive. Could L freely leave? Could L’s carers have removed him from hospital during this period, if he had been able to show such a preference? The consultant psychiatrist Dr Manjubhashini addressed this question directly in her letter to the E’s and in her evidence to the court. She made it clear that one reason why for a period she vetoed any visit by the E’s to Mr L was that she feared he might be stirred by such a visit into wishing to leave the hospital with them, and she indicated that if any real prospect of such discharge eventuated then she would have promptly sectioned the patient. These are arguably strong grounds for concluding that Mr L was actually, and not merely in prospect, detained.

Lord Goff came to a different conclusion, however:

I cannot see that Dr. Manjubhashini’s statements to the effect that she would if necessary have taken steps compulsorily to detain Mr. L under the Act of 1983 have any impact on the above conclusions. Those concerned with the treatment and care of mentally disordered persons must always have this possibility in mind…

It is arguable that this observation disregards the particular kind of necessity on the basis of which Dr Manjubhashini would have compulsorily detained Mr L. That was not a general necessity of the kind that a physician, charged with a duty of care, might as Lord Goff states always have in mind. Rather in Dr Manjubhashini’s affidavit it is clear that a very specific circumstance would have constituted that necessity, namely any indications from Mr L that he wished to leave, or any cessation of cooperation by him. This I would submit amounts to compulsory detention, effected without recourse to statutory powers not because those powers were being waived but simply because Mr L’s behaviour did not compel the trust to invoke them. Furthermore, quite how Mr L’s documented lack of co-operation with a proposed CT scan and EEG jibes with characterizations of him as being ‘fully compliant with treatment’, as Dr Manjubhashini describes him, is not at all clear. There is thus a residual doubt as to whether Mr L should be described as having been fully compliant at all times.

Finally it may be noted that even Lord Goff does not echo the opinion of Mr Justice Owen, at first instance, that Mr. L “has at all times been free to leave”. But Lord Nolan’s positive acceptance that Mr L was detained, and indeed that from a medical point of view it were better if he was acknowledged to be detained, is helpfully clarifying:

If Mr. L … was not detained then … there was no ground in law upon which the hospital and its staff could be called upon to justify their unwillingness to release him.

Fennell (1999: 333) addresses the same point when he notes that once an informal patient is admitted, the home or hospital assumes a duty of care towards the incapacitated patient which:

extends to preventing them from leaving the hospital premises where to do so would put them at risk.

For this reason such an arrangement was described by the Mental Health Act Commission in their 1987 biennial report as ‘de facto detention’. The better conclusion is, perhaps, that detention of patients such as Mr L is real and justified, but outside emergency situations the proper justification (and concomitant safeguards) lies within the MHA, which it is a hospital’s statutory duty to apply.

To a degree, the hospital relied on the fact that there is currently in English law no adult guardianship provision, and more specifically that the E’s had not been with his carers long enough (five years minimum) for them to seek recognition as L’s nearest relative (with attendant entitlement to be consulted). The present legal provisions are such that non-resisting non-assenting incapacitated patients can be detained and treated without observance of the onerous procedures of the MHA’s main stipulations; and it is probably widely felt that this constitutes no abuse or unfairness for the vast majority of patients to whom it applies, who are likely to be elderly and suffering from dementia, or effectively solitary individuals without a carer or loved one who would be willing to remove them from hospital and might be able to supervise their care and treatment, or where a patient is temporarily hospitalised to permit respite care, or combinations of these conditions. At the same time a situation like Mr L’s is not entirely uncommon, where a patient has an established familial or quasi-familial relationship with a community-based carer. Here there could be infringement of what both the patient and the family might be reasonably entitled to in the way of consultation and consideration of the possible negative effects that removal from a supportive home environment might entail. In Dawson’s words:

Extending the committal regime would be a blunt way to grant such rights to families; but some mechanism ought to be enacted for families to question fairly medical decisions concerning their relatives’ need for in-patient care. (Dawson, 1999: 43)

The question may come more fully into focus with the passing of the Human Rights Bill, which incorporates into domestic law the provisions of the European Convention of Human Rights and Fundamental Freedoms. Article 5(1) of the bill makes deprivation of liberty subject to ‘a procedure prescribed by law’:

Article 5 (1): Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ….(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

The English courts may well hold that this requires rather more in the way of a “procedure prescribed by law”, in relation to the depriving of persons like Mr L of their liberty, than use of the s.131 informal admission option. Richardson and Thorold (1999: 128) suggest the Article can ensure that objective medical evidence is presented, and that patients have prompt access to a tribunal, when detention occurs. They also argue that Article 5 is likely to have significant consequences where a patient’s conditional discharge is deferred for any substantial amount of time while rehabilitation provisions are arranged. Additionally, many civil libertarians regard 5(1)(e) as offensive in its heterogeneity besides being practically unworkable; and the phrase ‘unsound mind’ is widely felt unhelpfully to conflate mental retardation, psychopathy, and milder mental illness (Campbell and Heginbotham, 1991: 220 ff.).

