Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent)
43. It would also be wrong to assume that under the jurisprudence of the ECHR residual liberty is not protected. There is relevant European authority not placed before the Court of Appeal. In Bollan v United Kingdom, App No. 42117/98, the European Court of Human Rights, albeit in an admissibility decision, considered the point. The complaint was a comparatively weak one: the prisoner had been confined to her cell, unlawfully it was said, for some two hours. The evidence was that she was a heroin addict who objected to that restriction on her residual liberty. In European terms the case simply did not reach the necessary threshold of severity. The European Court of Human Rights dealt with the legal principles arising under the ECHR as follows:
Plainly, the ECtHR has not ruled out as a matter of principle the concept of residual liberty. On the contrary, it accepts that there is scope for such a doctrine. It will be noted also that the ECtHR observed that in such cases "in appropriate cases, issues may arise however under articles 3 and 8 of the Convention". To that it must be added that, if substantial and unjust seclusion of a mentally disordered patient cannot in our domestic law be protected effectively under articles 3 and 8, the case for protection under article 5 becomes ever stronger. It follows that a substantial period of unnecessary seclusion of a mentally disordered patient, involving total deprivation of any residual liberty that the patient may have within the hospital, is capable of amounting to an unjustified deprivation of liberty.
44. In relation to the status of the Code, I am in full agreement with the reasoning of the Court of Appeal. The Code was plainly issued under section 118(1)(a) and (b) of the Mental Health Act 1983. It is a very special type of soft law. It derives its status from the legislative context and the extreme vulnerability of the patients which it serves to protect. In the context of the Code the Court of Appeal explained, and I accept, that the concern about seclusion lies "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": para 11. This is the contextual scene of section 118(1). It is wrong to focus exclusively or even primarily on the dictionary meaning of "guidance". In a careful analysis Mr Pleming QC relied in addition to the reasons given by the Court of Appeal on the fact that section 118(2) provides that "the Code shall, in particular, specify forms of medical treatment" which "should accordingly not be given by a registered medical practitioner unless the patient has consented to the treatment." He pointed out that the preceding White Paper of November 1981 observed that the Code "might include references to treatments such as electro-convulsive therapy when used in particular circumstances, long acting drugs, and behaviour therapies": Reform of the Mental Health Legislation, para 39. These examples reveal that in section 118(1) Parliament had authorised a Code with some minimum safeguards and a modicum of centralised protection for vulnerable patients. This is inconsistent with a free-for-all in which hospitals are at liberty to depart from the published Code as they consider right. Indeed, it seems unlikely that Parliament would have authorised a regime in which hospitals may as a matter of policy depart from the Code. After all that would result in mentally disordered patients being treated about seclusion in a discriminatory manner, depending on the policy adopted by the managers and clinicians in particular hospitals.
45. Another internal aid to the interpretation of section 118 mentioned by Mr Pleming is section 121 which deals with the Mental Health Act Commission. Section 121(4) provides:
This provision is in line with the idea of centralised minimum safeguards. It throws light on the dynamic role that a Code issued under section 118 was intended to play.
46. The Court of Appeal applied the dictum of Sedley J in R v Islington London Borough Council, ex p Rixon  ELR 66, at 71, that local authorities may only depart from the Secretary of State's guidance for good reason. The Court of Appeal observed that there is a considerable difference between the Wednesbury approach and the Rixon approach. Counsel for the Secretary of State and the Trust challenged this approach. They were mistaken. In the present case fundamental rights are at stake and even before the Human Rights Act 1998 an intense review on principles of proportionality was appropriate: R v Secretary of State for the Home Department, Ex p Leech  QB 198, which was affirmed in R v Home Secretary, Ex p Simms  2 AC 115 and in R (Daly) v Secretary of State for the Home Department  2 AC 532. The concrete differences between the Wednesbury and proportionality approaches was concretely described in R (Daly) v Secretary of State for the Home Department  2 AC 532. In a speech made with the approval of the House I observed [547 E-F]:
The application of these established principles, wholly appropriate to the context of fundamental rights, reinforces the conclusion of the Court of Appeal. That conclusion was stated with precision in para 76 as follows:
Given the manifest dangers inherent in seclusion, and the extremely vulnerability of the patients, I regard this conclusion as sound. It is a corner of mental health law in which a dilution of minimum centrally imposed safeguards, by pragmatic policy decisions from hospital to hospital, is not appropriate.
