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Judgments - Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent)


SESSION 2005-06
[2005] UKHL 58
on appeal from: [2003] EWCA Civ 1036

for judgment IN THE CAUSE

Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent)

Appellate Committee

Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood


John Howell QC
Ms Phillippa Kaufmann
(Instructed by Capsticks)

Nigel Pleming QC
Ms Fenella Morris
(Instructed by Hogans)

Mental Health Act Commission
Jonathan Swift
(Written intervention)
(Instructed by Treasury Solicitor)
Richard Gordon QC
Paul Bowen
(Instructed by Mind Legal Unit)
Secretary of State for Health
Clive Lewis
Ben Hooper
(Instructed by Solicitor, Department of Health)

Hearing dates:
27, 28, 29 and 30 June 2005

Thursday 13 OCTOBER 2005




Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent)

[2005] UKHL 58


My Lords,

    1.  In December 2002 the appellant, the Mersey Care National Health Service Trust, as managers of Ashworth Hospital, implemented a written policy governing the seclusion of patients detained at the hospital. The issue in this appeal is whether that policy is unlawful, either because it is inconsistent with the domestic law of England and Wales or because it fails to comply with the European Convention on Human Rights. Sullivan J at first instance held the policy to be lawful in both respects: [2002] EWHC 1521 (Admin). For reasons given in a judgment of the court delivered by Hale LJ, the Court of Appeal (also including Lord Phillips of Worth Matravers MR and Latham LJ) declared the policy to be unlawful: [2003] EWCA Civ 1036, [2004] QB 395. In this appeal the Trust challenges that decision. Its legal submissions are supported by the Secretary of State for Health as an interested party. Mr Colonel Munjaz seeks to uphold the Court of Appeal decision. His submissions are supported and elaborated by the National Association for Mental Health (Mind). The Mental Health Act Commission makes written submissions in support of Mr Munjaz.

    2.  Ashworth Hospital is one of three hospitals (the others are Broadmoor and Rampton) which provide high security hospital accommodation and services for persons liable to be detained under the Mental Health Act 1983. The Secretary of State is bound by sections 1 and 4(1) of the National Health Service Act 1977 to provide such accommodation for persons who "in his opinion require treatment under conditions of high security on account of their dangerous, violent or criminal propensities". It is not in doubt that among those detained at Ashworth there are patients who, for differing periods and in differing degrees, but sometimes to an extreme degree, exhibit such propensities. The Trust became the managers responsible for Ashworth with effect from 1 April 2002.

    3.  Mr Munjaz is a man now in his late 50s. After a number of spells in prison and hospital he was admitted to Ashworth from prison under sections 47 and 49 of the 1983 Act on 19 July 1984. He remained an in-patient until March 1992, when he was discharged by a Mental Health Review Tribunal. About a year later he was arrested and charged with a number of offences and was admitted, from prison, to a medium secure unit in August 1993. In that unit he became increasingly psychotic, aggressive and violent. He was placed in seclusion and transferred to Ashworth on 1 March 1994. Since then he has been secluded on a number of occasions for the protection of others. In these proceedings he originally complained of four periods of seclusion in the years 2001-2002, the longest of these lasting for 18 days and the shortest for 4. But, as will be seen, these complaints are not pursued. His claim now relates solely to the general lawfulness of the policy of the Trust with respect to medical reviews of seclusion and its application to patients at Ashworth.

The legislative background

    4.  The admission, detention and treatment in NHS hospitals of those suffering from mental disorder are largely governed by the 1983 Act. Part II of the Act governs compulsory admission to hospital and guardianship. Patients are ordinarily detained in hospital by the managers of the hospital acting on the authority of medical recommendations. At common law those who have custody of or treat or look after patients owe them a duty of care, but this duty is fortified by section 127 of the 1983 Act which makes it a criminal offence punishable by imprisonment to ill-treat or wilfully neglect a hospital in-patient.

    5.  Section 118(1) of the 1983 Act is central to this appeal and, as amended in 1995, provides:

    "(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."

This is followed by subsection (2) which makes more particular provision for the Code to address forms of treatment not falling within section 57(1)(a) or specified by the Secretary of State in regulations made by him for purposes of section 57(1)(b) but nonetheless calling for special care in ensuring that the patient consents. Subsection (2) provides:

    "(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 practitioner appointed for the purposes of this section by the Secretary of State."

