House of Lords
|Session 2005 - 06|
Publications on the Internet
PDF Print Version
Regina v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent)
LORD BINGHAM OF CORNHILL
1. In December 2002 the appellant, the Mersey Care National Health Service Trust, as managers of Ashworth Hospital, implemented a written policy governing the seclusion of patients detained at the hospital. The issue in this appeal is whether that policy is unlawful, either because it is inconsistent with the domestic law of England and Wales or because it fails to comply with the European Convention on Human Rights. Sullivan J at first instance held the policy to be lawful in both respects:  EWHC 1521 (Admin). For reasons given in a judgment of the court delivered by Hale LJ, the Court of Appeal (also including Lord Phillips of Worth Matravers MR and Latham LJ) declared the policy to be unlawful:  EWCA Civ 1036,  QB 395. In this appeal the Trust challenges that decision. Its legal submissions are supported by the Secretary of State for Health as an interested party. Mr Colonel Munjaz seeks to uphold the Court of Appeal decision. His submissions are supported and elaborated by the National Association for Mental Health (Mind). The Mental Health Act Commission makes written submissions in support of Mr Munjaz.
2. Ashworth Hospital is one of three hospitals (the others are Broadmoor and Rampton) which provide high security hospital accommodation and services for persons liable to be detained under the Mental Health Act 1983. The Secretary of State is bound by sections 1 and 4(1) of the National Health Service Act 1977 to provide such accommodation for persons who "in his opinion require treatment under conditions of high security on account of their dangerous, violent or criminal propensities". It is not in doubt that among those detained at Ashworth there are patients who, for differing periods and in differing degrees, but sometimes to an extreme degree, exhibit such propensities. The Trust became the managers responsible for Ashworth with effect from 1 April 2002.
3. Mr Munjaz is a man now in his late 50s. After a number of spells in prison and hospital he was admitted to Ashworth from prison under sections 47 and 49 of the 1983 Act on 19 July 1984. He remained an in-patient until March 1992, when he was discharged by a Mental Health Review Tribunal. About a year later he was arrested and charged with a number of offences and was admitted, from prison, to a medium secure unit in August 1993. In that unit he became increasingly psychotic, aggressive and violent. He was placed in seclusion and transferred to Ashworth on 1 March 1994. Since then he has been secluded on a number of occasions for the protection of others. In these proceedings he originally complained of four periods of seclusion in the years 2001-2002, the longest of these lasting for 18 days and the shortest for 4. But, as will be seen, these complaints are not pursued. His claim now relates solely to the general lawfulness of the policy of the Trust with respect to medical reviews of seclusion and its application to patients at Ashworth.
The legislative background
4. The admission, detention and treatment in NHS hospitals of those suffering from mental disorder are largely governed by the 1983 Act. Part II of the Act governs compulsory admission to hospital and guardianship. Patients are ordinarily detained in hospital by the managers of the hospital acting on the authority of medical recommendations. At common law those who have custody of or treat or look after patients owe them a duty of care, but this duty is fortified by section 127 of the 1983 Act which makes it a criminal offence punishable by imprisonment to ill-treat or wilfully neglect a hospital in-patient.
5. Section 118(1) of the 1983 Act is central to this appeal and, as amended in 1995, provides:
This is followed by subsection (2) which makes more particular provision for the Code to address forms of treatment not falling within section 57(1)(a) or specified by the Secretary of State in regulations made by him for purposes of section 57(1)(b) but nonetheless calling for special care in ensuring that the patient consents. Subsection (2) provides:
Before preparing or altering the Code of Practice the Secretary of State is required to consult such bodies as appear to him to be concerned (subsection (3)). The Code and any revised Code must be laid before Parliament, and either House may within a specified period require its alternation or withdrawal (subsections (4), (5)). The Code must be published (subsection (6)).
6. By section 120(1) of the 1983 Act the Secretary of State is required to keep under review the exercise of the powers and the discharge of the duties conferred or imposed by the Act so far as they relate to the detention of patients under the Act, and is further required to make arrangements for persons authorised by him in that behalf to visit and interview privately patients detained in hospital under the Act and to investigate complaints made by persons who are or have been detained under the Act. By section 121(2) the Secretary of State must direct that these functions shall be performed by the Mental Health Act Commission, an authoritative professional body established under section 11 of the 1977 Act and continued by section 121(1) of the 1983 Act.
