Munjaz v Mersey Care National Health Service Trust & Ors [2003] EWCA Civ 1036

Case No C3/2002/1661

[2003] EWCA Civ 1036

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Date 16 th July 2003

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

(MR JUSTICE STANLEY BURNTON)

ADMINISTRATIVE COURT

(MR JUSTICE SULLIVAN) R oyal Courts of Justice

Strand,

London, WC2A 2LL

Before

THE MASTER OF THE ROLLS

LADY JUSTICE HALE

LORD JUSTICE LATHAM

Between

Colonel MunjazAppellant

Mersey Care National Health Service TrustRespondent

(1) The Secretary of State for HealthInterested parties

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Between

Between:Appellant

SAppellant

Airedale National Health Service TrustRespondent

(1) The Secretary of State for HealthInterested Parties

(2) The National Association for Mental Health (Mind)Interested Party

Mr N Pleming QC and Ms F Morris (instructed by Messrs Hogans Solicitors) for Appellant

Mr J Howell QC and Ms P Kaufmann (instructed by Capsticks Solicitors) for Respondent

Mr R Gordon QC and Mr P Bowen (instructed by Mind) for Mind (the National Association for Mental Health)

Mr C Lewis and Mr B Hooper (instructed by The Office of the Solicitor for Secretary of State for Health) for the Secretary of State

Mr N Pleming QC and M Seligman (instructed by Peter Edwards Law) for Appellant

Mr R Francis QC and Ms K Stern (instructed by Hempsons) for Respondent

Mr R Gordon QC and Mr P Bowen (instructed by Mind) for Mind (the National Association for Mental Health)

Mr C Lewis and Mr B Hooper (instructed by The Office of the Solicitor for Secretary of State for Health) for the Secretary of State

Judgment

As Approved by the Court

[1]The two appeals before the court concern the use of seclusion in hospitals where psychiatric patients are detained. Colonel Munjaz challenges the lawfulness of the policy on seclusion applied in Ashworth Special Hospital. Mr S challenges the lawfulness of the use of seclusion in his case by Airedale General Hospital.

[2]The Secretary of State for Health was joined as an interested party and the mental health charity Mind was permitted to intervene in these appeals. The Mental Health Act Commission (MHAC) was joined as an interested party in the Munjaz case and has filed evidence but taken no further part in the appeal.

The Code of Practice

[3]The Code of Practice issued by the Secretary of State for Health under section 118 of the Mental Health Act 1983 (the 1983 Act) is relevant to both appeals. In Colonel Munjaz' case, this is because the policy adopted by the Mersey Care NHS Trust for use in Ashworth departed from the Code in a number of significant respects, but in particular the frequency of medical reviews. In Mr S's case, it is argued that seclusion was used for a purpose other than that sanctioned by the Code. In both, it is also argued that the Code should play an important role in safeguarding patients against possible breaches of their rights under the European Convention on Human Rights. It is convenient therefore to consider the background to the Code and its guidance on seclusion, before turning to the facts and decisions in each case.

[4]Section 118(1) and (2) of the 1983 Act provide: “(1) The Secretary of State shall prepare, and from time to time revise, a code of practice –(a) for the guidance of registered medical practitioners, managers and staff of hospitals, independent hospitals and care homes and approved social workers in relation to the admission of patients to hospitals and registered establishments under this Act and to guardianship and after-care under supervision under this Act; and

(b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder. (2) The code shall, in particular, specify forms of medical treatment in addition to any specified by regulations made for the purposes of section 57 above which in the opinion of the Secretary of State give rise to special concern and which should accordingly not be given by a registered medical practitioner unless the patient has consented to the treatment (or to a plan of treatment including that treatment) and a certificate in writing as to the matters mentioned in subsection (2)(a) and (b) of that section has been given by another registered medical practitioner, being a medical practitioner appointed for the purposes of this section by the Secretary of State. ” (a) for the guidance of registered medical practitioners, managers and staff of hospitals, independent hospitals and care homes and approved social workers in relation to the admission of patients to hospitals and registered establishments under this Act and to guardianship and after-care under supervision under this Act; and (b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.

[5]Before preparing or altering the code the Secretary of State must consult such bodies as appear to him to be concerned (s 118(3)); copies of the code and any alteration must be laid before Parliament which may require their withdrawal (s 118(4) and (5)); the Secretary of State must publish 'the code as for the time being in force' (s 118(6)). Among the functions of the Mental Health Act Commission is to make proposals to the Secretary of State as to what should go into the code (SI 1983 No 892 para 3(2)(d) and SI 1983 No 894 reg 7(2)(a)).

[6]The preparation of the first Code was originally delegated to the Mental Health Act Commission in 1983. The Commission is an independent multidisciplinary body, established under the 1983 Act with a number of functions, including the protection of patients detained under the Act. The Commission produced a draft in 1985 which provoked the opposition of, most notably, the Royal College of Psychiatrists. The Department produced its own draft in 1987, which also provoked criticism. A drafting committee of professional advisers was established, including the Vice Chair of the MHAC, herself a distinguished Professor of Psychiatry. The legal director of Mind was seconded to the Department for the production of the draft. The new draft achieved the support of the Royal College of Psychiatrists and most other interested groups. It was eventually laid before Parliament in December 1989, and circulated to health and local authorities in May 1990. A revised version came into force on 1 November 1993 and the present edition on 1 April 1999. It will thus be seen that the Code is the product of careful thought and negotiation between the various professional and other bodies with expert knowledge in this difficult field. In particular it has the support of both the Royal College of Psychiatrists and the Mental Health Act Commission.

[7]The first edition of the Code contained a Preface pointing out that much of it 'will already be standard practice in many places'. In others, changing existing practice to conform to the Code could be done without any additional resources. But 'where adopting the recommendations in the Code would have significant resource implications, it is recognised that this can only be done as resources permit'. That Preface no longer appears in the Code. All editions of the Code have stated in the first paragraph, that:

'The Act does not impose a legal duty to comply with the Code but as it is a statutory document, failure to follow it could be referred to in evidence in legal proceedings.'

[8]The Guiding Principles are set out in section 1 of the present Code. Para 1.1 includes the following:

"1.1 The detailed guidance in the Code needs to be read in the light of the following broad principles, that people to whom the Act applies . . . should: - receive recognition of their basic human rights under the European Convention on Human Rights (ECHR); . . . - 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; . . ."

The first of these was an innovation in the 1999 edition and followed the enactment of the Human Rights Act 1998 (the 1998 Act). The second has been a principle of mental health policy and practice for many years (see, eg, Law Commission, Mentally Incapacitated Adults and Decision-Making: An Overview, 1991, LCCP No 119, para 4.20). - receive recognition of their basic human rights under the European Convention on Human Rights (ECHR); . . . - 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; . . ."

Seclusion and the Code of Practice

[9]The 1987 draft of the Code of Practice defined seclusion as "the supervised denial of the company of other people by constraint within a closed environment at any time of the day or night. The patient is confined alone in a room the door of which cannot be unlocked from the inside and from which there is no other means of exit open to the patient himself." In the 1990 Code, this had become “Seclusion is the supervised confinement of a patient alone in a room which may be locked for the protection of others from significant harm.”

