In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L: HL 25 Jun 1998

The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have been formally detained.
Held: The appeal succeeded. His detention had not been so complete as to constitute the tort of false imprisonment. The appellant had been properly detained using the informal procedure. The medical steps taken were valid under the common law doctrine of necessity. Under the common law doctrine of necessity there was power to detain and restrain patients who lack capacity and where detention was necessary in their own best interests.
Lord Steyn identified the existence of a lacuna: ‘The common law principle of necessity is a useful concept but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrists . . neither habeas corpus nor judicial review are sufficient safeguards against misjudgements and professional lapses in the case of compliant incapacitated patients.’


Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Nolan, Lord Steyn, Lord hope of Craighead


Gazette 22-Jul-1998, Times 30-Jun-1998, [1998] UKHL 24, [1998] Fam Law 592, [1999] AC 458, [1998] 3 All ER 289, [1998] 3 WLR 107, [1998] 2 FLR 550, [1998] 2 FCR 501


House of Lords, Bailii


Mental Health Act 1983 3


England and Wales


At CARegina v Bournewood Community and Mental Health NHS Trust, Ex parte L CA 2-Dec-1997
The applicant was severely autistic, and unable to consent to medical treatment. He had been admitted voluntarly to a mental hospital and detained under common law powers. The Hospital trust appealed a finding that his detention had been unlawful. . .
DistinguishedBlack v Forsey HL 20-May-1988
The common law was called in aid to supplement the statutory power of compulsory detention to fill a lacuna which had appeared in the 1984 Act.
Held: The common law could not be invoked for that purpose, because the powers of detention . .
CitedIn re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
CitedSyed Mahamad Yusuf-ud-Din v Secretary of State for India 1903
For the tort of false imprisonment to be committed, the deprivation of liberty must be actual, rather than potential: ‘Nothing short of actual detention and complete loss of freedom would support an action for false imprisonment.’ . .
CitedMeering v Grahame-White Aviation Co Ltd CA 1919
An unconscious or drugged person may be detained. For the tort of false imprisonment there must be shown a complete restriction in fact on the plaintiff’s freedom to move: ‘any restraint within defined bounds which is a restraint in fact may be an . .
CitedRex v Coate 1772
There is a common law power to detain persons for their own protection for mental health reasons. . .
CitedScott v Wakem 1862
If it could be shown to be necessary to protect him from harming himself, the common law gave power for a man to be detained. . .
CitedSymm v Fraser 1863
The common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary. . .
CitedMurray v Ministry of Defence HL 25-May-1988
The plaintiff complained that she had been wrongfully arrested by a soldier, since he had not given a proper reason for her detention.
Held: The House accepted the existence of an implied power in a statute which would be necessary to ensure . .
CitedDallinson v Caffery 1965
When considering an allegation of false imprisonment, the element of detention or imprisonment is a pure issue of fact for the jury and the element of justification is one in which the judge has a role to play. . .
CitedCollins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
At AdmnL v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .

Cited by:

CitedL v United Kingdom ECHR 5-Oct-2004
The claimant had suffered mental illness and threatened to hurt himself. He was taken into hospital as a voluntary patient, but in effect detained compulsorily. He lacked capacity to consent to medical treatment.
Held: The holding of a patient . .
At House of LordsHL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
CitedRegina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
CitedMH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
CitedIn re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
CitedIn Re F (Adult: Court’s Jurisdiction) CA 25-Jul-2000
The local authority sought a declaration as to its rights to control the daily activities of an eighteen year old, who was incapable of managing her own affairs but was not subject to mental health legislation.
Held: There remained an inherent . .
CitedRabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
At HLHL v United Kingdom ECHR 10-Sep-2002
(Admissibility) Whether a detention amounts to a deprivation of liberty depends upon all the facts and circumstances of the particular case . .
CitedG v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
CitedNicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
CitedRe DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She . .
At HLL v United Kingdom ECHR 5-Oct-2004
The claimant had suffered mental illness and threatened to hurt himself. He was taken into hospital as a voluntary patient, but in effect detained compulsorily. He lacked capacity to consent to medical treatment.
Held: The holding of a patient . .
CitedJalloh, Regina (on the application of) v Secretary of State for the Home Department SC 12-Feb-2020
Claim for damages for false imprisonment brought in judicial review proceedings challenging the legality of a curfew imposed upon the claimant, purportedly under paragraph 2(5) of Schedule 3 to the Immigration Act 1971.
Held: The Court of . .
Lists of cited by and citing cases may be incomplete.

Health, Health Professions, Torts – Other

Updated: 05 June 2022; Ref: scu.135169