Before preparing or altering the Code of Practice the Secretary of State is required to consult such bodies as appear to him to be concerned (subsection (3)). The Code and any revised Code must be laid before Parliament, and either House may within a specified period require its alternation or withdrawal (subsections (4), (5)). The Code must be published (subsection (6)).

    6.  By section 120(1) of the 1983 Act the Secretary of State is required to keep under review the exercise of the powers and the discharge of the duties conferred or imposed by the Act so far as they relate to the detention of patients under the Act, and is further required to make arrangements for persons authorised by him in that behalf to visit and interview privately patients detained in hospital under the Act and to investigate complaints made by persons who are or have been detained under the Act. By section 121(2) the Secretary of State must direct that these functions shall be performed by the Mental Health Act Commission, an authoritative professional body established under section 11 of the 1977 Act and continued by section 121(1) of the 1983 Act.

    7.  As is now well known, section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. It is not in doubt that the Trust is a public authority. The victim of an act made unlawful by section 6(1) may bring proceedings under section 7(1) and obtain redress under section 8. The main Convention rights here in issue are those provided in article 3, which prohibits the subjection of any person to torture or inhuman or degrading treatment or punishment, and article 8, which guarantees to everyone the right to respect for his private and family life, his home and his correspondence. This guarantee in article 8(1) is supplemented and qualified by paragraph (2):

    "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of … the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Reference should also be made to article 5. This guarantees to everyone the right to liberty and security of person, and provides that no one shall be deprived of his liberty save in specified cases and in accordance with a procedure prescribed by law. The relevant case for present purposes is "(e) the lawful detention … of persons of unsound mind." Article 5(4) provides:

    "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

    8.  If in any proceedings one of the higher courts determines that any provision of primary legislation is incompatible with a Convention right, the court may so declare: section 4(1),(2) of the 1998 Act. But the courts are subject to an unusual interpretative duty designed to obviate the need for such a declaration save exceptionally. Section 3(1) of the Act provides that:

    "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

The Secretary of State's Code of Practice

    9.  Pursuant to his duty under section 118(1) of the 1983 Act, following long and detailed consultation with appropriate bodies including the Mental Health Act Commission, and in accordance with the procedure prescribed by statute, the Secretary of State promulgated in March 1999 the Code of Practice relevant to this appeal. It was prefaced by a statement of guiding principles to guide interpretation of the Code. These included principles that people to whom the 1983 Act applies should "receive recognition of their basic human rights under the European Convention", should "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", and should "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".

    10.  The Code covers a wide field, and most of its contents are irrelevant to this appeal. Chapter 19 covers "Patients presenting particular management problems". Part of this section is addressed to seclusion, defined in para 19.16 to mean "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. Thus seclusion should be used as a last resort and for the shortest possible time and should not be used as a punishment or threat, as part of a treatment programme, because of shortage of staff or where there is any risk of suicide or self-harm.

    11.  Paragraph 19.17 provides:

    "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' (see paras 18.9-18.10); -  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.

    12.  Succeeding paragraphs cover the procedure for seclusion and the frequency of medical reviews. They are in these terms:

    "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 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.

    19.21  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."

There follow paragraphs in which the Code addresses the conditions in which patients are to be secluded, the keeping of records and other matters.

The Ashworth policy

    13.  In response to para 19.17 of the Code (see para 11 above), and in the light of an earlier judgment of Jackson J on 28 September 2000, the Trust drew up the policy on seclusion which is challenged in these proceedings. The Introduction to the policy draws attention to the special problems presented by patients at Ashworth. In para 2.4 it states:

    "The Code of Practice provides guidance on how registered mental health practitioners, managers and staff of hospitals should proceed when undertaking duties under the Act. The Code of Practice revised in March 1999 was written to encompass a wide range of mental health services and does not specifically consider the special situation of a high security hospital."

The aims of the policy are set out in para 3 in terms which almost reproduce para 19.17 of the Code, quoted in para 11 above.