7. As is now well known, section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. It is not in doubt that the Trust is a public authority. The victim of an act made unlawful by section 6(1) may bring proceedings under section 7(1) and obtain redress under section 8. The main Convention rights here in issue are those provided in article 3, which prohibits the subjection of any person to torture or inhuman or degrading treatment or punishment, and article 8, which guarantees to everyone the right to respect for his private and family life, his home and his correspondence. This guarantee in article 8(1) is supplemented and qualified by paragraph (2):
Reference should also be made to article 5. This guarantees to everyone the right to liberty and security of person, and provides that no one shall be deprived of his liberty save in specified cases and in accordance with a procedure prescribed by law. The relevant case for present purposes is "(e) the lawful detention of persons of unsound mind." Article 5(4) provides:
8. If in any proceedings one of the higher courts determines that any provision of primary legislation is incompatible with a Convention right, the court may so declare: section 4(1),(2) of the 1998 Act. But the courts are subject to an unusual interpretative duty designed to obviate the need for such a declaration save exceptionally. Section 3(1) of the Act provides that:
The Secretary of State's Code of Practice
9. Pursuant to his duty under section 118(1) of the 1983 Act, following long and detailed consultation with appropriate bodies including the Mental Health Act Commission, and in accordance with the procedure prescribed by statute, the Secretary of State promulgated in March 1999 the Code of Practice relevant to this appeal. It was prefaced by a statement of guiding principles to guide interpretation of the Code. These included principles that people to whom the 1983 Act applies should "receive recognition of their basic human rights under the European Convention", should "have their needs taken fully into account, though it is recognised that, within available resources, it may not always be practicable to meet them in full", and should "be given any necessary treatment or care in the least controlled and segregated facilities compatible with ensuring their own health or safety or the safety of other people".
10. The Code covers a wide field, and most of its contents are irrelevant to this appeal. Chapter 19 covers "Patients presenting particular management problems". Part of this section is addressed to seclusion, defined in para 19.16 to mean "the supervised confinement of a patient in a room, which may be locked to protect others from significant harm". Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others. Thus seclusion should be used as a last resort and for the shortest possible time and should not be used as a punishment or threat, as part of a treatment programme, because of shortage of staff or where there is any risk of suicide or self-harm.
11. Paragraph 19.17 provides:
ensure the safety and well being of the patient;
ensure the patient receives the care and support rendered necessary by his or her seclusion both during and after it has taken place;
distinguish between seclusion and 'time-out' (see paras 18.9-18.10);
specify a suitable environment taking account of patient's dignity and physical well being;
set out the roles and responsibilities of staff;
set requirements for recording, monitoring, reviewing the use of seclusion and any follow-up action.
12. Succeeding paragraphs cover the procedure for seclusion and the frequency of medical reviews. They are in these terms:
every 2 hours by 2 nurses (1 of whom was not involved in the decision to seclude), and
every 4 hours by a doctor."
There follow paragraphs in which the Code addresses the conditions in which patients are to be secluded, the keeping of records and other matters.
The Ashworth policy
13. In response to para 19.17 of the Code (see para 11 above), and in the light of an earlier judgment of Jackson J on 28 September 2000, the Trust drew up the policy on seclusion which is challenged in these proceedings. The Introduction to the policy draws attention to the special problems presented by patients at Ashworth. In para 2.4 it states:
The aims of the policy are set out in para 3 in terms which almost reproduce para 19.17 of the Code, quoted in para 11 above.
14. The policy repeats verbatim the definition of seclusion in the Code (para 4.1: see para 10 above). It repeats the Code's statements on when seclusion should be used and that it should not be used as a punishment or threat or as part of a patient's treatment (para 4.2-4.3). It addresses the risk of self harm (para 4.4). The aim of the policy is to protect the public, staff, visitors and patients within the hospital (para 4.5). It deals in detail with the conditions of seclusion (paras 5.1-5.6).
15. Para 6 of the policy addresses the decision to seclude and provides:
A nurse is to be readily available within sight and sound of a room in which a person is secluded at all times, and a paper recording of direct visual observation of the patient is to be made at least every 15 minutes (para 7.1). Para 8 provides for the keeping of detailed records and for a detailed plan for management of the ending of seclusion to ensure its ending at the earliest possible time.
16. Because of their importance in this appeal, paras 9-11 of the policy must be quoted in full:
10 Monitoring arrangements
to monitor the implementation and adherence to the policy and procedure for the use of seclusion
to monitor and review the use of seclusion throughout the hospital
to monitor and review patients secluded under conditions of paragraph 8 of the seclusion procedure
to receive and analyse data relating to seclusion and to monitor overall trends in the use of seclusion
to review documentation for the collection of information about the use of seclusion and alternative management strategies
to examine training and educational needs to support staff mechanisms and make recommendations to the Hospital Authority Board
to prepare and submit reports to Clinical Teams, Executive Directors, Authority Board
to consider any other matters relating to seclusion that occur
to share and disseminate good practice, hospital wide.
An appendix to the policy provides more detailed guidance on the conduct of the 8-hour review.