CASE OF H.L. v. THE UNITED KINGDOM
Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Matti Pellonpää;Nicolas Bratza
9. The applicant was born in 1949 and lives in Surrey. He has suffered from autism since birth. He is unable to speak and his level of understanding is limited. He is frequently agitated and has a history of self-harming behaviour. He lacks the capacity to consent or object to medical treatment. For over thirty years he was cared for in Bournewood Hospital (“the hospital”), a National Health Service Trust hospital. He was an in-patient at the Intensive Behavioural Unit (“IBU”) of the hospital from its inception in or around 1987. The applicant’s responsible medical officer (who had cared for him since 1977) was Dr M. (clinical director of learning disabilities, deputy medical director and consultant psychiatrist for psychiatry of learning disabilities). 10. In March 1994 he was entrusted on a trial basis to paid carers, Mr and Mrs E., with whom he successfully resided until 22 July 1997. He was not formally discharged, and the hospital remained responsible for his care and treatment. From 1995 onwards the applicant attended on a weekly basis a day-care centre run by the local authority. 11. On 22 July 1997 the applicant was at the day-care centre when he became particularly agitated, hitting himself on the head with his fists and banging his head against the wall. Staff could not contact Mr and Mrs E. and got in touch with a local doctor, who administered a sedative. The applicant remained agitated and, on the recommendation of the local authority care services manager (A.F.) with overall responsibility for the applicant, he was taken to the accident and emergency unit at the hospital. 12. At the hospital, the applicant remained agitated and anxious and was received and assessed by Dr P. (acting consultant psychiatrist – learning disabilities services) as being in need of in-patient treatment. He was transferred, with the physical support of two nursing assistants, to the hospital’s IBU. He was recorded as making no attempt to leave. Having consulted, Dr P. and Dr M. considered that the best interests of the applicant required his admission for in-patient treatment. Dr M. did consider his committal under the Mental Health Act 1983 (“the 1983 Act”) but concluded that that was not necessary as the applicant was compliant and did not resist admission. The applicant was therefore admitted as an “informal patient”. Dr M. later confirmed (in her submissions in the judicial review proceedings referred to below) that, if the applicant had resisted admission, she would have detained him compulsorily under the 1983 Act as she was firmly of the view that he required in-patient treatment. 13. Dr M.’s personal attendance notes for that day record the reports she had received of extremely disturbed behaviour at the day-care centre on that day and previously; the suggestion by A.F. that the applicant may have been suffering from a cyclical mood disorder and the recommendation that the applicant be assessed to establish any action required; Dr M.’s detailed consultation throughout the day with the applicant’s local doctor, Dr P., A.F., ward staff and other care professionals; the conclusion that, given the escalation of behavioural problems, the applicant required readmission for “thorough investigation and treatment” but that he would not be “sectioned” as he was “quite compliant” and had “not attempted to run away”; the numerous unsuccessful attempts to contact the applicant’s carers; and the decision to discourage visits by the applicant’s carers as it risked causing them and the applicant distress. Her notes for the following day, 23 July 1997, recorded that the applicant was calm, had complied with all care needs and accepted the change without problem; that his carers were “happy with [the] suggestion not to visit for a few days”; and the clinical opinion that, given the reports of escalating behavioural problems and self-harm and the suggestion by A.F. of a cyclical mood disorder, time was needed to observe, assess and administer appropriate treatment. Various tests were proposed to rule out any “organic pathology”. The applicant was to be referred to the psychology and speech therapist for assessment and a care plan was to be drawn up as appropriate “for maintenance purposes on discharge”. His carers were to be made aware of the need not to visit until the team treating the applicant felt confident for them to do so. 14. In its letter dated 23 July 1997 to the applicant’s social worker (copied to Dr P.), the day-care centre enclosed a detailed report of the incident that had occurred the previous day and outlined serious behavioural issues to be considered by the applicant’s health care professionals before he could be allowed to return to the day-care centre. It was noted that the applicant’s outbursts had increased over the previous few months and that he had been finding it increasingly difficult to cope with his environment and group. A summary of the applicant’s behaviour and attendance at the day-care centre between January and July 1997 was also included. 15. On 18 August 1997 Dr M. prepared a detailed report on the applicant’s history, care and progress for the manager (learning disabilities) of the local health authority as a follow-up to their recent discussions regarding the applicant. Dr M. indicated that the hospital was coming to the conclusion that the applicant, as well as being autistic, suffered from a mood disorder, and noted that his discharge at that time would be against medical opinion. 16. On 22 August 1997 a consultant psychiatrist in learning disabilities (Dr G.) assessed the applicant at the request of Mr and Mrs E. His report described the applicant as suffering from a severe learning disability, autistic traits and a possible cyclical mood disorder. That psychiatrist recommended further assessment of the applicant in the IBU and better cooperation between the hospital’s professional team, the day-care centre and Mr and Mrs E. 17. On 29 October 1997 the Court of Appeal indicated (see the proceedings detailed below) that the applicant’s appeal would be decided in his favour. Accordingly, on that day the applicant was detained in the hospital under section 5(2) of the 1983 Act (following receipt of a notice from a doctor in charge of an in-patient that an application ought to be made for the latter’s detention for, inter alia, treatment under section 3 of the 1983 Act, the patient may be detained for up to seventy-two hours to allow for that application to be processed). On 31 October 1997 the applicant was admitted for treatment as an involuntary patient under section 3 of the 1983 Act (two medical practitioners having recently examined the applicant would have certified his detention for treatment as necessary). 18. On 2 November 1997 the applicant’s carers visited him for the first time since his readmission in July 1997. 19. On 4 November 1997 the applicant’s legal representatives applied for a review of his detention by a Mental Health Review Tribunal (“MHRT”). Legal aid was granted to instruct an independent psychiatrist to prepare a report. The psychiatric report, dated 27 November 1997, was prepared jointly by a consultant psychiatrist and a registrar in the psychiatry of learning disability, both attached to the Department of Psychiatry at the University of Cambridge. The psychiatrists recommended the applicant’s discharge because they were of the opinion that his mental disorder was “currently neither of a nature or degree to warrant continued detention in hospital, nor [was] it necessary for his health or safety or for the protection of others”. On 4 December 1997 the applicant’s representatives applied to the hospital managers for his release (section 23 of the 1983 Act), a meeting of the managers taking less time to convene than a meeting of the MHRT. 20. The multidisciplinary team responsible for the applicant’s care and treatment decided that he had settled enough to be managed at home, and on 5 December 1997 he was released on leave of absence (under section 17 of the 1983 Act) into the care of Mr and Mrs E. 21. On 9 December 1997 Dr P. prepared a report for the forthcoming managers’ review meeting. He noted that the applicant’s discharge on 5 December 1997 under section 17 of the 1983 Act was to be complemented by weekly psychiatric outpatient follow-up appointments, continued medication and monitoring by a community nurse. Dr P. was hopeful that the community team and their consultant psychiatrist could take over the applicant’s care so that he could be formally discharged from the hospital. 