    14.  The policy repeats verbatim the definition of seclusion in the Code (para 4.1: see para 10 above). It repeats the Code's statements on when seclusion should be used and that it should not be used as a punishment or threat or as part of a patient's treatment (para 4.2-4.3). It addresses the risk of self harm (para 4.4). The aim of the policy is to protect the public, staff, visitors and patients within the hospital (para 4.5). It deals in detail with the conditions of seclusion (paras 5.1-5.6).

    15.  Para 6 of the policy addresses the decision to seclude and provides:

    "6.3  The decision to use seclusion will be made usually in the first instance by the nurse in charge of the ward. It must be clear which individual made the decision. The RMO or deputy and the Ward Manager or deputy should be informed immediately.

    6.4  The doctor and Ward Manager or deputy will attend the ward as soon as possible within the hour to assess the situation and review with the nurse in charge whether or not seclusion is required to continue and assess alternative responses. The doctor will record in the notes any agreed level of observation or intervention in excess of the standard seclusion observation."

A nurse is to be readily available within sight and sound of a room in which a person is secluded at all times, and a paper recording of direct visual observation of the patient is to be made at least every 15 minutes (para 7.1). Para 8 provides for the keeping of detailed records and for a detailed plan for management of the ending of seclusion to ensure its ending at the earliest possible time.

    16.  Because of their importance in this appeal, paras 9-11 of the policy must be quoted in full:

    "9  Review

    9.1  The RMO is responsible for the use of seclusion. Regular reviews must take place involving the RMO or deputy and Ward Manager or deputy. The details of these are given below.

    9.2  If a doctor was not present at the time of seclusion, he must initiate a review on arrival within one hour and then at:

    9.2.1  First day - medical review at 4, 8, 12 and 24 hours;

    9.2.2  Day 2 to day 7 - twice per day;

    9.2.3  Day 8 onwards:-

    [1]  daily review by Ward Manager or Site Manager from different ward;

    [ii]  three medical reviews every 7 days [one being by the RMO];

    [iii]  weekly review by multi-disciplinary patient care team to include RMO;

    [iv]  review by Seclusion Monitoring Group as per paragraph 10 below;

    9.3  If at any review at 8 hours or subsequently the doctor is not a consultant psychiatrist the doctor doing the review must consult with the patient's responsible medical officer or the duty consultant and this should be fully documented.

    9.4  The senior manager/nurse will conduct a review on arrival on the ward within one hour of the decision to seclude and then in accordance with the agreed review schedule.

    9.5  The nurse in charge will ensure that the patient's Consultant Psychiatrist, or their deputy is informed at the earliest opportunity. Others involved in the patient's care should also be informed.

    9.6  Two qualified nursing staff will carry out a review of the seclusion every two hours. They will record the outcome in the observation record and they will both sign the entry.

    9.7  Where practicable one of the nursing staff who carries out a review of seclusion should not have been involved in the original decision to seclude.

    9.8  A Consultant Psychiatrist [who will be the RMO if available or their designated deputy, e g out of hours or during absence from hospital] must see the patient within 72 hours or on the first working day. If waiting until the first working day causes a delay, the duty Registrar must discuss the patient's care with the duty Consultant or RMO and seek agreement to the delay.

    9.9  If the patient remains in seclusion for more than 8 hours continuously or for 12 hours intermittently within a period of 48 hours, an independent review of the need to continue seclusion will take place for this purpose. This should involve, where practicable, one or more clinicians who were not directly involved in the decision to seclude the patient as well as members of the Patient Care Team. However, at least one clinician taking part in the review must not have been involved in the decision to seclude the patient.

    9.10  There is an appeal process available to all secluded patients, separate from and additional to the procedures set out within this paragraph. This process is set out at paragraph 16.

10  Monitoring arrangements

    10.1  All seclusion used within the hospital is reviewed by a multi-disciplinary group known as the Seclusion Monitoring Group (SMG).

    10.2  The functions of the group are as follows:

-  to monitor the implementation and adherence to the policy and procedure for the use of seclusion -  to monitor and review the use of seclusion throughout the hospital -  to monitor and review patients secluded under conditions of paragraph 8 of the seclusion procedure -  to receive and analyse data relating to seclusion and to monitor overall trends in the use of seclusion -  to review documentation for the collection of information about the use of seclusion and alternative management strategies -  to examine training and educational needs to support staff mechanisms and make recommendations to the Hospital Authority Board -  to prepare and submit reports to Clinical Teams, Executive Directors, Authority Board -  to consider any other matters relating to seclusion that occur -  to share and disseminate good practice, hospital wide.