[10]This practice has always been controversial. In the past it has attracted both statutory regulation and the concern of the Commissioners in Lunacy and the Board of Control. Statutory regulation was abolished in the Mental Health Act 1959, but it is generally agreed that 'the practice requires strict guidelines and external monitoring': see Dr Adrian Grounds, 'Seclusion', chapter VII.19, in R Bluglass and P Bowden (eds), Principles and Practice of Forensic Psychiatry (1990). The Committee of Inquiry into Complaints about Ashworth Hospital, chaired by Sir Louis Blom-Cooper QC, (1992, Cm 2028) at pp 201 to 207, was so concerned about the use of seclusion for correcting or managing deviant behaviour within the hospital that it recommended its prohibition by statute after a lapse of time which would enable the relevant authorities to phase it out. The committee drew a clear distinction between seclusion and locking patients in their rooms overnight (p 208).

[11]The reasons for this concern lie in the combination of the potentially harmful or degrading effects of seclusion upon the patient and its potential for misuse by those looking after him. Stanley Burnton J summed these up in his judgment in S, at para 25:

“The objections to seclusion are well-known. If the patient is kept in a room devoid of entertainment or diversion, he may suffer sensory deprivation. Detention in a small and featureless room is oppressive for anyone, but is liable to be more objectionable and more damaging in the case of a person whose mental health is at best vulnerable. It may lead to feelings of increased despair and isolation, anger and worsening of delusions and hallucinations (see p 45 of the Mental Health Act Commission's Ninth Biennial Report 1999 - 2001). Its effects may be aggravated by uncertainty as to whether or when the seclusion will come to an end. Seclusion may bring about the violent behaviour that it is intended to prevent. If there are no washing or toilet facilities in the room, conditions may become at best unpleasant and at worst difficult or impossible to bear.”

[12]Dr Sophie Davison, a consultant forensic psychiatrist with experience of managing patients in seclusion in Broadmoor, prepared a report for Colonel Munjaz for the purpose of this appeal. In it she details the risks to the physical and psychological health of secluded patients. She also points out that"37. The other general risk to patients in seclusion is the misuse of seclusion as a punitive measure. Many patients who are secluded are very difficult and challenging for staff to manage. This naturally engenders negative feelings which can become punitive if there is insufficient staff support and supervision.

38. The longer a patient is in seclusion the greater the risk of therapeutic nihilism, that is when a clinical team becomes hopeless of ever treating a patient successfully and give up trying new approaches."

[13]From common sense as well as literature, it will readily be seen that the risks, both internal and external, from seclusion stem from the patient's isolation in solitary confinement but closely supervised by the nursing staff: this is what causes the risk to his physical and mental health; this is what occasions the concern that it may be used as punishment rather than necessary control; and this is what necessitates independent medical supervision.

[14]The 1999 Code, like its predecessors, deals with seclusion in a section headed 'Patients presenting particular management problems'. After paragraphs covering the sorts of difficult behaviour which may arise, its possible causes, general preventive measures, restraint, and medication, it turns to seclusion: “19.16 Seclusion is the supervised confinement of a patient in a room, which may be locked for the protection of others from significant harm. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others. Seclusion should be used: - as a last resort; - for the shortest possible time. Seclusion should not be used: - as a punishment or threat; - as part of a treatment programme; - because of shortage of staff; - where there is any risk of suicide or self-harm. Seclusion of an informal patient should be taken as an indicator of the need to consider formal detention.” - as a last resort; - for the shortest possible time. - as a punishment or threat; - as part of a treatment programme; - because of shortage of staff; - where there is any risk of suicide or self-harm.

[15]Hospitals are required to have clear written guidelines on the use of seclusion (para 19.17). The decision can be made by a doctor or the nurse in charge, but if taken by someone other than a doctor, the RMO (responsible medical officer) or duty doctor should be notified at once and should attend immediately unless seclusion is for no more than five minutes (para 19.18). A nurse should be readily available within sight and sound of the seclusion room at all times (para 19.19). The aim of observation is to monitor the patient's condition and behaviour and to identify the time at which seclusion can be ended. A documented report must be made at least every 15 minutes (para 19.20). The need to continue seclusion should be reviewed every 2 hours by 2 nurses (1 of whom was not involved in the decision to seclude) and every 4 hours by a doctor; a multidisciplinary review should be completed by a consultant or other senior doctor, nurses and other professionals if the seclusion continues for more than 8 hours continuously or 12 hours intermittently over a period of 48 hours; if any member of the multidisciplinary team disputes the need for seclusion, the matter should be referred to a senior manager (para 19.21). The Code also deals with the room used for seclusion (para 19.22), the detailed contemporaneous records to be kept, and monitoring by the hospital managers (para 19.23).

[16]The same part of the Code deals separately with 'Locking doors on an open ward' (paras 19.24 to 19.27). The nurse in charge of any shift has a discretion for all or part of that shift to lock the door to protect patients or others because of the behaviour of a patient or patients. The other patients should be told that they may leave on request (para 19.24). Under 'Locked wards and secure areas', the Code deals with the need to provide a physically secure environment for some patients detained in general psychiatric hospitals who may be liable to cause danger to themselves or others. The RMO must assess, among other things, the relative clinical considerations of placing the patient in a physically secure environment in addition to or as opposed to providing care by way of intensive staffing. (para 19.28). Service providers should ensure that a ward or area is specifically designed for this purpose with adequate staffing levels and that written guidelines are provided setting out the categories of patient for whom this is appropriate, those for whom it is not appropriate, and a clear policy for practice, procedure and safeguards (para 19.29).

The case of Colonel Munjaz

[17]Colonel Munjaz is a 55 year old man who has been detained in Ashworth Hospital under a hospital order since March 1994. He had earlier been detained there under a transfer from prison from July 1984 until he was discharged by a mental health review tribunal in March 1992. Following further criminal offences in 1993 he was detained in a medium secure unit until he was transferred to Ashworth in March 1994. He spent his first two years there in seclusion.

[18]In February 1999 Ashworth issued its own Seclusion Procedure and Guidance Notes. These departed from the Code of Practice in a number of respects, but in particular reducing the number of medical reviews from the four hours required by the Code (para 19.21) to twice daily in the second and third days, and once daily thereafter. In November 1999 Colonel Munjaz brought judicial review proceedings and was permitted to challenge the Ashworth guidelines but not the decision to seclude him. On 28 September 2000, in R v Ashworth Special Hospital Trust, ex parte Munjaz [2000] MHLR 183, Jackson J held that the Code of Practice was directed at all seclusions, including those lasting more than three days. A departure would be lawful only if justified by 'a good reason arising from the particular circumstances at Ashworth hospital' (para 24). There was no justification for abandoning the requirement that one of the nurses reviewing the seclusion was not involved in the original decision to seclude, which should apply 'where practicable'. The policy of reducing medical reviews to one per day was too great a departure from the Code but twice daily reviews after the patient had been secluded for three days would be appropriate. He granted a declaration that "a. the Ashworth Special Hospital Authority Seclusion Procedure is unlawful in that it does not require one of the nurses who carries out the 2 hourly review to be independent from the initial decision to seclude, and that it reduces the frequency of review by a doctor after a patient has been secluded for more than 24 hours b. the Ashworth Special Hospital Authority Seclusion Guidance at paragraph 6.8.1. is unlawful for the reasons set out at Part 3 of the judgment." for the reasons set out at Part 3 of the judgment."

[19]Ashworth reviewed its policy and eventually produced a new draft in January 2002 which was approved by the Trust in November 2002. This provided for medical reviews twice daily from days 2 to 7 of seclusion but thereafter for three each week (including one by the patient’s RMO) together with a weekly multidisciplinary review (also including the RMO).

