S v AIREDALE NATIONAL HEALTH SERVICE TRUST [2002] EWHC 1780 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 1780 (Admin)Case No Case No: CO/3043/01Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
SClaimantAIREDALE NATIONAL HEALTH SERVICE TRUSTDefendant
Before
Mr Justice Stanley BurntonNigel Pleming QC and Matthew Seligman (instructed by Messrs Peter Edward & Co) for the ClaimantRobert Francis QC and Kristina Stern (instructed by Hempsons) for the DefendantDate 22 August 2002
[1]Mr Justice Stanley Burnton: Introduction This case concerns the lawfulness of seclusion in relation to patients detained under the Mental Health Act 1983, and the effect of section 6(2)(a) of the Human Rights Act on the liabilities of hospitals to those patients.[2]S was admitted to Airedale General Hospital in Bradford on 11 July 2001 for assessment, under section 2. It was his second admission: he had been admitted on 20 June 2001 under section 5(2) and his detention continued under section 2; despite the specialist registrar’s recommendation of further detention he was discharged from detention by a Mental Health Review Tribunal on 5 July. The Hospital is managed by the Second Defendant. Following his admission, there were incidents of violence and apprehended violence, and he absconded on several occasions, returning voluntarily. He was placed in seclusion at 11.10 pm on 21 July and remained there until 7.45 am on 2 August 2001, when he was transferred to a low secure unit in London, a period of 12 days. On 24 July 2001, he appeared before a Mental Health Review Tribunal, which refused to discharge him. On 25 July 2001, his detention was continued under section 3. From 9.55 am on 29 July he was secluded at night only.[3]S contends that his seclusion was unlawful under domestic law and that it infringed his rights under Articles 3, 5 and 8 of the European Convention on Human Rights. The Defendant denies that it acted unlawfully or infringed any of his Convention rights. The Claimant has also raised an issue as to whether a hospital is entitled to take into account information concerning a criminal offence that may have been committed by a patient that is at variance with his conviction or sentence by a court.[4]As sometimes happens, these proceedings were started as a challenge to particular decisions made by the Defendant and others. They were begun on 2 August 2001, naming as defendants, in addition to the Airedale NHS Trust, Airedale Primary Care Trust, which commissions services from the NHS Trust, and Bradford Community Trust, which operates a medium secure unit known as the Kestrel Unit in Bradford, to which S had wanted to be transferred but which had refused to accept him. On the same date Moses J granted permission to apply for judicial review and an injunction to restrain S’s transfer to the Cygnet Wing in Blackheath, London, a regional secure unit. By the time the NHS Trust was informed of the injunction, S had been transferred to the Cygnet Wing. S was treated there, without seclusion, until 29 August 2001, when he returned to Airedale. He was treated at Airedale uneventfully until 6 September 2001, when he was discharged. He has not had to be readmitted. The proceedings against Airedale Primary Care Trust and Bradford Community Trust have been discontinued.[5]S does not contend that seclusion of itself is necessarily contrary to Article 3 of the Convention. Seclusion may last a very short time, measured in minutes rather than hours. In this case, however, the duration of S’s seclusion approached 2 weeks. The central issue is whether there are any, and if so what, limits on the use of seclusion.[6]There were two factors leading to S’s seclusion. The first, and most obvious, was his mental illness, which led to violence on his part or the fear of violence by him to others. He was diagnosed as suffering from bipolar affective disorder characterised by aggressiveness, behaviour violence and sexual disinhibition. Prior to his seclusion, he absconded from the Hospital on a number of occasions. When admitted to the Cygnet Wing, his illness was in the hypomanic phase, and this was probably the case earlier. He was potentially dangerous. By 18 July 2001, the staff at the Hospital had decided that they could not, or would not, physically restrain him from leaving his ward because of the risk of assault and injury to themselves.[7]The second factor was the shortage of beds in secure units generally, and in particular the lack of a bed in a local secure unit. As early as 18 July, Dr Robert Kehoe, his RMO, formed the view that he urgently required to be transferred to secure accommodation, and that it was inappropriate for him to remain at Airedale. S’s hospital history sheet for that date has the note:
“Explore possibility of bed in locked ward/secure ward: Stockton Hall available.”
Stockton Hall is a secure unit in York, and was the only one that would consider taking S. Dr Kehoe asked Stephen Kelly, the Acting Manager, Acute Mental Health In-Patient Services at the Hospital, to try to find a secure bed for S. Mr Kelly and a colleague contacted some 22 hospital units across the country, but the only hospital that would consider taking S was Stockton Hall. On 19 July, the notes record:
“Dr Kehoe will speak to Stockton Hall.”
On 20 July, Dr Kehoe contacted both Stockton Hall and the Kestrel Unit. The Kestrel Unit informed him that it did not have a bed for S. Stockton Hall agreed to assess S in Bradford. On 25 July Mr Kelly searched for a back-up in case Stockton Hall refused to accept S, and found that the Cygnet Wing in Blackheath would accept a referral over the telephone. Stockton Hall assessed S on 26 July, but could not make a decision until 31 July. This would have prolonged S’s seclusion at Airedale. As a result, on 26 July arrangements were made to transfer S to the Cygnet Wing in Blackheath the following day. However, S’s family objected to his transfer to a hospital so far away from their home. Judicial review proceedings were threatened, and indeed commenced. However, on 2 August, S signed a form of consent for his transfer to Blackheath, and his transfer there took place on that date. His decision to consent to his transfer to Blackheath was influenced by the prospect of the ending of his seclusion.[8]It appears from the above that had it been possible to transfer S to a secure unit earlier, the period he spent in seclusion would have been reduced. Indeed, if transfer to a secure unit had been possible on 18 July, he would not have been kept in seclusion at Airedale at all. The issues[9]S contends:(a) “Where seclusion is used other than as a very short term reaction to a crisis,” … its use “contravenes Article 3, and crosses the line into impermissible ‘inhuman or degrading treatment or punishment’”, and that it crossed that line in this case.(b) That the use of seclusion involves a breach of Article 5 because there is no “lawful procedure” by which it is regulated.(c) That for the purposes of domestic law, and specifically the Mental Health Act 1983 (“the Act”), seclusion is not “medical treatment” within the meaning of section 145(1) and is therefore not authorised as medical treatment by the Act.(d) That his seclusion was an unlawful and unjustified deprivation of his residual liberty.(e) That seclusion can only be lawful if it is necessary; and it was not necessary in his case, since his seclusion was occasioned by the lack of an appropriate facility to cater for him at the Airedale Hospital or elsewhere; and lack of resources cannot justify interference with rights under, in particular, Article 3 of the Convention.(f) That the Defendant in secluding him failed to comply with the Code of Practice without justification, and thereby acted unlawfully.[10]The Defendant disputes each of the above contentions. It contends that the decision of the RMO to seclude S may be impugned only if it can be shown to have been perverse or taken in bad faith. In addition, Mr Francis submitted on its behalf that, because of the unavailability of secure accommodation for S and the risk he posed to staff and patients, it had no alternative but to place him and keep him in seclusion; that to have acted differently would have been at best negligent and involved the Defendant in the risk of liabilities to S and to others for any injuries caused by S; and that it therefore “could not have acted differently”, and is protected by section 6(2)(a) of the Human Rights Act 1998. Mr Pleming, for S, disputed both the factual basis of this submission and the interpretation of section 6(2)(a) on which it was based. He submitted that section 6(2)(a) could only apply where legislation specifically required a public authority to take the action that is alleged to be incompatible with a Convention right.[11]The Claimant’s skeleton argument did not raise issues under Article 8, and it was not fully considered in argument. While I mention it below, my judgment does not in general cover the issues that arise when it is relied upon.[12]There were potentially also issues incidental to the above issues. Not the least of these is the test to be applied by the Court in determining the lawfulness of seclusion, assuming it to be capable of justification. Is the function of the Court to determine whether the decision made by the Hospital was reasonable, i.e., non-perverse and, where Convention rights are engaged, proportionate to the need addressed? Or does the Court apply a Bolam/Bolitho test (see respectively [1957] 1 WLR 582 and [1998] AC 232 ), in which it is sufficient to decide whether the decision to seclude would have been supported by “a responsible body of medical opinion skilled in the particular form of treatment in question” who had appropriately considered the risks and benefits of the action taken, even though there is also a body of competent professional opinion which might think otherwise? Or must the Court itself decide whether or not the action taken was necessary or appropriate, as envisaged by the Court of Appeal in R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545 ? However, Mr Pleming did not submit that Wilkinson applies in the present case: he was content for the Court closely to review the actions of the Defendant, and so its application here did not fall for decision.[13]A further matter to be mentioned is procedural. These are judicial review proceedings. S has not sought damages for common law negligence. As is common in judicial review proceedings, the protagonists have made witness statements, but have not given evidence orally, and therefore have not been cross-examined. Both S and the Hospital adduced eminent expert evidence, that of Professor Nigel Eastman in the case of S and that of Dr Adrian Grounds in the case of the Hospital. Leave to cross-examine both was sought and granted. There were no pleadings. While in some respects their absence is a source of relief, it also meant that issues and the cases of the parties were not formally defined. I believe that pleadings would have assisted in the determination of the issues, but at a considerable cost in terms of legal fees and professional time.[14]It can be seen that the scope of the issues in this case is wide. S was by no means an unusual patient. His illness was not unusual. There is a notorious shortage of secure beds in England. The documents in evidence are substantial. Impressively and appropriately the Hospital voluntarily exhibited all its documents relating to S and his seclusion.[15]At the beginning of the hearing I complained about the organisation of the documents in the case. However, I have to express my appreciation to all counsel for their very considerable work in producing chronologies and submissions referenced to the trial bundles, and for the quality of their submissions.[16]S claims damages for the alleged breach of his Convention rights. No submissions were made as to the quantum of damages pending judgment on the issues of principle and liability. The evidence[17]In the present cases, there are issues of primary fact: S does not accept that his behaviour is correctly described by the Defendant’s witnesses and in its documents; but the Court is not asked to resolve them in S’s favour in arriving at its determinations. The most relevant factual issues concern the reasonableness or the correctness of the judgments made by the RMO and other medical staff of the Defendant, and the causes of the conditions in the seclusion room of which S complains.[18]It is a convention of our litigation that at trial in general the evidence of a witness is accepted unless he is cross-examined and is thus given the opportunity to rebut the allegations made against him. There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness’s testimony is manifestly wrong), but that is not the present case. The general rule applies as much in judicial review proceedings as in other litigation, although in judicial review proceedings it is relatively unusual for there to be a conflict of testimony and even more unusual for there to be cross-examination of witnesses.[19]In fairness to the Defendant and its staff, and particularly Dr Kehoe, whose decisions and actions are criticised, I think that I should adhere to the general rule, except where the contemporaneous documents dictate that a witness statement must be incorrect.[20]Some matters, such as the effect of and the reasons for the Defendant’s policy not to lock wards could not be sensibly investigated in the absence of witnesses and, perhaps, disclosure of relevant documentation. That policy had in any event first been referred to in Dr Kehoe’s second witness statement, served shortly before the first day of the hearing, and could not sensibly have been investigated without an adjournment, which Mr Pleming sensibly did not seek.[21]Both Dr Grounds and Professor Eastman stated that they were not in as good a position as Dr Kehoe, and indeed the other doctors who assessed S, to determine the risk he posed to others or the need to seclude him. The reason is obvious: neither of the expert witnesses had seen S during the relevant period, or indeed at all. They perforce had to give their views on the basis of the hospital records and the witness statements. Clearly, I must take this important qualification to their evidence into account.[22]I wish to make it quite clear that I am far from criticising the decision of the representatives of the patient in this case not to apply to cross-examine witnesses of fact. A full investigation of the factual and psychiatric issues in this case, which would have included the relevant resources and policies of the Defendant, would have resulted in a trial not of 3 or 4 days, but of 10 days or more, and been costly not only in terms of lawyer’s fees but in terms of the time of the Defendant’s medical staff. Notwithstanding the importance of the issues raised, it seems to me that the conduct of the case by the parties’ lawyers has been eminently sensible. Seclusion: general[23]Seclusion is defined in paragraph 19.16 of the Code of Practice:
“Seclusion is 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. 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.”
[24]Seclusion has long been used, and its use has long been criticised. In 1868, the Commissioners in Lunacy complained, not for the first time, of the use of seclusion at Broadmoor:
“That this is not in our opinion an efficient way of dealing with mental disease, however complicated with criminal habits and even dangerous violence, we conceive it our duty once more to put on record; but the same remonstrance, in effect, having been made unavailingly at every visit of the Commissioners since Broadmoor was opened, it is with no expectation of any kind of present result that we repeat it now …”
See Appendix (F) to the 23 rd Report to the Lord Chancellor of the Commissioners in Lunacy for 1869.[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 the worsening of delusions and hallucinations (see page 45 of the Mental Health 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.[26]In 1974, a patient in Broadmoor Hospital complained to the European Commission of Human Rights about his seclusion. He had been kept in a secure single room for about 5 weeks, with only limited opportunities for exercise and association with other persons. He alleged that the conditions in the room were insanitary and that it had been inadequately lit and ventilated. He contended that his conditions contravened Article 3. In 1980 the case was settled. The settlement was reported by the Commission under the name A v United Kingdom at (1980) 3 EHRR 131. It involved the adoption of new guidelines for the use of seclusion at Broadmoor. Paragraph 9 of those guidelines was as follows:
“If the patient is secluded for more than 24 hours, the Hospital Management Team should be informed and if the seclusion lasts for a continuous period of seven days, the Hospital Management Team should make a full report to the hospital managers. Reports should thereafter be made to the hospital managers weekly for as long as seclusion continues.”