22. On 12 December 1997 the hospital managers decided to formally discharge the applicant to the carers (section 23 of the 1983 Act). 23. The first letter from Dr M. to Mr and Mrs E. after the applicant’s admission to the hospital was dated 23 July 1997. Having noted the attempts made to contact them on 22 July 1997, Dr M. outlined in detail what had happened and how the applicant was progressing. Dr M. indicated that, while the aim was to discharge the applicant to them as soon as possible, she was unable to predict the length of his stay as it depended on the completion of all necessary investigations and assessments. Dr M. indicated that visits would be unwise until the hospital staff felt that it would be appropriate, in order to avoid the applicant thinking that he could go home with Mr and Mrs E. following each visit at a time when he was “not clinically fit for discharge”. Dr M. invited Mr and Mrs E. to contact her about meeting her the following week. 24. Dr M. sent a further detailed update on the applicant’s care, assessments and progress to Mr and Mrs E. on 31 July 1997. Having noted Mr and Mrs E.’s requests to staff to visit the applicant, Dr M. indicated that the current serious observational assessment would be prejudiced by such visits and suggested that the situation be reviewed the following week. Dr M. pointed out that the applicant was not clinically fit for discharge. 25. Since Mr and Mrs E. had expressed concerns to staff at the hospital about the applicant’s care and treatment, Dr M. sent a long letter to Mr and Mrs E. on 6 August 1997 in which she explained the clinical team’s responsibility to provide the applicant with the care and clinical input he required. In particular, Dr M. noted: “I would like to take the opportunity to stress, through this correspondence, that we, as a Clinical Team, within the [IBU], are here, primarily to provide the treatment for [the applicant] who was admitted under our care, as an emergency. It would be extremely irresponsible of us not to provide [the applicant] with the care and the clinical input that he deserves and is in need of. His disposal/discharge from within the unit is dependent ... on the Multidisciplinary Clinical Professionals’ considered views, following their assessment and the work that they intend doing with [the applicant], specifically, in relation to his challenging behaviour and/or mental health needs. As I have stressed, in my earlier correspondence, these things do take time and unfortunately we have to be a little patient to allow the professionals some room and space to carry on with their work in the provision of care ... [The applicant] has been admitted to the [IBU] on an ‘informal’ basis and this is not a time-limited admission. I am not sure if you have misunderstood his status and are under the impression that perhaps he was admitted and held under ‘the Mental Health Act’. Even then, there is no ‘one month’ time-limit, as it all depends on the patient’s fitness for discharge ... On behalf of the Clinical Team, I would like to stress that [the applicant] is being treated within the [IBU] and once he is fit for discharge, he will be discharged back to the address from where he was admitted, with a ‘Treatment Plan’ which will include all aspects of his care and a ‘maintenance plan’ prescribed.” Given the ongoing treatment and assessments, it was not possible to specify a discharge date. Dr M. repeated her offer to meet Mr and Mrs E. to discuss the applicant’s care. 26. In a further letter of 2 September 1997, Dr M. confirmed to Mr and Mrs E. that the conclusions drawn from the assessments to date meant, and the recent clinical professionals’ meeting had decided, that the applicant was to be “fully” referred for care and treatment to the IBU and that his stay was likely to be a long one. She invited Mr and Mrs E. to attend a clinical meeting about the applicant’s care and treatment on 18 September 1997 and offered to meet Mr and Mrs E. separately to discuss, inter alia, the subject of visits. 27. Mr and Mrs E. replied in a letter of 5 September 1997 that they could not agree with the suggested plan for the applicant and would be in touch again prior to the relevant meeting. By a letter dated 16 September 1997, Mr and Mrs E. confirmed that they would not be able to attend the meeting on 18 September 1997 as they were seeking legal advice. Dr M. responded by letter dated 19 September 1997 expressing regret that Mr and Mrs E. felt that their attendance at the clinical meeting could jeopardise the applicant’s position. In a separate letter of the same date, Dr M. outlined the results of the clinical meeting, including a recommendation that Mr and Mrs E. visit the applicant once a week, and requested them to contact her to arrange this. 28. On 20 October 1997 Dr M. reassured Mr and Mrs E. that the subject of them visiting the applicant had been discussed at the hospital at some length and encouraged Mr and Mrs E. to meet her to discuss the applicant’s needs. 29. Detailed behaviour management guidelines were issued on 27 November 1997 by the psychology service of the hospital to, among others, Dr M., Mr and Mrs E., the applicant’s social worker and other therapeutic services that were to be involved in the applicant’s future care. Appendix 1 was a detailed clinical description of the applicant’s mental state (autism and a cyclical mood disorder), needs and reactions prepared on the basis of extensive psychiatric and behavioural observations and assessments, with a view to achieving a global approach to his condition, treatment and care. Appendix 2 contained an extremely detailed “communication dictionary” which was designed to enhance communication with the applicant through voice, action and routine. Appendix 3 contained recording charts. 30. By a letter of 2 December 1997 to the applicant’s legal representatives, Dr M. acknowledged receipt of the guidelines of 27 November 1997 (described above) and explained the clinical team’s plans regarding the applicant’s release on leave of absence in the near future with a view to a possible full discharge at a later date. 31. In or around September 1997, the applicant, represented by his cousin and “next friend”, applied for leave to apply for judicial review of the hospital’s decision to admit him on 22 July 1997, for a writ of habeas corpus and for damages for false imprisonment and assault (a technical assault associated with his admission). 32. The High Court refused the application. It found that, although the 1983 Act provided a comprehensive statutory regime for those formally admitted to psychiatric care, section 131(1) of the 1983 Act preserved the common-law jurisdiction in respect of informal patients. Since the applicant had not been “detained” but had been informally admitted and since the requirements of the common-law principle of necessity had been satisfied, his application was rejected. 33. Lord Woolf, Master of the Rolls, delivered the principal judgment. On the question of whether the applicant was “detained”, he noted that it was agreed that this was a question of objective fact which did not depend on the presence or absence of consent or knowledge. He considered that a person was detained in law if those who had control over the premises in which he was situated intended that he should not be permitted to leave and had the ability to prevent him doing so. He went on: “We do not consider that the [High Court] judge was correct to conclude that [the applicant] was ‘free to leave’. We think it is plain that, had he attempted to leave the hospital, those in charge of him would not have permitted him to do so. ... Mr and Mrs E. had looked after [the applicant], as one of the family, for over three years. They had made it plain that they wanted to take him back into their care. It is clear that the hospital was not prepared to countenance this. If they were not prepared to release [the applicant] into the custody of his carers, they were not prepared to let him leave the hospital at all. He was and is detained there.” 34. Lord Woolf also found that the right to detain a patient for treatment for mental disorder was to be found only in the 1983 Act, the provisions of which applied to the exclusion of the common-law principle of necessity. Section 131 which preserved the right to admit a patient informally applied only to a patient who had the capacity to and did consent to his admission. Since the applicant had been admitted for treatment without his consent and the other formalities required by the 1983 Act, his detention was unlawful: “It follows from our judgment that the whole approach of the [hospital] in this case was based on a false premise. It was based on the belief that they were entitled to treat [the applicant] as an in-patient without his consent as long as he did not dissent. That was a wrong approach. They were only allowed to admit him for treatment if they complied with the statutory requirements. ... [W]here [the 1983 Act] covers the situation, no necessity to act outside the statute can arise. The [hospital’s] powers to act under the common-law doctrine of necessity can arise only in relation to situations not catered for by [the 1983 Act].” 