    10.3  The Seclusion Monitoring Group is chaired by the Medical Director and reports to the Clinical Governance Committee.

    11  The use of seclusion for patients posing management problems

    11.1  Any patient for whom the clinical team has to institute seclusion in excess of seven days, will be individually brought to the attention of the Medical Director or in their absence the Executive Nurse Director, by the chairperson of the patient's clinical team, with a resume of the reasons for the continuing use of seclusion, the care and treatment which the patient will be receiving and what is hoped will be achieved.

    11.2  The Medical Director will inform the Chief Executive and request a formal case presentation to the next planned meeting of the SMG.

    11.3  The Medical Director and Executive Nurse Director, or two representatives of the Seclusion Monitoring Group acting on their behalf, must see the patient whether or not they are familiar with the case.

    11.4  Following the case presentation at 10.2, monitoring arrangements will be agreed between the SMG and the patient's clinical team.

    11.7  Each patient's case will be reviewed weekly by the clinical team and a written report sent monthly to the Seclusion Monitoring Group. At the initial review meeting, and with the patient's consent, consideration will be given by the team to notifying the patient's key relative(s).

    11.8  After six months, the Medical Director and Executive Nurse Director will participate in a clinical team review. The case will then be discussed at the Executive Team Meeting.

    11.9  The Mental Health Act Commission will be informed if seclusion continues beyond 7 days and will receive progress reports on a regular basis."

An appendix to the policy provides more detailed guidance on the conduct of the 8-hour review.

    17.  Para 12 lays down a further requirement of record keeping. Para 13 authorises the nurse in charge of the ward to terminate seclusion at any time. Para 14.2.1 provides that visiting relatives should, whenever possible, be allowed to visit a secluded patient. Paras 15 and 16 are to this effect:

    "15  Monitoring of Seclusion in Ashworth Hospital Authority

    15.1  Regular performance management information on the use of seclusion will be reviewed daily by the Site Managers, regularly by Service Managers and monthly by Service Management Teams. Information will be reviewed by Executive Team and Ashworth Hospital Authority Board monthly. Review of Seclusion Policy and overall auditing will be the responsibility of the Clinical Governance Committee through the Clinical Audit and Effectiveness Committee. The Executive Nurse will provide regular reports to the Clinical Governance Committee.

    16  Appeal

    16.1  If a patient or patient's representative want to make any representations they can do so. These representations should be made to the Medical Director, or the Medical Director's nominated deputy, who will conduct a formal review, taking into account all representations as well as all the circumstances before making a decision.

    16.2  The procedure is separate from and additional to the review procedure set out at paragraph 9 above, although any representations made by the patient or the patient's representative will be taken into account as part of the procedures set out under paragraph 9. This appeal procedure is to provide a further opportunity for representations to be made."

Is the Ashworth policy unlawful in domestic law?

    18.  Mr Munjaz contends that the Ashworth policy is unlawful under the domestic law of England and Wales because it provides for less frequent medical review of seclusion, particularly after Day 7, than is laid down in the Code. If para 9.2.3 of the policy is compared with para 19.21 of the Code it is indeed evident that the frequency of medical reviews is significantly less under the policy than under the Code.

    19.  The first question for consideration is whether the Code issued by the Secretary of State falls within section 118(1) of the 1983 Act. The Trust suggests that it does not, since it does not relate to "admission", the subject matter of (a), and does not relate to "medical treatment", the subject matter of (b). The judge held that the Code fell within (1)(b) but not (1)(a): see para 73 of his judgment. The Court of Appeal, in para 72 of its judgment, held that guidance on the use of seclusion can be issued under (1)(a) and (1)(b). I prefer the Court of Appeal's conclusion. "Admission" cannot sensibly be read as referring only to the process of admission, to the exclusion of all that follows. Similarly, "medical treatment" as defined in section 145(1) of the 1983 Act, a definition very similar to that considered and explained by my noble and learned friend Lord Hope of Craighead in Reid v Secretary of State for Scotland [1999] 2 AC 512, 529-531, is in my opinion an expression wide enough to cover the nursing and caring for a patient in seclusion, even though seclusion cannot properly form part of a treatment programme.