S v Airedale National Health Service Trust; Munjaz v Mersey Care National Health Service Trust & others [2003] EWCA Civ 1036

Mental health – seclusion – human rights


This was the hearing of two conjoined appeals by mental health patients concerning the use of seclusion in psychiatric hospitals. In S’s case, the High Court had ruled that his continued seclusion whilst the Airedale General Hospital tried to find a suitable placement to meet his needs, breached neither art 3 nor art 5 of the Convention (see case report below). In the case of Colonel Munjaz, the High Court had rejected his claim that the policy adopted by Ashworth Special Hospital in relation to seclusion, in that there had been an unjustified departure from the Code of Practice made under s118 MHA 1983, which required a doctor to review the position of a secluded patient every four hours. The Ashworth Policy provided for medical reviews twice daily from days 2 to 7 of seclusion, and thereafter for three reviews each week, together with a weekly multidisciplinary review. The Munjaz appeal concentrated mainly on the lawfulness of Ashworth’s policy of departing from the Code in light of the risk that seclusion could amount to a breach of the patient’s rights under art 3 or art 8 of the Convention.  S’s appeal concentrated largely on whether his continued seclusion was an unlawful interference with his residual liberty, amounting to a breach of art 5.


The Court considered the issues raised under three headings:


Domestic private law


It was accepted that the power to seclude a patient within the hospital was implied from the power to detain as a “necessary ingredient flowing from a power of detention for treatment”. In addition, seclusion could, in some cases, amount to medical treatment under MHA 1983 and for most detained patients consent was not required under s63 MHA 1983 for treatment considered necessary by the Responsible Medical Officer.


For informal patients, for whom there was no statutory justification, the source of the power to seclude lay in the common law doctrine of necessity. For patients who had capacity, the doctrine could be invoked to protect others from the patient. Where the patient lacked capacity, there would be a power to provide treatment and care which was in his or her best interests. Whether or not seclusion was used for the treatment or control of compulsorily detained or informal patients the criterion was one of reasonable necessity judged against the purpose for which the restraint was employed.



European Convention on Human Rights


Although the art 3 claims were no longer pursued by either claimant, there was no doubt that seclusion was capable of amounting to “inhuman or degrading treatment or punishment” prohibited by art 3. However, segregation from other detained patients did not of itself constitute such treatment. Art 3 set a high threshold. The ill-treatment had to attain a minimum level of severity. Conditions of detention which defeated rather than promoted the assessment and treatment of a patient’s mental disorder would be likely to amount to inhuman and degrading treatment prohibited under art 3. Seclusion infringed art 8 unless it could be justified under art 8(2). The domestic law justifications were very broad, therefore the Code had an important role to play in securing that the justification for interference had the necessary degree of predictability and transparency to comply with art 8(2). Art 5 was concerned that deprivation of liberty was properly imposed, its lawfulness open to challenge so that a person unlawfully detained could be set free and that the place of detention conformed to the purposes for which it was imposed. Beyond that, it was not concerned with the conditions of detention. These were left to articles 3 and 8 which were capable of protecting psychiatric patients from the very real abuses which they might suffer unless a remedy was available.


Public law and the status of the Code of Practice


While under no express statutory obligation to comply with the Secretary of State for Health’s Code of Practice on the seclusion of detained mental patients, all hospitals should observe it unless they had good reason for departing from it in relation to an individual patient. The reason for giving the Code such status was that the seclusion of mental patients within a hospital where they were lawfully detained was capable of infringing arts 3 and 8 of the Convention and adherence to the Code both satisfied the State’s obligation to avoid a contravention of art 3 and met the requirements of legality where art 8 was interfered with. Hospitals could not therefore depart from the Code as a matter of policy and in relation to an arbitrary dividing line not properly related to the Code’s definition of seclusion and its requirements. Provided a patient was otherwise lawfully detained, the use of seclusion did not infringe art 5.


The Court concluded that, in light of the above, Ashworth’s policy was unlawful and Airedale were not justified in keeping S in seclusion from the time when it ceased to be a necessary and proportionate response to the risk he posed. Declarations were made accordingly.


For the High Court decision in S’s case, see S v Airedale NHS Trust [2002] EWHC 1780 (Admin)

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