S v Airedale National Health Service Trust
| Jurisdiction | England & Wales |
| Judgment Date | 22 August 2002 |
| Neutral Citation | [2002] EWHC 1780 (Admin) |
| Docket Number | Case No: CO/3043/01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 August 2002 |
[2002] EWHC 1780 (Admin)
The Honourable Mr Justice Stanley Burnton
Case No: CO/3043/01
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Nigel Pleming QC and Matthew Seligman (instructed by Messrs Peter Edward & Co) for the Claimant
Robert Francis QC and Kristina Stern (instructed by Hempsons) for the Defendant
Introduction
This case concerns the lawfulness of seclusion in relation to patients detained under the Mental Health Act 1983, and the effect of section 6(2)(a) of the Human Rights Act on the liabilities of hospitals to those patients.
S was admitted to Airedale General Hospital in Bradford on 11 July 2001 for assessment, under section 2. It was his second admission: he had been admitted on 20 June 2001 under section 5(2) and his detention continued under section 2; despite the specialist registrar's recommendation of further detention he was discharged from detention by a Mental Health Review Tribunal on 5 July. The Hospital is managed by the Second Defendant. Following his admission, there were incidents of violence and apprehended violence, and he absconded on several occasions, returning voluntarily. He was placed in seclusion at 11.10 pm on 21 July and remained there until 7.45 am on 2 August 2001, when he was transferred to a low secure unit in London, a period of 12 days. On 24 July 2001, he appeared before a Mental Health Review Tribunal, which refused to discharge him. On 25 July 2001, his detention was continued under section 3. From 9.55 am on 29 July he was secluded at night only.
S contends that his seclusion was unlawful under domestic law and that it infringed his rights under Articles 3, 5 and 8 of the European Convention on Human Rights. The Defendant denies that it acted unlawfully or infringed any of his Convention rights. The Claimant has also raised an issue as to whether a hospital is entitled to take into account information concerning a criminal offence that may have been committed by a patient that is at variance with his conviction or sentence by a court.
As sometimes happens, these proceedings were started as a challenge to particular decisions made by the Defendant and others. They were begun on 2 August 2001, naming as defendants, in addition to the Airedale NHS Trust, Airedale Primary Care Trust, which commissions services from the NHS Trust, and Bradford Community Trust, which operates a medium secure unit known as the Kestrel Unit in Bradford, to which S had wanted to be transferred but which had refused to accept him. On the same date Moses J granted permission to apply for judicial review and an injunction to restrain S's transfer to the Cygnet Wing in Blackheath, London, a regional secure unit. By the time the NHS Trust was informed of the injunction, S had been transferred to the Cygnet Wing. S was treated there, without seclusion, until 29 August 2001, when he returned to Airedale. He was treated at Airedale uneventfully until 6 September 2001, when he was discharged. He has not had to be readmitted. The proceedings against Airedale Primary Care Trust and Bradford Community Trust have been discontinued.
S does not contend that seclusion of itself is necessarily contrary to Article 3 of the Convention. Seclusion may last a very short time, measured in minutes rather than hours. In this case, however, the duration of S's seclusion approached 2 weeks. The central issue is whether there are any, and if so what, limits on the use of seclusion.
There were two factors leading to S's seclusion. The first, and most obvious, was his mental illness, which led to violence on his part or the fear of violence by him to others. He was diagnosed as suffering from bipolar affective disorder characterised by aggressiveness, behaviour violence and sexual disinhibition. Prior to his seclusion, he absconded from the Hospital on a number of occasions. When admitted to the Cygnet Wing, his illness was in the hypomanic phase, and this was probably the case earlier. He was potentially dangerous. By 18 July 2001, the staff at the Hospital had decided that they could not, or would not, physically restrain him from leaving his ward because of the risk of assault and injury to themselves.
The second factor was the shortage of beds in secure units generally, and in particular the lack of a bed in a local secure unit. As early as 18 July, Dr Robert Kehoe, his RMO, formed the view that he urgently required to be transferred to secure accommodation, and that it was inappropriate for him to remain at Airedale. S's hospital history sheet for that date has the note:
"Explore possibility of bed in locked ward/secure ward: Stockton Hall available."
