S v Airedale NHS Trust [2002] EWHC 1780 (Admin)

The Court of Appeal has since held that S’s continued detention, whilst the hospital sought a better placement, was an unlawful breach of art 5 – see S v Airedale National Health Service Trust; Munjaz v Mersey Care National Health Service Trust & others [2003] EWCA Civ 1036

Mental health – human rights – seclusion

S was admitted to hospital for assessment under s2 MHA 1983. He was placed in seclusion for a period of about 11 days, following incidents of violence and absconding. He argued that the decision to seclude was unlawful in that where seclusion was used other than as a very short-term reaction to a crisis, its use contravened art 3 of the European Convention on Human Rights and crossed the line into impermissible inhuman or degrading treatment or punishment.  He also argued that the use of seclusion involved a breach of art 5, because there was no “lawful procedure” related to it and that for the purposes of domestic law, and in particular the MHA 1983, seclusion was not “medical treatment” within the meaning of s145 and was therefore not authorised by the Act; that his seclusion was an unlawful and unjustified deprivation of his residual liberty; that seclusion could only be lawful if it was necessary, but it was not necessary in his case because it had only been occasioned by the lack of a bed for S at a secure hospital and was imposed as the only method of containing him until such a bed became available; and that the decision to seclude him failed to comply with the Mental Health Code of Practice.

Dismissing the application for judicial review, the Court ruled that seclusion was not inevitably contrary to art 3: it might be imposed for only a very short time, in good conditions and without any negative impact on the patient.  In such circumstances it was not arguable that any breach of art 3 arose. Where there is no sensible alternative to its use, there was still not necessarily an infringement of art 3, even if its use was not short term or an emergency measure, because it would not necessarily reach the required level of seriousness.

Although the MHA 1983 conferred no express power of seclusion, such a power was implicit from the other powers contained in it, namely the powers to detain and treat.

The Court also ruled that unnecessary seclusion of a patient did not per se give rise to a breach of art 5 or constitute the tort of false imprisonment, because while seclusion affected the terms of the patient’s detention, it did not amount to detention as such.

The Court also said that it was clear the 1983 Act gave an extended definition of “medical treatment” that in fact included seclusion. In any event seclusion was an adjunct to medical treatment that was permitted under the Act.

Further, the decision to seclude S was not made unlawful by reason of it being necessitated by the lack of a place for him on a secure ward. The decision to seclude was made because there was no real alternative: to have released him would have been irresponsible and an act of negligence towards both S and the public.

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