35. The Court of Appeal awarded nominal damages and granted leave to appeal to the House of Lords. 36. The House of Lords granted leave to, among others, the Mental Health Act Commission to intervene in the proceedings. In its submissions to the House of Lords, the Commission outlined the beneficial consequences to patients of the Court of Appeal’s conclusion that persons in the applicant’s position were “detained” for the purposes of the 1983 Act, which included the application to such persons of the substantive and procedural safeguards of the Act. The Commission also described the survey it had completed since the Court of Appeal’s judgment by sending a questionnaire to all National Health Service Trust hospitals (and registered nursing homes). Sixty-two percent of those establishments responded, from which the Commission was able to submit that, if the Court of Appeal’s judgment were applied to patients such as the applicant, there would be an additional 22,000 detained patients resident on any one day and an additional 48,000 compulsory admissions per year under the 1983 Act. 37. The House of Lords gave judgment on 25 June 1998 and unanimously allowed the appeal. Lord Goff (with whom Lords Lloyd and Hope agreed) delivered the principal judgment. Lords Nolan and Steyn also agreed that the appeal should be allowed but for different reasons. 38. Having considered the drafting history of section 131 of the 1983 Act, Lord Goff disagreed with the Court of Appeal and concluded that section 131 applied to patients who consented as well as to compliant but incapacitated patients. He underlined, however, that the statutory history of the section, which put the matter beyond all doubt, appeared not to have been drawn to the attention of the Court of Appeal and that the Court of Appeal did not have the benefit, as did the House of Lords, of assistance from counsel appearing for the Secretary of State. As to the basis upon which a hospital was entitled to treat, and to care for, patients who were admitted as informal patients under section 131(1) but lacked the capacity to consent to such treatment or care, Lord Goff stated as follows: “It was plainly the statutory intention that such patients would indeed be cared for, and receive such treatment for their condition as might be prescribed for them in their best interests. Moreover, the doctors in charge would, of course, owe a duty of care to such a patient in their care. Such treatment and care can, in my opinion, be justified on the basis of the common-law doctrine of necessity ... (Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1) It is not therefore necessary to find such justification in the [1983 Act] itself, which is silent on the subject. It might, I imagine, be possible to discover an implication in the statute providing similar justification; but even assuming that to be right, it is difficult to imagine that any different result would flow from such a statutory implication. For present purposes, therefore, I think it appropriate to base justification for treatment and care of such patients on the common-law doctrine.” 39. Lord Goff then considered whether the applicant had been “unlawfully detained” as alleged and as found by the Court of Appeal. He pointed out that for the tort of false imprisonment to be committed there must, in fact, be a complete deprivation of, or restraint on liberty: an actual and not a potential deprivation of liberty went towards constituting the tort. Lord Goff then turned to the facts and quoted extensively from the affidavit (sworn on 3 October 1997) of Dr M.: “At 11 o’clock on 22 July 1997 I was contacted by ... [the] social worker and [the applicant’s] case manager. She advised me that there had been an incident at Cranstock Day Centre, where [the applicant] had been attending since 1995, when [the applicant] had seriously self-harmed and was extremely disturbed. She said that he had to be sent to the Accident & Emergency Department and she requested assistance from the psychiatric services to assess [the applicant] with a view to admitting him if necessary. One of my team members, [Dr P.], staff grade psychiatrist, attended the Accident & Emergency Department as requested. His notes state that he took a history from ... the team manager at Cranstock Day Centre who reported that since March 1997 [the applicant’s] episodes of self-injurious behaviour had increased in severity. On 22 July 1997 whilst he was at Cranstock he had been agitated, hyperventilating, pacing up and down and hitting himself on the head with his fists. He was also banging his head on the wall. The whole area had to be evacuated to avoid disturbance and assure the safety of others. He was given 4 mgs of Diazepam to try to calm him down at the time but this had no effect. The GP was therefore called who administered 5 mgs of Zimovane. However he still remained agitated in the Accident & Emergency Department. He was assessed and treated at A & E. [Dr P.] later assessed [the applicant] as being agitated and very anxious. He noted redness of both his temples, that he was punching his head with both his fists at times and hyperventilating. [Dr P.] assessed that [the applicant] required in-patient treatment and transferred [the applicant] to the Behavioural Unit. [Dr P.] noted that [the applicant] ‘makes no attempt to leave’. I recorded that we considered whether it was necessary to detain [the applicant] under the Mental Health Act 1983 but it was decided that this was not necessary as he was, as I noted at the time, ‘quite compliant’ and had ‘not attempted to run away’. He was therefore admitted as an informal patient. If [the applicant] had resisted admission I would certainly have detained him under the [1983] Act as I was firmly of the view that he required in-patient treatment. This was clearly thought through and supported following discussion with [Dr P.], ward staff, other professionals and the Care Services Manager. An appropriate framework of care and treatment was implemented.” 40. Lord Goff then noted how Dr M. had then “... described how Mr and Mrs E. were informed on 22 July of [the applicant’s] admission, as was [the applicant’s] next of kin. At first, with the agreement of Mr and Mrs E., it was arranged that they would not visit [the applicant] for a few days, in accordance with the usual clinical practice. On 23 July Dr M. wrote to Mr and Mrs E. and in her letter invited them to come and meet her the following week when it was her intention to discuss the possibility of phased visits, but they did not accept this invitation to meet her. On the same day an advocacy worker was appointed as [the applicant’s] advocate. [The applicant] was again assessed. A programme of tests and observations was then put into effect.” 41. Lord Goff continued to quote from Dr M.’s affidavit: “As [the applicant] is an informal patient there has never been any attempt to detain him against his will or carry out any tests, observations or assessments to which he indicated a dislike or with which he refused to cooperate. [The applicant] has always accepted his medication which has always been administered orally. He was also fully compliant when blood was taken from him for testing. He did not however cooperate with the attempts that were made to carry out a CT scan and EEG, which were necessary in view of his old history of fits and temporal lobe abnormality, on 5 and 6 August 1997 and so these tests were abandoned. [The applicant] cooperated to a certain extent with the speech therapy assessment which was carried out on 15 September 1997 and the occupational therapy assessment. However, as soon as he showed any signs of distress the assessments were postponed and reviewed. [The applicant] is accommodated on an unlocked ward and has never attempted to leave the hospital but has accepted the change in his environment very well and is not distressed by it ... It was, in my professional opinion, in [the applicant’s] best interests to be admitted on 22 July 1997 and it is also in his best interests to continue with in-patient treatment to prevent further deterioration of his mental health. His discharge at this point in time would therefore be against medical advice. At the time of and since admission [the applicant] has been fully compliant with treatment and never indicated that he wishes to leave the hospital. In view of this it has not been necessary to detain him under the Act ... If [the applicant] stopped cooperating or indicated a wish to leave then I would have to consider at that time whether his condition warranted detention under section 3 of the Act. As these circumstances have not so far arisen detention has not been necessary.” 