47. In paragraph 40 of the printed case of Mr Munjaz the resultant picture and implications are graphically illustrated:
This is a disturbing picture.
48. If Ashworth Hospital is permitted in its discretion to reject the Code, lock, stock, and barrel, regarding seclusion, it will be open to other hospitals to do so too. The Code would then be seriously undermined. For my part the endorsement of the Code by the Secretary of State makes his virtual disowning of the Code in these proceedings difficult to understand. Compared to the judgment of the Court of Appeal the judgment of the majority of the House permits a lowering of the protection offered by the law to mentally disordered patients. If that is the law, so be it. How society treats mentally disordered people detained in high security hospitals is, however, a measure of how far we have come since the dreadful ways in which such persons were treated in earlier times. For my part, the decision today is a set-back for a modern and just mental health law.
49. I would dismiss the appeal of the Trust.
LORD HOPE OF CRAIGHEAD
50. At the heart of this case there lies a dispute about the proper use and regulation of seclusion as a means of controlling seriously disturbed behaviour on the part of mental patients detained in psychiatric hospitals. There is general agreement that the sole aim of this procedure is to control such behaviour where it is likely to cause harm to others. There is general agreement also as to the nature of the procedure. It consists of the supervised confinement of the patient in a room which may be locked to protect others from significant harm. But opinions differ sharply as to the length of time for which it may be proper to resort to it. This in turn affects the degree to which seclusion in practice interferes with the patient's personal autonomy, the extent to which it is possible for the state by means of a uniform code to regulate this and the way in which the patient's interests are to be safeguarded.
51. Section 118(1) of the Mental Health Act 1983 ("the 1983 Act"), as amended by section 1(2) of and paragraph 6 of Schedule 1 to the Mental Health (Patients in the Community) Act 1995 and section 116 of and paragraph 9 of Schedule 4 to the Care Standards Act 2000, directs the Secretary of State to 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 approved social workers in relation to "the admission of patients" to hospitals and to guardianship and after-care under supervision under the 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." Section 118(2) provides that the code shall in particular specify forms of medical treatment which 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. Seclusion is not a form of treatment that falls within the scope of that subsection, but its provisions have a bearing on the status that should be accorded to the code by the legal system within which it is to operate.
52. The Code of Practice which is currently in issue ("the Code") was published in March 1999. It contains detailed guidance on various matters of practice, including the admission of mental patients and their treatment and care in hospital. Chapter 19 deals with patients presenting particular management problems who behave in a way that disturbs others or whose behaviour may present a risk to themselves or others around them or those charged with their care. Among the topics covered in this section are general preventative measures, restraint, methods of restraining behaviour and the use of medication, locked wards and secure areas. It has not been suggested that the ways these topics are dealt with has given rise to difficulty. The dispute which has given rise to this litigation relates to the way the Code deals with seclusion. This topic is dealt with in paras 19.16 to 19.23.
53. Para 19.16 defines seclusion in these terms:
It also contains guidance as when this procedure should and should not be used. Para 19.17 provides that hospitals should have clear written guidelines on the use of seclusion which should, among other things, set requirements for recording, monitoring, reviewing the use of seclusion and any follow-up action. But the Code was not content to leave these matters entirely to the discretion of each hospital. Detailed guidance is provided in the paragraphs that follow as to the procedure that should be adopted, including the frequency of reviews of the need to continue the procedure, as to the conditions of seclusion and as to record keeping.