Besides Article 5 protections, Fennell (1999: 352-3) makes the point that Article 11 of the Human Rights Bill may come to be seen as relevant to Bournewood-type cases. Article 11(1) asserts the individual’s right, inter alia, to ‘freedom of association with others’, subject to restrictions “prescribed by law and … necessary in a democratic society … for the protection of health or morals.” Although Dr Manjubhashini would have been able to assert that visits from the E’s to Mr L might have rendered him less docile, she might have had difficulty persuading the courts that her denial of association between L and his carers positively protected anyone’s health. Fennell suggests that the denial of association which was a significant aspect of the detention provision in the Bournewood case “altered the nature of the admission and retention” (353), infringing both the patient’s and carers’ rights.

Chapter 4: Local revisions or wholesale reform?

The starting point for reflections on what should now be done, in the light of Bournewood, should be the closing remarks of Lord Steyn, and what he roundly termed “an indefensible gap in the mental health law”: a differential system in which two patients with similar mental disorders will experience substantially different safeguards and provisions during hospitalization and after, depending on whether they are compulsorily or informally admitted. Lord Steyn suggested that parity of treatment for all classes of mentally incapacitated patients “must be a touchstone of our maturity as a civilised society”, adding that “the law would be defective if it failed to afford adequate protective remedies to a vulnerable group of incapacitated mental patients”.

Informal admissions are about ten times as numerous as section-detained patients (roughly 250,000 and 25,000 admissions per year, respectively); even if only a small minority of these are of patients lacking capacity but fortunate enough to have a relative or carer who is able and willing to look after them, significant numbers are potentially receiving second-class protections. A cynic might be drawn to suggest that by virtue of their more forceful indications of at least potential harmfulness, compulsory patients compel the system to acknowledge that they have certain rights over their own bodies (enforcement of which is then overruled by the trust and physician, invoking the lawful statutory authority), while by virtue of their relative quiescence and incapacity-based inarticulateness, informal patients encounter neglect, by the authorities, of those rights.

Some may question whether anything at all need be done ‘after Bournewood‘, or whether the relief afforded by the House of Lords decision to already hard-pressed health authorities, carers, and professionals, entailing a slight curtailment of patients’ and carers’ rights, should be allowed to persist, in view of the need, in such a resource-costly matter as mental health care (often overlapping with care of elders), to balance conflicting demands. But the status quo ante cannot reasonably continue, in light of the noted obiter dicta of Lords Goff and Steyn.

Simple amendment or revision of s.131(1)–whether unambiguously to limit its application to voluntary patients with capacity; or to extend some of the statutory reviews and protections specified elsewhere in the Act to those admitted under it; or both of these–is thought to be difficult or unsatisfactory. Various categories of patient, such as the very elderly suffering from dementia, may not need the costly treatment reviews that applying compulsory powers would ordinarily involve. Additionally, the broad issue of mental capacity and incapacity, on which the Law Commission and the Lord Chancellor’s Department have worked so extensively, has yet to be dealt with by Act of Parliament, and it can be argued that this broader issue should be addressed by legislation first. Currently there is no procedure whereby another person or a court can take a medical decision on behalf of an adult who lacks capacity to take that decision. As the Law Commission report makes clear (1995: 7), a new law on mental incapacity must cover a different and larger area than anything covered by the Mental Health Act. Its chief recommendations were that relatively simple and reliable determinations of ‘capacity’ and ‘best interests’ should underpin new provisions in which a new and enlarged Court of Protection would supervise appointment both of individuals with continuing powers of attorney (where the donor acts prior to onset of incapacity) and of a manager (in ordinary circumstances, the local authority) where an incapacitated adult lacks such an attorney. At least since the controversial case of Re F (1990), pressure to modernize the law on incapacity has grown, and as more people survive into vulnerable old age, with its common nexus of costly medical treatments and mental confusion and sometimes-uncertain Advanced Statements or directives, that pressure will not abate.