42. Lord Goff considered that, in the light of the above account by Dr M., the following conclusions might be drawn: “The first is that, as I have already recorded, although [the applicant] had been discharged from hospital into the community on a trial basis, and on that basis had gone to live with Mr and Mrs E. as his paid carers, nevertheless he had not been finally discharged. It followed that the appellant trust remained responsible for his treatment, and that it was in discharge of that responsibility that the steps described by Dr M. were taken. The second is that when, on 22 July, [the applicant] became agitated and acted violently, an emergency in any event arose which called for intervention, as a matter of necessity, in his best interests and, at least in the initial stages, to avoid danger to others. Plainly it was most appropriate that the appellant trust, and Dr M. in particular, should intervene in these circumstances; certainly Mr and Mrs E., as [the applicant’s] carers, could not assert any superior position. Third, I have no doubt that all the steps in fact taken, as described by Dr M., were in fact taken in the best interests of [the applicant] 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. I wish to add that the latter statement is as true of any restriction upon his freedom of movement as then occurred, as it is of any touching of his person. There were times during the episode when it might be said that [the applicant] was ‘detained’ in the sense that, in the absence of justification, the tort of false imprisonment would have been committed. I have particularly in mind the journey by ambulance from the Day Centre to the Accident and Emergency Unit. But that journey was plainly justified by necessity, as must frequently be so in the case of removal to hospital by ambulance of unfortunate people who have been taken ill or suffered injury and as a result are incapacitated from expressing consent. I wish further to add that I cannot see that Dr M.’s statements to the effect that she would if necessary have taken steps compulsorily to detain [the applicant] 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 although, like Dr M., they will know that this power is only to be exercised in the last resort and they may hope, as in the present case, that it would prove to be unnecessary to exercise it. Such power, if exercised in accordance with the statute, is of course lawful. In the present case all the steps in fact taken by Dr M. were, in my opinion, lawful because justified under the common-law doctrine of necessity, and this conclusion is unaffected by her realisation that she might have to invoke the statutory power of detention. Finally, the readmission of [the applicant] to hospital as an informal patient under section 131(1) of the Act of 1983 could not, in my opinion, constitute the tort of false imprisonment. His readmission, as such, did not constitute a deprivation of his liberty. As Dr M. stated in paragraph 9 of her affidavit, he was not kept in a locked ward after he was admitted. And the fact that she, like any other doctor in a situation such as this, had it in her mind that she might thereafter take steps to detain him compulsorily under the Act, did not give rise to his detention in fact at any 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 [the applicant].” 43. For these reasons, Lord Goff allowed the appeal. He had two “subsidiary points”, the second one being as follows: “... the function of the common-law doctrine of necessity [lies] in justifying actions which might otherwise be tortious, and so has the effect of providing a defence to actions in tort. The importance of this was, I believe, first revealed in the judgments in Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1. I wish, however, to express my gratitude to counsel for the appellants ... for drawing to our attention three earlier cases in which the doctrine was invoked, viz. Rex v. Coate (1772) Lofft 73, especially at p. 75, per Lord Mansfield, Scott v. Wakem (1862) 3 F. and F. 328, 333, per Bramwell B., and Symm v. Fraser (1863) 3 F. and F. 859, 883, per Cockburn CJ, all of which provide authority for the proposition that 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. I must confess that I was unaware of these authorities though, now that they have been drawn to my attention, I am not surprised that they should exist. The concept of necessity has its role to play in all branches of our law of obligations – in contract (see the cases on agency of necessity), in tort (see Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1), and in restitution (see the sections on necessity in the standard books on the subject) – and in our criminal law. It is therefore a concept of great importance. It is perhaps surprising, however, that the significant role it has to play in the law of torts has come to be recognised at so late a stage in the development of our law.” 44. Lord Nolan, for his part, agreed with the Court of Appeal that the applicant had been detained: he referred to the contents of Dr M.’s long letter of 6 August 1997 and to the additional matters on which the Court of Appeal had relied in this respect (and quoted above). Nevertheless, he allowed the appeal as he was satisfied that “the trust and its medical staff behaved throughout not only in what they judged to be the best interests of [the applicant], but in strict accordance with their common-law duty of care and the common-law principle of necessity”. 45. Lord Steyn also allowed the appeal. He recognised that to uphold the decision of the Court of Appeal would be to ensure that a number of important protections applied to the applicant and that to allow the appeal would result in an indefensible gap in mental health law. However, he considered that it was possible, on a contextual interpretation of the 1983 Act, to allow the appeal. 46. In the first place, he found that the applicant had been detained: “It is unnecessary to attempt a comprehensive definition of detention. In my view, this case falls on the wrong side of any reasonable line that can be drawn between what is or what is not imprisonment or detention. The critical facts are as follows: (1) When on 22 July 1997 at the Day Centre [the applicant] became agitated and started injuring himself, he was sedated and then physically supported and taken to the hospital. Even before sedation he was unable to express dissent to his removal to hospital. (2) Health care professionals exercised effective power over him. If [the applicant] had physically resisted, the psychiatrist would immediately have taken steps to ensure his compulsory admission. (3) In hospital staff regularly sedated him. That ensured that he remained tractable. This contrasts with the position when he was with carers: they seldom resorted to medication and then only in minimal doses. (4) The psychiatrist vetoed visits by the carers to [the applicant]. She did so, as she explained to the carers, in order to ensure that [the applicant] did not try to leave with them. The psychiatrist told the carers that [the applicant] would be released only when she, and other health care professionals, deemed it appropriate. (5) While [the applicant] was not in a locked ward, nurses closely monitored his reactions. Nurses were instructed to keep him under continuous observation and did so. Counsel for the Trust and the Secretary of State argued that [the applicant] was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of [the applicant], any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital. And if [the applicant] 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 [the applicant] was free to go is a fairy tale. ... In my view [the applicant] 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”. 