[20]Meanwhile, Colonel Munjaz was placed in seclusion on four separate occasions, from 26 to 30 May 2001, 2 to 20 June 2001, 18 December 2001 to 2 January 2002, and from 28 March to 5 April 2002. He issued the present proceedings in July 2001, based on the hospital's failure to amend its policy in accordance with the declaration and judgment of Jackson J. The claim was later amended to challenge the new policy which departs both from that judgment and from the Code of Practice. He does not challenge the decisions to place him in seclusion or the length of time for which it continued. His case is concerned with the lawfulness of Ashworth's policy and in particular the frequency of medical reviews for which it provides.

The proceedings and judgment

[21]The hospital produced a great deal of evidence to explain the reasons for its policy. Dr Finnegan, the lead consultant for its mental illness service, drew attention to the 'Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000'. These were issued by the Secretary of State under sections 16D, 17 and 126(4) of the National Health Service Act 1977, in response to the recommendations of the Review of Security at High Security Hospitals conducted by Sir Richard Tilt. This requires a risk assessment and risk management plan for each patient (para 30). It also requires a policy on the circumstances in which a patient assessed as being at high risk of immediately harming others, committing suicide or self harming, being assaulted, escaping or organising action in collaboration with others to subvert security and safety can be locked up in his room at night (para 31).

[22]Under the Ashworth policy, unlike those in other special hospitals, this particular measure of risk management - locking people in their rooms at night - is 'utilised under the name of seclusion' (para 14 of Dr Finnegan's statement). Ashworth advanced the following justifications for their policy. There are some patients in special hospitals who are predictably dangerous almost all of the time. Hence a distinction is drawn between short term and long term secluded patients. Most go into and come out of seclusion within seven days. For them there is a real purpose in having twice-daily medical reviews of the continuing need for seclusion. But if patients are secluded for longer than this they are likely to be secluded for many weeks or more likely months or even years. For these patients, the factor that renders them dangerous is not liable to resolve in the short term. Decisions to end seclusion must be based on long term trends in behaviour and cognition and cannot be based on changes during the period between twice daily reviews. They will always depend upon forward planning which will include increasing periods of time in association. About 75% of long term secluded patients are being nursed in extended association. Although technically secluded they are allowed to move freely around the ward during the day, some even attending off ward activities. When separated, this is often in their own rooms with access to their own belongings. For these reasons there is no justification for twice daily, let alone four hourly medical reviews. More senior doctors would have to be recruited to do this because it is not thought suitable for doctors in training. Any additional funds (were there any) would be better devoted to increasing the ratio of nurses to patients. This has been done on the female wards, enabling the hospital practically to eliminate long term seclusion, but it is very expensive. Because there are many more male patients and they are stronger and more 'assaultative', the resource implications of doing this for them would be much greater. From Dr Finnegan's evidence, it is clear that one of the reasons why Ashworth has a higher rate of seclusion even than the other special hospitals is that they consider it "appropriate to describe a risk management practice which involves locking a patient in his/her room for any part of the day or night as seclusion because we consider it important to have a procedure in place which safeguards the interests of patients and staff whenever it is considered necessary to separate a patient from others because of the danger he or she is assessed to present." (para 62)

[23]Also before the court was the evidence of the Mental Health Act Commission. The Commission has a 'clear and consistent view that any use of seclusion which is not in accordance with the Code of Practice is unacceptable'. It does not accept that the Code's guidance should be disregarded by any hospital at a policy or routine practice level. If seclusion continues for more than 72 hours, the need for rigorous monitoring and review of its continuance is pressing. That Ashworth fails to recognise that some 'long term' secluded patients are not secluded long term at all not only distorts the hospital's monitoring of seclusion but creates unnecessary difficulties in operating according to the Code. In 1993, the Special Hospitals Service Authority had required that this practice cease and the Code be complied with. The Commission considered it unacceptable that Ashworth continued to operate a different definition of seclusion, particularly when this led the hospital to the view that it could not comply with the Code.

[24]It was submitted on behalf of Colonel Munjaz, that Ashworth had tried, during the consultations leading to the revisions of the Code, to persuade both the Commission and the Secretary of State to make different provision for special hospitals but this had not been done. The judge therefore directed that both the Secretary of State and the MHAC be served as interested parties. The Secretary of State filed evidence that he did not consider it unacceptable as a matter of principle for a special hospital such as Ashworth to depart from the Code. It was open to the hospital, having considered the Code, to conclude that the reasons justifying departure are of such wide application in the case of its patient population that they may best be reflected in a statement of policy rather than piecemeal on a case by case basis. The Secretary of State would be concerned if the Code were applied in an inflexible way, but the evidence was that it is not. Special hospital patients are exceptionally difficult to manage and treat, but within those hospitals they are the norm. The hospital is entitled to conclude that its proposed controls are best set out in a general policy. The Secretary of State attaches great weight to the desirability of enabling decisions as to treatment to be made by local decision-makers who are in the best position to know the practical realities on the ground, have the most intimate knowledge of the patient, and have to make day to day decisions about how to match their finite resources to the needs of all the patients in their care.

[25]On 5 July 2002, in R (Munjaz) v Ashworth Hospital Authority [2002] EWCA Admin 1521, Sullivan J dismissed the claim. He made the following findings: i) There was no evidence that the claimant had been, is likely to have been, or that there is a real risk that he might have been kept in seclusion for any longer than was justified in terms of the aim set out in para 19.16 of the Code (para 52). ii) His case on the facts fell so far short of the minimum threshold of severity required by

Article 3 of the ECHR

that there was no real risk that his rights under Article 3 might have been infringed. There was no more reason to believe that his rights under Article 8 might have been infringed (para 55). iii) The mere fact that the hospital's policy departed from the Code did not mean that there was a risk that patients' rights under the ECHR might be infringed. Read as a whole, the policy contained adequate safeguards (para 58). iv) The Code of Practice was no more than guidance to which the hospital was obliged to have regard as a material consideration (para 67). v) The Code's guidance on seclusion did not fall within section 118(1)(a) of the Act but did fall within section 118(1)(b), given the wide definition of medical treatment in section 145(1) of the Act (para 73). vi) Although the hospital had to have regard to the Code, whether it was issued under section 118 or simply non-statutory guidance from the Secretary of State, it was under no obligation to give reasons for departing from it (para 74). vii) However, if reasons were given and disclosed that the Code had been taken into account, the question for the court was whether the decision could be said to be Wednesbury perverse (para 75). viii) The fact that the Secretary of State accepted the good sense of Ashworth adapting the Code to respond to the particular problems posed by its 'very unusual patient population' meant that it was for all practical purposes impossible to contend that its decision to depart from the Code was Wednesbury perverse (para 76). ix) There was no issue estoppel in judicial review proceedings, so it was open to the hospital to argue that it was entitled, on reviewing its policy after the judgment of Jackson J, to arrive at and adopt somewhat different conclusions from his (para 94).

The case of Mr S

[26]The relevant events took place in 2001 when S was aged 19. He had already been sentenced to a period of detention in a young offenders' institution for supplying heroin and was currently subject to a combination order for indecent assault and unlawful sexual intercourse with a minor. On 19 June 2001 he was arrested for failing to provide a breath sample. When he presented at Airedale General Hospital to give a blood sample his bizarre behaviour led to his admission to one of the hospital's two psychiatric wards. He was first detained under section 5 of the 1983 Act and then under section 2 for assessment until 5 July 2001 when he was discharged by a mental health review tribunal.

[27]On 9 July 2001 he was arrested for a driving offence, and charged with causing damage to another motor vehicle and possession of cannabis. On 11 July 2001, following an appearance at the magistrates' court, he was again brought to the hospital and admitted under section 2. He was aggressive towards the police officers on admission and was placed in seclusion where he remained until the following day. No complaint is made about this. The seclusion which is the subject of these proceedings began at around 11.10 pm on 21 July 2001 and continued until his transfer to a unit in London on 2 August 2001. From 28 July 2001, however, he was only secluded overnight, albeit for differing lengths of time.

[28]In the ten days between his admission and before he was secluded, he had at times been hostile and aggressive towards staff. On 17 July he had absconded for two hours and after his return had attacked another patient; the police had been called and he was moved to the other psychiatric ward. By 18 July, his responsible medical officer, Dr Kehoe had formed the view that he required secure accommodation and could not safely be kept at the hospital much longer. Strenuous efforts were made by the managers to find him a place in a secure unit.

[29]On 19 July he absconded twice. On 20 July a female patient told staff that he had said that he wanted to have sex with her. Also on that day, a police officer gave Dr Kehoe information suggesting that the sexual offences he had committed had been more serious than those to which he had pleaded guilty and received a community sentence. On that day the claimant absconded three times, returning of his own volition, the last time smelling of alcohol and saying that he had taken every named drug with it. On 21 July he absconded in the morning and again in the evening. He walked into the female bed area and refused to return to the social area. He was threatening and intimidating and threatened to stab a staff nurse. At 23.10 he was put into seclusion. The initial decision was taken by a staff nurse and confirmed shortly afterwards by the consultant psychiatrist on call. Dr Kehoe reviewed it the next day and decided that S should not come out of seclusion until either a bed was available in a secure unit or he improved.

[30]On 24 July his case was considered by a mental health review tribunal which refused to discharge him. On 25 July he was admitted for treatment under section 3 of the 1983 Act. On 26 July he was assessed for possible admission to a secure unit in York, but the earliest they might be able to take him was 31 July. The London unit were prepared to take him without assessment. His transfer was due to take place on 27 July but did not do so because his family objected to his being moved so far away and threatened judicial review. The following day, he was allowed out of seclusion during the day. However, after it had became clear that a bed would not be available in York, Mr S agreed to be transferred to London. On 2 August 2001 he was transferred to a low secure unit where he was treated without any need to resort to seclusion. He was transferred back to Airedale on 29 August 2001, where he remained without seclusion until he was discharged on 6 September 2001.

The proceedings and judgment

[31]The proceedings began as early as 2 August 2001 in an attempt to challenge the transfer to London and secure a bed in a more local secure facility. Moses J granted permission to apply and an injunction to restrain the transfer but by the time the injunction was notified the move had already taken place. The proceedings continued thereafter as a challenge to the lawfulness of the 12 days' seclusion, both under domestic law and the ECHR. Damages were claimed under section 8 of the 1998 Act.

[32]Amongst the large volume of evidence before the court were an affidavit and witness statement from Dr Kehoe, a report from Dr Adrian Grounds on behalf of the hospital, and a report and addendum from Professor Nigel Eastman on behalf of the claimant. Dr Grounds and Professor Eastman gave oral evidence but Dr Kehoe did not.

[33]Dr Grounds' view was that it was clear that the claimant required a low secure psychiatric bed. His history of absconding, threats, assault, disinhibition and sexual offending indicated that it was right to regard him as posing a significant potential risk to others when he was ill. Impaired self-control is one of the features of the manic illness from which he was suffering. Normally seclusion should be used for the shortest possible period to contain acutely disturbed and violent behaviour. Its use in this case was not a normal or ideal use of seclusion. However it was necessary and justifiable as there did not appear to be an effective and safe alternative at the time. The records did not confirm that all the nursing and medical reviews required by the Code of Practice had taken place, but it did not appear that this had a material effect.

[34]Professor Eastman, in his first report, took the view that the initial decision to seclude was reasonable, but that there was reason to think that it was not necessary to continue seclusion for so long. In his view any NHS trust catering for detained patients ought to have suitable facilities, including a locked ward or area on site, available for patients with this needs profile, who are not uncommon. In his addendum report, after a detailed review of the notes, he concluded that the reasonableness of the decision to seclude on 21 July was 'at best very marginal'. It appeared to have been largely precipitated by the information received from the police the day before about the claimant's past history of sexual offending rather than by any change for the worse in his current mental state and behaviour. Even if it was just reasonable then, it ceased to be reasonable from the next day onwards. There was no incident of current aggression to justify it. While the history of past offending should have alerted staff to the risk of offending on the ward, the ward could have been locked to protect the public and he could have been 'specialled' one to one to minimise the risk to other staff or patients. In fact the only incident of current violence during the period of seclusion was on 27 July, the day before he was allowed out for much of the day. This reinforced the view that the decision to allow him out during the day was a response to pressure from the family rather than any clearly reasoned process of clinical thinking. From that time on his behaviour improved. There was no justification for his continued seclusion at night.

[35]Dr Kehoe responded to these views in his witness statement. He recalled discussions that the ward could not be locked. Even if it could be, the claimant was too ill, aggressive and disinhibited to be managed in the ward. It was also considered an unjustified restriction on the liberty of other patients and contrary to ward policy to lock the ward.

[36]On 22 August 2002, in S v Airedale NHS Trust

[2002] EWHC Admin 1980

, Stanley Burnton J dismissed the claim. He had available to him the judgment of Sullivan J in Munjaz. He made the following findings: i) Seclusion is not necessarily contrary to Article 3, but in an extreme case it may be; Article 8 may also be engaged; its use may also be negligent or Wednesbury unreasonable; and an unjustified departure from the Code of Practice may render it unlawful (para 80). ii) The 1983 Act confers an implied power to seclude where it is necessary to do so (para 86). iii) Even if unnecessary, seclusion is not a deprivation of liberty for the purpose of the tort of false imprisonment or

Article 5 of the ECHR

: both distinguish between detention and the conditions of detention (paras 89 and 92). iv) Decisions to institute or end seclusion, and as to the conditions of seclusion, are decisions as to medical treatment within the meaning of the 1983 Act (para 100). v) The decision to institute seclusion can only be challenged on conventional judicial review grounds (para 101). vi) To the extent that there was a difference between the views of Jackson J and Sullivan J on compliance with the Code of Practice, he preferred the latter (para 105). vii) It was clear that seclusion continued because in the absence of a secure bed the hospital considered it to be the only way of managing the patient. This was a responsible, perhaps the only responsible course open to it (para 145(d)). The exercise of the power to seclude was not made unlawful by reason of its being necessitated by the lack of a place on a secure ward (para 146). viii) He could make no finding about whether the ward could or should have been locked; but he did not find that the continuation of seclusion until 28 July was unreasonable or an unnecessary or disproportionate measure in the circumstances (para 145(e)). ix) There was no breach of Article 3 either before or after July 28 (para 145(h) and (j)) and no breach of Article 8.1 (para 145(k)). x) Although reviews were not held as frequently as required by the Code, these departures were not unlawful (para 150). xi) The contemporaneous note that night time seclusion was to continue because 'staffing levels will not permit 1:1 nursing' was to be preferred to other evidence that staffing was not a problem; but he could make no finding on whether there was a deliberate decision not to bring in extra staff and if so why (para 151).

The questions canvassed in these appeals

[37]The appeal in Munjaz has concentrated mainly upon the lawfulness of Ashworth's policy of departing from the Code in the light of the risk that seclusion will be in breach of the patient's rights under Article 3 or

Article 8 of the ECHR

. The appeal in S has concentrated largely on whether the continuation of his seclusion, particularly after 28 July, was an unlawful interference with his residual liberty and thus in breach of his rights under Article 5. Nevertheless, a great many matters have been canvassed in the argument which are common to both, although not all of them are in issue in the present appeals.

[38]It is convenient to analyse the many questions raised by the use of seclusion under three categories, reflecting the different categories of remedy which may be available to a patient who complains that his seclusion is or has been unlawful.(1) In domestic private law a) What is the source of justification in domestic law for the use of seclusion? It is common ground between the parties that it is a method of control impliedly authorised by the statutory power to detain; an issue was whether it is medical treatment, authorised under section 63 of the Act. b) What is the criterion against which to test the lawfulness of any particular decision to initiate or continue seclusion? c) In what circumstances will the use or conditions of seclusion amount to a tort?

(2) Under the European Convention on Human Rights d) In what circumstances will the use or conditions of seclusion be a breach of the patient's rights under Article 3? e) In what circumstances will it be a breach of his rights under Article 8? f) Are there any circumstances in which it will be a breach of his rights under Article 5?

(3) Public law and the status of the Code g) What is the status of the guidance given in the Code of Practice? In what circumstances is a hospital entitled to depart from it, either in general or in particular? h) What is the remedy if a hospital unlawfully departs from the Code in circumstances which do not amount either to a tort or to a breach of Convention rights? i) What is the status of a previous declaration between the same parties that the hospital's policy is unlawful? Does an issue estoppel arise? (a). Domestic law: the source of the power to seclude

An implicit power

[39]Compulsory psychiatric patients are admitted following an application for admission under Part II of the 1983 Act or following a remand, hospital order or direction of the Court or a transfer direction of the Secretary of State under Part III. There are two possible sources of a power to seclude. First, for patients detained under Part II, section 6(2) provides that, once the patient has been admitted within the stipulated deadline to the hospital named in the application, " . . . the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act". Equivalent provision is made for patients detained under Part III by sections 35(9)(b), 40(1)(b), and 45B(1)(b).

[40]It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a 'necessary ingredient flowing from a power of detention for treatment': see Auld LJ in R v Broadmoor Special Hospital Authority, ex parte S, H and D, unreported, 5 February 1998 (which concerned random and routine searches of patients). In Pountney v Griffiths

[1976] AC 314

(which concerned returning patients to their wards at the end of visiting time), the House of Lords had accepted that the power to detain brought with it powers of control.

Medical treatment

[41]There is a dispute about whether or not seclusion is 'medical treatment', which may be authorised under section 63. Its only relevance in these particular appeals is whether the guidance given in the Code of Practice is guidance about 'medical treatment' within section 118(1)(b) (see para 4, above). Section 63 of the Act applies to all compulsory patients except those detained for very short periods under sections 4, 5, 135 and 136: see s 56(1). It provides that "The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, . . ., if the treatment is given by or under the direction of the responsible medical officer." Medical treatment is defined in section 145(1):

“'Medical treatment' includes nursing, and also includes care, habilitation and rehabilitation under medical supervision.”

[42]The courts have adopted a broad view of this definition. The criteria for detaining mentally impaired or psychopathic patients require that medical treatment in a hospital be likely to alleviate or prevent a deterioration in their condition (ss 3(2)(b) and 37(2)(a)(i)). The House of Lords held in Reid v Secretary of State for Scotland

[1999] 2 AC 512

that medical treatment could include treatment which alleviates or prevents a deterioration of the symptoms of the disorder, even if the treatment would have no effect on the disorder itself. Similarly, in B v Croydon Health Authority

[1995] Fam 133

, in the context of whether force-feeding an anorexic was authorised by section 63, the Court of Appeal held that treatment falling within the definition in section 145(1) was 'treatment for the mental disorder from which he is suffering' even if addressing its symptoms or ancillary to trying to address the underlying disorder. On the other hand, in R(B) v Ashworth Hospital Authority

[2003] EWCA Civ 547

, the Court of Appeal recently held that 'treatment for the mental disorder from which he is suffering' meant treatment for the form of mental disorder from which he was classified as suffering under the Act. Thus a patient classified as suffering from psychopathic disorder could not be treated as mentally ill and vice versa. This indicates that section 63 does not leave the RMO free to impose whatever treatment he wishes to impose upon the patient.

[43]Airedale and the Secretary of State argue that seclusion is medical treatment for the purpose of section 63. The patients argue that if used in accordance with the Code, it is not. The Code states (see para 14 above) that it should not be used as part of a treatment programme. If the Code is followed, it will be used only to protect others from significant harm. This is the language of control rather than treatment. Against that, there may be respects in which seclusion is therapeutic. Dr Davison (para 36 of her report, see para 12 above) pointed out that some psychotic patients deteriorate when overstimulated and when interaction with others becomes too intense. Seclusion can reduce their psychotic symptoms by reducing social stimulation. Some patients with persecutory delusions report feeling safer in seclusion. Dr Finnegan made much the same point when describing a category of long term secluded patients 'who are very psychotic and cannot cope with human contact' (para 46 of his witness statement).

[44]It can also be said that, in a wider sense, seclusion aimed at addressing the risks to others presented by the behaviour of a patient in the manic phase of a bipolar affective disorder when the behaviour is itself the result of that disorder is treatment 'for' the disorder in the same way that force-feeding the anorexic patient was treatment for her disorder. While her behaviour was purely self destructive, the consequences of allowing Mr S to persist in behaviour which was damaging to others would also have been damaging to him.

[45]We take the view, therefore, that seclusion is certainly capable of being medical treatment and thus that guidance may be given under section 118(1)(b). We also take the view that the purpose of seclusion envisaged by the Code does not remove seclusion from the wide definition of 'medical treatment'. However, this does not mean that all uses of seclusion are lawful, whether under the implied power or under section 63.

Necessity at common law

[46]Before turning to that question, we should note that there is a third possible justification for the use of seclusion. This is the only source of a power to seclude informal patients, ie those who are not detained under any of the compulsory powers in the 1983 Act. For them there is no question of statutory justification. The source must lie in the common law doctrine of necessity, which also has two aspects. There is a general power to take such steps as are reasonably necessary and proportionate to protect others from the immediate risk of significant harm. This applies whether or not the patient lacks the capacity to make decisions for himself. But where the patient does lack capacity, there is also the power to provide him with whatever treatment or care is necessary in his own best interests: see Re F (Mental Patient: Sterilisation)

[1990] 2 AC 1

(b) The criteria for lawful seclusion

[47]The fact that there exists a power to control or protect cannot mean that any and every use of that power is lawful. There must be limits. If there were not, it would still be lawful to confine patients in the shackles and other mechanical restraints which were commonly employed in the madhouses and asylums of the past. The abolition of legal regulation in the 1959 Act did not mean there was licence to return to the past. The criterion must be one of reasonable necessity judged against the purpose for which the restraint is employed. Hence, a detained patient may be kept in the hospital with no more force than is reasonably necessary in the circumstances to achieve this. Any patient may be restrained from doing harm to others with no more force than is reasonably necessary in the circumstances. An incapacitated patient may be given such treatment as is reasonably necessary in his own best interests.

[48]The only question is whether the same concept of reasonable necessity applies to treatment for a detained patient's disorder which is given under section 63. The fact that this may be given without consent under statutory powers does not absolve the doctor, or those carrying out his instructions, from their ordinary duties of care towards the patient. In R (Wilkinson) v Broadmoor Special Hospital Authority

[2002] 1 WLR 419

this court held that the forcible administration of medical treatment to a protesting patient would contravene

Article 3 of the ECHR

unless it was convincingly shown to be a medical necessity; see also R (N) v Dr M and others

[2002] EWCA Civ 1789

). Hence it was not argued before us that the criteria for the use of seclusion would be different if the justification were treatment rather than control. Nor do we find that they are.

(c) The remedies in private law

[49]As the authorities currently stand, merely confining a detained patient to a particular room or part of the hospital will not amount to the tort of false imprisonment. False imprisonment is the deprivation of liberty without lawful justification. A person who has been deprived of his liberty in pursuance of a lawful power to detain cannot through the medium of the tort of false imprisonment complain about the conditions in which he is detained, at least by those who are lawfully detaining him. This was decided by the House of Lords in R v Deputy Governor of Parkhurst Prison, ex parte Hague

[1992] 1 AC 58

, although their lordships accepted that unauthorised persons, such as other prisoners, might indeed be guilty of false imprisonment if they confined another prisoner within the prison. We shall return to whether this decision requires to be revisited in the light of the European Convention on Human Rights.

[50]However, that does not mean that the patient is without a remedy if other torts have been committed against him. If the breach of a duty of care towards the patient causes him physical or psychiatric harm, he has a remedy in the tort of negligence. The use of physical restraint upon a patient, or the administration of physical treatment, without lawful justification will amount to the tort of assault and/or battery which is actionable without proof of harm. This will include the use of excessive force or the use of force to enforce a decision which was unlawful in public law terms: see Mohammed-Holgate v Duke

[1984] AC 437

. Evidentially, however, neither will be easy to prove. Where physical restraint is employed in an emergency to prevent an escape or to protect others from harm, the court will not find it easy to criticise the decisions made by those who were there at the time. It was acknowledged by the experts in the S case that they were not as well placed as the doctors and nurses on the ward at the time to judge the degree of danger which Mr S presented to staff and patients and those outside the hospital.

[51]A further qualification is that individuals acting in pursuance of the Mental Health Act cannot be sued, even in respect of acts without lawful justification, unless they are shown to have acted in bad faith or without reasonable care (1983 Act, s 139(1)). The leave of a High Court judge must first be obtained (s 139(2)). This section does not apply to actions against health authorities and NHS Trusts (s. 139(4)). Nor does it apply to judicial review, which in any event requires the permission of a High Court judge: see R v Hallstrom and anor, ex parte W

[1986] QB 1090

[52]It follows that there are circumstances in which the use of seclusion will involve the commission of a tort against the patient for which the ordinary tortious remedies will be available. But these will not cover the use of seclusion in itself, or even every use of seclusion of which legitimate complaint might be made, and certainly not every use of seclusion which does not comply with the Code of Practice.

(d) Seclusion and Article 3

[53]There is no doubt that seclusion is capable of amounting to the 'inhuman or degrading treatment or punishment' which is prohibited by

Article 3 of the ECHR

. In A v United Kingdom

(1980) 3 EHRR 131

, Applic No 6840/74, the Commission declared admissible a complaint from a Broadmoor patient who had been secluded for five weeks after a fire. A friendly settlement was reached, without admission of liability but on the basis that new guidelines for the use of seclusion would be issued, as indeed they were.

[54]However, segregation from the prison community or other detained patients does not in itself constitute a form of inhuman or degrading treatment: see Dhoest v Belgium (1987) App No 10448/83; Koskinen v Finland (1994) App No 20560/90. Article 3 sets a high threshold. The test is stated, for example, in Keenan v United Kingdom

(2001) 33 EHRR 38

“108 The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends upon all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. 109 In considering whether a punishment or treatment is degrading within the meaning of Article 3, the court will also have regard to whether its object is to humiliate or debase the person concerned and whether as far as the consequences are concerned it adversely affected him or his personality in a manner incompatible with Article 3. This has also been described as involving treatment such as to arouse feelings of fear, anguish and inferiority capable of humiliating or debasing the victim and possibly breaking their physical or moral resistance or as driving the victim to act against his will or conscience.”

But the court went on to stress that more might be required of the authorities where vulnerable people had been deprived of their liberty:

“110 It is relevant in the context of the present application to recall also that the authorities are under an obligation to protect the health of persons deprived of liberty. The lack of appropriate medical treatment may amount to treatment contrary to Article 3. In particular, the assessment of whether the treatment or punishment is incompatible with the standard of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment.”

Moreover, “112 . . . While it is true that the severity of suffering, physical or mental, attributable to a particular measure, has been a significant consideration in many of the cases decided by the Court under Article 3, there are circumstances where proof of the actual effect upon the person may not be a major factor. For example, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3. Similarly, treatment of a mentally ill person may be incompatible with the standards imposed by Article 3 in the protection of fundamental human dignity, even though that person may not be capable of pointing to any specific ill-effects.” (emphasis supplied) The conclusion in that case was the significant defects in the medical care provided for a mentally ill prisoner known to be a suicide risk, coupled with the belated imposition of serious disciplinary punishment, was not compatible with the standard of treatment required in respect of a mentally ill person.

[55]Furthermore, we consider that while prisoners and compulsory patients have both been deprived of their liberty, they are otherwise very different. The imprisonment of criminal offenders is an end in itself. The necessary ingredients of imprisonment, provided that they meet the standards considered acceptable at the time, are unlikely to amount to inhuman or degrading treatment or punishment under Article 3. The detention of psychiatric patients is a means to an end, the assessment and treatment of their mental disorder. Conditions of detention which defeat rather than promote that end are much more likely to amount to inhuman or degrading treatment. The Keenan case, which concerned a mentally ill prisoner, is a good illustration of this.

[56]It is no longer suggested that the seclusion of either of these patients reached the minimum degree of severity to amount to a breach of their rights under Article 3. Their argument is that given the state's obligations, not only to refrain from such treatment but more positively to protect the health of people deprived of liberty, there will always be a risk that seclusion will be in breach of Article 3. The state must therefore take steps to prevent it. The Code of Practice is one of those steps and the state should therefore give it some teeth.

[57]Against that, the hospitals argue that the state's positive obligations under Article 3 are modelled on those under Article 2 set out in Osman v United Kingdom

(1998) 29 EHRR 245

, at para 116:

" . . . it is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge."

(emphasis supplied) The same approach appears in relation to Article 3 in, for example, Z v United Kingdom

(2002) 34 EHRR 97

, at para 73:

“These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought have had knowledge. ”

[58]However, these remarks referred to the steps which the state should take to protect individuals from threats to their life or ill-treatment by other private individuals. In our view, they have no relevance to cases where the state itself has deprived a vulnerable person his liberty, and the state itself is responsible for how that person is treated. In such cases, the state ought to know enough about its own prisoner or patient to provide effective protection from inhuman or degrading treatment by the state's own agents. As the Strasbourg Court observed in Pretty v United Kingdom

(2002) 35 EHRR 1

, at para 50:

“[Article 3] may be described in general terms as imposing a primary negative obligation on States to refrain from inflicting serious harm upon persons within their jurisdiction.”

[59]It is also argued that one emanation of the state has no obligation to ensure that other emanations of the state comply with their obligations under the Convention. In R (Adlard) v Secretary of State for the Environment

[2002] EWCA Civ 735

[2002] 1 WLR 2515

, it was said that the Secretary of State was not obliged to ensure that other public authorities acted compatibly with the Convention. But this was in the context of an argument that the Secretary of State should have called in a planning application so as to avoid the risk that the local planning authority might act incompatibly with Article 6.

[60]The argument before us is that the court should afford a status and weight to the Code of Practice which is consistent with the state's obligation to avoid ill-treatment of patients detained by or on the authority of the state. We accept that argument and return to the status of the Code of Practice in paragraphs 71 to 76 below.

(e) Seclusion and Article 8

[61]The right to respect for private life enshrined in

Article 8 of the ECHR

is capable of encompassing many things, as the Strasbourg Court explained in Pretty v United Kingdom, at para 61:

“. . . the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. . . . Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.”

Another important statement appears at para 65:

“The very essence of the Convention is respect for human dignity and human freedom.”

[62]Thus far, in the prison and mental hospital cases, it seems that the Court has not found it necessary to consider the conditions of imprisonment as such separately under Article 8 if they have not reached the threshold of severity required by Article 3 (the complaint under Article 8 which succeeded in Herczegfalvy v Austria

(1992) 15 EHRR 437

related to interference with the patient's correspondence, not his private life). But in Raninen v Finland

(1997) 26 EHRR 563

, at para 63, it acknowledged that the notion of the moral and physical integrity of the person extends to situations of deprivation of liberty and " . . [the court] does not exclude the possibility that there might be circumstances in which Article 8 could be regarded as affording a protection in relation to conditions during detention which do not attain the level of severity required by Article 3."

[63]Mr Richard Gordon QC, on behalf of Mind, argues that seclusion is always an interference by a public authority with the right to respect for private life. He submits that there are at least two aspects to this. Seclusion is by definition the denial of association with others. But it also involves the close and intrusive surveillance of the person confined. It is thus an interference both with human dignity and human freedom.

[64]Unlike Article 3, Article 8 is a qualified right which may be interfered with provided that the interference is in accordance with the law, for a legitimate aim and necessary in a democratic society. Mind accepts that much seclusion, although an interference with Article 8 rights, will serve a legitimate aim and may be proportionate to that aim. But it must always be 'in accordance with the law'. This requires, not only the domestic legal justification supplied by the principles discussed earlier (at paras 37 to 44 above), but more importantly the character of transparency and predictability required by the Convention concept of legality. This is supplied by the Code of Practice. The Code is the mechanism, not for defining what Article 8 or Article 3 requires, but for ensuring that any interference with Article 8 rights is 'in accordance with the law', a necessary ingredient in finding that it is justified under Article 8(2).

[65]We accept that seclusion infringes Article 8 unless it can be justified under Article 8(2). The justifications in domestic law, discussed earlier, are very broad. We therefore accept that the Code of Practice has an important role to play in securing that the justification for this interference has the necessary degree of predictability and transparency to comply with Article 8(2). We return to the status of the Code in paragraphs 71 to 76.

(f) Seclusion and Article 5

[66]Article 5(1) provides that "Everyone has the right to liberty and security of person. No-one shall be deprived of their liberty save in the following cases and in accordance with a procedure prescribed by law." The 'following cases' include (e) 'the lawful detention of . . . persons of unsound mind . . . ' Article 5(4) requires that:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

[67]As we are here concerned with detention, it is tempting to consider it under Article 5. Why should the further confinement in a 'prison within a prison' not amount to a deprivation of liberty for the purpose of Article 5? If so, it would require to be justified under Article 5(1)(e) and speedy access to a court would be required under Article 5(4). Hence it is argued strongly on behalf of Mr S that his confinement in a prison within a prison was not justified by his mental disorder. It was necessitated by the lack of alternative facilities and the policy of this particular hospital. This left the hospital staff with an 'all or nothing' choice, when in reality they should have taken other steps to enable them to care properly and safely for Mr S. The remedy he should have had under Article 5(4) was not total discharge, but release from seclusion.

[68]But what is meant by being 'deprived' of liberty? On behalf of Mr S, Mr Nigel Pleming QC argues that even a prisoner or compulsory mental patient is not deprived of all his liberty. He retains a 'residual liberty' which should not be taken away without good cause and the opportunity of challenge. He refers to the Canadian Supreme Court case of Miller v The Queen (1985) 24 DLR (4th) 9, in which it was held that any significant deprivation of the relative or residual liberty left to the general inmate population of an institution, such as that effected by confinement in a special handling unit, meets the traditional requirement for habeas corpus that it must be directed against a deprivation of liberty. If further restriction amounts to deprivation, then Article 5 is engaged in this case.

[69]However, the jurisprudence of the European Court of Human Rights distinguishes between the detention and its conditions. The detention itself has to be justified and challengeable in accordance with Article 5. The conditions under which a detained person is held have to comply with Article 3 and Article 8. Furthermore, there will be a breach of Article 5(1) where a person is detained in a type of institution which is inappropriate to meet the Article 5(1) purpose of his detention. Thus a person detained as a juvenile in need of educational supervision should not be detained in a prison where no education is available: see Bouamar v Belgium

(1988) 11 EHRR 1

; and a person detained as a person of unsound mind should not be kept in a prison: see Aerts v Belgium

(2000) 29 EHRR 50

. But provided that the institution concerned is within the appropriate category, there is no breach of Article 5. Thus in Ashingdane v United Kingdom

(1985) 7 EHRR 528

, there was no breach where a patient was detained in the high security conditions of Broadmoor for 18 months after the Home Secretary had acknowledged that his condition no longer warranted it and he could be transferred to a local psychiatric unit. The difference was one of degree not nature and quality.

[70]Just as the tort of false imprisonment is concerned with all or nothing situations, so is Article 5. It is concerned that deprivation of liberty should be properly imposed, its lawfulness open to challenge so that a person unlawfully detained may be set free, and that the place of detention conforms to the purpose for which it is imposed. But beyond that it has not so far been concerned with the conditions of detention. These are left to Articles 3 and 8. As we have seen, these are capable of protecting psychiatric patients from the very real abuses which they may suffer unless a remedy is available to them.

(g) The status of the Code of Practice

[71]The implications of the first instance decisions in these cases for the status of the Code, both in relation to the use of seclusion and generally, have given rise to some concern, for example in both the Mental Health Act Commission and the Royal College of Psychiatrists.

[72]The first question was whether the Code's guidance on seclusion fell within either section 118(1)(a) or 118(1)(b) (see para 4). If it did not, it was non-statutory guidance issued on behalf of the Secretary of State, a material consideration for NHS trusts and others, but no more. We have already dealt with the argument about whether seclusion is 'medical treatment' for the purpose of section 118(1)(b) (see paras 41 to 45 above). It was argued for the hospitals and the Secretary of State that, unless it was medical treatment, any guidance on the subject was not covered by section 118(1)(a). It was submitted that the words 'the admission of patients to hospitals under this Act' in section 118(1)(a) are limited to the actual admission process and do not include anything that happens thereafter while the patient is detained in hospital. This cannot be right. If section 118(1)(a) ended at the hospital door there would be little point in including hospital staff among the persons to whom the guidance is addressed, and much of the present Code should never have been included or laid before Parliament. The Code covers a great many matters which arise after the patient has been admitted to hospital, including his treatment while in hospital, leave of absence, and discharge, many of them functions of the hospital management rather than medical professionals. In ordinary parlance, an admission to hospital continues unless and until the patient is discharged. Section 118(1)(a) must mean the same. The subsection does distinguish between 'the admission' and 'the medical treatment of patients suffering from mental disorder'. Section 118(1)(b) includes patients who have not been admitted to hospital. But it also acknowledges that the right people to receive guidance on medical treatment are the medical practitioners and other professionals, rather than the managers and staff of hospitals who are or may be concerned in the admission, discharge and containment issues within the hospital. In our view, therefore, guidance on the use of seclusion can be issued under both sections 118(1)(a) and 118(1)(b).

[73]The second, and more difficult, issue is the weight which those to whom the Code is addressed must give to its contents. The Code is prepared 'for the guidance' of doctors and others. There is no statutory obligation in the 1983 Act to observe it or to give reasons for departing from it. There is therefore no express statutory obligation upon anyone other than social services to act in accordance with it. Under section 7 of the Local Authority Social Services Act 1970, social services do have an obligation to act under the general guidance given by the Secretary of State. In R v London Borough of Islington, ex parte Rixon

[1998] 1 CCLR 119

, Sedley J held that this meant that local authorities could only depart from the Secretary of State's guidance with a good reason.

