Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent)
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:
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  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.
20. If, then, the Code is issued under section 118(1), what is its legal effect in relation to those to whom it is addressed? The Trust insists that it is guidance. That is what section 118 requires. The Code itself states in its Introduction:
It describes itself as guidance. There is a categorical difference between guidance and instruction. In calling (para 19.17) for hospitals to have clear written guidelines on the use of seclusion, the Code acknowledges that hospitals are not bound simply to reproduce the terms of the Code. The Secretary of State has a power to give binding directions to hospital authorities (see section 17 of the 1977 Act, in any of its recent amended forms) but that was not the power he was exercising when he issued the Code. No express obligation was placed on hospitals to follow the guidance, an omission which contrasts with other provisions, discussed in the authorities, where such an obligation is found. In response, Mr Munjaz lays emphasis on the consultation which must (and certainly did) precede the drawing up of the Code, on the parliamentary sanction which it received, on the issue of the Code by the Secretary of State as the public officer responsible for the National Health Service and on the high importance of protecting detained mental patients, a vulnerable and defenceless sector of society, from any risk of abuse. These considerations, it is said, show that the Code was intended to be very much more than advice which hospital authorities might choose to follow or not to follow.
21. It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. Where, which is not this case, the guidance addresses a matter covered by section 118(2), any departure would call for even stronger reasons. In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires.
22. The extensive evidence adduced by the Trust makes clear that the code was very carefully considered. This is indeed evident from the policy itself, which reproduces important parts of the Code and contains cross-references to it. But the policy did depart from the Code in providing for less frequent medical review after Day 7. As the judge observed in para 36 of his judgment, the Trust "has explained the justification for the policy in very considerable detail". Witness statements were made by Dr Collins, who was Mr Munjaz's responsible medical officer, Dr James, a consultant psychiatrist and the medical director of the Trust, Dr Finnegan, a consultant psychiatrist and the lead consultant for mental health services at Ashworth, Dr Davenport, consultant psychiatrist and the lead consultant for the women's service at Ashworth, Mr Barwood, the Trust's executive director of nursing, and Mr Eley, the deputy director of nursing.
23. In considering the frequency of medical review after Day 7 the Trust were in my opinion entitled to take account of three matters in particular. First, as pointed out in the Introduction to the policy, the Code was directed to the generality of mental hospitals and did not address the special problems of high security hospitals, containing as they inevitably do the most potentially dangerous patients in the country. Secondly, the Code did not recognise the special position of patients whom it was necessary to seclude for longer than a very few days. It has been the experience of the Trust that the condition of those secluded for more than a week does not change rapidly, and that it is in any event unsafe to rely on an apparent improvement without allowing enough time to pass to give grounds for confidence that the improvement will endure. Thirdly, the statutory scheme, while providing for the Secretary of State to give guidance, deliberately left the power and responsibility of final decision to those who bear the legal and practical responsibility for detaining, treating, nursing and caring for the patients.
24. The witness statements submitted by the Trust are very strongly challenged in statements and evidence on behalf of Mr Munjaz, Mind and the Mental Health Act Commission. This is a highly controversial subject, on which professional opinions differ. The 7-day divide between short-term and long-term secluded patients is criticised. So is the practice, adopted at Ashworth, of allowing secluded patients to spend periods of time, sometimes lengthy periods, in closely supervised association with other patients. There are differences of practice, not all of them fully explained, between Ashworth, Broadmoor and Rampton. It is not, however, for the courts to resolve debatable issues of professional practice, but to rule on issues of law. If a practice is supported by cogent reasoned justification, the court is not entitled to condemn it as unlawful. In the present case, even with the intense scrutiny called for, I cannot regard the long and detailed statements submitted by the Trust as failing to show good reasons for adopting the policy it has adopted, even though there are many eminent professional experts who take a different view.
Is the Ashworth policy incompatible with the European Convention?