47. Secondly, he found that detention to be justified under the common-law doctrine of necessity: “It is now necessary to consider whether there was lawful authority to justify the detention and any treatment of [the applicant]. This is a matter of statutory construction. But it is important to approach the mental health legislation against the context of the principles of the common law. The starting-point of the common law is that when a person lacks capacity, for whatever reason, to take decisions about medical treatment, it is necessary for other persons, with appropriate qualifications, to take such decision for him: Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1, at 55H, per Lord Brandon of Oakbrook. The principle of necessity may apply. For the purposes of the present case it has been assumed by all counsel that the requirements of the principle are simply that (1) there must be ‘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 circumstances take, acting in the best interests of the assisted person’: Re F., supra, per Lord Goff of Chieveley, at 75H. There was not unanimity on this point in Re F. But I am content to approach the matter in the same way as counsel did ... Against this common-law background the Percy Report recommended a shift from the ‘legalism’ whereby hospital patients were ‘certified’ by special procedures, to a situation in which most patients would be ‘informally’ received in hospital, the term ‘informally’ signifying ‘without any legal formality’. This was to be achieved by replacing the existing system ‘by the offer of care, without deprivation of liberty, to all who need it and are not unwilling to receive it’: see Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency (1954-1957) ... The desired objective was to avoid stigmatising patients and to avoid where possible the adverse effects of ‘sectioning’ patients. Where admission to hospital was required compulsion was to be regarded as a measure of last resort. The Mental Health Act of 1959 introduced the recommended changes. Section 5(1) was the critical provision. ... Counsel appearing on behalf of [the applicant] accepted that the effect of section 5 was to leave in place the common-law principle of necessity as a justification for informally receiving in hospital or mental nursing homes compliant incapacitated patients. In 1982 Parliament substantially amended the Act of 1959. In 1983 Parliament enacted a consolidating statute with amendments, namely the Mental Health Act 1983. By section 131(1) of the Act of 1983 the provisions of section 5(1) of the Act of 1959 were re-enacted verbatim. ... Prima facie section 131(1) must be given the same meaning as section 5(1). On this basis, section 131(1) also preserved the common-law principle of necessity as a means of admitting compliant incapacitated individuals. But counsel for [the applicant] submitted that section 131(1), unlike its predecessor, only applies to consenting capacitated patients. He argued that contextual differences between the statutes of 1959 and 1983 required the court to interpret the language of section 131(1) of the Act of 1983 in a narrower sense than section 5(1) of the Act of 1959. ... 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. Having had the benefit of the fuller argument produced by the intervention of the Secretary of State, I have to accept that the view of the Court of Appeal on the meaning of section 131(1) cannot be upheld.” 48. Accordingly, the common-law doctrine of necessity had been preserved by section 131(1) of the 1983 Act and the applicant’s detention and treatment were justified on that basis. 49. Lord Steyn went on to note that the effect of the House of Lords’ judgment was to leave compliant incapacitated patients without the safeguards enshrined in the 1983 Act: “This is an unfortunate result. 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 psychiatrist and other health care professionals. It is, of course, true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient. But neither habeas corpus nor judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients. Given that such patients are diagnostically indistinguishable from compulsory patients, there is no reason to withhold the specific and effective protections of [the 1983 Act] 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.” 50. In March 2000 Mr and Mrs E. complained to the Commissioner about the applicant’s readmission to hospital. The complaints subjected to investigation were: (a) that the clinical decision to admit the applicant on 22 July 1997 was unreasonable; and (b) that the clinical management of his admission was inadequate. The independent assessors investigated. In their report, they considered that the applicant’s admission to the IBU on 22 July 1997 was “probably unavoidable”. He had a significantly better quality of life with his carers and more serious consideration should have been given to sending him home on the day his carers had been located or, at least, the following day. The assessors considered that it was difficult to see why, even if it was necessary to retain him overnight, he was not discharged the following day and his subsequent evaluation conducted on an outpatient basis. The process of assessment of the applicant had been too long and resources should have been available to speed up that process. In this latter respect, the assessors did not believe that any of the clinicians were acting irresponsibly or maliciously and their main recommendation for the future was that admissions to the IBU be “strictly time-limited” and that adequate resources be made available to enable a multi-disciplinary assessment to be carried out if at all possible on an outpatient basis and, if not, as speedily as possible. 51. The Commissioner, in his report of 15 November 2001, agreed with the assessors’ conclusions, adopted their recommendations and conveyed the hospital’s apologies to Mr and Mrs E. for the shortcomings identified. The hospital had also informed the Commissioner that, through the Intensive Assessment and Treatment Service, the assessors’ recommendations for outpatient assessment had been implemented. 52. The majority of persons who receive in-patient psychiatric care are treated without resort to the compulsory powers under Part II of the 1983 Act and these are called “informal patients”. Such patients are either “voluntary patients”, namely, those persons with legal capacity to consent and who have consented to admission for treatment, or persons who do not have the legal capacity to consent to treatment but who are admitted for treatment on an “informal basis” as they do not object to that admission (incapacitated but compliant). 53. Section 131(1) of the 1983 Act provides as follows: “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.” 54. The 1983 Act provides for a number of substantive and procedural safeguards to those “detained” under its provisions. (a) Patients can only be detained for assessment (section 2) or for treatment (section 3) where the strict statutory criteria set out in Part II of the Act have been met. In general (and emergency admissions apart), detention requires the acceptance by the relevant institution of an application in the prescribed form by a qualified person. That application must be founded upon written medical recommendations in the prescribed form of two medical practitioners, both of whom have recently examined the patient and have no personal interest and one of whom has special experience in the diagnosis or treatment of mental disorder. (b) Part IV of the 1983 Act sets out rules on the need to obtain a patient’s consent or a second medical opinion for certain forms of medical treatment. (c) Part V provides for an opportunity to apply, or to be automatically referred, to a Mental Health Review Tribunal (“MHRT”) for a review of the need for continued detention. (d) The “nearest relative” of a detainee has the power, inter alia, to object to an application for involuntary committal under section 3 of the 1983 Act, to discharge a patient from such detention and to apply to the MHRT (in certain cases) for a patient’s discharge (sections 26-32). (e) A former detainee has access to aftercare services (section 117). (f) The Secretary of State must create a Code of Practice (section 118) in order to guide those concerned with the treatment of psychiatric detainees. Section 120 charges the Secretary of State with the supervision of the exercise of the powers and duties conferred and imposed by the 1983 Act and accords him associated powers to visit, interview and investigate. Section 121 established the Mental Health Act Commission, which exercises the functions of the Secretary of State under section 118 and 120 of the 1983 Act. (g) Detainees have a right to receive information about their detention from hospital managers (section 132 of the 1983 Act). 