Munjaz v Mersey Care National Health Service Trust & Ors

Seclusion of a detained psychiatric patient is lawful only where reasonably necessary for the purpose for which it is used. It cannot be used simply to manage staffing shortages, retain a patient in hospital, or secure a transfer. Seclusion is capable of being medical treatment, and guidance about it may be issued under both sections 118(1)(a) and 118(1)(b) of the Mental Health Act 1983. The statutory Code of Practice must be followed unless there is good reason to depart from it for an individual patient, or for a defined group sharing relevant characteristics. A blanket policy based solely on the length of seclusion is unlawful. Further confinement within an appropriate institution ordinarily concerns the conditions of detention, protected by Articles 3 and 8, rather than a fresh deprivation of liberty under Article 5.

These conjoined appeals concerned the use of seclusion in psychiatric hospitals. Colonel Munjaz challenged the lawfulness of Ashworth Hospital’s policy, which departed from the Code of Practice, particularly in reducing the frequency of medical reviews for patients treated as long-term secluded patients. Mr S challenged 12 days of seclusion at Airedale General Hospital, including overnight seclusion after 28 July 2001.

In the earlier Munjaz proceedings, Jackson J granted a declaration concerning Ashworth’s previous policy in [2000] MHLR 183. Sullivan J later dismissed the challenge to the revised policy in [2002] EWCA Admin 1521. Stanley Burnton J dismissed Mr S’s claim in [2002] EWHC Admin 1980. The central issues were the source and limits of the power to seclude, the status of the Code, Convention rights, remedies, and issue estoppel in judicial review.

Both appeals were allowed. The appropriate remedy was a declaration reflecting the court’s conclusions.

1. Power and necessity. The power to seclude a detained patient is implied by the statutory power to detain. The controlling criterion is reasonable necessity judged against the purpose of the restraint. No more force or restriction may be used than is reasonably necessary in the circumstances. The same criterion applies whether seclusion is justified as control, protection, or treatment. Common-law necessity may justify proportionate protection of others in the case of an informal patient and care in the best interests of an incapacitated patient.
2. Medical treatment. Seclusion is capable of being medical treatment within the wide definition in section 145(1) of the Mental Health Act 1983. Guidance about it may therefore be issued under both section 118(1)(a) and section 118(1)(b). Section 63 does not give the responsible medical officer an unrestricted power to impose treatment.
3. Status of the Code. The Code is statutory guidance. Hospitals must observe it unless they have a good reason to depart from it in an individual case. Such reasons may sometimes be identified for a well-defined group sharing relevant characteristics. They cannot justify a blanket policy based on an arbitrary duration of seclusion. Locking a patient alone in a room overnight is distinct from seclusion as defined by the Code, although extending safeguards to that practice is permissible.
4. Convention rights and remedies. Seclusion may engage Articles 3 and 8. Article 3 has a high, fact-sensitive severity threshold, while Article 8 requires legality, a legitimate aim, and necessity in a democratic society. The Code provides important predictability and transparency for Article 8 purposes. Article 5 concerns deprivation of liberty itself and the appropriateness of the institution, not ordinarily the conditions of detention. Unlawful public-law action may attract declaratory relief, tortious remedies, or remedies under the Human Rights Act 1998, depending on the claim and evidence.
5. Application. Ashworth’s policy was unlawful because it treated patients as secluded when they did not meet the Code’s definition and departed from the Code solely by reference to duration. Airedale was not justified in continuing Mr S’s seclusion once it ceased to be necessary and proportionate to the risk presented. No finding justified night-time seclusion after 28 July. Issue estoppel did not prevent Ashworth defending its revised policy, although the court expressed doubts about the doctrine’s general application in judicial review.

1. Court of Appeal (Civil Division) In [2003] EWCA Civ 1036, both appeals were allowed and declaratory relief was considered appropriate.
2. High Court, Administrative Court In the Munjaz proceedings, Sullivan J dismissed the challenge to Ashworth’s revised policy in [2002] EWCA Admin 1521. An earlier declaration concerning Ashworth’s previous policy had been made by Jackson J in [2000] MHLR 183.
3. High Court, Administrative Court In S v Airedale NHS Trust, Stanley Burnton J dismissed the challenge to the seclusion and related Convention claims in [2002] EWHC Admin 1980.