The United Kingdom Government made an ex gratia payment of £500 to A, with no admission of liability. The Government stated that the guidelines would be kept under review and improved if possible. Paragraph 12 of the Report is as follows:
“The Commission found that the above-mentioned declarations showed that the parties has come to an agreement regarding the terms of a settlement. The Commission also found, having regard to Article 28 (b) of the Convention, that a friendly settlement of the matter has been secured on the basis of respect for human rights as defined in the Convention. For the above reasons, the Commission adopted this Report.”
[27]The guidelines adopted as a result of A v United Kingdom were the predecessor of the Code of Practice published pursuant to the Act, to which I refer below.[28]The use of seclusion was referred to in the 1992 Report of the Committee of Inquiry into Complaints about Ashworth Hospital, Cm 2028-I, chaired by Sir Louis Blom-Cooper QC, who was then chairman of the Mental Health Act Commission. In the chapter on Seclusion, at pp 201-207, the Committee opined that seclusion lacked any therapeutic value, and stated that:
“If seclusion is to continue as a permissible instrument of patient-care, we are of the view that it should be definably restricted to those cases where there is a clear and present danger to the life and limb of the patient, or others on the ward. It is suggested by the evidence from Ashworth over recent times that seclusion is frequently not used so restrictively, but rather as a ready response to disturbed, or disturbing behaviour. Two main principles are enshrined in the various seclusion policies that have existed: 1. Seclusion should be minimal; and it should be used only if there is no other way of dealing safely with a patient who is posing a serious physical risk to him/herself or others; 2. Time in seclusion should be as short as is necessary to control the patient, and should be discontinued as soon as possible.”
The Committee recommended the phasing out of the use of seclusion over a period of 2 to 3 years. They also stated:
“We are conscious, for example, of the reluctance in recent years of NHS psychiatric units, especially those in general hospitals, to accept patients who require a degree of security, or are thought to be potentially violent and the adverse effect this rejection has had on the patients themselves, and on the penal system, the RSUs and the Special Hospitals. Since we would not wish in any way as a result of our recommendations to encourage this rejection of patients who may prove difficult to manage, we would urge that every psychiatric unit must be required to provide an appropriate physical environment and sufficient well-trained staff to provide for the intensive care needs of its patients without the need to resort to seclusion. This requirement will demand that detailed plans for the change would need to be prepared by every unit receiving psychiatric patients.”
[29]There has been a dramatic reduction in the use of seclusion in England and Wales. Some hospitals do not use it at all; others are aiming to phase it out. At Rampton Hospital, between 1993 and 1995 the men’s intensive care ward reduced incidences of seclusion by 76 per cent, and the average duration of seclusion by 85 per cent. The means by which that was achieved are summarised at page 46 of the Mental Health Commission’s Ninth Biennial Report 1999-2001; they included reducing the numbers of patients on the ward, improvements in the environment and in nursing skills, but also the use of alternative management techniques. At Airedale, only one other patient was placed in seclusion in the period from 1 March 2001 to 28 February 2002. But, as those statistics, the present case, and the judgments in Colonel Munjaz No. 1 and No. 2 referred to below illustrate, seclusion is still in use. Indeed, some patients at Ashworth have been in seclusion for years. (However, the conditions of their seclusion are likely to be different from those in the present case.)[30]While the definition of seclusion is not contentious, there are differences in its application. In particular, it appears from Sullivan J’s judgment in Colonel Munjaz (No. 2) that at Ashworth a patient who is free to associate on the ward during the day, but locked in his room at night, is treated as being in continuous seclusion. The Mental Health Commission disagree with this approach: see its letter quoted at paragraph 45 of the judgment in that case. It regards such a patient as in seclusion only at night, and it seems that Broadmoor’s approach is the same. The statutory framework and the Code of Practice[31]Section 6 of the Act authorises the managers of a hospital to detain a patient admitted under section 2 for assessment or under section 3 for treatment. Section 5(2) authorises the detention for a period of only 72 hours of a patient who is already an in-patient at the hospital. (For present purposes, I can ignore the provisions relating to emergency applications.) Detention under section 5(2) may be followed by detention under section 2, and detention under section 2 may be followed by detention under section 3, and they often are. Section 63 provides that a patient may be treated for his mental disorder without his consent, if the treatment is not treatment within section 57 or section 58, provided it is given by or under the direction of the RMO. Section 57 relates to surgical operations for destroying brain tissue or the functioning of brain tissue and other forms of treatment specified for the purposes of that section by regulations made by the Secretary of State. Section 58 applies to medical treatment specified for the purposes of that section in such regulations, and to the administration of medicine to a patient by any means other than a form of treatment under section 57 if 3 months or more have elapsed since medicine was first administered to him for his mental disorder. Both section 57 and section 58 lay down additional conditions for the giving to a patient of the medical treatment to which they apply.[32]Section 145(1) provides that “‘medical treatment’ includes nursing, and also includes care, habilitation and rehabilitation under medical supervision”.[33]The Code of Practice is the subject of section 118 of the Act. Subsections (1) and (2) are as follows:
“118(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 and 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 treatments in addition to any specified by regulation 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 practitioner appointed for the purposes of this section by the Secretary of State.”
[34]Subsection (5) requires the Secretary of State to lay copies of the Code before Parliament, and provides that if either House of Parliament passes a resolution requiring it to be withdrawn it shall be withdrawn and a revised Code prepared in substitution for that disapproved. Subsection (6) requires the Secretary of State to publish the Code.[35]Seclusion is the subject of paragraphs 19.16 to paragraph 19.23 of the Code of Practice. The relevant part of paragraph 19.16 has been set out above. Paragraph 19.17 requires hospitals to have clear written guidelines on the use of seclusion. The procedure for seclusion is the subject of paragraphs 19.18 to 19.21, which include requirements for the review of seclusion at stipulated intervals. Locked wards are the subject of paragraphs 19.24 to 19.28 of the Code.[36]A hospital is a public authority within the meaning of the Human Rights Act, as indeed is a RMO. They are subject to section 6(1), which requires them to act compatibly with Convention Rights. The relevant Convention Rights for present purposes are those conferred by Articles 3, 5 and 8: the prohibition of torture and of inhuman or degrading treatment or punishment; the right to liberty and security; and the right to respect for private and family life. However, section 6(2)(a) of the Act provides that subsection (1) does not apply to an act if “as a result of one or more provisions of primary legislation, the authority could not have acted differently”. The Hospital[37]Airedale General Hospital is, as its name implies, a general NHS hospital. It has 2 wards for the treatment of mentally ill patients. It is not a secure hospital. It has no locked ward.[38]Secure hospitals differ from non-secure hospitals that accept patients detained under the Act in, among other matters, their architecture, their staffing (including the staff-patient ratio, and the training and experience of their nursing staffs), and no doubt their equipment. Ashworth, Broadmoor and Rampton Hospitals are special hospitals at which high security psychiatric services are provided. Other hospitals, known as medium or regional secure units (“RSUs”) and low secure units (also referred to as special care services), provide a lower level of security. Low secure units are locked wards, usually with a high staff-patient ratio and some perimeter security, although this security is at a lower level than would normally apply in a medium secure facility.[39]The number of low and medium secure beds nationally (approximately 3,000) is considerably less than the number of open psychiatric beds, of which there are approximately 35,000, divided roughly between about 25,000 informal patients and 10,000 detained patients. S and his history prior to his (second) admission[40]S was born on 3 February 1982. He is a very large man, over 6 feet tall.[41]During 1999, when he was aged 17, he committed a number of serious offences. On 31 May 2000 he was sentenced to 2 years in a young offender institute on 5 counts of supplying heroin. He was released on licence after 6½ months, on 15 December 2000. On 18 December 2000, 3 days after his release, he was charged with sex offences committed on 31 October 1999. On 2 March 2001, he pleaded guilty to indecent assault and unlawful sexual intercourse with a minor. The court made a combination order consisting of a community rehabilitation order for 2 years and 60 hours’ community service.[42]According to information given to S’s RMO by the Police:(a) On 24 February 2001, S had been charged with wounding with intent to cause grievous bodily harm.(b) On 19 June 2001, he was charged with failing to provide a breath sample. He had been driving around slowly, shouting abuse and making obscene gestures at police officers. He had refused to stop until a second police vehicle assisted the first. He was extremely agitated, which together with a smell of alcohol on his breath led to a suspicion of driving while under the influence of drink and drugs.(c) On 9 July 2001, he was charged with possession of cannabis.[43]A close friend of S died on 10 June 2001. This may have triggered his mental illness.[44]Following his arrest on 19 June 2001, S presented at Airedale General Hospital to give a blood sample. His bizarre behaviour led to his assessment and admission to ward 4 of the hospital’s mental health unit. He was detained pursuant to section 5(2) of the Mental Health Act after assessment by the duty psychiatrist. On 22 June 2001, the section 5(2) detention was converted to section 2 Mental Health Act detention. On 5 July 2001 he appeared before a Mental Health Review Tribunal, which discharged him.[45]Four days later, on 9 July 2001, S was again arrested, for a driving offence. He had driven a car erratically, smashing into the backs of other cars and throwing things out of the window. He was also charged with causing damage to a motor vehicle and possession of Class B drugs (presumably cannabis). On 11 July he was brought to the Hospital and again admitted to ward 4 of the hospital under section 2. He had had to be handcuffed by the Police on the way to the Hospital: he had been “kicking, fighting and aggressive”. It was observed that he was “extremely aggressive towards females in particular” and that he made “attempts to assault police officers on admission”. He was placed in seclusion, and remained in seclusion until the following day. This short period of seclusion is not the subject of these proceedings. Events leading to S being placed in seclusion on 21 July 2001[46]I can take these quite shortly, since Professor Eastman concedes that S’s initial seclusion was reasonable, albeit that the decision to seclude him was at best marginal.[47]On 12 July, S spat in the night sister’s face while passing her in the corridor. He continued to be hostile and aggressive. Later that day, he spat in the ward manager’s face in an unprovoked attack. On 14 July, he threw cup of tea up the corridor and attempted to kick a member of staff as they passed.[48]On 17 July, he absconded for two hours and returned of own volition. He was later overheard making racial comments to a fellow patient; he then proceeded to assault the patient in an unprovoked attack.[49]On the morning of 19 July, S absconded. He again absconded in the afternoon. He was brought back to his ward by his brother at 22.35. He was noted to be verbally hostile.[50]On 20 July, a female patient informed staff that S had said that he was going to have sex with her. At 09.20 S absconded; he returned of his own accord at 13.00. It was noted that he had been both verbally and physically aggressive towards staff and patients. He again absconded at 17.20 and returned of own volition at 19.40. He was noted to have been threatening/assaultative towards others. He absconded yet again at 20.50, returning of own volition at 22.10, smelling of alcohol (at p.431). He told the nurse that he had taken every named drug with alcohol.[51]It was on 20 July that Dr Kehoe was given information by a police officer about S’s sexual offending. I refer to this further at paragraph 106 and following below.[52]The care plan of C. Buckley of 20 July recorded as Nursing Diagnosis:
“Hostile, threatening and aggressive presentation which may compromise the safety of others on the ward.”
[53]On 21 July, S absconded at 11.45. It was recorded that staff were not to restrain him due to risk of assault. He again absconded at 19.30. It was recorded that he was possibly in possession of a weapon. He returned. At 20.31 the notes record that he became increasingly aggressive and confrontational. He walked into the female bed area and refused to return to the social area when requested. He continued to be threatening and intimidating. He later threatened to stab Staff Nurse Hancox.[54]At 23.50 S was put into seclusion. The clinical notes state:
“Presents several management problems at present including: - repeated absconding: consumption of illicit drugs at these times uncertain but reported by nurses smelling of alcohol - threatening behaviours to (female) patient and staff - uncertain drug abuse. … Needs to remain in seclusion until safety of patient and others guaranteed.”
Events during seclusion 21 July to 2 August 2001[55]I have set out in the Annex to this judgment the summary of S’s behaviour during the period that S was kept in seclusion prepared by the Defendants from their contemporaneous documents. The facts in it were not disputed. Other relevant events[56]S’s solicitor visited him on 23 July. He queried S’s seclusion with the staff. Dr McKenzie reviewed S’s seclusion, and concluded that it should continue.[57]On 24 July, S appeared before a Mental Health Review Tribunal. He was not discharged.[58]On 25 July, an application under section 3 of the Act to continue S’s detention was made and was accepted by the Hospital.[59]On 26 July, S’s solicitors sent a letter to the Hospital contending that his seclusion was a breach of the Code of Practice and Article 3 of the Convention. It also complained of the infrequency of reviews of his seclusion and the fact that reviews had been made by nurses involved in the original decision to seclude. It contended that the conditions in the seclusion room were inhumane, and cited an occasion when urine was all over the floor and food had been scattered everywhere.[60]On 27 July, the Hospital learnt that a place for S was available at the Cygnet Wing in Blackheath, which would accept S without a prior assessment. However, his family objected to his transfer there, on the ground of its distance from Bradford and the difficulties they would have in visiting him.[61]The Chief Executive of the Hospital replied to S’s solicitors’ letter of 26 July later on 27 July. He stated:
“At the outset it is proper to tell you that, having considered Mr S’s position with my Mental Health specialist colleagues, in my view your client is being managed entirely appropriately. My understanding of Mr S’s history and his current illness is that he presents a risk not only to other patients but also to himself and the use of seclusion is indeed, and contrary to your views, being used as a last resort. Mr S would be more appropriately cared for in an intensive care bed in a secure unit. However, the only place found to be available after several days of trying is in London and a transfer which should have taken place this morning was postponed following protests, made in the strongest terms, by this man’s family. In the circumstances I think we have been faced with no alternative to seclusion for Mr S’s safe care, nevertheless we continue to work toward finding a proper placement for him. I can assure you that there is currently no shortage of staff on the unit at Airedale General Hospital which would prohibit a different model of care, nor is Mr S being punished. Our paramount concerns are for his and other patient’s welfare and safety. You cite further breaches of the code of practice, in particular nursing and medical reviews of the decision to seclude. The allegation is founded on fact and I can only apologise to your client. However, I consider in some respects that breach to be immaterial since I have been assured that had the proper reviews been undertaken the decision to seclude would not have changed. Regarding the inhuman conditions of seclusion, those conditions were of Mr S’s making and were in fact promptly rectified by staff caring for him. Notwithstanding all of the foregoing I can tell you that the decision to seclude was reviewed this morning with Mr S and his family. In consequence the seclusion order is being relaxed over this weekend. Whilst so ever Mr S’s family is present he will be given greater freedom but if his conduct warrants or if his family is not present he will not be allowed to mix with other patients. All this pending allocation of an intensive care bed in York, which is expected to be available from Tuesday next. I hope in the circumstances that you will agree that no breach of the Human Rights Act and/or The Code of Practice has occurred and that in the circumstances we are doing our utmost to make sure that your client is being cared for.”
[62]S’s solicitors wrote again on 31 July. By then the Hospital was proposing to transfer S to the Cygnet Wing in London. His solicitors objected to his proposed transfer on the ground that it would breach his rights under Article 8, and stated that an application for judicial review would be made that day. As mentioned above, by the time that permission to apply for judicial review and an injunction had been granted and notified to the Hospital, S had given his consent to the transfer and it had taken place.[63]Although there was no issue before me in relation to S’s transfer to the Cygnet Wing, I should record that, notwithstanding his statement to his solicitor on 7 August 2001 that “he was going spare up there” because of his separation from his family and friends, nothing I have seen suggests that it was not in S’s best interests. The criteria for lawful actions towards a patient in a hospital[64]Under this heading, “hospital” has the same meaning as in section 145(1) of the Act. I have avoided the word “treatment” in the heading to this section because of its ambiguity. In Article 3, “treatment” is not confined to medical treatment: indeed, “inhuman or degrading treatment” is generally the antithesis of medical treatment. The Act generally uses the expression “medical treatment”, which as has been seen is given an extended definition by section 145(1). In some places, the Act refers to treatment simpliciter , as in section 3, which provides for “an application for admission for treatment”, but in my view it is clear from the context that this means medical treatment within the meaning of section 145(1).[65]For present purposes I leave aside illegality under the criminal law (as to which see section 127 of the Act) and treatment meted out in bad faith, for example as a form of punishment. The restrictions imposed by section 139 must also be borne in mind.[66]Action taken by a hospital towards a patient may be wrongful for a number of reasons:(a) The hospital may detain the patient without lawful authority. If it does so, it commits the tort of false imprisonment. It also infringes his rights under Article 5.1 of the Convention. In both cases, liability is strict, and independent of any fault on the part of the hospital: there is only one question for the Court, namely whether the detention was lawful.(b) Although the detention of a patient may be lawful, the conditions in which he is detained may be so bad that he is subjected to “inhuman or degrading treatment” within the meaning of Article 3. Article 3 rights are unqualified, and breach of Article 3 cannot be justified. If a hospital breaches Article 3 rights, it acts unlawfully by reason of section 6(1) of the Human Rights Act, subject only to the defence provided by section 6(2).(c) Any medical treatment must respect the patient’s rights under Article 3 and Article 8. If it does not, it will be unlawful. What may be intended by medical authorities to be medical treatment may infringe Article 3. To take an extreme case as an example, castration of a mentally ill male whose illness has a sexual component without his consent is at least arguably (and I should have thought is) inhuman or degrading treatment.(d) Medical treatment to which section 57 or section 58 applies will be unlawful if the conditions provided in those provisions are not satisfied. However, if a patient objects to such treatment, there is a dispute as to his capacity, and the treatment may infringe his rights under Articles 2 (because it may risk his life), 3 (because it is arguably inhuman or degrading treatment) and 8 (because it amounts to an unjustified invasion of his private life), and the proposed treatment is challenged in judicial review proceedings, the Court will: … “reach its own view as to whether (the) claimant is indeed incapable of consenting (or refusing consent) to the treatment programme planned for him by the first defendant as his RMO and, depending upon the court's conclusion on that issue, as to whether the proposed forcible administration of such treatment (a) would threaten the claimant's life and so be impermissible under article 2, (b) would be degrading and so impermissible under article 3, and (c) would not be justifiable as both necessary and proportionate under article 8(2) given the extent to which it would invade the claimant's right to privacy.” Per Simon Brown LJ in R (Wilkinson) v Broadmoor Hospital Authority [2001] EWCA Civ 1545 , [2002] 1 WLR 419 , at paragraph 432. In these circumstances, there is no question of a Bolam/Bolitho approach, but “courts will not be astute to overrule a treatment plan decided upon by the RMO and certified by a SOAD following consultation with two other persons”: ibid., at paragraph 31.(e) Medical treatment that is not inhuman or degrading and is not subject to sections 57 or 58 may lawfully be given to a patient without his consent provided it is given by or under the direction of the RMO. Neither Mr Pleming nor Mr Francis suggested that the decision of the Court of Appeal in Wilkinson applies to such a case. The RMO must respect the patient’s other Convention rights, and take into account appropriately (see paragraph 105 below) the provisions of the Code of Practice.[67]The RMO’s decision concerning the medical treatment of a patient may be challenged (in a case where sections 57 and 58 do not apply):(a) By judicial review. Judicial review will address issues such as whether the RMO has acted unlawfully as a result of an unlawful failure to take into account or to follow the Code of Practice, as well as issues as to breach of the patient’s Convention rights, and the necessity and proportionality of the treatment in question. Before the coming into force of the Human Rights Act, provided the RMO had complied with the Code of Practice, his decision could only be challenged on the ground of perversity, i.e. Wednesbury unreasonableness, or bad faith. If the patient’s Convention rights are engaged, the test now to be applied by the Court to the decision of the RMO is a super- Wednesbury test.(b) By proceedings for negligence, in which case the test to be applied by the Court is the Bolam/Bolitho test.[68]There is no reason why judicial review and a claim in negligence should not be combined in the same proceedings. Traditionally, however, different procedures have applied in judicial review proceedings and in proceedings for negligence. Disclosure of documents and oral evidence are the exception in judicial review; disclosure, oral evidence, and cross-examination of the protagonists (and in particular the doctor whose decision is in question) are the norm in proceedings for negligence. Articles 3 and 8[69]The prohibition by Article 3 of inhuman or degrading treatment is unqualified: such treatment cannot be justified by a public authority whatever the reason for its action. The conditions of a person’s detention are capable of constituting inhuman or degrading treatment: Dougoz v Greece (App no. 40907/98), at paragraph 46 of the judgment of the Court, and Keenan v UK (App no. 27229/95), in which the judgment of the Court provides a very helpful summary of the jurisprudence. It follows that seclusion is capable of amounting to an infringement of Article 3.[70]In order to constitute inhuman or degrading treatment a certain level of severity is required. It must be “of a particularly serious nature”: see the Report of the Commission in East African Asians v UK (1973) 3 EHRR 76 at paragraph 189.[71]However, what constitutes inhuman or degrading treatment is not an absolute. It will vary in different cultures and at different times. Capital punishment, for example, was clearly not regarded as inhuman in this country during the nineteenth century. It is not so regarded in some countries today. As the European Court of Human Rights stated in Tyrer v United Kingdom (1978) 2 EHRR 1 , at paragraph 31:
“… the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present day conditions.”
[72]All the circumstances of the case are relevant to the question whether particular treatment is inhuman or degrading. In Peers v Greece (Application no. 28524/95) the European Court of Human Rights stated:
“67. The Court recalls that, according to its case-law, 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 level of security is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, the Ireland v United Kingdom judgment of 18 January 1978, Series A no. 25, p65, § 162). 68. Furthermore, in considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see the Raninen v Finland judgment of 16 December 1997, Reports of Judgments and Decisions , 1997-VIII, pp 2821-22, § 55).”
This does not mean that a positive intention to humiliate or to debase is necessary for there to be a finding of inhuman treatment. The Court held that there had been a breach of Article 3:
“74. In the light of the foregoing, the Court considers that in the present case there is no evidence that there was a positive intention of humiliating or debasing the applicant. However, the Court notes that, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 ( V v the United Kingdom [GC], no 24888/94, § 71, ECHR-IX). 75. Indeed, in the present case, the fact remains that the competent authorities have taken no steps to improve the objectively unacceptable conditions of the applicant’s detention. In the Court’s view, this omission denotes lack of respect for the applicant. The Court takes particularly into account that, for at least two months, the applicant had to spend a considerable part of each 24-hour period practically confined to his bed in a cell with no ventilation and no window which would at times become unbearably hot. He also had to use the toilet in the presence of another inmate and be present while the toilet was being used by his cellmate. The Court is not convinced by the Government’s allegation that these conditions have not affected the applicant in a manner incompatible with Article 3. On the contrary, the Court is of the opinion that the prison conditions complained of diminished the applicant’s human dignity and arose in him feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance. In sum, the Court considers that the conditions of the applicant’s detention in the segregation unit of the Delta wing of the Koridallos prison amounted to degrading treatment within the meaning of Article 3 of the Convention. There has thus been a breach of this provision.”
[73]In considering whether there has been a violation of Article 3, the position of the alleged victim is highly relevant. In relation to mental patients, the Court stated in Herczegfalvy v Austria (1992) 18 BMLR 48:
“82. The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of the patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of art. 3, whose requirements permit of no derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.”
The treatment complained of in that case was the forcible administration of food and neuroleptics; in addition the applicant had been isolated and handcuffed to a bed for about 2 weeks. The Court held:
“83. In this case it is above all the length of time during which the handcuffs and security were used (see paras 27, 28 above) which appears worrying. However, the evidence before the court is not sufficient to disprove the government’s argument that, according to the psychiatric principles generally accepted at the time, medical necessity justified the treatment in issue. Moreover, certain of the applicant’s allegations are not supported by the evidence. This is the case in particular with those relating to what happened on 15 January 1980 (see para 27 above) and the extent of the isolation. 84. No violation of article 3 has thus been shown.”
[74]The consequences of the treatment complained of are also relevant, but not decisive. In Keenan , the Court stated, at paragraph 112:
“The Court considers however that this difficulty is not determinative of the issue as to whether the authorities fulfilled their obligation under Article 3 to protect Mark Keenan from treatment or punishment contrary to this provision. 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 on 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 (see the Ribitsch v Austria judgment of 4 December 1995, Series A no. 336, p. 26, § 38, and the Tekin v Turkey judgment, cited above, pp. 1517-18, § 53). 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 able, or capable of, pointing to any specific ill-effects.”
[75]I add that the question of resources seems to me to be potentially relevant to consideration of an infringement of Article 3, and indeed to the lawfulness of seclusion generally. To take an extreme example, it may be that by surrounding genuinely dangerous patients with numerous nurses 24 hours a day, the risk of their injuring themselves or others could be avoided, and the use of seclusion thereby reduced. However, there comes a point where the resources required must reasonably be seen as excessive. The resources that are available and that should reasonably be available are factors to be taken into account in deciding whether seclusion amounts to cruel or inhuman treatment. But the Court must be vigilant not to permit an assertion of lack of resources, all too easily made in this area, to excuse treatment that does cross the line into cruel or inhuman treatment.[76]The settlement reached in A v United Kingdom , referred to above, involved the adoption of new guidelines for the use of seclusion at Broadmoor. It is apparent from the report of the settlement that the Commission accepted that the use of seclusion in accordance with those guidelines could be compatible with the Convention. They stated, at paragraph 12 of the report:
“The Commission found that the above-mentioned declarations showed that the parties had come to an agreement regarding the terms of a settlement. The Commission also found, having regard to Article 28 ( b ) of the Convention, that a friendly settlement of the matter had been secured on the basis of respect for human rights as defined in the Convention. For the above reasons, the Commission adopted this Report.”
Thus the report of the Commission in A supports the view that seclusion is not necessarily contrary to Article 3.[77]The relationship between Article 3 and Article 8 was considered by the Court in Raninen v Finland (1997) 26 EHRR 563. The applicant complained that he had been unlawfully handcuffed in public. The Court stated that handcuffing does not normally give rise to an issue under Article 3 where it is a measure considered reasonably necessary in connection with lawful arrest and detention. In that case the handcuffing of the applicant was conceded to have been unnecessary and unlawful. The applicant claimed that he felt humiliated by appearing handcuffed in front of persons he knew. The Court rejected the allegation that his treatment had affected his mental state. The handcuffing had not been intended to debase or to humiliate the applicant. In those circumstances, there was no breach of Article 3. As to Article 8, the Court stated:
“63. According to the Court’s case law, the notion of ‘private life’ is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person. The Court further recognises that these aspects of the concept extend to situations of deprivation of liberty. Moreover, it 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. 64. In the case under consideration, as noted above, the applicant based his complaint under Article 8 on the same facts as that under Article 3, which the Court has considered and found not to have been established in essential aspects. In particular, it had not been shown that the handcuffing had affected the applicant physically or mentally or had been aimed at humiliating him. In these circumstances, the Court does not consider that there are sufficient elements enabling it to find that the treatment complained of entailed such adverse effects on is physical or moral integrity as to constitute an interference with the applicant’s right to respect for private life as guaranteed by Article 8 of the Convention. Accordingly, the Court does not find any violation of this provision either.”
[78]It would seem to follow from the judgment of the Court in Raninen that while the scope of Article 8 is wider than that of Article 3, in practice in the present context Article 8 may add little to the guarantee conferred by Article 3, particularly since rights under Article 8.1 are qualified by Article 8.2.[79]On the basis of these authorities, as already mentioned, seclusion is clearly not necessarily contrary to Article 3: it may be imposed for a very short time, in good conditions and with no negative impact on the patient. In such a case, it is not arguable that it reaches the level of severity involved in an infringement of Article 3. But the duration and conditions of seclusion, the reason for it and its effect on the patient may be such as to constitute an infringement of Article 3 and Article 8. I consider below whether they did so in the present case.[80]It is clear that the use of seclusion must be minimised. Where, however, there is genuinely no sensible alternative to its use, in my judgment there is not necessarily an infringement of Article 3, even if its use is not short term and an emergency measure: it does not necessarily reach the necessary level of seriousness. In this connection I refer to the evidence of Dr Finnegan cited by Sullivan J in his judgment in R v Ashworth Hospital Authority, ex parte Munjaz (No. 2) [2002] EWHC (Admin) 1521 , to which I refer below. Judgment in that case was given after the hearing in the present case, and of course evidence in that case is not evidence in this case. Munjaz concerned detention in a secure hospital, whereas the present case concerns conditions in a non-secure NHS hospital. This difference highlights the dangers of reaching a conclusion of general application based on evidence relating to a particular case in a particular context, and the caution required to be exercised by a court in a case such as the present.[81]My conclusion under this head does not mean that there is no legal constraint on the use of seclusion. In an extreme case, it may violate Article 3. Article 8 may be engaged. Even in a lesser case, and assuming no want of good faith on the part of those imposing it, its use may be negligent or Wednesbury unreasonable, entitling the patient to injunctive relief or damages. Similarly, an unjustified departure from the guidance in the Code of Practice may render seclusion unlawful. I consider below the implications of the Code of Practice and whether seclusion may constitute the tort of false important or give rise to rights under Article 5. Does the Act confer a power to seclude a patient?[82]There is no express power conferred by the Act to seclude a patient. It follows that any power to seclude must be implicit in other powers conferred by the Act, notably the powers to detain and to treat. For present purposes, I assume that the seclusion in question is effected for the purposes of treating the patient; I shall consider below whether seclusion of itself amounts to medical treatment.[83]If seclusion necessarily infringed Article 3, section 3(1) of the Human Rights Act would preclude the implication of a power to seclude in the provisions of the Act, or indeed any other legislation. As seclusion does not necessarily infringe Article 3, the implication of a power to seclude is permissible.[84]The test to be applied in order to determine whether there is an implied power to seclude is whether there is “a self-evident and pressing need” for the power: see Steyn LJ in R v Home Secretary, ex parte Leech [1994] QB 198 , Court of Appeal, at 212E-F. In R v Broadmoor Special Hospital Authority ex parte S, H and D (unreported, 5 February 1998), the Court of Appeal considered whether a hospital could lawfully carry out random and routine searches of patients without their consent. Auld LJ said, at page 13 of the transcript:
“Sections 3 and 37 of the 1983 Act provide for detention, not just for its own sake, but for treatment. Detention for treatment necessarily implies control for that purpose. If any authority were needed for that proposition in this context, it is to be found in the reasoning of Lord Widgery CJ and of Lord Edmund-Davies in R v Bracknell Justice, ex p. Griffiths [1976] AC at 318E-G, DC, and 335E-H, HL, respectively, when construing the statutory predecessor of the 1983 Act, the Mental Health Act 1959. Both statutes leave unspoken many of the necessary incidents of control flowing from a power of detention for treatment, including: the power to restrain patients, to them in seclusion (cf. R v Deputy Governor of Parkhurst Prison, ex p. Hague [1992] 1 AC 58 , HL), to deprive them of their personal possessions for their own safety and to regulate the frequency and manner of visits to them (though not the power of compulsory treatment, for which the 1983 Act now expressly provides on Part IV). Lords Widgery and Edmund-Davies were of the clear view that the power of detention and treatment necessarily carried with it a power of control and discipline. In my view, it is immaterial that there may be, as contended by Mr Gordon, other candidates for exercising in particular circumstances certain forms of control and discipline other than the power of search without cause and the core ones mentioned above.”
[85]Given that it is common ground between Dr Grounds and Professor Eastman that the seclusion of S was initially necessary, and the evidence of Dr Kehoe that in the circumstances in which he found himself he had no choice but to seclude S, despite the highly adverse references to seclusion to which I have referred, I have no difficulty in concluding that there is a self-evident and pressing need for the power to seclude. The existence of the power is assumed by the Code of Practice. While the Code may not be an aid to the interpretation of the Act, in my judgment reference can be made to it is a guide as to whether the need for a particular power is self-evident and pressing. The use of seclusion is accepted by the Mental Health Commission: see for example Recommendation 42 of their Ninth Biennial Report. That there is a power to seclude when necessary is also supported by a number of decided cases, including R v Broadmoor Special Hospital Authority ex parte S, H and D referred to above. Most recently, in R v Ashworth Hospital Authority, ex parte Munjaz (No. 2) , Sullivan J considered and upheld the medical justification put forward on behalf of Ashworth for its departure from the requirements of the Code of Practice in relation to the long-term seclusion of some of its patients. He accepted the evidence of Dr Finnegan, the lead consultant psychiatrist for mental health services at Ashworth, that:
“There are some patients in special hospitals who simply cannot be reached with treatment and whose persistent illness renders them predictably dangerous almost all of the time. Where seclusion is applied to these patients as a means of risk management there is absolutely no purpose whatsoever to be served in reviewing their cases for need for ongoing seclusion even once a day, let alone twice.”
I cannot, in the context of a case such as the present, resolve the inconsistency between that evidence and the recommendation of the Committee of Inquiry into Complaints about Ashworth Hospital set out at paragraph 28 above. To cite what was said in the Broadmoor case, “security is a necessary part of the background to treatment”, and it would appear to be generally accepted still that in extreme cases security may require seclusion.[86]In my judgment, therefore, the Act does confer a power to seclude a patient where it is necessary to do so.[87]Mr Pleming submitted that on the basis that S’s seclusion was unnecessary, because it would have been avoided if a place in a secure ward had been available, it was ultra vires the Hospital’s powers under the Act. I do not think that this is the right approach. There is power to seclude under the Act. The bona fide exercise of that power in a particular case does not raise issues of vires but of compliance with the legal constraints on its exercise, i.e., of the lawfulness of the seclusion. Does unnecessary seclusion of a patient lawfully detained in a hospital constitute the tort of false imprisonment or engage Article 5?[88]A patient who is placed in seclusion undoubtedly has less freedom than one who is on the ward. At Airedale, since the wards were not locked, the restrictions to which S was subject were very substantially greater than those applied to other patients detained under the Act.[89]However, it does not follow that the seclusion of a patient is of itself, even if unnecessary, a deprivation of liberty for the purposes of the tort of false imprisonment or of Article 5. Section 6 authorises the managers of a hospital to detain a patient. That detention deprives him of his liberty. In my judgment, seclusion does not deprive a person of his liberty for the purposes of the tort of false imprisonment: it affects the conditions of his detention, but does not amount to detention as such.[90]This conclusion is consistent with the decision of the House of Lords in R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 . That case concerned the contended-for “residual liberty” of a prisoner in a prison rather than a patient in a hospital, but I can see no distinction in principle between the two circumstances. Lord Bridge of Harwich said, at 162:
“The starting point is section 12(1) of the Prison Act 1952 which provides: ‘A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.’ This provides lawful authority for the restraint of the prisoner within the defined bounds of the prison by the governor of the prison, who has the legal custody of the prisoner under section 13, or by any prison officer acting with the governor's authority. Can the prisoner then complain that his legal rights are infringed by a restraint which confines him at any particular time within a particular part of the prison? It seems to me that the reality of prison life demands a negative answer to this question. Certainly in the ordinary closed prison the ordinary prisoner will at any time of day or night be in a particular part of the prison, not because that is where he chooses to be, but because that is where the prison regime requires him to be. He will be in his cell, in the part of the prison where he is required to work, in the exercise yard, eating meals, attending education classes or enjoying whatever recreation is permitted, all in the appointed place and at the appointed time and all in accordance with a more or less rigid regime to which he must conform. Thus the concept of the prisoner's “residual liberty” as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to me quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another.”
Lord Jauncey said, at 177:
“To say that detention becomes unlawful when the conditions thereof become intolerable is to confuse conditions of confinement with nature of confinement and to add a qualification to section 12(1). If, as I believe to be the case, a prisoner at any time has no liberty to be in any place other than where the regime permits, he has no liberty capable of deprivation so as to constitute the tort of false imprisonment. An alteration of conditions therefore deprives him of no liberty because he has none already.”
[91]European jurisprudence on Article 5 of the Convention draws a similar distinction between detention and the conditions of detention. In Ashingdane v United Kingdom (1985) 7 EHRR 528 , the Court considered a patient’s complaint that he was unnecessarily detained at Broadmoor in conditions of high security, and should have been transferred to a less restrictive less secure hospital. At paragraph 44 of its judgment, the Court stated:
“The issue of principle raised by this submission is whether and, if so, to what extent the expression ‘lawful detention of a person of unsound mind’ can be construed as including a reference not simply to actual deprivation of liberty of mental health patients but also to matters relating to execution of the detention, such as the place, environment and conditions of detention. Certainly, the ‘lawfulness’ of any detention is required in respect of both the ordering and the execution of the measure depriving the individual of his liberty. Such ‘lawfulness’ presupposes conformity with domestic law in the first place and also, as confirmed by Article 18, conformity with the purposes of the restrictions permitted by Article 5(1). More generally, it follows from the very aim of Article 5(1) that no detention that is arbitrary can ever be regarded as ‘lawful’. The Court would further accept that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the ‘detention’ of a person as a mental health patient will only be ‘lawful’ for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution authorised for that purpose. However, subject to the foregoing, Article 5(1)(e) is not in principle concerned with suitable treatment or conditions.”
[92]It follows, in my judgment, that seclusion does not engage the rights of a patient under Article 5. It similarly follows that there is no requirement under that Article for its regulation by a “lawful procedure”. Is seclusion medical treatment?[93]This issue was raised by the Defendant in order to bring seclusion within section 63 of the Act. If seclusion is treatment it is not within section 57 or section 58. It was, I think, therefore assumed by the Defendant that if seclusion is treatment, it can only be challenged if the decision of the RMO was perverse. I have found this issue very difficult.[94]“Treatment” undoubtedly has a wide meaning in the Act: see s 145(1), quoted at paragraph 32 above. In B v. Croydon Health Authority [1995] Fam 133, the Court of Appeal considered whether the force-feeding of a patient was treatment within the meaning of the Act. They held that it was, on the basis that acts ancillary to acts likely to alleviate or prevent a deterioration of a mental disorder were within the wide definition in the Act. Hoffman LJ, with whom Henry and Neill LJ agreed, said, at 138:
“It does not however follow that every act which forms part of that treatment within the wide definition in section 145(1) must in itself be likely to alleviate or prevent a deterioration of that disorder. Nursing and care concurrent with the core treatment or as a necessary prerequisite to such treatment or to prevent the patient from causing harm to himself or to alleviate the consequences of the disorder are, in my view, all capable of being ancillary to a treatment calculated to alleviate or prevent a deterioration of the psychopathic disorder. It would seem strange if a hospital could, without the patient’s consent, give him treatment directed to alleviating a psychopathic disorder showing itself in suicidal tendencies, but not without such consent be able to treat the consequences of a suicide attempt. In my judgment, the term “medical treatment … for the mental disorder” in section 63 includes such ancillary acts” (at 687h-688a). And later, in response to a submission that a broad construction of section 63 involved a breach of article 8 of the ECHR, Hoffman LJ said, at 140: “There is no conceptual vagueness about the notion of treatment of the symptoms or consequences of a mental disorder, although naturally there will be borderline cases. But there is no question of an exercise of arbitrary power.”
Neill LJ said, at 141:
“I am satisfied that the words in s.63 of the Mental Health Act 1983 … include treatment given to alleviate the symptoms of the disorder as well as treatment to remedy its underlying cause. In the first place, it seems to me that it would often be difficult in practice for those treating a patient to draw a clear distinction between procedures or parts of procedures which were designed to treat the disorder itself and those procedures or parts which were designed to treat its symptoms and sequelae. In my view the medical treatment has to be looked at as a whole, and this approach is reinforced by the wide definition of ‘medical treatment’ in s.145(1) as including ‘nursing’ and also ‘care, habilitation and rehabilitation under medical supervision.’”
[95]Mr Francis relied on the speech of Lord Hope of Craighead in Reid v Secretary of State for Scotland [1999] 2 AC 512 as authority for seclusion being treatment. The question in that case was whether the patient was liable to be detained under the provisions of the Mental HahhhhhjjjjjjjjjjjjjjhhhhhhhhhHHHealth (Scotland) Act 1984 (the provisions of which for present purposes are similar to those of the English and Welsh Act) where he suffered from a psychopathic disorder and it was questionable whether his treatment was “likely to alleviate or prevent a deterioration of his condition” (c.f. section 3(2)(b) and section 72 of the Act). For that purpose it was necessary to determine what is included within the concept of “treatment”. Lord Hope said, at 529:
“But there remains the question what is meant by “medical treatment” in this context. The expression is defined in section 125(1), which says that it “includes nursing, and also includes care and training under medical supervision.”
The definition is a wide one, which is sufficient to include all manner of treatment the purpose of which may extend from cure to containment. But in the case of those mental disorders to which the “treatability” test applies, its purpose is satisfied only if such treatment is likely to alleviate or prevent a deterioration of the person's condition.” And at 531:
“The expression “medical treatment” is, as I have said, given a wide meaning by section 125(1) of the Act. It includes nursing, and it also includes care and training under medical supervision. The width of the expression is not diminished where it requires to be examined in the context of the “treatability” test. Medication or other psychiatric treatment which is designed to alleviate or to prevent a deterioration of the mental disorder plainly falls within the scope of the expression. But I think that its scope is wide enough to include other things which are done for either of those two purposes under medical supervision in the State Hospital. It is also wide enough to include treatment which alleviates or prevents a deterioration of the symptoms of the mental disorder, not the disorder itself which gives rise to them.”
[96]Mr Francis submitted that by “containment” in the passage at page 529, Lord Hope meant the physical containment of a patient. I disagree. In my judgment, Lord Hope meant the containment of the mental illness of a patient, as is apparent from the next sentence of his speech. Sullivan J in Munjaz (No. 2) was of the same view: see paragraph 73 of his judgment.[97]Mr Francis also relied on the fact that seclusion is the subject of the Code of Practice, and therefore must have been considered by the Secretary of State to relate either to “the admission of patients to hospitals …” within section 118(1)(a) or “the medical treatment of patients suffering from mental disorder” within section 118(1)(b). Clearly seclusion is not within section 118(1)(a); it must, so the submission goes, be within (b).[98]Quite apart from the inadmissibility of the Code as a guide to the interpretation of the Act, I do not accept this submission. Guidance “ in relation to the medical treatment of patients” may give guidance as to acts that surround and are ancillary to treatment even if they are not treatment themselves. Indeed, it may give guidance as to what is not treatment, because the Secretary of State may wish to make it clear that certain supposed treatment cannot alleviate or prevent the deterioration of a condition.[99]Apart from authority and the extending words of section 145(1), I should prefer the view that seclusion of itself is not treatment, because it is not used to alleviate or to prevent the deterioration of an illness or of its symptoms (although it may remove the opportunity to display violence to other persons) or to enable treatment to be given, but to contain the patient because of the danger he presents to himself or to others. Seclusion, if it is not treatment, is authorised by the Act for the reason stated by Lord Widgery CJ in the Divisional Court in R v. Bracknell JJ, ex parte Griffiths [1976] AC 314, when considering whether or not to quash a conviction for assault arising out of treatment under the Mental Health Act 1959:
“… it is further clear from the Mental Health Act 1959 as a whole that when patients are so detained the object of their detention is that they shall receive treatment for their particular mental disability. Although the Act deals comprehensively with the circumstances in which and the method by which an effective detention order can be made, and deals in some detail with the management and control of the patient’s property, it does not, perhaps understandably, deal specifically with the powers of nurses in the hospital, or the detailed control of the patients who are inmates for the time being. There can, however in my judgment be no doubt that the conception of detention and treatment necessarily implies that the staff at the hospital, including the male nurses, can and on occasion must use reasonable force in order to ensure that control is exercised over the patients”
(at p.318 E-G). Lord Edmund-Davies, giving the majority speech in the House of Lords, affirmed Lord Widgery’s finding that the act complained of was done in pursuance of the 1959 Act and therefore was protected by section 141 of that Act because where a nurse is exercising functions of controlling patients in the hospital he is acting in pursuance of the 1959 Act (at 336A-C).[100]Nonetheless, decisions as to whether seclusion should be instituted or terminated, or as to the conditions of seclusion, will be decisions as to medical treatment within the meaning of the Act; and the care of a patient in seclusion is within the extended definition of medical treatment. In Munjaz (No.

(b) He said, at paragraph 73 of his judgment:

“The fact that seclusion is not treatment and that its sole object is to contain severely disturbed behaviour does not mean that review of its duration falls outside the wide definition of “medical treatment” in section 145(1). The nurses will still be caring for their patient whether or not he is in seclusion. Applying the approach of Lord Hope in Reid … the claimant’s assaultative behaviour is being controlled whilst he is in seclusion. Thus, the symptoms of his illness are being “contained”, even though the object of seclusion is to protect other patients from harm and the claimant from retaliation.”
I agree. Is the Wednesbury test appropriate to determine the lawfulness of a decision to seclude?[101]Ultimately, however, I do not think it matters whether seclusion is treatment or not, since it is authorised by the Act, and in my judgment the decision to seclude can only be challenged on conventional judicial review grounds. In R (Daly) v Home Secretary [2001] 1 AC 532, the House of Lords considered the question whether policy of examining prisoners’ correspondence was lawful under the Convention and at common law. Lord Steyn said, at 548:
“ 28 The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell [2000] PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood [2001] 1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood , at p 847, para 18, “that the intensity of review in a public law case will depend on the subject matter in hand”
. That is so even in cases involving Convention rights. In law context is everything.” Given the possibilities of the abuse and over-use of seclusion and its consequences to the individual patient, in my judgment a high degree of anxious scrutiny is required at common law that, although not as stringent as the tests of necessity and proportionality applicable in Convention cases (see Smith and Grady v United Kingdom (1999) 29 EHRR 493 and the comments on it by Lords Bingham, Steyn and Cooke in Daly ) should in most cases produce a similar result.[102]It follows that I agree that this is not a case like Wilkinson in which the Court must itself decide whether a decision by an RMO is the correct one. Whether seclusion is treatment or simply an aspect of control, the decision maker under the Act is the RMO or the hospital management or its staff, not the Court: c.f. Brooke LJ in Adan v. London Borough of Newham [2001] EWCA Civ 1916 at paragraphs 33-34.[103]At least nominally the Wednesbury test of lawfulness (and even the super- Wednesbury test) differs from the Bolam/Bolitho test applicable to claims in negligence. It is unnecessary for me to determine whether there is any difference in practice between them: I suspect that in the present context there is not.[104]Of course, if in any case seclusion does amount to inhuman or degrading treatment in breach of Article 3, no question of reasonableness or proportionality or necessity arises: in such a case it is unlawful. Compliance with the Code[105]In Munjaz (No. 1) (unreported, 28 September 2000), Jackson J held that Ashworth Hospital’s seclusion procedure was unlawful because it departed from the Code of Practice. He held that a departure from the Code of Practice would be lawful only if justified by a particular reason arising from the particular circumstances at Ashworth: see paragraph 22 of his judgment. However, in Munjaz (No. 2) , Sullivan J held that the obligation of Ashworth was no more than to have regard to the Code when formulating their policy on seclusion. Provided they had regard to it, and had sensible reasons for departing from it, their policy was not open to challenge. To the extent that there is a difference between Jackson J and Sullivan J I prefer the latter. Is an RMO bound by a conviction of his patient?[106]A criminal conviction of a patient may obviously be relevant to the decision of an RMO as to his treatment and to the assessment of the risk he may pose to himself and to others, and Mr Pleming did not suggest otherwise. The question raised in this case related to the consideration by the RMO of information provided by the police according to which S had been guilty of conduct on the occasion to which his conviction related more serious than the offence of which he had been convicted. Mr Pleming submitted that the RMO in that situation could not lawfully take into account conduct more serious than the offence for which S had been convicted. To be specific, the offences to which S pleaded guilty on 2 March 2001 were not necessarily serious, and the sentence of the court indicated that it treated them as not being serious: see paragraph 41 above. They involved sex with an under-age girl. The Hospital’s risk assessment form dated 6 September 2001 confirms that he was sentenced on the basis that the sex had been consensual. However, the charges had been rape, false imprisonment and indecent assault. Dr Kehoe made a note on 31 July 2001 of information that had been given to him on 20 July by CID concerning S. According to that information, S had committed the full rape of a female below the age of 16. According to the note:
“The 13 year old girl reported that she and a friend knew S and his friend. Entry was gained into an address by kicking in a panel on the front door and once inside one of the girls left. The remaining girl (aged 13) was then forced to perform oral sex on both subjects. She was then forced to have sexual intercourse with both subjects against her will. The girl then went to her friend’s house and later attended the police station that day. The alleged offences were rape, indecent assault and false imprisonment. He was convicted of the less serious offence and given community service.”
[107]Mr Pleming suggested that Dr Kehoe was bound to ignore this information as being inconsistent with the conviction and sentence. My initial view was that an RMO cannot be so circumscribed. It is all too well known that the exigencies of criminal trials, including the understandable reluctance or unwillingness of a victim to testify and to face cross-examination, may result in a plea to a less serious offence than that alleged being accepted without the original allegation necessarily being unfounded. In diagnosing, determining treatment and assessing risk an RMO must be able to take into account all of the apparently reliable information he is given. Whether he regards the information as well-founded must depend on the other information available to him. He may have to make his decisions on the basis that the information may be correct, but is not necessarily correct. It seemed to me that he is not bound to ignore it on the basis of any rule of law.[108]This approach was consistent with the expert evidence. When asked about the proper approach of a clinician to information such as that provided to Dr Kehoe, Dr Grounds said:
“304. I think what clinicians would normally do and should do is to take seriously the detailed account they obtained from the police. Quite commonly, in cases of psychiatric patients who have committed criminal offences in the past, it is the nature and context of the behaviour and the police accounts of it that may be very important because, for a number of reasons, for people with a mental disorder it may be, sometimes – perhaps not in this case, but sometimes – that the sentence of the court does not reflect the seriousness of the behaviour. I know that, for example, homicide inquiry reports clinicians have been roundly criticised for not getting exactly this sort of first-hand information about past offences committed by patients. It is very important. One would take serious account of what the police said. Indeed, it is an unusual circumstance for a police officer to come along to give this sort of report to a consultant, as it were, on their own initiative.”
Professor Eastman agreed. He said:
“11. I agree with Dr Grounds that it is a very difficult question, but I think I would add to what Dr Grounds said that it is, of course, not for a doctor to decide what is the truth of what is, essentially, a criminal justice matter. I would also agree with Dr Grounds that it is important to take account of things beyond a conviction. But I would do it in the context of what you might loosely call a medical model. What I would want to do is to hear what the policeman had to say, to see whether the information somehow rang bells in relation to clinical disorder, if I can put it loosely that way. I would then want to get the depositions of the case and I would want to assess the risk, specifically in the context of mental disorder, because I do not think I have a role in second-guessing the criminal justice system, but perhaps I do have a role in looking at all the information available and assessing it in the context of diagnosis. So I would want to know very simply, for example, was this man mentally ill at the time of the offence, because that is crucially important in relation to assessing and then managing risk. In summary, I would want to put it in the context of a medical model rather than second-guessing the criminal justice system.”
[109]Whether in any particular case it is practicable for a hospital to obtain the depositions relating to S’s offences is not something I need address. In fact, the pre-sentence report prepared for the court suggests that the depositions were consistent with the information given to Dr Kehoe: it refers to the inconsistency between the complainant’s account and that of S and the other defendant, and envisaged a custodial sentence as inevitable.[110]I have no doubt that it was appropriate for Dr Kehoe to take seriously the information given to him by the CID and to take it into account in deciding on the risk S presented to other persons.

(a) of the Human Rights Act

[111]The Hospital’s case is that they secluded S only because no bed in a secure hospital was available to him, and he presented such a risk at Airedale that they could not responsibly leave him at large. They therefore had no alternative but to seclude him. Mr Francis submitted that these circumstances brought the Hospital within the protection of section 6(2)(a) of the Human Rights Act, on the basis that if it acted in a way which was incompatible with a Convention right “as the result of one or more provisions of primary legislation, (the Hospital) could not have acted differently”. The Defendant’s skeleton argument did not, identify the provisions of primary legislation in question, but Mr Francis relied on the responsibility imposed by the Act on the management of a hospital who accept a patient. Mr Pleming disputed both Mr Francis’s interpretation of the facts and his reliance on section 6(2)(a), which he submitted required a more specific connection between the provisions of primary legislation relied upon by a public authority and their action that is the subject of complaint.[112]I prefer Mr Pleming’s submissions on the construction of section 6(2)(a). In my judgment, since it exculpates a public authority that infringes a Human Right, it is to be narrowly construed. The legislation in question must have dictated the breach of the Convention right in question. In the present case, it may be that in the situation in which it found itself in July 2001, the Hospital could not have acted otherwise: that is a question I consider below. But if so, that is because it did not have the facilities – the staff and premises - to deal with someone with his violent tendencies out of confinement, as he was treated at the Cygnet Wing in Blackheath. Nothing in the Act prevented their having such staff and facilities. The room in which S was confined had no toilet facilities: nothing in the Act dictated that it should be without those facilities. Furthermore, even if the decision to keep S in seclusion was one which Dr Kehoe reasonably and sensibly made, it does not follow that an attempt to bring S out of seclusion would have been negligent or unlawful. From 29 July 2001, S was secluded at night only. On one view, that was because there were not the staff available at night to permit him to be safely out of seclusion. If so, that lack of staff was not dictated by any provision of the Act.[113]If I had concluded that the Defendant had infringed S’s Convention rights, I should have held that they were not entitled to rely on section 6(2)(a) of the Human Rights Act.[114]Having considered the questions of law arising in this case, I can now turn to the facts. The first question is the basis of the Court’s approach to the evidence, in so far as it is disputed. The duration and conditions of S’s seclusion: the evidence[115]I deal with duration and conditions together, because it is their combination that are relevant to the lawfulness of seclusion.[116]The room in which S was secluded had no toilet facilities. It was bare. He was not always permitted to go to the toilet. He found the conditions distressing, stating that they were “awful, was sweating, had to defecate and urinate in there.” His solicitor visited him in seclusion on 25 July 2001. She stated:
“... the seclusion room had food scattered everywhere and urine on the floor, there was assorted food and fruit tossed all over the floor. The urine bottles (two) that I noticed, which were clearly used. There was urine on the chair also, the client told me not to sit there and it had not been cleaned ... … there appeared to be some ventilation, but the room smelt of urine and other odours ... Client was banging on the door, in great distress.”
Her attendance note dated 26 July referred to her visit to S of the previous day. She noted:
“….. seclusion is ongoing. Client instructs me that it is degrading and inhumane. He has not had a shower, although they have provided him with bowels to wash himself with. He is provided with bottles in the seclusion room to urinate in.”
[117]The Defendant’s case is that the foul conditions in the seclusion room were of S’s own making: see the letter quoted at paragraph 61 above. To some extent the hospital records support this. Thus the nursing record states: 21/7/01:
“Appeared to be calm, sat on bed, requested toilet. Urinal provided.” 22/7/01: “Awoke at 6.30, has passed urine and had a bowel motion.” 25/7/01 (Apparently just before the visit of Kaniz Iqbal): “Complaining of constipation. Early this evening urinated in the room and threw most of his meal on the floor....” 26/7/01: “Seclusion room cleaned this morning due to poor state of floor. 26/7/01: 12.11: “He has been escorted to visitors’ toilet on several occasions. As morning progress, more aggressive behaviour displayed in the form of banging wall windows and doors. Refuse medication this morning … On last escort to toilet sat on floor and refused to move. Persuaded to do so. Threaten to assault staff. Seen by solicitor this morning. Dr Kehoe states that, whilst on occasions S was required to use a urine bottle and bed pan, on frequent occasions he was taken to the toilet. He says that on many occasions while he was in seclusion “it was quite simply not safe to take him to the toilet.”
Reza bin Elahee, an extremely experienced psychiatric nurse, stated:
“If (S) demanded to go to the toilet, the facilities were generally at the far end of the Ward and it would require two or three members of staff to escort him. Mr S frequently made such demands and it was considered that he did so in an attempt to create an opportunity to abscond, and with the risk that he would violently resist being returned to the seclusion room. Accordingly, in case he wanted to visit the toilet when this could not be facilitated, he was also provided with a bed bottle for urine and a bed pan for bowel movements. … the nursing staff would remove them as soon as possible.”
But one must also bear in mind entries in the hospital records such as: 31/07/01: 08.30:
“Requesting to go to toilet, same denied due to current staff resources. Alternatives given (bed pan + bottles).”
[118]S accepts that he was responsible for some of the mess in the seclusion room. In his second witness statement, he candidly states that when he was angry he made a mess sometimes.[119]Dr Kehoe appreciated that seclusion was not acceptable for any length of time. In his letter to the hospital managers dated 30 July 2001, he stated:
“For the past week he has been nursed largely in a secluded room kept away from other patients. It is not possible to continue this practice in the longer term. He requires a locked facility so as to enable better treatment and so that he can be nursed in a more humane fashion.”
That paragraph must be read with the earlier paragraphs of the letter, to which I refer in paragraph 122 below.[120]The approved social worker who assessed S for the purposes of the section 3 application stated, in her assessment dated 31 July 2001:
“(S) has remained in seclusion room since midnight on 21.7.01 – which is unacceptable, but nursing staff currently have no other option. … (S) denied that he had any mental health problems, said he was fine prior to being admitted and that his stress has been caused by the admission. He told me, however to ‘Go ahead and put me on Section 3 and move me to a secure unit’ – saying he would agree to anything in order to get out of the seclusion room. … … His behaviour and presentation were relatively calm in light of his having been in seclusion for far too long. Though he said he would agree to ‘anything’ – this was clearly out of desperation to get out of the seclusion room.”
[121]Thus S’s seclusion was a factor that caused him to sign the consent to his transfer to the Cygnet Wing in Blackheath. His solicitor’s attendance note of 6 August 2001 similarly records that he said that he signed the consent “because I had no choice, I just had to get out of that room.”[122]In his letter to the hospital managers dated 30 July 2001, Dr Kehoe said of S:
“He presented following a 4-5 week history of increasing agitation, chaotic behaviour and mood elation. His behaviour at times has been dangerous … Since admission there has been ongoing hostility and aggression, with a degree of disinhibition. He has assaulted another patient and most recently assaulted a member of staff (a severe bite on the nurses back). There is a history of sexual offending and he is on the Sexual Offender’s register. This incident involved him and a friend abducting a 13 year old girl and forcing her to have oral sex and intercourse. The full details of this offence were made available to me only on 20 th July when I was visited by a CID officer. This offence occurred on the 31 st October 1999 at which time he was 17 and the girl involved was 13. In view of his history of sex offending, there is a clear need to protect other patients (and staff) as well as the wider public. This is particularly so given that he has a manic illness associated with chaotic and disinhibited behaviour. He is therefore more likely to re-offend whilst in this disturbed and mental state than previously. Furthermore there is the issue of his aggression and hostile behaviour. He has already assaulted twice during this admission. He has also offered to have sex with one of the female patients in a room on the word, making this suggestion directly to her.”
[123]Whilst one must bear in mind the possibly of self-justification in this letter, on the whole it reads sympathetically. I should normally be inclined to place greater weight on a contemporaneous internal document such as this letter than a witness statement, although in the present case there is no inconsistency between them. In his affidavit, Dr Kehoe stated that it had been his view that S urgently needed secure accommodation and gave substantial reasons for his conclusion. The correctness of that conclusion of Dr Kehoe is not disputed. Dr Kehoe stated that in the absence of a place in a secure hospital:
“I considered the risk of sexual or violent offending to be high and seclusion was the only means to protect patients, staff and the public whilst at the same time ensuring effective anti-manic treatment.” “My own view is that we could well have been negligent if we had not secluded Mr S, given the clear indicators of risk and his known history of sexual offending. As I told him, he would not thank us if he committed a further sexual offence when he was manic and we had failed to protect both him and other patients from his manic impulses.”
It remained my opinion that seclusion was the only means of protecting other patients from physical and possibly sexual harm.” “It is my firm view that the care which has been provided to [S] was the only care which could realistically be provided.”[124]It is perhaps relevant that the initial decision to place S in seclusion was not taken by Dr Kehoe, but by Timothy Gaunt, a staff nurse, and shortly afterwards confirmed by Dr Aspin, a consultant psychiatrist. Dr Kehoe decided on 22 July that S should not come out of seclusion until either a bed was available in a secure unit or he improved. As mentioned below, on 23 July, Dr McKenzie, a consultant psychiatrist, considered S’s seclusion and decided it should continue.[125]Eric Kotey, S’s primary psychiatric nurse from 19 July to 2 August, recorded on about 25 July that:
“Risk of violence to staff and patients from S outweighs his freedom of movement on the ward necessitating seclusion till more secure environment can be found.”
Mr Kotey also says in his Affidavit that:
“I can also confirm that throughout the period 21 st July 2001 to 28 th July 2001 it was my considered clinical judgment that Mr S needed to be nursed in a secure environment and that the only way safely to care for him at the Hospital was for him to be nursed in seclusion. From 28 th July 2001 to 2 nd August 2001 matters changed slightly and it was possible to nurse Mr S outside of the seclusion room during the day, using the seclusion room only as and when required. This was because of some reduction in the level of verbal threats and a reduced level of disinhibition. Coupled with this, transfer to a secure hospital, which was impending, was no longer available and I had to take a fresh look at the prevailing circumstances taking into consideration the welfare of Mr S first and foremost, and also the members of the nursing team and equally the rest of the patient population. This change in nursing arrangements could not be done earlier, because of the prevailing circumstances stated above. However, it remained necessary for Mr S to be nursed in seclusion overnight. This was because there were less numbers of nursing staff at night and also any difficulties in the care of Mr S at night would have been potentially more difficult to manage.”
[126]Reza bin Elahee, Ward Nurse Manager of Ward 11 at the Hospital, where Mr S was nursed following his assault on a fellow patient on 17 July, said in his Affidavit:
“Mr S posed a very serious and difficult nursing problem. Some of the difficulties are set out at paragraph 11 of Dr Kehoe’s Affidavit. Mr S posed a serious risk to the safety of other patients and staff. Furthermore, because of the many occasions on which he absconded from the Ward, he also posed a serious risk to the safety of the community at large, and to his own safety. It was clear that Mr S required nursing in a secure environment which could not ordinarily be provided on Ward 11, which is not a locked ward. … Until such a transfer could be achieved, however, and unless there was a major improvement in his mental state, I and my nursing colleagues could not contemplate caring for Mr S on the Ward.”
[127]S’s seclusion was reviewed at intervals. The Nursing Record for the night of 21/22 July 2001 states:
“(S) returned to the ward at 23.10 hours (from his abscondence), he was immediately placed in seclusion and seclusion policy implemented at that time. Dr Aspin came to see S, but he was sleeping … Myself and Sister Mackay spoke at length to Dr Aspin. The plan at present for S is:- 1) To remain within seclusion until morning. S smelt of alcohol on return to the ward, thus he is not to be given any medication until morning. 2) To monitor S’s breathing and to take his pulse every half hour. 3) … 4) Not to come out of seclusion until medication commenced and effective; and to be reviewed by duty doctor and Dr Kehoe. 5) Needs to remain in seclusion until safety of patients and others is guaranteed.”
[128]Observations were then commenced every fifteen minutes. According to Dr Kehoe this would ensure that “any major change in his mental state would have been noticed and the decision to seclude him would have been reviewed” (see paragraph 19(d) of Dr Kehoe’s Affidavit). At 09.17 on 22 July, Nurse Hancox recorded in the nursing record:
“Spoke with Dr Kehoe. Informed of current situation regarding S being on seclusion and staff concerns over risk to both staff and fellow patients. Advise to administer Acuphase in order treatment manage S. Advise to Dr Kehoe that S will not be coming out of seclusion till secure bed obtained due to safety issues.”
[129]At 12.30 pm on 22 July Dr Kehoe recorded in the medical records:
“In view of anger aggressive/absconding behaviour ® treat in seclusion for protection of others. Overall concern is that as he is most likely manic, this could result in danger to others. Indeed yesterday he threatened staff and other patients in sexual/violent acts. \ continue with seclusion + acuphase.”
[130]On 22 nd July 2001 the medical notes record (at 16.15):
“Speech mildly slurred, demeanour same aggression. To remain in seclusion until decision by Dr Kehoe”
In this note there is also consideration of the level of observation required:
“Plan Continue nursing obs as before. Assess medical/mental state as required. Frequent interruptions e.g. while asleep are counterproductive to his mental state ( do not disturb him while asleep.”
[131]At 8.30 pm on 22 nd July it was noted that:
“Seclusion policy and acuphase observation regime maintained.”
At 6.45 am on 23 July it is recorded that Dr Kehoe and Dr Lowe had decided that, as Dr Lowe saw S in the late evening and would see him again in the morning, Dr Lowe would not attend during the night for the four-hourly assessment. At 3.30 pm on 23 July the medical records record Dr McKenzie’s opinion:
“On balance, I think he should remain in seclusion. If allowed out there is a risk of absconding/assaulting staff & patients. Given that he is still manic, a less stimulating environment is possibly more advisable.”
[132]At the bottom of this record appears to suggest that Dr McKenzie’s view was that as he should remain in seclusion until the following day unless there was a dramatic improvement in his mental state. At 3.45 pm on 23 rd July the nursing notes record:
“Discussion with Steve Kelly – Senior Nurse – S’s solicitor Kaniz Iqbal had mentioned to him about the suitability of S being in seclusion. Same discussed with Dr McKenzie who saw S at 15.30 and concluded that based on his mental state he should remain in seclusion. When interviewed he was abusive and threatening.”
[133]On 24 July the medical notes record:
“Remain in seclusion. Review 4 hourly.”
The medical records for that day include a review by Dr Kehoe in which a decision is taken “to continue in the present with seclusion because of risk to other staff and patients.” On 25 July the medical notes record:
“remain in seclusion.”
On 26 July the medical notes record “remains in seclusion because of unpredictable nature and behaviour of S, current manic illness and past history of serious sexual offences. He has also made sexual suggestions to someone on the ward and has threatened staff physically. He has attacked another patient this admission also.” On 27 July it was recorded in the nursing notes that “To my mind there was a significant level of risk to justify continued seclusion overnight.” On 28 July it was recorded in the nursing notes that “It was my opinion that S continues to present a serious apparent risk and seclusion should continue until a transfer is carried through.” On 28 July the nursing notes recorded that Dr McKenzie “was in agreement that we continue to follow Dr Keogh’s [sic] written care plan unless there had been a significant change in presentation.” However, as recorded in the clinical notes on 29 July:
“S was taken out of seclusion yesterday by Nursing Staff. I was not aware of this until 2300 hours last night as the matter was not discussed with me. He is out of seclusion again today. I have seen S today and I agree that he is more settled though still on the high side with some evidence of over-familiarity and disinhibition. I have agreed with ward staff that he may be nursed out of seclusion meantime provide staffing levels are such that: 1) he is nursed 1:1 and that there is close supervision of this i.e., 2 male nurses always available. 2) If he becomes agitated he is to return to seclusion - … if he is abusive or threatening. 3) He is not allowed in any of the communal areas of the ward. 4) He must return to seclusion overnight as staffing levels will not permit 1:1 nursing. 5) The situation will be reviewed by Dr Kehoe tomorrow.”
[134]On 29 July the nursing notes recorded that Mr Kotey had discussed S with Dr McKenzie who “feels that he is marginally better than when she saw him on Monday. Therefore he is to be nursed on the ward in selected area if there is adequate nursing staff. However to sleep in seclusion at night.” Dr McKenzie herself reviewed S that day and recommended that he could remain out of seclusion during the day provided that “he is nursed 1:1 and that there is close supervision of this, i.e. 2 male nurses always available” but that “He must return to seclusion overnight as staffing levels will not permit 1:1 nursing” and that “the situation will be reviewed by Dr Kehoe tomorrow.” On 30 July Dr Kehoe recommended 2:1 nursing for S whilst out of seclusion. On 1 August the medical notes record that S had required 2 male staff in close contact all the time. Later that day Dr Kehoe recommended nursing on 1:1 basis, with seclusion as necessary, and that S should be kept away from female patients and staff.[135]Dr Kehoe states in his Affidavit:
“As S's RMO I certainly kept his seclusion under review, as did my colleagues.” “It was my clinical decision [as at 22 July] that S should not come out of seclusion until such time as a secure bed was available or he showed considerable clinical improvement. … It remained my opinion that seclusion was the only means of protecting other patients from physical and possibly sexual harm.” “Although this is not documented, to the best of my knowledge, S’s mental state and the decision to seclude him were reviewed regularly by a doctor. There were daily reports by nursing staff to doctors and regular ward rounds, which were multidisciplinary, when any major change in his mental state could have been assessed.” “The reviews of seclusion in this case related to the assessed need for seclusion in the first place, namely whether the circumstances had changed such that the safety of other patients, staff and the public could be guaranteed.”
[136]Mr bin Elahee says in his Affidavit:
“There was regular review by medical staff, to whom nursing staff would report daily. If there was no change in S’s condition, there would not necessarily be a record of such review. … It was as a result of such review and consideration by both medical and nursing staff that it was decided, on 28 th July, to institute different nursing arrangements, whereby S was permitted to come out of seclusion room …”
[137]Apart from the undocumented reviews referred to by Dr Kehoe, the following medical reviews were documented in the medical records whilst S was in seclusion: 5 medical reviews on 22 July, 5 medical reviews on 23 July, 6 medical reviews on 24 July, 5 medical reviews on 25 July, 3 medical reviews on 26 July, 6 medical reviews on 27 July, 2 medical reviews on 28 July (only in seclusion to sleep), 1 medical review on 29 July (only in seclusion to sleep), 1 medical review on 30 July (only in seclusion to sleep), 2 medical reviews on 1 August (only in seclusion to sleep).[138]It is also worth referring to the conclusions of Dr Harrop, consultant forensic psychiatrist at the Kestrel Unit, following her assessment of S on 2 August 2001:
“I would agree with the diagnosis of Bipolar Affective Disorder, currently manic. He continues to have grandiose ideas, is irritable, and easily aroused. Following our assessment we discussed his current presentation and viewed that he currently requires an intensive care unit which are (sic) normally secure.”
[139]While resources were clearly a factor in limiting S’s use of a toilet (see paragraph 117 above), and in his return to seclusion at night from 29 July, the evidence is that his seclusion was not otherwise dictated by a failure to provide resources. Reza bin Elahee states:
“When it was decided that Mr S should be nursed in seclusion on Ward 11 it was necessary to adapt the existing facilities and to bring in extra resources. Generally, while Mr S remained in seclusion, a nurse would be on duty, sitting outside the door to the seclusion room at all times. Extra staff were also required to escort Mr S if he came out of the seclusion room, for example to visit the toilet. Throughout the period in seclusion, it was necessary to deploy additional staff, specifically for the purpose of nursing Mr S and this was done by asking staff to work overtime and by employing agency and bank nursing staff.”
[140]That evidence was enlarged upon by Michael Shaw, the Acting Service Manager for the Mental Health Division of the Hospital, who states that finance was never a constraint on the number of nursing staff. He states that at all times sufficient staff were available to meet the aims and needs of the clinical treatment plan created for S by the multi-disciplinary team. I do not read Dr Kehoe’s statement that Airedale does not have the staff-patient ratio that is found in a secure unit inconsistent with that evidence.[141]Professor Eastman cogently suggested that the Hospital should have tried to bring S out of seclusion for short periods soon after the beginning of his seclusion, in order to test the necessity for his seclusion. Such a procedure is described in the judgment of Sullivan J in Colonel Munjaz (No. 2) : see the evidence quoted at paragraph 41 of his judgment. Professor Eastman also suggested that ward 11 could have been locked to prevent S from absconding. As to this, Dr Kehoe responded in his witness statement of 9 May 2002:
“In the circumstances, I considered that seclusion was the only safe method of treatment at that time. … I do recollect discussions that the ward could not be locked. In any event, Mr S was too ill, aggressive and disinhibited at this time to be managed in the ward environment even if the door were temporarily locked. It was also considered to be an unjustified restriction on the liberty of other patients, and contrary to ward policy, to lock the ward. … Mr S’s clinical state was such that it was simply not safe for him to be cared for in the open ward, even with one or two nurses in constant attendance. Indeed, it was not until he was taken out of seclusion on 28 th July 2001, when his clinical state had improved, that he was considered sufficiently well to be nursed on the open ward but only with a 2:1 staff ratio. It is important for the Court to understand the conditions in which S was kept after 28 th July 2001. in respect of the use of night-time seclusion, to the best of my knowledge, Mr S could ask to go out of the room and this would be arranged if it was safe to do so. Night-time only seclusion was introduced as Mr S’s condition appeared to have improved from the 27 th July when he had bitten a nurse. Although Mr S’s condition had improved, it continued to fluctuate and his behaviour was unpredictable as shown by his running away during this period. Mr S is a man of at least six feet and of large build. Night-time seclusion provided some measure of reassurance for the nursing staff, who were very wary of Mr S. It also gave some lack of proximity to other patients and reduced the risk to them. ... Even if I had made a clinical decision to nurse Mr S out of night-time seclusion, it would have been necessary for Mr S to be cared for away from the other patients. The only way to do this was in a room of his own.”
[142]There were differences of view between Professor Eastman and Dr Grounds. The former accepted the initial decision to seclude S as marginally acceptable, but thought that his seclusion should have been brought to an end earlier, and that certainly attempts should have been made to end it earlier. Dr Grounds considered that S’s seclusion was justified throughout. Both based their views on the Hospital’s documents and the witness statements and affidavits: neither of them had examined S. As I stated above, both accepted that they were at a disadvantage in comparison with the psychiatrists who assessed S at the relevant time. Neither of them knew the Hospital or its staff, or its other patients. Professor Eastman, while disagreeing with Dr Grounds, accepted that his views were respectable and reasonable. The duration and conditions of S’s seclusion: conclusions[143]Before setting out my conclusions, I comment that I am impressed by the detail and quality of the Hospital’s contemporaneous records. In addition, some of the documents suggest a real sympathy with S’s experience of seclusion: Dr Kehoe’s letter of 30 July 2001 is an example. The statements of Amanda Mortimer, the ASW, referred to above show a similar sympathy towards S and an understanding of the Hospital’s predicament.[144]For the reasons set out above, the seclusion of S did not involve the commission of the tort of false imprisonment and did not engage his rights under Article 5.[145]My conclusions are as follows:(a) Seclusion caused S distress and its conditions were unpleasant: I refer to the size of the room, its lack of interest, the absence of toilet and washing facilities, as well as the isolation involved.(b) There were times when demands on staff time led to a delay before he could be taken to the toilet or in removing his urine bottle or bed pan, the effects of which were unpleasant. However, the mess in the seclusion room was caused at least by S. Whether the staff were as assiduous as they could have been in clearing up the mess I cannot say, but there is no evidence that he was neglected.(c) As Professor Eastman pointed out, during the period of full-time seclusion, S’s behaviour seems to have deteriorated: there were, for example, outbursts of protest and aggression. This may have been a reaction to seclusion. However, his behaviour before seclusion was also disturbed. On the evidence I cannot find that his mental health was damaged by his seclusion.(d) It is clear that seclusion continued because in the absence of a place in a secure unit the Hospital considered it to be the only way of managing S. It is not suggested that seclusion was used as a means of punishment or otherwise in bad faith. In the situation in which the Hospital found itself, the care of S in seclusion was a responsible, and perhaps the only responsible, course open to the Hospital. It was regarded by the Hospital staff involved as a measure of last resort that they were compelled to take.(e) I am impressed by Professor Eastman’s evidence on the desirability of testing the necessity for seclusion by trying to have the secluded patient in association with others for a short period of time. Whether ward 11 could have been locked, and the content of the policy of not locking it, could not sensibly be explored in evidence in the absence of factual witnesses. The locking of the ward would probably have restricted the freedom of movement of the other patients on the ward; whether they would have objected to its being locked, and if so whether their behaviour or health would have been affected, were not investigated. If there were informal patients on the ward, the question whether their consent was required would have had to have been considered. The risk to patients and staff of S being in a ward with other patients was a matter rightly taken into account by the Defendant’s staff. In the light of Dr Kehoe’s affidavit witness statement and the Defendant’s other evidence, I do not find that the continuation of seclusion until 28 July was unreasonable or an unnecessary or disproportionate measure in the circumstances as they were. There were frequent reviews of his seclusion and its necessity, and there were justified fears as to the risk to patients and staff if S were out of seclusion. In short, as indicated above, I accept the Hospital’s evidence on the need for S’s continued seclusion.(f) Similarly, while the coincidence of S’s solicitors’ complaint as to his seclusion and the decision to restrict his seclusion to nights excites suspicion, I accept that the coincidence is adventitious, and that that decision was based on an improvement in his behaviour.(g) The Cygnet Wing had different staff and facilities from Airedale and received S at what would appear to have been a different stage of his illness (his mental state having improved on about 28 July 2001). It would be wrong to infer from his treatment at the Cygnet Wing without seclusion that seclusion was not necessary when he was at Airedale.(h) There was no breach of Article 3. The seclusion of S did not reach the necessary level of seriousness. If I had concluded that there was such a breach, it would not have been excused by the fact that there was no alternative to seclusion while S was at Airedale during the period until his transfer to the Cygnet Wing.(i) S’s seclusion would have ended on 27 July if he and his family had not objected to his transfer to the Cygnet Wing at Blackheath. While their objections are understandable (particularly given their lack of means for visits to London), their consequence (the prolongation of seclusion) was unfortunate.(j) The continuation of S’s seclusion at nights caused considerably less distress and stress than his full-time seclusion. It would have caused some distress by reason of his return to a room in which he had suffered considerable distress, the locking of the door and the possibility that he would not be released from the seclusion room next morning. It caused no damage to his mental health. His night-time seclusion did not approach an infringement of Article 3.