55. The relevant parts of section 3 of the 1993 Act, entitled “General remit of Commissioners”, provide: “(1) On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of – (a) a failure in a service provided by a health service body, (b) a failure of such a body to provide a service which it was a function of the body to provide, or (c) maladministration connected with any other action taken by or on behalf of such a body, the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action. ... (4) Nothing in this Act authorises or requires a Commissioner to question the merits of a decision taken without maladministration by a health service body in the exercise of a discretion vested in that body.” 56. Section 5 of the 1993 Act is entitled “Exercise of clinical judgment” and provides as follows: “(1) A Commissioner shall not conduct an investigation in respect of action taken in connection with – (a) the diagnosis of illness, or (b) the care or treatment of a patient, which, in the opinion of the Commissioner, was taken solely in consequence of the exercise of clinical judgment ... (2) In subsection (1), ‘illness’ includes a mental disorder within the meaning of the Mental Health Act 1983 ...” 57. The common-law doctrine of necessity was relied on as early as Rex v. Coate (1772) Lofft 73, Scott v. Wakem (1862) 3 Foster and Finalson’s Nisi Prius Reports 328, 333, and Symm v. Fraser (1863) 3 Foster and Finalson’s Nisi Prius Reports 859, 883 (see Lord Goff’s judgment, paragraph 43 above). These cases provide authority for the proposition that 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. This jurisdiction has also been exercised in relation to a range of medical treatment issues and, in particular, in relation to sterilisation operations (Re F. (Mental Patient: Sterilisation) [1990] 2 Appeal Cases 1) and the continuance of artificial nutrition and hydration (Airedale NHS Trust v. Bland [1993] Appeal Cases 789, 869). 58. The High Court has a certain jurisdiction to make declarations as to the best interests of an adult who lacks the capacity to make decisions. The jurisdiction will be exercised when there is a serious justiciable issue requiring a decision by the court. 59. In June 2000 the Court of Appeal found that, where there was a risk of possible harm to a mentally incapable adult, the High Court had power, under its inherent jurisdiction and in the best interests of that person, to hear the issues involved and to grant the necessary declarations. It therefore dismissed an appeal which contested the High Court’s jurisdiction to make a declaration requested by a local authority in respect of the residence and contacts of an adult who lacked capacity and who was at risk of harm. 60. Lady Justice Butler-Sloss noted that the local authority was seeking to rely on the inherent jurisdiction of the court under the doctrine of necessity in order to direct where T. should live and to restrict and supervise her contact with her natural family. The local authority, supported by the Official Solicitor, submitted that the doctrine operated on a day-to-day basis in making ordinary decisions for the care and protection of an incapable adult as recognised in the present case (R v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1999] Appeal Cases 458). T.’s mother contended that the courts were unable to fill the gap caused by statutory amendments: while there was a limited jurisdiction to make declarations in medical cases on issues capable of resolution at the time of hearing, that did not extend to cases where the effect would be coercive over a long period without limit of time and without a clear view of future requirements for that person. 61. Lady Justice Butler-Sloss had no doubt that there was a serious justiciable issue which required a decision by the court. Mental health legislation did not cover the day-to-day affairs of mentally incapable adults and in both Re F. (Mental Patient: Sterilisation) and Bournewood (cited above) the courts had recognised that the doctrine of necessity might properly be relied on side by side with the statutory regime. The jurisdiction of the High Court to grant relief by way of declarations was therefore not excluded by the Mental Health Act 1983. As to the question of whether the problem (residence and contact) arising in the case came within the established principles so as to give the court jurisdiction to hear the issue of T.’s best interests and make declarations, she found in the affirmative: “There is an obvious gap in the framework of care for mentally incapacitated adults. If the court cannot act and the local authority case is correct, this vulnerable young woman would be left at serious risk with no recourse to protection, other than the future possibility of the criminal law. That is a serious injustice to T. who has rights which she is unable, herself, to protect. ... Although the decision of this court in Re S. (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1 turned upon the locus standi of the claimant, the underlying issue, recognised by counsel and by this court was the best interests of S. When the matter was remitted to Hale J for decision, the question that she answered was his future residence (see Re S. (Hospital Patient: Foreign Curator) [1996] 1 FLR 167. Lord Goff in Bournewood recognised ... that the concept of necessity had a role to play in all branches of the law where obligations existed and was therefore a concept of great importance. In Re S. the Master of the Rolls set out the long-established power of the High Court to grant declarations in a wide variety of situations and to assume jurisdiction if there is no practicable alternative. He looked at the line of medical and similar cases and said at page 18 ... : ‘Collectively, these cases appear to constitute the development of a new advisory declaratory jurisdiction.’ In Re C. (Mental Patient: Contact) [1993] 1 FLR 940, one of the cases referred to by Sir Thomas Bingham MR, there was a dispute between the parents of an adult mentally incapacitated girl over contact between her and her mother. Eastham J held ... that: ‘In an appropriate case, if the evidence bears out the proposition that access is for the benefit of the patient in this case, S., I see no reason at all why the court should not grant access by way of a declaration.’ In both Re C. and Re S. the declarations sought were in support of identifying the best interests of an incapable adult where individuals around him or her were in conflict over his/her future welfare. The application for declaratory relief in the present appeal is between a local authority and a mother but ... there is no distinction to be drawn between a local authority and an individual. A declaration is, in many ways, a flexible remedy able to meet a variety of situations. In the present conflict, where serious question marks hang over the future care of T. if returned to her mother, there is no practicable alternative to the intervention of the court. The declarations sought by the local authority may require alteration according to the facts found by the judge, but he would have the jurisdiction to vary them to meet the situation after those findings were made. There is the possibility that the judgment itself might resolve the situation. If it does not and declarations are required which determine where T should live, there is nothing in principle to inhibit a declaration that it was in her best interests that she should live in a local authority home and should not live anywhere else, nor, while she was in the home to regulate the arrangements for her care and as to with whom she might have contact. Such were the implications of the second stage of Re S. before Hale J and of Re C. (above). I am clear that it is essential that T.’s best interests should be considered by the High Court and that there is no impediment to the judge hearing the substantive issues involved in this case. The assumption of jurisdiction by the High Court on a case-by-case basis does not, however, detract from the obvious need expressed by the Law Commission and by the Government for a well-structured and clearly defined framework of protection of vulnerable, mentally incapacitated adults, particularly since the whole essence of declarations under the inherent jurisdiction is to meet a recognised individual problem and not to provide general guidance for mentally incapacitated adults. Until Parliament puts in place that defined framework, the High Court will still be required to help out where there is no other practicable alternative.” 