54. The Code applies to the management of all patients admitted to mental hospitals in England and Wales. They include so-called informal patents who are admitted without any application, order or direction as well as those who are liable to be detained in a hospital under section 3 of the 1983 Act. The Secretary of State was obliged by section 118(3) before preparing or altering it to consult with such bodies as appeared to him to be concerned. It had also to be laid before Parliament, where it was subject to the negative resolution procedure of either House, and it had to be published: section 118(4)-(6). It has the support of the Royal College of Psychiatrists and of the Mental Health Act Commission, among whose functions is to make proposals to the Secretary of State as to what it should contain. The majority of mental patients are informal, and the majority of the institutions in which they are detained are independent of the National Health Service. One of the virtues of the Code is that it is able to provide clear standards and practical norms that are capable of being applied by all hospitals and all healthcare facilities.
55. Ashworth is one of three hospitals (the others being Rampton and Broadmoor), formerly known as "special hospitals", that were established to treat only those mental patients who require treatment under conditions of high security on account of their dangerous, violent or criminal propensities. In February 1999 the Ashworth Special Hospital Authority ("Ashworth") issued its own Seclusion Procedure which made provision for the frequency of reviews of the need to continue the procedure which departed in several respects from that set out in the version of the Secretary of State's Code that was then in issue. This statement of the procedure to be used at Ashworth was the subject of proceedings for judicial view by the respondent, Mr Colonel Munjaz, in 1999. Following a judgment given by Jackson J on 28 September 2000, who held that the provisions for review which it contained were not ones which a reasonable authority could adopt, a review of Ashworth's seclusion policy was conducted and a new policy was formulated. It was ratified by the Regional Board of the National Health Service on 6 November 2002 and it was put into effect from 6 December 2002 by the appellant, Mersey Care National Health Service Trust, which had assumed responsibility for Ashworth. This is the policy ("the Policy") which is said in this case to be unlawful.
56. In the introduction to the Policy it is noted that Ashworth Hospital admits patients with mental disorder who are considered to present a grave and immediate risk to the public and who present a risk to other patients, staff, visitors or the general public which cannot be managed in conditions of lesser security including medium security. Reference is made to particular reasons for referral which include the fashioning of weapons from items in common use such as furniture and cutlery, the taking of hostages, the possession of skills which could lead to serious injury and the use of techniques to plan and commit assaults which involve other patients and general subversion of day to day routines and practices. It is expected that patients will only be referred to Ashworth when conditions of lesser security have exhausted all appropriate management interventions. For such patients it is often the case that all other usual interventions such as psychological interventions and alterations in drug treatment have been tried, and the increased relational procedure and the perimeter security at Ashworth is considered necessary to add to the individual patient's treatment plan.
57. It is in the light of this background that the introduction to the Policy then explains why it was decided that it was necessary to devise a policy which was specially designed to address the use of seclusion at Ashworth:
The same point is made in para 2.4 of the Policy, which states:
58. The Policy deals with a variety of matters, many of which are not the subject of criticism. Para 3 sets out its aims, which are taken word for word from the list of items in para 19.17 of the Code about which hospitals are told they should have clear written guidance. Para 4 contains a policy statement about the use of seclusion. Here too the guidance in the Code is followed word for word. In para 5, which deals with the environment for seclusion and the maintenance of dignity and care and support, the guidance in para 19.22 of the Code is adopted and elaborated upon. Para 6 deals with the decision to seclude. In substance it repeats the guidance in para 19.18 of the Code, but here too it is elaborated upon. Para 6.2, for example, states that if a member of staff has been threatened or attacked by a patient they should so far as possible not be involved in the decision to seclude - a point not dealt with in the Code, which does not mention incidents of this character or offer any advice as to how to deal with them. Details are set out in para 7 of how patients who are in seclusion are to be observed and cared for and in para 8 of the way records are to be kept. Here again the advice given in paras 19.19 and 19.20 of the Code is followed and elaborated upon. One such elaboration is the requirement in para 8.4 of the Policy that a detailed management plan for management of the ending of seclusion should be prepared in all cases to ensure the earliest possible ending of seclusion. There is an indication here that it was not envisaged that seclusion would be used at Ashworth for a brief period, such as one of no more than five minutes as para 19.18 of the Code envisages.
