R (M) v Ashworth Hospital Authority
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 05 July 2002 |
| Neutral Citation | [2002] EWHC 1521 (Admin) |
| Date | 05 July 2002 |
| Docket Number | CO/2769/2001 |
| Court | Queen's Bench Division (Administrative Court) |
[2002] EWHC 1521 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
The Strand
London
Mr Justice Sullivan
CO/2769/2001
MR NIGEL PLEMING QC and MISS FENELLA MORRIS (instructed by Hogans Solicitors, Merseyside, L35 0LP) appeared on behalf of THE CLAIMANT
MR JOHN HOWELL QC and MISS PHILLIPPA KAUFMANN (instructed by Messrs Reid Minty, London W1K 4PS) appeared on behalf of THE DEFENDANT
MR PHILIP SALES and MR BEN HOOPER (instructed by the Treasury Solicitor) appeared on behalf of THE INTERESTED PARTIES
The claimant is a patient detained under section 37 of the Mental Health Act 1983 (“the Act”) at Ashworth Special Hospital (“Ashworth”). He was admitted to Ashworth on 1 March 1994 from the Three Bridges Regional Secure Unit. He had previously been a patient at Ashworth between July 1984 and March 1992.
Ashworth is one of three hospitals which provide high security psychiatric services for persons who “require treatment under conditions of high security on account of their dangerous, violent or criminal propensities”: see section 4 of the National Health Services Act 1977, as amended. The other two such hospitals are Broadmoor and Rampton.
On 1 April 2002 the defendant, the Mersey Care NHS Trust, took over responsibility for the provision of high security psychiatric services at Ashworth from the Ashworth Hospital Authority, the original defendant in these proceedings.
Section 118 of the Act provides so far as relevant for present purposes:
“(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 and mental nursing homes and approved social workers in relation to the admission of patients to hospitals and mental nursing homes 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.
….
(3) Before preparing the code or making any alteration in it the Secretary of State shall consult such bodies as appear to him to be concerned.
(4) The Secretary of State shall lay copies of the code and any alteration in the code before Parliament; and if either House of Parliament passes a resolution requiring the code or any alteration in it to be withdrawn the Secretary of State shall withdraw the code or alteration and, where he withdraws the code, shall prepare a code of substitution for the one which is withdrawn.
….
(6) The Secretary of State shall publish the code as for the time being in force.”
The current code was published in March 1999. In the foreword the then Secretary of State, Mr Dobson, said, inter alia:
“People with mental health problems deserve good care and support. They are often vulnerable, may have difficulty in expressing their needs and, in some cases, may not recognise that they need help. These patients, carers, and the general public, should be able to rely on health and social services which provide effective care and treatment.
….
The Code provides essential reference guidance for those who apply the Act. Patients and their carers are entitled to expect professionals to use it.”
Paragraph 1 in the Introduction to the Code explains:
“This revised Code of Practice has been prepared in accordance with section 118 of the Mental Health Act 1983 by the Secretary of State for Health and the Secretary of State for Wales, after consulting such bodies as appeared to them to be concerned, and laid before Parliament. The Code will come into force on 1 April 1999. 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.”
Under “Guiding Principles” paragraph 1.1 says:
“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 (including those being assessed for possible admission) should:
• receive recognition of their basic human rights under the European Convention on Human Rights (ECHR);
• be given respect for their qualities, abilities and diverse backgrounds as individuals and be assured that account will be taken of their age, gender, sexual orientation, social, ethnic cultural and religious background, but that general assumptions will not be made on the basis of any one of these characteristics;
• have their needs taken fully into account, though it is recognised that, within available resources, it may not always be practicable to meet them in full;
• be given any necessary treatment or care in the least controlled or segregated facilities compatible with ensuring their own health or safety or the safety of other people;
• be treated and cared for in such a way as to promote to the greatest practicable degree their self-determination and personal responsibility, consistent with their own needs and wishes;
• be discharged from detention or other powers provided by the Act as soon as it is clear that their application is no longer justified.”
Part 19 of the Code is concerned with patients presenting particular management problems. Seclusion is dealt with in paragraphs 19.16 to 19.22 as follows:
“Seclusion is the supervised confinement of a patient in a room, which may be locked to protect others from significant harm. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.
Seclusion should be used:
—as a last resort;
—for the shortest possible time.
Seclusion should not be used:
—as a punishment or threat;
—as part of a treatment programme;
—because of shortage of staff;
—where there is any risk of suicide or self-harm.
Seclusion of an informal patient should be taken as an indicator of the need to consider formal detention.
19.17 Hospitals should have clear written guidelines on the use of seclusion which:
—ensure the safety and well being of the patient;
—ensure the patient receives the care and support rendered necessary by his or her seclusion both during and after it has taken place;
—distinguish between seclusion and ‘time-out’;
—specify a suitable environment taking account of patient's dignity and physical well being;
—set out the roles and responsibilities of staff;
—set requirements for recording, monitoring, reviewing the use of seclusion and any follow-up action.
Procedure for seclusion
19.18 The decision to use seclusion can be made in the first instance by a doctor or the nurse in charge. Where the decision is taken by someone other than a doctor, the RMO [responsible medical officer] or duty doctor should be notified at once and should attend immediately unless the seclusion is only for a very brief period (no more than five minutes).
19.19 A nurse should be readily available within sight and sound of the seclusion room at all times throughout the period of the patient's seclusion and present at all times with a patient who has been sedated.
19.20 The aim of observation is to monitor the condition and behaviour of the patient and to identify the time at which seclusion can be terminated. The level should be decided on an individual basis and the patient should be observed continuously. A documented report must be made at least every 15 minutes.”
Then of critical importance in the present case paragraph 19.21 says:
“The need to continue seclusion should be reviewed
—every 2 hours by 2 nurses (1 of whom was not involved in the decision to seclude), and
—every 4 hours by a doctor.
A multidisciplinary review should be completed by a consultant or other senior doctor, nurses and other professionals, who were not involved in the incident which led to the seclusion if the seclusion continues for more than:
—8 hours consecutively; or
—12 hours intermittently over a period of 48 hours.
If the need for seclusion is disputed by any member of the multidisciplinary team, the matter should be referred to a senior manager.”
Paragraph 19.22 deals with the conditions of seclusion, for example, what facilities should be provided in the room used for seclusion.
The History
The claimant's condition is such that over the years he has been at Ashworth he has frequently been placed in seclusion. His responsible medical officer, Dr Collins, has explained in a witness statement that in the last two years the claimant has had periods of between four to five months during which his mood has been relatively stable. During these periods there is no particular cause for concern, then “something happens and he starts getting a bit high”. This condition “will normally last for two or three weeks and during that time he is liable to be assaultative”. Thus, in 2001 the claimant was generally settled from the beginning of the year until May, when his behaviour became increasingly disturbed. Dr Collins explains:
“One of the problems with this patient's disturbed behaviour is that not only can he become a threat to others, but his level of disturbance and his behaviour is such that other patients may make threats against him, and he also seeks to provoke violence by fellow patients against other patients.”
The claimant was placed in seclusion from 26 to 30 May, between 2 and 20 June, from 18 December 2001 until 2 January 2002, and again between 28 March and 5 April 2002.
In February 1999 Ashworth Hospital Authority issued a “Seclusion Procedure” which was to...
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