62. Lady Justice Butler-Sloss found as follows in a judgment delivered in December 1999: “Another question which arises from the decision in Re F. is the relationship of best interests to the Bolam test (Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582). Doctors charged with the decisions about the future treatment of patients and whether such treatment would, in the cases of those lacking capacity to make their own decisions, be in their best interests, have to act at all times in accordance with a responsible and competent body of relevant professional opinion. That is the professional standard set for those who make such decisions. The doctor, acting to that required standard has, in my view, a second duty, that is to say he must act in the best interests of a mentally incapacitated patient. I do not consider that the two duties have been conflated into one requirement. To that extent I disagree with the Law Commission’s Report on Mental Incapacity (paragraph 3.26 ... ) and I prefer the alternative suggestion in [the] footnote ... ” 63. Mr Wilkinson, an involuntary psychiatric detainee, applied for judicial review of past and future treatment decisions. He argued that the domestic court had to examine the competing medical views before it in order properly to review the lawfulness of the enforced medical treatment in his case. The respondents argued that the level of scrutiny on judicial review, even applying the “super-Wednesbury” approach, did not allow the courts to substitute their view for that of the primary medical decision-maker and opposed the examination of the relevant health professionals. The High Court refused to call and cross-examine the health professionals on their medical opinions. 64. By the time the Court of Appeal heard the case, the Human Rights Act 1998 (incorporating the Convention into domestic law) had come into force (in October 2000). The applicant argued therefore that the provisions of, inter alia, Articles 2, 3, 6, 8, and 14 of the Convention reinforced his position as to the level of examination of the varying medical views to be carried out, while the respondents maintained that the 1998 Act did not mean that the courts must adopt a primary fact-finding role in such circumstances. 65. As regards any future proposed medical treatment (post-1998 Act), the Court of Appeal found that Articles 2, 3 and 8 of the Convention required, on judicial review, a full review of the merits of the relevant medical decisions and that a review in accordance with the “super-Wednesbury” criteria would not have been sufficiently intrusive as to constitute such a proper review of the merits of those medical decisions. In this connection, the Court of Appeal referred to the European Court’s judgment in Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, §§ 135-39, ECHR 1999VI). 66. In the early 1990s the Law Commission produced a series of consultation papers entitled “Mental incapacitated adults and decision-making” culminating in the above-mentioned report. The introduction noted: “1.1. It is widely recognised that ... the law as it now stands is unsystematic and full of glaring gaps. It does not rest on clear or modern foundations of principle. It has failed to keep up with social and demographic changes. It has also failed to keep up with developments in our understanding of the rights and needs of those with mental instability.” 67. As to the meaning of best interests, the report noted as follows: “3.26. Our recommendation that a ‘best interests’ criterion should apply throughout our scheme cannot be divorced from a recommendation that statute should provide some guidance to every decision-maker about what the criterion requires. No statutory guidance could offer an exhaustive account of what is in a person’s best interests, the intention being that the individual person and his or her individual circumstances should always determine the result. In our 1993 consultation papers, however, we suggested that certain principles of general application would always be relevant. At least in so far as substitute health-care decisions are concerned, the principles we suggested probably involve a significant departure from the present state of the law. This, as set out in [Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1], appears to provide that a doctor who acts in accordance with an accepted body of medical opinion is both (1) not negligent and (2) acting in the best interests of a patient without capacity.” The footnote at this point in the report (and to which Lady Justice Butler-Sloss referred in R.-B. (A Patient) v. Official Solicitor, cited above) indicated as follows: “It may be that all [the judges in Re F.] were saying was that a doctor must both (1) meet the standard of care required to avoid liability in negligence and (2) act in an incapacitated patient’s best interests. However, since they gave no indication of how those ‘best interests’ were to be identified, some commentators have concluded that the two requirements were in fact one. The speeches of the law lords in Airedale NHS Trust v. Bland [1993] AC 789 cannot be said to have resolved this important point, and Lord Goff again referred to the professional negligence standard when discussing what was in the patient’s best interests.” 68. The report went on: “This apparent conflation of the criterion for assessing complaints about professional negligence with the criterion for treating persons unable to consent has been the butt of vehement criticism. No medical professional body responding to consultation paper no. 129 argued in favour of retaining such a definition of ‘best interests’. Many were extremely anxious to see some clear and principled guidance given as to what ‘best interests’ might involve. ... 3.27. It should be made clear beyond any shadow of a doubt that acting in a person’s best interests amounts to something more than not treating that person in a negligent manner. Decisions taken on behalf of a person lacking capacity require a careful, focused consideration of that person as an individual. Judgments as to whether a professional acted negligently, on the other hand, require careful, focused consideration of how that particular professional acted as compared with the way in which other reasonably competent professionals would have acted. ...” 69. The Law Commission recommended that, in deciding what is in a person’s best interests, regard should be had to: “(1) the ascertainable past and present wishes and feelings of the person concerned and the factors that person would consider if able to do so; (2) the need to permit and encourage the person to participate, or to improve his or her ability to participate, as fully as possible in anything done for and any decision affecting him or her; (3) the views of other people whom it is appropriate and practicable to consult about the person’s wishes or feelings and what would be in his or her best interests; (4) whether the purpose for which any action or decision is required can be as effectively achieved in a manner less restrictive of the person’s freedom of action.” 70. A revised Code of Practice, prepared pursuant to section 118 of the 1983 Act, came into force on 1 April 1999. The 1983 Act did not impose a legal duty to comply with the Code but, as it was a statutory document, failure to follow it could be referred to in evidence in legal proceedings. 71. Under the title “Informal patients”, the Code stated: “2.7. Where admission to hospital is considered necessary and the patient is willing to be admitted informally this should in general be arranged. Compulsory admission powers should only be exercised in the last resort. Informal admission is usually appropriate when a mentally capable patient consents to admission, but not if detention is necessary because of the danger the patient presents to him or herself or others. Compulsory admission should be considered where a mentally capable patient’s current medical state, together with reliable evidence of past experience, indicates a strong likelihood that he or she will have a change of mind about informal admission prior to actually being admitted to hospital, with a resulting risk to their health or safety or to the safety of other people. 2.8. If at the time of admission the patient is mentally incapable of consent, but does not object to entering hospital and receiving care or treatment, admission should be informal (see R. v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1998] 3 ALL ER 289 ...). The decision to admit a mentally incapacitated patient informally should be made by the doctor in charge of the patient’s treatment in accordance with what is in the patient’s best interests and is justifiable on the basis of the common-law doctrine of necessity ... If a patient lacks capacity at the time of an assessment or review, it is particularly important that both clinical and social care requirements are considered, and that account is taken of the patient’s ascertainable wishes and feelings and the views of their immediate relatives and carers on what would be in their best interests.” 