59. The point of departure from the Code is in para 9 where the Policy deals with regular reviews of the use of seclusion. The system of review described in para 19.18 of the Code is modified from the first day up to day 7. Thereafter the frequency of regular reviews is reduced very considerably. Para 9.2.3 provides that from day 8 onwards there are to be (i) a daily review by the ward manager or a site manager from a different ward, (ii) three medical reviews every seven days (one being by the patient's responsible medical officer ("RMO"), (iii) a weekly review by a multi-disciplinary patient care team which is to include the RMO and (iv) a review by a multi-disciplinary group known as the Seclusion Monitoring Group whose functions are set out in para 10. Para 11.1 provides that the case of any patient for whom the clinical team has to institute seclusion in excess of seven days will be 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 it is to be hoped will be achieved. Monitoring arrangements are to be agreed between the Seclusion Monitoring Group and the patient's clinical team, the patient's case is to be reviewed weekly by the clinical team and a report sent monthly to the Seclusion Monitoring Group and after six months the Medical Director and the Executive Nurse Director are to participate in a clinical team review: para 11.4-11.8. Para 11.9 provides that the Mental Health Act Commission will be informed if seclusion continues beyond seven days and that it will receive progress reports on a regular basis.
60. It is important to appreciate that much of what is in the Policy complies with and elaborates upon the guidance which the Code offers. The departure from that guidance is explained by Ashworth's perception of what is needed for the management of the patients detained there whose behaviour falls outside the normal pattern of that exhibited by mental patients generally in terms both of the risk it offers and its duration. There is a genuine and respectable difference of view among those who are responsible for the formation of policy in this difficult and highly specialised field as to the parameters within which seclusion may properly be resorted to, including the length of time for which it may continue before it is terminated.
61. In a letter to Ashworth's solicitors dated 27 March 2002 the Mental Health Act Commission said that it was perhaps true that the Code was written on the assumption that seclusion as a last resort response to dangerous behaviour should not normally still be in place after three days, no matter how disturbed the patient might be at the time of the seclusion. The Commission's view was that in that event other methods of management should be resorted to:
In para 12.26 of its Tenth Biennial Report 2001-2003 the Commission repeated these observations, adding that it would wish to see such alternatives implemented. Ashworth has however made it clear that it wishes to adhere to the system of monitoring and review set out in its Policy.
62. This dispute is not something on which judges are competent to adjudicate. But the law is not blind to the importance of the issue in the wider context, as it is in the interests of all mental patients that the use of this highly intrusive procedure should be properly regulated.
63. The first question then is whether it is lawful under domestic law for Ashworth, for the reasons indicated by these passages in the introduction to the Policy, to depart from the Code and devise and apply its own seclusion policy. The status that is to be accorded to the Code lies at the heart of this question. This is an important issue of general public importance. The second question is whether, assuming that it was otherwise lawful in domestic law, the relevant parts of the Policy are incompatible with the respondent's Convention rights.
64. The question for resolution under domestic law is whether it was unlawful for Ashworth's Policy to depart from the provisions in the Code of Practice about the frequency of medical reviews where seclusion is resorted to. Section 118(1) of the 1983 Act provides that the Code is to be prepared "for the guidance" of those to whom it is addressed. The Code itself states in para 1 of the introduction that, while the Act does not impose a legal duty to comply with it, as it is a statutory document failure to follow it could be referred to in evidence in legal proceedings. As Mr Lewis for the Secretary of State pointed out in his written case, section 118(1) does not impose an express obligation on anyone to "have regard" to the Code. But he said that it is implicit in the subsection that those to whom it is addressed are under an obligation to have regard to it in reaching any decisions on matters which fall within its scope.
65. This interpretation of its effect, which is subscribed to also by Ashworth, is to be contrasted with the view of its status that the Court of Appeal expressed in its judgment  QB 395, para 76: