R (Munjaz) v Mersey Care NHS Trust

The Court of Appeal considered the lawfulness of hospital policies and practices on seclusion in the context of the Mental Health Act 1983, the Secretary of State's Code of Practice issued under s.118, and the European Convention on Human Rights (Articles 3, 5 and 8). The court held that seclusion is capable of amounting to "medical treatment" under the Act and in any event is subject to the ordinary common‑law requirement of reasonable necessity and proportionality. It concluded that the Code of Practice carries significant weight and must be followed unless there is a good reason to depart from it in relation to an individual patient or a well‑defined category of patients.

Applying those principles the court found Ashworth Hospital's policy unlawful because it treated as "seclusion" a broader practice (locking patients in rooms at night) and adopted wholesale departures from the Code based solely on length of time secluded; length of time alone was not a good reason for a policy departure. The court also held that Airedale Hospital was not justified in continuing to seclude Mr S after the point when seclusion ceased to be necessary and proportionate in the circumstances; the hospital had failed to justify continuing night‑time seclusion when alternatives should have been considered.

This appeal bundle concerned two challenges to the use and policy of seclusion in psychiatric hospitals. The Code of Practice made under section 118 of the Mental Health Act 1983 and its guidance on seclusion provided the statutory and contextual background.

• Parties and procedure: Colonel Munjaz challenged Ashworth Special Hospital's written seclusion policy and guidance. Mr S challenged the lawfulness of his seclusion at Airedale General Hospital and sought remedies including damages under the Human Rights Act 1998. The Secretary of State and Mind were interested parties / interveners. The cases came to the Court of Appeal on appeals from High Court judicial review decisions.
• Nature of relief sought: Declarations of unlawfulness of the policies and practice; in S damages were claimed under s.8 Human Rights Act and an injunction had been sought earlier to restrain a transfer.
• Issues posed: (i) whether seclusion is "medical treatment" for the purposes of section 118 and section 63; (ii) the domestic law source and limits of any power to seclude; (iii) the correct legal test for lawfulness of seclusion (necessity, reasonableness and proportionality); (iv) whether seclusion can engage Articles 3, 8 or 5 of the ECHR and the related positive obligations of the state; (v) the legal status and weight of the Code of Practice and the availability of remedies for departures from it; and (vi) whether issue estoppel prevented re‑litigation.
• Reasoning: The court held that seclusion can fall within the statutory definition of "medical treatment" in s.145(1) and so guidance on seclusion may be issued under s.118(1)(b) (and also under s.118(1)(a) as Code guidance on hospital practice). Regardless of statutory characterisation, seclusion is also justified as an incident of the power to detain only where reasonably necessary and proportionate. Articles 3 and 8 provide protection against ill‑treatment and interference with private life; Article 5 governs the lawfulness of detention but does not generally regulate conditions of detention which are matters for Articles 3 and 8. The Code of Practice must be followed unless there is a good reason to depart in an individual case or well‑defined category; wholesale policy departures unsupported by good reason will be unlawful. The court concluded Ashworth's policy unlawfully re‑defined seclusion and departed from the Code on an arbitrary time basis; Airedale could not justify continued night‑time seclusion for Mr S once it ceased to be necessary and proportionate.

The court allowed both appeals and indicated that declarations would be an appropriate remedy.

Appeal allowed. The Court of Appeal held that seclusion is capable of being 'medical treatment' under the Mental Health Act 1983 and in any event its use must meet ordinary standards of reasonable necessity and proportionality. The Code of Practice issued under s.118 carries considerable weight and must be followed unless there is a good reason to depart in relation to an individual patient or a properly defined category. Applying those principles the Ashworth policy was unlawful because it re‑defined seclusion and adopted blanket departures from the Code based solely on length of seclusion; Airedale was not justified in continuing night‑time seclusion of Mr S once it ceased to be necessary and proportionate. Declarations were the appropriate remedy.

On appeal from the High Court of Justice, Queen's Bench Division (Mr Justice Stanley Burnton) and the Administrative Court (Mr Justice Sullivan). Earlier related judicial consideration included the decision of Jackson J in R v Ashworth Special Hospital Trust, ex parte Munjaz [2000] MHLR 183 and the high court judgments under appeal were handed down by Sullivan J (Munjaz) and Stanley Burnton J (S).