72. The relevant parts of paragraph 15.21 read as follows: “There are particular considerations that doctors must take into account in discharging their duty of care for those who lack capacity to consent. Treatment for their condition may be prescribed for them in their best interests under the common-law doctrine of necessity (see the decisions of the House of Lords in Re F. [1990] 2 AC 1 and R. v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1998] 3 ALL ER 289). According to the decision in the case of Re F., if treatment is given to a patient who is not capable of giving consent, ‘in the patient’s best interests’ the treatment must be: – necessary to save life or prevent a deterioration or ensure an improvement in the patient’s physical or mental health; and – in accordance with a practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of treatment in question (the test that was originally laid down in [the Bolam case]).” 73. On 1 May 2001 a practice note was issued by the Official Solicitor entitled “Declaratory proceedings: medical and welfare decisions for adults who lack capacity”. It combined the guidance given in earlier practice notes concerning sterilisation operations for incapacitated persons and the continuance of artificial nutrition and hydration for those in vegetative states, and was extended to cover a wider range of medical and welfare disputes concerning adults who lack capacity. The relevant parts provide: “2. The High Court has jurisdiction to make declarations as to the best interests of an adult who lacks decision-making capacity. The jurisdiction will be exercised when there is a serious justiciable issue requiring a decision by the court. It has been exercised in relation to a range of medical treatment issues, in particular sterilisation operations and the continuance of artificial nutrition and hydration. It has also been exercised in relation to residence and contact issues. The jurisdiction is comprehensively reviewed and analysed in Re F. (Adult: Court’s Jurisdiction) [2000] 2 FLR 512. THE NEED FOR COURT INVOLVEMENT 3. Case-law has established two categories of case that will in virtually all cases require the prior sanction of a High Court judge. The first is sterilisation of a person (whether a child or an adult) who cannot consent to the operation: Re B. (A Minor) (Wardship: Sterilisation) [1988] AC 199 and Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1. The second is the discontinuance of artificial nutrition and hydration for a patient in a vegetative state: Airedale NHS Trust v. Bland [1993] AC 789, 805. Further guidance about sterilisation and vegetative state cases is given below. In all other cases, doctors and carers should seek advice from their own lawyers about the need to apply to the court. In the Official Solicitor’s view, applications should be made where there are disputes or difficulties as to either the patient’s capacity or the patient’s best interests. Guidelines were handed down by the Court of Appeal in St George’s Healthcare NHS Trust v. S.; R. v. Collins and Others, ex parte S. [1998] 2 FLR 728, 758-760. It was stressed in that case that a declaration made without notice would be ineffective and ought not to be made. ... THE EVIDENCE 7. The claimant must adduce evidence going to both capacity and best interests. (i) Capacity The court has no jurisdiction unless it is established that the patient is incapable of making a decision about the matter in issue. The test of capacity to consent to or refuse treatment is set out in Re M.B. (Medical Treatment) [1997] 2 FLR 426, 437. ... (ii) Best interests In any medical case, the claimant must adduce evidence from a responsible medical practitioner not only (1) that performing the particular operation would not be negligent but also (2) that it is necessary in the best interests of the patient: Re A. (Male Sterilisation) [2000] 1 FLR 549, 555. The court’s jurisdiction is to declare the best interests of the patient on the application of a welfare test analogous to that applied in wardship: Re S. (Sterilisation: Patient’s Best Interests) [2000] 2 FLR 389, 403. The judicial decision will incorporate broader ethical, social, moral and welfare considerations (ibid., 401). Emotional, psychological and social benefit to the patient will be considered: Re Y. (Mental Patient: Bone Marrow Transplant) [1997] Fam 110. The court will wish to prepare a balance sheet listing the advantages and disadvantages of the procedure for the patient. If potential advantages and disadvantages are to be relied on then the court will wish to assess in percentage terms the likelihood of them in fact occurring: Re A. (Male Sterilisation) [2000] 1 FLR 549, 560.” 74. A practice direction (issued by the High Court with the approval of the Lord Chief Justice and the Lord Chancellor on 14 December 2001 and entitled “Declaratory proceedings: incapacitated adults”) pointed out that proceedings which involved its jurisdiction to grant declarations as to the best interests of incapacitated adults were more suited to the Family Division and that the note detailed in the preceding paragraph provided valuable guidance in relation to such proceedings and “should be followed”. 75. Further to the publication (in December 2000) of a White Paper on reforming the mental health legislation, a draft Mental Health Bill and a consultation paper were published in June 2002. The objective of the bill, as described in the consultation paper, was twofold: to provide a legal structure for requiring mentally disordered persons to submit to compulsory treatment without necessarily requiring them to be detained in hospital and bringing the law more closely into line with modern human rights law (notably the case-law of the European Convention on Human Rights). Part 5 of the bill (sections 121-39) was entitled “Informal treatment of patients not capable of consenting” and provided for specific safeguards for qualifying patients. 76. Steps were also taken towards developing legislation on the broader question of incapacity. Having published a consultation paper in December 1997 entitled “Making decisions on behalf of mentally incapacitated adults”, the Government published its proposals in October 1999. It was proposed that legislation provide for a general authority enabling a person acting reasonably to make decisions on behalf of an incapacitated person and in the incapacitated person’s best interests. The general authority would extend to decisions about care and welfare, including medical decisions. 77. Subsequently, a Mental Capacity Bill was introduced in the House of Commons on 17 June 2004. On the assumption that additional safeguards for the care of incapacitated patients would be most appropriately included in legislation on capacity rather than on mental health, this bill provides for a detailed statutory framework to empower and protect vulnerable people incapable of making their own decisions and for safeguards not currently available under the common law. 78. In particular, the Mental Capacity Bill sets out in statutory form a number of common-law principles, including that everything done must be in the best interests of the patient and in a manner least restrictive of the patient’s rights. It sets down detailed tests for the assessment of capacity and best interests. The bill creates new mechanisms for the appointment, where appropriate, of a designated decision-maker to act on behalf of an incapacitated patient and to be consulted on any decision made: either a lasting power of attorney (which allows the appointment of someone to act on one’s behalf in the case of future loss of capacity) or a court-appointed deputy (who can make decisions on welfare, health care and financial matters as determined by the court). Two new public bodies are also proposed by the bill to support the statutory framework: a new court of protection (for dispute resolution on matters such as capacity and best interests) and a public guardian (a registered authority with supervisory responsibilities as regards the designated decision-makers described above). The bill also provides for the input of an independent consultee (for a person lacking capacity who has no one who can be consulted about his or her best interests), allows individuals to make an “advance decision” to refuse treatment should they lose capacity in the future and creates a new criminal offence of “ill-treatment or neglect of a person lacking capacity”.