Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent)

A statutory mental-health code issued for guidance is not binding instruction. Hospitals must give it great weight and may depart from it only for cogent reasons, which a court must scrutinise with an intensity appropriate to the interests at stake. A sufficiently justified departure may take the form of a hospital policy rather than an exception confined to an individual patient.

Seclusion must remain a last resort, used only to protect others and for the shortest necessary period. A published high-security hospital policy providing regular observation, multidisciplinary review and rights of challenge did not expose patients to a material risk of treatment contrary to article 3. It did not constitute a separate deprivation of liberty under article 5 and satisfied article 8 because its rules were accessible, foreseeable, necessary and proportionate.

The appellant NHS trust managed Ashworth Hospital, a high-security psychiatric hospital. Its written seclusion policy followed much of the Secretary of State's Code of Practice but prescribed fewer medical reviews after the seventh day of seclusion. It added nursing observation, multidisciplinary monitoring, independent review, notification of the Mental Health Act Commission and an appeal procedure.

The respondent, a detained patient who had experienced periods of seclusion, challenged the general lawfulness of the policy. He no longer alleged that any particular period of his seclusion was unjustified or prolonged, or that the reduced frequency of review had harmed him.

Sullivan J held the policy lawful at [2002] EWHC 1521 (Admin). The Court of Appeal reversed that decision at [2003] EWCA Civ 1036, [2004] QB 395. The issues before the House were the domestic legal status of the Code issued under section 118 of the Mental Health Act 1983 and the policy's compatibility with articles 3, 5 and 8 of the Convention.

1. Disposition. By a majority consisting of Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Scott of Foscote, the appeal was allowed and the application for judicial review was dismissed. Lord Steyn and Lord Brown of Eaton-under-Heywood dissented from the final disposition.

2. Domestic status of the Code. Lord Bingham delivered the leading speech. Lord Hope and Lord Scott agreed with his reasons, while Lord Brown agreed on the domestic-law issue. Guidance concerning seclusion fell within section 118(1) of the Mental Health Act 1983. The statutory expression “medical treatment” was broad enough to include nursing and caring for a secluded patient, even though seclusion was not itself part of a treatment programme.

   The Code was guidance rather than binding instruction. Its statutory origin, consultation, parliamentary scrutiny and protective purpose nevertheless gave it great weight. A hospital had to consider it carefully and could depart from it only for cogent reasons. Those reasons required intensive judicial scrutiny. The Trust had shown cogent reasons based on Ashworth's high-security function, the characteristics of patients requiring prolonged seclusion, the safeguards within the policy and the statutory allocation of operational responsibility to local managers and clinicians. A justified departure could be embodied in a written policy.

3. Article 3. Per Lord Bingham and Lord Hope, with Lord Scott agreeing, the policy had to be assessed as a whole. Seclusion was an unwelcome necessity of last resort and could violate article 3 if misused or prolonged. The Ashworth policy, however, required frequent nursing observation, nursing and medical reviews, multidisciplinary monitoring, external notification and opportunities for challenge. It did not expose patients to a significant or material risk of inhuman or degrading treatment. Requiring Ashworth to abandon the policy despite its safeguards and special circumstances would also impose a disproportionate burden.

4. Article 5. Per Lord Bingham and Lord Hope, with Lord Scott agreeing, seclusion under the policy concerned the conditions of lawful detention in an appropriate institution. It did not constitute a separate deprivation of liberty engaging article 5. Lord Steyn dissented on this issue and considered that a substantial period of unnecessary seclusion could deprive a patient of residual liberty.

5. Article 8. The majority assumed, without finally deciding, that seclusion might interfere with private life. Per Lord Bingham, its legal basis and safeguards satisfied article 8(2). The requirement that an interference be “in accordance with the law” concerned substance rather than legislative form. The applicable rules were written, accessible, foreseeable and protective against arbitrary action. Seclusion was confined to the protection of others and the shortest necessary period, so its use under the policy pursued legitimate aims and was proportionate.

   Lord Brown, supported in the result by Lord Steyn, considered that individual hospital policies lacked the legal quality required by article 8. In his view, the Code needed a status preventing policy-based departures.

1. House of Lords: By a majority of three to two, allowed the Trust's appeal at [2005] UKHL 58, set aside the Court of Appeal's declaration and dismissed the application for judicial review.
2. Court of Appeal: At [2003] EWCA Civ 1036, [2004] QB 395, allowed the patient's appeal and declared the Ashworth seclusion policy unlawful because a hospital could not depart from the Code as a matter of general policy.
3. Administrative Court: Sullivan J held at [2002] EWHC 1521 (Admin) that the policy was lawful under domestic law and compatible with the Convention.