Munjaz, R (on the application of) v Ashworth Hospital Authority

The House of Lords allowed the appellant Trust's appeal and dismissed the respondent's application for judicial review. The court held that the Secretary of State's Code of Practice issued under section 118 of the Mental Health Act 1983 is statutory guidance which does not have the force of a statutory rule but must be given great weight. Hospitals are not automatically bound to follow the Code but may depart from it only for cogent, clearly articulated reasons. Where fundamental Convention rights are engaged (in particular Article 3 and Article 8 of the European Convention on Human Rights) departures from the Code must be subjected to particularly careful scrutiny. On the facts the Ashworth policy on seclusion, when properly applied and taken as a whole with its safeguards (nursing observation, multidisciplinary reviews, Seclusion Monitoring Group oversight, notification to the Mental Health Act Commission and appeal routes), did not breach Articles 3 or 8 and was lawful.

The respondent, Mr Munjaz, challenged the lawfulness of Ashworth Hospital Authority's written seclusion policy (adopted by the Mersey Care NHS Trust) on domestic law and Convention grounds. He originally complained about particular episodes of seclusion but the litigation focused on the general lawfulness of the hospital's policy, particularly its reduced frequency of medical review after seven days compared with the Secretary of State's Code of Practice issued under section 118 of the Mental Health Act 1983.

The procedural history was: Sullivan J (Administrative Court) held the policy lawful ([2002] EWHC 1521 (Admin)); the Court of Appeal declared it unlawful ([2003] EWCA Civ 1036; [2004] QB 395); the Trust appealed to the House of Lords, which heard argument with interventions from the Mental Health Act Commission, Mind and the Secretary of State for Health.

The issues framed by the House were whether the Code of Practice fell within the scope of section 118(1), what legal status the Code possessed, whether hospitals could adopt a consistent local policy departing from the Code, and whether the Ashworth policy violated Articles 3, 5 or 8 of the European Convention on Human Rights (as applied through the Human Rights Act 1998).

The Lords' reasoning was (i) the Code does fall within section 118(1) (both limbs) and must be read in the statutory context; (ii) the Code is guidance, not a binding statutory instrument or direction, but must be given great weight and departures require cogent reasons which should be clearly recorded and are to be intensely scrutinised where Convention rights are engaged; (iii) on Convention issues the policy, when properly applied, included sufficient safeguards (frequent nursing observation, two-hourly nursing reviews, three medical reviews weekly including the responsible medical officer, weekly multi-disciplinary team reviews, oversight by a Seclusion Monitoring Group, notification to the Mental Health Act Commission after seven days and an appeal process) and did not expose secluded patients to a material risk of treatment contrary to Article 3 nor did it fail the Article 8(2) requirement of being "in accordance with the law"; (iv) Article 5 was not engaged in the manner contended for. The majority therefore allowed the appeal and dismissed the claim for judicial review; one speech (Lord Brown) would have upheld the Court of Appeal and declared the policy unlawful on Article 8 grounds.

The House emphasised the need for judicial intensity of review where minimum central safeguards are departed from but concluded that, given Ashworth's special high-security context and the safeguards in its policy, the Trust had demonstrated cogent reasons for departing from the Code in the respects challenged.

Appeal allowed. The House of Lords held that the Secretary of State's Code of Practice under section 118 of the Mental Health Act 1983 is authoritative guidance which hospitals must follow save where they can demonstrate cogent, clearly articulated reasons for departure. Where Convention rights are engaged the reasons for departure require intense scrutiny. On the facts the Ashworth seclusion policy, and its safeguards, did not violate Articles 3 or 8 ECHR and was lawful; the Court of Appeal's wider rule effectively giving the Code binding effect was therefore set aside.

Administrative Court (Sullivan J) held the policy lawful: [2002] EWHC 1521 (Admin). Court of Appeal (Hale LJ, Phillips MR, Latham LJ) held the policy unlawful: [2003] EWCA Civ 1036; reported [2004] QB 395. House of Lords (appellate decision) allowed the Trust's appeal: [2005] UKHL 58.