R (M) v Ashworth Hospital Authority

JurisdictionEngland & Wales
JudgeLady Justice Hale:
Judgment Date16 July 2003
Neutral Citation[2003] EWCA Civ 1036
Date16 July 2003
Docket NumberCase No: C3/2002/1661 &
CourtCourt of Appeal (Civil Division)

[2003] EWCA Civ 1036

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(MR JUSTICE STANLEY BURNTON)

ADMINISTRATIVE COURT

(MR JUSTICE SULLIVAN)

QUEENS BENCH DIVISION

Before :

The Master Of The Rolls

Lady Justice Hale And

Lord Justice Latham

Case No: C3/2002/1661 &

C3/2002/1882

Between:
Colonel Munjaz
Appellant
and
Mersey Care National Health Service Trust
and
(1) The Secretary Of State For Health
(2)the National Association For Mental Health (mind)
Respondent
Between
S
Appellant
and
Airedale National Health Service Trust
Respondent
and
(2) The National Association For Mental Health (mind)
Interested Parties

Mr N Pleming QC and Ms F Morris (instructed by Messrs Hogans Solicitors) for the Appellant

Mr J Howell QC and Ms P Kaufmann (instructed by Capsticks Solicitors) for the Respondent

Mr R Gordon QC and Mr P Bowen (instructed by Mind) for Mind (the National Association for Mental Health)

Mr C Lewis and Mr B Hooper (instructed by The Office of the Solicitor for the Secretary of State for Health) for the Secretary of State

Mr N Pleming QC and M Seligman (instructed by Peter Edwards Law) for the Appellant

Mr R Francis QC and Ms K Stern (instructed by Hempsons) for the Respondent

Mr R Gordon QC and Mr P Bowen (instructed by Mind) for Mind (the National Association for Mental Health)

Mr C Lewis and Mr B Hooper (instructed by The Office of the Solicitor for the Secretary of State for Health) for the Secretary of State

Lady Justice Hale:

This is the judgment of the court.

1

The two appeals before the court concern the use of seclusion in hospitals where psychiatric patients are detained. Colonel Munjaz challenges the lawfulness of the policy on seclusion applied in Ashworth Special Hospital. Mr S challenges the lawfulness of the use of seclusion in his case by Airedale General Hospital.

2

The Secretary of State for Health was joined as an interested party and the mental health charity Mind was permitted to intervene in these appeals. The Mental Health Act Commission (MHAC) was joined as an interested party in the Munjaz case and has filed evidence but taken no further part in the appeal.

The Code of Practice

3

The Code of Practice issued by the Secretary of State for Health under section 118 of the Mental Health Act 1983 (the 1983 Act) is relevant to both appeals. In Colonel Munjaz' case, this is because the policy adopted by the Mersey Care NHS Trust for use in Ashworth departed from the Code in a number of significant respects, but in particular the frequency of medical reviews. In Mr S's case, it is argued that seclusion was used for a purpose other than that sanctioned by the Code. In both, it is also argued that the Code should play an important role in safeguarding patients against possible breaches of their rights under the European Convention on Human Rights. It is convenient therefore to consider the background to the Code and its guidance on seclusion, before turning to the facts and decisions in each case.

4

Section 118(1) and (2) of the 1983 Act provide:

"(1) The Secretary of State shall prepare, and from time to time revise, a code of practice –

(a) for the guidance of registered medical practitioners, managers and staff of hospitals, independent hospitals and care homes and approved social workers in relation to the admission of patients to hospitals and registered establishments under this Act and to guardianship and after-care under supervision under this Act; and

(b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.

(2) The code shall, in particular, specify forms of medical treatment in addition to any specified by regulations made for the purposes of section 57 above which in the opinion of the Secretary of State give rise to special concern and which should accordingly not be given by a registered medical practitioner unless the patient has consented to the treatment (or to a plan of treatment including that treatment) and a certificate in writing as to the matters mentioned in subsection (2)(a) and (b) of that section has been given by another registered medical practitioner, being a medical practitioner appointed for the purposes of this section by the Secretary of State."