[74]The judges in both these appeals proceeded on the basis that, having considered the Code, a hospital was free not to follow it unless to do so would be Wednesbury perverse. There is a considerable difference between this approach and the Rixon approach in which the Code should be followed unless there is a good reason to the contrary. It would fly in the face of the original purposes of the Code if hospitals or professionals were in fact free not to follow it without a good reason. It is clear that section 118(2) (see para 4 above) cannot have been intended as a 'take it or leave it' provision. In relation to those matters where a patient's human rights are or may be engaged, the arguments for according the Code the greater status are compelling. Where there is a risk that agents of the state will treat its patients in a way which contravenes Article 3, the state should take steps to avoid this through the publication of a Code of Practice which its agents are obliged to follow unless they have good reason to depart from it. Where there is an interference with the rights protected by Article 8, the requirement of legality is met through adherence to a Code of Practice again unless there is good reason to depart from it. The same will apply where the Code deals with the deprivation of liberty within the meaning of Article 5.

[75]We note that the Royal College of Psychiatrists wants all institutions to be subject to the same Code so as to promote good and consistent standards of practice. The other special hospitals are able to manage by adopting the Code's guidance on 'seclusion' but not regarding a patient as secluded if locked alone in his room at night. How special hospitals implement the Secretary of State's Directions on Security (see para 21 above) is a separate question from how they implement the guidance in the Code of Practice on seclusion as defined in the Code of Practice. Locking patients in their rooms at night is completely different from seclusion as defined and regulated by the Code. Seclusion is keeping a person under regular, frequent observation, while he is prevented from having contact with anyone in the world outside the room where he is confined.

[76]Hence we conclude that the Code should be observed by all hospitals unless they have a good reason for departing from it in relation to an individual patient. They may identify good reasons for particular departures in relation to groups of patients who share particular well-defined characteristics, so that if the patient falls within that category there will be a good reason for departing from the Code in his case. But they cannot depart from it as a matter of policy and in relation to an arbitrary dividing line which is not properly related to the Code's definition of seclusion and its requirements.

(h) Remedies for breaching the Code

[77]First, if a hospital's policy or actions are in unlawful breach of the Code, the usual public law remedies will be available, to declare and if necessary remedy the illegality. Secondly, if an individual decision has been taken unlawfully in public law terms and results in actions which are tortious if taken without lawful excuse, then tortious remedies will also be available. Thirdly, if an individual decision results in a breach of an individual's human rights, the remedies under the 1998 Act, including damages, will be available.

(i) Issue estoppel

[78]Mr Pleming argues on behalf of Colonel Munjaz that there should be an issue estoppel in his case. He challenged the legality of Ashworth's previous policy and won. The hospital then reconsidered its policy but arrived at conclusions which did not comply with the declaration made in his case (see para 17 above). It is quite wrong that he should again have been subjected to seclusion which did not comply, either with the Code or with the judgment given by Jackson J, and that Ashworth should again have been able to argue that its new policy was lawful.

[79]This is a powerful argument. We would not rule out the possibility that in certain circumstances it would be an abuse of process to permit a public authority which had acted in disregard of a declaration or order made in judicial review proceedings to seek to reopen debate about whether its actions were justified. But issue estoppel is a doctrine appropriate to proceedings in private law: if a court declares, for example, that it is unlawful for X to act in a particular way in relation to Y, then X should not be able to reopen matters if he nevertheless acts in that way, unless circumstances have changed so that his actions are no longer unlawful. But in judicial review, as Mr Howell QC points out on behalf of Ashworth, there is always a third party who is not present: the wider public or public interest. They should not be prejudiced by the failure of a public authority to place all the relevant material and arguments before the court on the first occasion. Still less should they be prejudiced if the public authority does indeed reconsider in the light of the previous decision but arrives at conclusions which do not in every respect mirror the court's conclusion on the first occasion. We therefore share the doubts expressed by this court in R v Secretary of State for the Environment, ex parte Hackney London Borough Council

[1984] 1 WLR 592

, as to whether the doctrine of issue estoppel is applicable at all in judicial review proceedings. But even if it may be, it would not apply so as to prevent the hospital defending its new policy in this case.

Conclusion in the case of Colonel Munjaz

[80]The policy in Ashworth is unlawful. They are not entitled to treat as being in seclusion a large number of patients who are not in fact secluded as defined by the Code of Practice and then depart from the Code of Practice in relation to a group which is defined solely by reference to how long its members have been secluded. In reaching this conclusion, we do not criticise the hospital for wishing to extend some protection to patients who are separated from others in circumstances which do not fall within the Code's definition of seclusion. Far from it. We applaud them for doing so and hope that they will continue. But that is no justification for failing to apply the Code of Practice to seclusion as defined by the Code. We also recognise that because of the nature of the patient population, there will be many more individual cases in Ashworth in which there may be good reasons to depart from the Code. Dr Finnegan's evidence gives details of a number of such patients. Indeed, it demonstrates that justifying individual departures is unlikely to be unduly difficult or onerous. It may also be possible to define particular characteristics which justify particular departures and so develop general guidelines which may be applied to all individuals who share those characteristics. But length of time in seclusion cannot in itself amount to a good reason for such departure. There are bound to be patients such as Colonel Munjaz who sometimes need periods of seclusion which are sometimes longer and sometimes shorter. Their need for the safeguards and reassurance provided by the regular medical reviews will not alter because they fall one or other side of an arbitrary dividing line. In other words, the Trust is not justified in departing from the Code of Practice on a wholesale basis, rather than when there are good reasons to do so in an individual case.

Conclusion in the case of Mr S

[81]Airedale were not justified in keeping Mr S in seclusion from the time when it ceased to be a necessary and proportionate response to the risk he presented to others. It should not have been used simply as a means of keeping him in the hospital, still less (if it was) as a means of persuading him to agree to go to the unit in London despite his family opposition. It is for the hospital to justify their actions, not the other way about. We cannot find anything in the judge's findings which justified the night time seclusion after 28 July. For the reasons given by Professor Eastman, we have our doubts about whether the seclusion was justified after 22 July. Dr Grounds accepts that seclusion was not being used for its usual purpose but because the hospital could think of no alternative. We do not consider this to be an adequate justification, and we regret that the judge's findings do not enable us to resolve the matter.

[82]Does this mean that Mr S is entitled to damages, at least in respect of his night time seclusion after 28 July? For the reasons already explained in paragraphs 66 to 70, although unlawful in public law terms, it did not amount to false imprisonment or a breach of his rights under Article 5. It may very well have involved some other trespass to the person, but we do not have the evidence or findings to enable us to determine this. Nor was any such claim ever made. It may also, and more probably, have involved an interference with his rights under Article 8. If so, this could not be justified because the departure from the Code of Practice meant that the necessary requirement of legality was not fulfilled. The claim form, however, only relies upon Article 8 in respect of the move to the London unit and on Articles 3 and 5 in respect of the seclusion in Airedale. Article 3 is not now pursued and for the reasons given earlier there is no breach of Article 5. No claim has been advanced under Article 8 but if there had been, it would be difficult to suggest an answer.

Remedy

[83]It follows that both appeals are allowed. The appropriate remedy in each case is a declaration reflecting the conclusions we have reached. If necessary, we shall invite submissions on their precise terms.

Cited in 20 later judgments

and 11 more of the most senior