25. Mr Munjaz does not contend that it was inappropriate to seclude him on any of the four occasions when he was secluded. He does not contend that he was secluded for longer periods than his mental condition justified or that his periods in seclusion were longer than they would have been had his condition been the subject of medical review at the frequency indicated in the Code rather than that in the Ashworth policy. He does not contend that the periods for which he was secluded, or the reduced frequency of medical review as compared with the Code, had a deleterious effect on his mental or physical condition. The evidence of Dr Sophie Davison, a consultant forensic psychiatrist, which Mr Munjaz adduced in the Court of Appeal, precludes any of these contentions. Thus it is necessary to consider the compatibility with the Convention of the policy as a policy. For this purpose the Code is irrelevant: if the policy is incompatible, consistency with the Code will not save it; if it is compatible, it requires no support from the Code.
26. It is furthermore to be assumed for purposes of this discussion that the Ashworth policy is followed in the hospital, or at least that it is followed with that degree of regularity to be expected in a well-ordered and suitably staffed institution. This is a matter of some importance. For seclusion is universally recognised to be an unwelcome necessity of last resort, never a preferred option. It is justified only when used to protect others, and then for the shortest period necessary for that purpose. These restrictions are insisted upon because the potential injury which seclusion can cause to the psychological and physical health and well-being of a patient is, again, universally recognised. It is quite plain that, improperly used or continued, seclusion can violate a patient's Convention rights, found claims under sections 6 and 7 of the 1998 Act, and give rise to common law claims in tort. The focus of this appeal, however, is not on acts or omissions said to give rise to violations of Convention rights but on the compatibility of the policy with the Convention.
1. Article 3
27. As a party to the European Convention the United Kingdom is bound in international law, by article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms with which this appeal is concerned. As a contracting party it is answerable for any failure to do so. But the internal distribution of powers within member states is not regulated by the Convention. It is for them to resolve, through the democratic process, what power shall be exercised and by whom to secure the observance of Convention rights. If, therefore, as in this case, Parliament chooses to establish a framework of binding statutory provisions, and to supplement those provisions by a Code which will guide but not bind local managers and healthcare professionals, leaving the final decision to them, there is nothing in the Convention which invalidates that decision. The evidence makes plain that there are those who would favour binding central direction on the use of seclusion, but that is not the choice which Parliament has made and not a course the Secretary of State supports. It is for the Trust to secure observance of article 3 at Ashworth.
28. The Trust must not subject patients at Ashworth to treatment prohibited by article 3. There is no evidence, and it is not suggested, that it has done so.
29. The Trust must not adopt a policy which exposes patients to a significant risk of treatment prohibited by article 3. Despite much learned argument addressed to the House, I do not find it necessary to discuss the extent or probability of the risk or the extent to which it must be foreseen. For I agree with the judge (paras 57-58 of his judgment) that the policy must be considered as a whole, that the policy, properly operated, will be sufficient to prevent any possible breach of the article 3 rights of a patient secluded for more than 7 days and that there is no evidence to support the proposition that the frequency of medical review provided in the policy risks any breach of those rights. The patient must be the subject of recorded observation by a nurse at least every 15 minutes and of recorded review by two qualified nurses every 2 hours, one of them (where practicable) not involved in the decision to seclude. In the ordinary course of things it is the nurses who know the patient best, and the nurse in charge of the ward can terminate seclusion at any time. There must be a daily review by a ward manager or site manager of a different ward: these, as the evidence shows, are senior and experienced people. There must be 3 medical reviews each week, one of them involving the patient's responsible medical officer. There must in addition be a weekly review by a multi-disciplinary patient care team, including the patient's RMO. The seclusion of the patient must be monitored by the hospital's Seclusion Monitoring Group, which includes the medical director, the hospital director, the head of psychology, the senior nurse, the head of social care, 2 nurses, the ward manager and a non-executive director of the Trust, some of whom must have seen the patient. It reports to the hospital's Clinical Governance Committee. The Mental Health Act Commission must be informed once a patient has been secluded for 7 days and must thereafter receive regular progress reports: as already noted, it has statutory power to visit and investigate any complaint. The patient may, wherever possible, be visited by a relative. The patient or his representative may appeal to the medical director or his deputy, who must review the case and take account of any representations made. The patient may seek judicial review of the decision to seclude him or continue to seclude him, or to challenge the conditions in which he is secluded. It cannot in my opinion be said, bearing in mind that the standard set must obtain in all member states of the Council of Europe, that a policy containing these safeguards exposes a patient secluded for more than 7 days to any material risk of treatment prohibited by article 3.