5

Before preparing or altering the code the Secretary of State must consult such bodies as appear to him to be concerned (s 118(3)); copies of the code and any alteration must be laid before Parliament which may require their withdrawal (s 118(4) and (5)); the Secretary of State must publish 'the code as for the time being in force' (s 118(6)). Among the functions of the Mental Health Act Commission is to make proposals to the Secretary of State as to what should go into the code ( SI 1983 No 892 para 3(2)(d) and SI 1983 No 894 reg 7(2)(a)).

6

The preparation of the first Code was originally delegated to the Mental Health Act Commission in 1983. The Commission is an independent multidisciplinary body, established under the 1983 Act with a number of functions, including the protection of patients detained under the Act. The Commission produced a draft in 1985 which provoked the opposition of, most notably, the Royal College of Psychiatrists. The Department produced its own draft in 1987, which also provoked criticism. A drafting committee of professional advisers was established, including the Vice Chair of the MHAC, herself a distinguished Professor of Psychiatry. The legal director of Mind was seconded to the Department for the production of the draft. The new draft achieved the support of the Royal College of Psychiatrists and most other interested groups. It was eventually laid before Parliament in December 1989, and circulated to health and local authorities in May 1990. A revised version came into force on 1 November 1993 and the present edition on 1 April 1999. It will thus be seen that the Code is the product of careful thought and negotiation between the various professional and other bodies with expert knowledge in this difficult field. In particular it has the support of both the Royal College of Psychiatrists and the Mental Health Act Commission.

7

The first edition of the Code contained a Preface pointing out that much of it 'will already be standard practice in many places'. In others, changing existing practice to conform to the Code could be done without any additional resources. But 'where adopting the recommendations in the Code would have significant resource implications, it is recognised that this can only be done as resources permit'. That Preface no longer appears in the Code. All editions of the Code have stated in the first paragraph, that:

'The Act does not impose a legal duty to comply with the Code but as it is a statutory document, failure to follow it could be referred to in evidence in legal proceedings.'

8

The Guiding Principles are set out in section 1 of the present Code. Para 1.1 includes the following:

"1.1 The detailed guidance in the Code needs to be read in the light of the following broad principles, that people to whom the Act applies … should:

- receive recognition of their basic human rights under the European Convention on Human Rights (ECHR); …

- be given any necessary treatment or care in the least controlled and segregated facilities compatible with ensuring their own health or safety or the safety of other people; …"

The first of these was an innovation in the 1999 edition and followed the enactment of the Human Rights Act 1998 (the 1998 Act). The second has been a principle of mental health policy and practice for many years (see, eg, Law Commission, Mentally Incapacitated Adults and Decision-Making: An Overview, 1991, LCCP No 119, para 4.20).

Seclusion and the Code of Practice

9

The 1987 draft of the Code of Practice defined seclusion as

"the supervised denial of the company of other people by constraint within a closed environment at any time of the day or night. The patient is confined alone in a room the door of which cannot be unlocked from the inside and from which there is no other means of exit open to the patient himself."

In the 1990 Code, this had become

"Seclusion is the supervised confinement of a patient alone in a room which may be locked for the protection of others from significant harm."

10

This practice has always been controversial. In the past it has attracted both statutory regulation and the concern of the Commissioners in Lunacy and the Board of Control. Statutory regulation was abolished in the Mental Health Act 1959, but it is generally agreed that 'the practice requires strict guidelines and external monitoring': see Dr Adrian Grounds, 'Seclusion', chapter VII.19, in R Bluglass and P Bowden (eds), Principles and Practice of Forensic Psychiatry (1990). The Committee of Inquiry into Complaints about Ashworth Hospital, chaired by Sir Louis Blom-Cooper QC, ( 1992, Cm 2028) at pp 201 to 207, was so concerned about the use of seclusion for correcting or managing deviant behaviour within the hospital that it recommended its prohibition by statute after a lapse of time which would enable the relevant authorities to phase it out. The committee drew a clear distinction between seclusion and locking patients in their rooms overnight (p 208).

11

The reasons for this concern lie in the combination of the potentially harmful or degrading effects of seclusion upon the patient and its potential for misuse by those looking after him. Stanley Burnton J summed these up in his judgment in, at para 25:

"The objections to seclusion are well-known. If the patient is kept in...

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