It is worth emphasizing again the main protective safeguards that an otherwise informal incapacitated patient would have the benefit of under statutory MHA admission. Arguably the chief of these is not the involvement of a second doctor at a variety of crucial potential stages (including s.2 admission, s.3 treatment and detention for up to 6 months, and prior to the more serious s.58 forms of treatment) since in current practice the second opinion ‘peer review’ procedure may attract mere “token compliance” (Richardson and Thorold, 1999: 130). More substantial benefits may be the possibility of reference to a Mental Health Review Tribunal and the MHAC, and access to after-care services (under s.117). Most mental health treatment is a matter of teamwork these days, with considerable consultation among the physician, nurses, the ASW, a care manager, and others. In this way the ‘paternalistic’ powers of the psychiatrist are partially redistributed among the care team, even if the autonomy of the patient is not enhanced.

The Government announced in July 1998 that they intended to undertake a root and branch review of the Mental Health Act 1983. The government’s declared aim is to provide ‘safe, sound, and supportive services’ for people who suffer from mental illness, those who care for them and for the wider community. The Government’s scoping group must assess many viewpoints, including those of commentators like Campbell and Heginbotham, who argue against “a distinct body of law dealing with ‘mental disorder'” on the grounds that “The principles of protectionism and paternalism … do not have distinctively different relevance to persons with mental disorders in comparison to other people who might benefit from coercion” (1991: 92).

In the last decade (some might trace the movement further back, to the Gillick case, and its affirming of an enhanced level of teenage autonomy) a series of decisions has re-examined the medico-legal balance between paternalist intervention, justified as in the patient’s best interests according to medical and sociological opinion, and the autonomy of that patient or individual which is to be so clearly compromised by that intervention. Where a patient has the mental capacity to withhold informed consent and does withhold it, even in advanced pregnancy where the wellbeing of the foetus is judged to be put at greatly increased risk, do the medical team have the right to proceed with a caesarean operation? In the recent case of Collins, the House of Lords held that it did not, and that the woman’s basic human rights had been violated (reversing the earlier Court of Appeal decision in the same case, reported as Re S. (Adult: Refusal of Medical Treatment)). How different, then, is or should be the case of the patient who lacks capacity, as arose in the controversial case of Re F, where a severely mentally retarded sexually active woman was sterilized at the instigation of the local authority, on the grounds that this prevented the distress of pregnancy and birth of children which she would have been unable to look after (see commentary in Feldman, 1993: 148-150)? The House of Lords ruled that a treatment deemed appropriate by a responsible body of doctors as in the patient’s best interests would be lawful; thus they did not uphold a more patient-based standard (such as what the patient might have consented to, if they had capacity).

Can ‘lack of capacity’ in itself be any kind of justification for a lesser standard of attention to the rights of the individual undergoing treatment? Particularly dangerous here is the claim that the incapacitated patient ‘showed no signs of dissent’. It would seem preferable, once a determination of mental incapacity has been made, if there was then a presumption that levels of consent, dissent, or compliance may not be invoked or relied upon. It verges on impropriety to apply the term ‘compliance’, with its ordinary language connotations of cognisant acceptance, of patients in states of dementia, catatonia or withdrawal where nothing in the way of such mental assimilation is evidenced. One upshot of such a policy must be yet further care in the determination of whether particular individuals have or lack mental capacity (Matthews, 1999; Law Commission Report No. 231, 1995). A second consequence should be that where a patient is assessed as lacking capacity, major treatments (including retention in hospital) should not proceed without the consent of an independent proxy for the patient, unconnected to the treatment team, such as a nearest relative or authority-appointed manager.

Cases Cited

  • Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
  • L v Bournewood Community NHS Trust, [1998] 2 WLR 764
  • Meering v Graham-White Aviation (1919) 122 LT 44
  • R v Bournewood Community NHS Trust, Ex parte L [1998] 3 All ER 289
  • R v Collins and Others, ex parte S [1998] 3 All ER 673
  • R v Gillick [1986] AC 112
  • Re F (Mental Patient: Sterilisation) [1990] 2 AC 1
  • Re S. (Adult: Refusal of Medical Treatment [1992] 4 All ER 671

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© Michael Toolan, 2000