Stockton Hall is a secure unit in York, and was the only one that would consider taking S. Dr Kehoe asked Stephen Kelly, the Acting Manager, Acute Mental Health In-Patient Services at the Hospital, to try to find a secure bed for S. Mr Kelly and a colleague contacted some 22 hospital units across the country, but the only hospital that would consider taking S was Stockton Hall. On 19 July, the notes record: "Dr Kehoe will speak to Stockton Hall." On 20 July, Dr Kehoe contacted both Stockton Hall and the Kestrel Unit. The Kestrel Unit informed him that it did not have a bed for S. Stockton Hall agreed to assess S in Bradford. On 25 July Mr Kelly searched for a back-up in case Stockton Hall refused to accept S, and found that the Cygnet Wing in Blackheath would accept a referral over the telephone. Stockton Hall assessed S on 26 July, but could not make a decision until 31 July. This would have prolonged S's seclusion at Airedale. As a result, on 26 July arrangements were made to transfer S to the Cygnet Wing in Blackheath the following day. However, S's family objected to his transfer to a hospital so far away from their home. Judicial review proceedings were threatened, and indeed commenced. However, on 2 August, S signed a form of consent for his transfer to Blackheath, and his transfer there took place on that date. His decision to consent to his transfer to Blackheath was influenced by the prospect of the ending of his seclusion.
It appears from the above that had it been possible to transfer S to a secure unit earlier, the period he spent in seclusion would have been reduced. Indeed, if transfer to a secure unit had been possible on 18 July, he would not have been kept in seclusion at Airedale at all.
The issues
S contends:
(a) "Where seclusion is used other than as a very short term reaction to a crisis,"… its use "contravenes Article 3, and crosses the line into impermissible 'inhuman or degrading treatment or punishment'", and that it crossed that line in this case.
(b) That the use of seclusion involves a breach of Article 5 because there is no "lawful procedure" by which it is regulated.
(c) That for the purposes of domestic law, and specifically the Mental Health Act 1983 ("the Act"), seclusion is not "medical treatment" within the meaning of section 145(1) and is therefore not authorised as medical treatment by the Act.
(d) That his seclusion was an unlawful and unjustified deprivation of his residual liberty.
(e) That seclusion can only be lawful if it is necessary; and it was not necessary in his case, since his seclusion was occasioned by the lack of an appropriate facility to cater for him at the Airedale Hospital or elsewhere; and lack of resources cannot justify interference with rights under, in particular, Article 3 of the Convention.
(f) That the Defendant in secluding him failed to comply with the Code of Practice without justification, and thereby acted unlawfully.
The Defendant disputes each of the above contentions. It contends that the decision of the RMO to seclude S may be impugned only if it can be shown to have been perverse or taken in bad faith. In addition, Mr Francis submitted on its behalf that, because of the unavailability of secure accommodation for S and the risk he posed to staff and patients, it had no alternative but to place him and keep him in seclusion; that to have acted differently would have been at best negligent and involved the Defendant in the risk of liabilities to S and to others for any injuries caused by S; and that it therefore "could not have acted differently", and is protected by section 6(2)(a) of the Human Rights Act 1998. Mr Pleming, for S, disputed both the factual basis of this submission and the interpretation of section 6(2)(a) on which it was based. He submitted that section 6(2)(a) could only apply where legislation specifically required a public authority to take the action that is alleged to be incompatible with a Convention right.
The Claimant's skeleton argument did not raise issues under Article 8, and it was not fully considered in argument. While I mention it below, my judgment does not in general cover the issues that arise when it is relied upon.
There were potentially also issues incidental to the above issues. Not the least of these is the test to be applied by the Court in determining the lawfulness of seclusion, assuming it to be capable of justification. Is the function of the Court to determine whether the decision made by the Hospital was reasonable, i.e., non-perverse and, where Convention rights are engaged, proportionate to the need addressed? Or does the Court apply a Bolam/Bolitho test (see respectively [1957] 1 WLR 582 and [1998] AC 232), in which it is sufficient to decide whether the decision to seclude would have been supported by "a responsible body of medical opinion skilled in the...
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