R v Ashworth Hospital Authority (Mersey Care NHS Trust) ex parte Munjaz [2005] UKHL 58

The respondent (M) was a patient, detained under the Mental Health Act 1983 (the Act) at Ashworth Hospital. He had been placed in seclusion for periods in excess of 4 days.

S.118 of the Act requires the Secretary of State to prepare a Code of Practice (the Code) for the guidance of mental health practitioners where persons are admitted and detained for treatment.  It provides that hospitals should have clear guidelines on the use of seclusion, including the frequency of reviews of the need to continue the procedure although it does not specifically consider the special situation of high security hospitals such as Ashworth.    The aim of the Code is to contain severely disturbed behaviour that is likely to cause harm to others.

Ashworth’s policy departed from the Code, in particular it provided for less frequent medical review of secluded patients after the seventh day of seclusion.

M contended that the policy was unlawful under domestic law and failed to comply with his rights under the European Convention on Human Rights (ECHR).  The Administrative Court found the policy to be lawful in both respects.  It also
found that once a patient had been lawfully detained, any further confinement would not be false imprisonment nor would it engage Article 5 ECHR.  Furthermore, the Court held that an enforceable Code of Practice was needed in order to safeguard Articles 3 and 8 of the Convention.  Hospitals should observe the Code unless they had good reasons for departing from it and that Ashworth’s new policy on seclusion was unlawful.

Ashworth Hospital appealed to the House of Lords.  The issue for this appeal was whether this policy was unlawful, either because it was inconsistent with domestic law or because it was incompatible with Articles 3, 5 and 8 ECHR.

The House of Lords (Lords Steyn and Brown dissenting) held there was no legal duty to comply with the Code and hospitals were not bound simply to reproduce its terms.  There was no express obligation to follow the guidance, although a court should scrutinise the reasons given by a hospital for any departure from it.  In formulating their policy, Ashworth were entitled to take into account 3 things:

(1) the fact that the Code did not address the special needs of high security hospitals
(2) it did not recognise the position of patients that needed to be secluded for longer than a few days
(3) the statutory scheme deliberately left power and responsibility for the final decision on policy issues to those with legal and practical responsibility.

The House of Lords was satisfied that Ashworth’s policy was lawful and as it was supported by cogent and reasoned justification.
Article 3
Article 3 did not prohibit a departure from a Code that was not legally binding.  There was no evidence to suggest that the policy, properly operated, risked a breach of a patient’s Article 3 rights in relation to seclusion for longer than 7 days.  Neither was there evidence that the frequency of medical reviews after 7 days, risked a breach of those rights.

Article 5
The House of Lords held that the Ashworth policy did not permit a patient to be deprived of any residual liberty to which he was properly entitled, although Steyn LJ (dissenting from the overall outcome) did not rule out that a substantial period of unnecessary seclusion involving the deprivation of residual liberty, was capable of amount to a breach of Article 5.

Article 8
It was difficult to see how the policy could breach M’s Article 8 rights, when it was used as the only means of protecting others from violence and intimidation and was for the shortest period necessary to achieve that end.  In fact, not to do so could breach Ashworth’s duty to their other patients.  The purpose of the policy was to clearly define standards to be followed and to prevent abuse and arbitrariness.  Article 8 was a qualified right and interference could be justified where it was 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. The policy satisfied the requirements of precision and accessibility and was in accordance with the law.   In the circumstances, the Court of Appeal had given the Code more weight than was intended by Parliament.

Leave a Reply

Your email address will not be published.