2. Article 5
30. It does not appear that the potential applicability of article 5 was canvassed before the judge, but it was raised in the Court of Appeal. That court concluded ( QB 395, para 69) that while article 5 may avail a person detained in an institution of an inappropriate type (as in Bouamar v Belgium (1987) 11 EHRR 1 and Aerts v Belgium (1998) 29 EHRR 50) it cannot found a complaint directed to the category of institution within an appropriate system (as in Ashingdane v United Kingdom (1985) 7 EHRR 528). The approach to residual liberty which appears to have prevailed in Canada (see Miller v The Queen (1985) 24 DLR (4th) 9) does not, as I understand, reflect the jurisprudence of the European Court. I do not for my part regret this conclusion since, as the Court of Appeal pointed out (in para 70 of its judgment), improper use of seclusion may found complaints under article 3 or article 8, and article 5(4) provides that a successful challenge should result in an order that the detainee be released, not in an order that the conditions of his detention be varied. I would not, for example, understand article 5(4) as enabling a prisoner, lawfully detained, to challenge his prison category. In any event, the Ashworth policy, properly applied as one must assume, does not permit a patient to be deprived of any residual liberty to which he is properly entitled: seclusion must be for as short a period and in conditions as benign as will afford reasonable protection to others who have a right to be protected.
3. Article 8
31. Mr Munjaz placed no reliance on article 8 before the judge, but Mr Gordon QC representing Mind as an interested party addressed argument on it to the Court of Appeal. He repeats that argument to the House, and Mr Pleming QC for Mr Munjaz adopts it.
32. It is obvious that seclusion, improperly used, may violate a patient's article 8 right in a serious and damaging way and may found a claim for relief. This appeal, however, is directed to the compatibility of the Ashworth policy with the Convention, assuming it to be followed. I have, for my part, some difficulty in appreciating how seclusion can be said to show any lack of respect for a patient's private and family life, home or correspondence, if it is used as the only means of protecting others from violence or intimidation and for the shortest period necessary to that end. A detained patient, when in his right mind or during lucid intervals, would not wish to be free to act in such a way and would recognise that his best interests were served by his being prevented from doing so.
33. If, however, it is accepted that seclusion, properly used in accordance with the policy, involves an interference by a public authority with the exercise of the patient's right under article 8(1), it is necessary to consider justification under article 8(2). Seclusion under the policy is plainly necessary for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Properly used, the seclusion will not be disproportionate because it will match the necessity giving rise to it.
34. Mr Gordon, on behalf of Mind, submits that the interference is not "in accordance with the law" because not prescribed by a binding general law. I cannot for my part accept this. The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied. This could of course have been achieved by binding statutory provisions or binding ministerial regulations. But that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder, a matter on which Mr Gordon places special emphasis, it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable. It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a "necessary ingredient flowing from a power of detention for treatment": see Auld LJ in R v Broadmoor Special Hospital Authority, Ex p S, H and D (5 February 1998, unreported) and the Court of Appeal judgment in the present case, para 40. The procedure adopted by the Trust does not permit arbitrary or random decision-making. The rules are accessible, foreseeable and predictable. It cannot be said, in my opinion, that they are not in accordance with or prescribed by law.
35. Since the Trust's policy does not in my view violate any of the Convention articles under consideration, there is no warrant for resorting to section 3 of the 1998 Act to give section 118 of the 1983 Act a meaning and effect other than that which Parliament gave to it.
36. The Court of Appeal gave the Code a stronger effect than is in my view permissible. It said in para 76 of its judgment:
The considered judgment of a strong and experienced Court of Appeal naturally commands great respect. But this conclusion gives the Code a weight which Parliament did not give it, which the Secretary of State does not support and which the Convention context does not require. It deprives local managers of the judgmental authority they were given and intended to exercise, and so has a strong (and in my opinion impermissible) centralising effect. It elevates the authority of the Code in a way for which there is no warrant in the statute or the Code.
37. I would allow the appeal and, for reasons which are in large measure those given by the judge, dismiss Mr Munjaz's application for judicial review.
38. The advance in the treatment and care of mentally disordered individuals since Victorian times has been great. On the other hand, mental health law has not entirely marched in step with the changing attitudes of society towards treating and caring for mentally disordered patients justly. The Mental Health Act 1983, the controlling statute, is out of date in its approach. Unfortunately, its modernisation in a comprehensive new statute, in conformity with evolving standards, has not yet been accomplished. In respect of the treatment of persons detained in high security mental hospitals, such as Ashworth Hospital, it has been left to so-called soft law, in the form of a Code of Practice issued by the Secretary of State, to fill in part the gap. The current Code was published in March 1999. It addresses, to some extent, the problem of seclusion. It may not be much in terms of modern health law but at least the Code is an attempt to set some modern standards. It is the best we have at present. But the present appeal raises the question of the status of the Code.
39. The appeal concerns the use of seclusion in hospitals where mentally disordered patients are detained. The hospital involved is Ashworth Hospital. It decided not to adhere to the current Code but instead to follow its own different policy statement. From the perspective of the individual patient it is probably right to say that Ashworth's policy statement represents a somewhat lesser order of protection of mentally disordered patients than was contained in the Code. That is the reason for the present case.
40. In my view the real issues on this appeal are -
41. The judgment of the Court of Appeal in this case has been reported: Regina (Munjaz) v Mersey Care NHS Trust and Others  QB 395. It is a judgment which demonstrates a thorough understanding of this sensitive and difficult branch of mental health law. I would respectfully pay tribute to it. Having had the advantage of testing the reasoning of the Court of Appeal in the light of detailed adversarial argument, I find myself in agreement with the Court of Appeal on essential points and in particular in respect of articles 3 and 8 of the European Convention on Human Rights, the status of the Code, and the conclusion reached in para 76 that the hospitals may not depart from the Code as a matter of policy. The minor error involved in the incorrect reference to section 7 of the Local Authority Social Services Act 1970 does not affect the central reasoning of the judgment: para 73.
42. The only part of the judgment of the Court of Appeal on which I would not adopt the reasoning and conclusion is in respect of seclusion and the applicability of article 5 of the ECHR. I will explain the point briefly. Under English law a convicted prisoner, sentenced to imprisonment, retains all his civil rights which are not taken away expressly or by necessary implication: Raymond v Honey  AC 1, at 10G, per Lord Wilberforce. To that extent the prisoner has a residual liberty. The concept of residual liberty is a logical and useful one as demonstrated by the decision of the Canadian Supreme Court in Miller v The Queen (1985) 24 DLR (4th) 9. The reasoning in Miller shows that in a case of a prisoner where solitary confinement is unlawfully and unjustly superimposed upon his prison sentence the added solitary confinement can amount to "prison within a prison": it is capable of constituting a material deprivation of residual liberty. It is true that in R v Deputy Governor of Parkhurst and Others, ex p Hague  1 AC 58 the House of Lords ruled out this concept. Lord Jauncey of Tullichettle summed up the reasoning of the House [176G-H]:
Hague predates the Human Rights Act 1998. It is cast in the lexicon of the old law. It excluded a remedy for intolerable prison conditions on the basis of false imprisonment and breach of statutory duty. Lord Bridge suggested a possible remedy in negligence: at 165H-166C. But as Feldman, Civil Liberties and Human Rights in England and Wales, 2nd ed., 440, has pointed out, "the remedies depend so heavily on the supply of resources by government that it is hard to imagine that a duty of care in tort would ever be adequate to provide a remedy for those who are condemned to live in [inhuman and degrading] conditions." In Hague Lord Bridge observed: "In practice the problem is perhaps not very likely to arise": 166C. It is not to be assumed that in 2005 such conditions do not sometimes occur in our prisons. Under domestic law Hague effectively denies prisoners any effective remedy for a breach of their residual liberty. Even in respect of convicted prisoners Hague should no longer be treated as authoritative. A fortiori Hague should not be applied to the relationship between a detained patient and the managers of the hospital. After all, unlike prisoners who committed crimes of their own volition, mentally disordered patients are not guilty of any legal or moral culpability.