On 25 June the House of Lords allowed an appeal by Bournewood NHS Trust against an Appeal Court decision last December. The ruling is important to health and social services across the country, as it confirms the basis upon which those suffering from learning difficulties can be admitted to hospital or other residential care (R v Bournewood Community & Mental Health NHS Trust ex parte L).
For 30 years prior to last December's Appeal Court ruling, it was accepted that patients who lacked the capacity to agree or object to admission could be admitted on an informal basis, without being "sectioned" under the Mental Health Act 1983. This practice was challenged by L's representatives, who argued that where an individual could not consent to admission, they could only be admitted lawfully under the 1983 Act.
L lost at first instance but then went to the Court of Appeal, who ruled that the informal admission of a patient in L's position was unlawful. This apparent overturning of accepted practice caused concern across the country. The importance of the case is shown by its progression through the appeals process to the Lords in six months, plus the intervention of various public and other bodies.
But the Law Lords have now confirmed that the Appeal Court was wrong and that the 1983 Act in fact does allow the informal admission of those who lack the capacity to consent and do not object. Also, Lord Goff's lead judgment emphasises that the legal underpinning for the treatment and care of informal patients like L is the common law doctrine of necessity. This allows intervention to restrain an individual on an emergency basis – what the medical and nursing professions customarily call "common law powers".
It should be mentioned that, although all five Law Lords allowed the appeal, one expressed disquiet at the lack of statutory safeguards for patients in L's condition.
The judgment confirms the lawfulness of the way in which perhaps 20,000 individuals are admitted to hospital, but at the same time it has focused attention on this issue and a debate about reform, whether statutory or in terms of practice standards, has begun.