(k) In the circumstances, there was no breach of Article 8.1. There was no lack of respect for S or his private life, and no exercise of arbitrary power. I therefore do not have to consider whether, if there had been a possible breach of Article 8.1, the Hospital could rely on Article 8.2 in circumstances in which its decision was compelled by the absence of resources elsewhere in the NHS.[146]The exercise by the Hospital of its power to seclude S was not made unlawful by reason of its being necessitated by the lack of a place for him on a secure ward. I do not think that the necessity for the decisions of the Hospital is to be determined by reference to the failure of the NHS to provide sufficient secure places generally. In paragraph 74 of the skeleton argument for S, it was submitted that “… it was not ‘necessary’ for a non-secure hospital to choose fulfil a function that it was not designed to fulfil, in making itself into a secure environment for this particular patient. Beds in secure wards should be provided for patients where the protection of the public or the patient is required. The “necessity” in this case was created either by(i) a lack of resources, partly those of the Defendant itself or(ii) the hospital’s decision to try to do what it was not designed to do.” No one, least of all Dr Kehoe and the other staff of Airedale, would quarrel with the second sentence of this paragraph, but I do not think that the first and the last sentences fairly describe the position of the Hospital. When it was appreciated that S required care in a secure unit, Airedale sought one for him. When the decision to seclude him was made, there was no real alternative. Even if the Hospital could lawfully have discharged him (as to which see section 23 of the Act and R v Riverside Mental Health Trust, ex parte Huzzey (1998) 43 BMLR 167), it would have been irresponsible, if not callous, and an act of negligence towards him and, unless he were placed in police custody, to the public. The Hospital did not voluntarily try to do what it was not designed to do: it found itself with a patient for whom it was not designed to care.[147]Whether the Hospital should have had better facilities for caring for someone like S is not something I can say on the material before me, assuming it would otherwise be appropriate for me to do so. Professor Eastman cogently made the point that S’s condition is not unusual, and that the shortage of secure places (and the delay involved in referral) means that if appropriate facilities are not available, seclusion will be resorted to regularly. Since Airedale accepts patients detained under the Act, some means of constraint must be available. S’s history of sexual offending, on one view of serious sexual offending, made his case less usual, but not unique. But, as mentioned above, only one other patient was secluded at Airedale in the period between 1 March 2001 and 28 February 2002.[148]The many reviews of S’s condition show that the Hospital did not fetter its discretion. While there are entries in the hospital records which might be interpreted as suggesting that a decision was made to keep him in seclusion until he could be transferred out, I do not think that that is a fair reading of them. When, for example, Dr Mackenzie was recorded on 23 July as concluding “that based on his mental state, he should remain in seclusion”, I do not doubt that if she had thought that his mental state had justified it his seclusion would have been terminated: see her own revealing note on S’s history sheet: “ On balance , I think he should remain in seclusion. If allowed out there is a risk of absconding/assaulting staff and patients.” (The italics are mine.)[149]The questions arising from departure from the Code of Practice are more complex. I agree with Sullivan J’s judgment in Colonel Munjaz (No. 2) of the function of the Code. It is not the equivalent of a statutory code, breach of which necessarily gives rise to unlawfulness if not illegality. It is a guide. It may be departed from if in the clinical judgment of those concerned it is unnecessary to follow its prescriptions. S’s skeleton argument mentioned a legitimate expectation that the Code will be complied with. In this as in so many other areas, the plea of a legitimate expectation adds nothing to the argument. In any case, I doubt that S had heard of the Code of Practice or was aware of its provisions. The Code derives its legal effect from the Act and not from any extra-statutory expectation.[150]Paragraph 19.21 of the Code requires reviews of seclusion every 2 hours by 2 nurses (1 of whom was not involved in the decision to seclude) and every 4 hours by a doctor. If seclusion continues for more than 8 hours consecutively or 12 hours intermittently over a period of 48 hours, it requires a multidisciplinary review. On 25 July the decision was made to check S only every 8 hours. In addition, S complained that the nurse who had made the decision to seclude him was involved in reviews. There is no evidence that the departures from the Code affected the duration or conditions of S’s seclusion, and no evidence that the reviews were, apart from the Code, inadequate. The decision to reduce the frequency of reviews appears to have been made deliberately, on the basis of S’s condition. In my judgment, these departures from the Code were not unlawful.[151]More difficult is the question whether the cause of S’s seclusion at nights after 28 July 2001 was a lack of staff. The evidence is conflicting. Mr Shaw, referred to at paragraph 140 above, states that all necessary staff were deployed. Mr bin Elahee’s evidence is to similar effect. However, as mentioned above, Dr McKenzie’s entry in S’s history sheet for 29 July states in terms:
“He must return to seclusion overnight as staffing levels will not permit 1:1 Nursing.”
I think that, notwithstanding the absence of cross-examination, I must prefer the specific contemporaneous document to the general statements of Mr Shaw, and Mr bin Elahee. Whether a deliberate decision was made not to bring in extra staff, and if so why, does not appear from the evidence, and I can make no finding on these matters. Conclusion[152]While the major challenge in principle to the use of seclusion for other than the shortest term failed in this case, it should not be thought that any green light has been given to the use of seclusion in non-secure hospitals. For reasons I have sought to summarise, it is clear that seclusion should be used only as a last resort, and its duration minimised. The underlying cause in this case for the excessive duration of S’s seclusion was the lack of an appropriate secure bed. It is wholly unsatisfactory for a non-secure hospital to find itself having to care for a patient who requires care in a secure unit. But the underlying problem is one of resources, and within broad limits, issues of resources are not for the courts. - - - - - - - - - - - - - - - - - - MR JUSTICE STANLEY BURNTON : My judgment has been distributed in draft and sets out my conclusions. I would like to express my appreciation to counsel for their corrections.PRIVATE  MISS STERN : My Lord, that really just leaves the question of costs and we simply have the usual application to make, namely that costs should follow the event in this case, given your Lordship's conclusions, and that the appropriate order would be the football pools order which is the one -- I have not memorised it, I am afraid. MR JUSTICE STANLEY BURNTON : I know what the football pools order is. MISS STERN : But that, in the circumstances of this case, there is absolutely no reason to depart from the usual order and that that would be appropriate in the circumstances. MISS SCOTT : My Lord, my submission is that there should, in fact, be no order for costs. MR JUSTICE STANLEY BURNTON : Because? MISS SCOTT : Well, the reason is this, that this is a human rights challenge brought by a young vulnerable patient against the hospital for what, on any view, was a legitimate and serious matter for him, ie his seclusion for a matter of weeks. And it is also a matter of general public importance. It is the first time that a court has considered in such detail a seclusion of a particular patient. MR JUSTICE STANLEY BURNTON : Of a particular patient, that is probably right, yes. MISS SCOTT : And so my submission is really that it would not, in those circumstances, be in the interests of justice to make such an order. The claimant has no money so the effect of the order would be a sword of Damaclese over his head, if you like, for any future MR JUSTICE STANLEY BURNTON : These orders always are swords of Damaclese, are they not? MISS SCOTT : Indeed, and, my Lord, the only other point that I would make is that it may act as a deterrent for other people bringing such claims against a hospital in the situation that the claimant finds himself. But, my Lord, that is really the only submission that I make in respect of an order for costs. My Lord, if you are against me on that, and you do make the order the defendant seeks, just to flag up that in fact the claimant did win on one point in your judgment and that is the human rights section 6.2 point, and that any order for costs should reflect the fact that that point was won by the claimant. MR JUSTICE STANLEY BURNTON : Well, that did not take very long, did it? MISS SCOTT : Well, perhaps, my Lord, I do not know. I was not there, but it is certainly in the judgment. MR JUSTICE STANLEY BURNTON : Well, no, it was just a matter of impression. MISS SCOTT : Yes, in the judgment, it is right that that does not take up an awful lot of your judgment, but I just flag that up to be borne in mind. MISS STERN : I am not sure your Lordship wishes to hear me in reply on the question of costs? MR JUSTICE STANLEY BURNTON : Well, it is always a pleasure to hear you, particularly if there is no pressure on your time. MISS STERN : No, my Lord. The point raised by my learned friend could be raised in just about any case. MR JUSTICE STANLEY BURNTON : That is the problem, frankly, particularly in human rights cases that there are novel points, but our procedures generally are that those who raise them may face a costs sanction. MISS STERN : That is one of the fundamental principles of litigation and there really is no reason to depart from that, particularly bearing in mind the factors that really, save for a fairly small potential award of damages which would have been in a relatively insignificant sum, this case from August of last year was largely academic from the claimant's point of view. It is also the cost to a public institution of well over six figures and that is a factor which is unfortunate and it is not something I am complaining about before your Lordship, but it is possibly a feature of this litigation that should be borne in mind. MR JUSTICE STANLEY BURNTON : Well, I am concerned about that, when we come to consider the next application, but there we are. Thank you very much. It seems to me that the considerations of general interest in this litigation and the possibility of the award of costs being a disincentive are not sufficient to justify departure from the normal rule. The issue of interpretation of section 6.2 on which the claimant succeeded was a relatively minor issue which did not involve any additional evidence and took up a relatively short period of time. It seems to me that the normal order should be made. It may be academic, but it is the normal order and there is no sufficient reason to depart from it. MISS SCOTT : My Lord, that just leaves two matters. The first is as well that the claimant seeks an order that the claimant's costs, a legal aid costs assessment. MR JUSTICE STANLEY BURNTON : Of course you may have that. MISS SCOTT : And the second is dealing with appeal. I believe, my Lord, that you have received a document that has been produced by Matthew Seligman, the junior counsel. MR JUSTICE STANLEY BURNTON : My present view, subject to hearing what Miss Stern has to say, is that there are issues to go to the Court of Appeal. I have to say I am concerned about the cost of litigation such as this, and we have already heard that the costs are in six figures for the hearing before me. I do wonder whether this is, given my factual findings, the appropriate case to go before the Court of Appeal. MISS SCOTT : My Lord, I am in an unfortunate position of perhaps not being able to assist as much as I would like, but it is certainly the view of Mr Seligman that this is an appropriate case to go to the Court of Appeal. It does raise serious issues about the case of Hague , which is of course a House of Lords' decision, and this is an appropriate case to go to the Court of Appeal. MR JUSTICE STANLEY BURNTON : Well, that is all you can say really. MISS SCOTT : Further than that, I think I cannot assist. MISS STERN : My Lord, I am going to seek to persuade your Lordship otherwise. Primarily and ultimately your Lordship's judgment did turn on questions of fact and degree, and ultimately the claimant's argument similarly raised questions of facts and degree, rather than points of absolute principle and by way of example it was accepted by the claimant that seclusion could be lawful, but there would come a point when it was no longer lawful. And, equally, on the question of residual liberty, which was referred to by my learned friend, it was accepted that that will ultimately, indeed if such argument could ever be allowed, it turns on the question of fact and degree of the comparison between the detention under the Act and the additional measures put in place for seclusion or for any other form of additional restraint on liberty under the Act. Given your Lordship's conclusions on the questions of minimum severity and on the conclusions of fact as to the conditions of seclusion, the frequency of reviews and the necessity for seclusion -- my Lord, I have the original copy of the judgment, the unapproved copy. MR JUSTICE STANLEY BURNTON : There are not many changes really.

(d) your Lordship found that:

"In the situation in which the Hospital found itself, the care of S in seclusion was a responsible, and perhaps the only responsible, course open to the Hospital."
At paragraph (e), at the bottom of what is my page 74, your Lordship found:
"In the light of Dr Kehoe's affidavit witness statement and the Defendant's other evidence, I do not find that the continuation of seclusion until 28 July was unreasonable or an unnecessary or disproportionate measure in the circumstances as they were. There were frequent reviews of his seclusion and its necessity, and there were justified fears as to the risk to patients and staff if S were out of seclusion. In short, as indicated above, I accept the Hospital's evidence on the need for S's continued seclusion."
Paragraph (h):
"There was no breach of Article 3. The seclusion of S did not reach the necessary level of seriousness."
My Lord, those are conclusions of fact which essentially dispose of the points of principle which could be raised on an appeal and, my Lord, in the light of those conclusions, which are essentially factual conclusions, we say that the points of principle which could potentially have been raised by this case really are not sufficiently significant to justify permission to appeal being granted. And, my Lord, there is the additional point which your Lordship has raised, which are the costs, in which the extent that there are academic points of principle raised as to the proper analysis of seclusion, to some extent they have been touched on by the two judgments in Munjaz , to which your Lordship has already referred. I am afraid I am not sure whether Munjaz is going on appeal, but there may well be other cases in which these more general points of public interest are being raised and I would strongly argue against this case where there is a case against the individual trust going to the Court of Appeal where on the factual issues your Lordship's conclusion is clear and indeed sufficient to dispose of the issues raised. So, my Lord, those are, in essence, the arguments against permission to appeal being granted. If your Lordship was minded to grant permission to appeal we would seek a direction or an indication that the Secretary of State for Health should be served as an interested party because they have been very much absent from these proceedings in any event. MR JUSTICE STANLEY BURNTON : It was passing through my mind that one reason why I am in doubt as to the grant of leave is that the Secretary of State did not participate. The Secretary of State did participate in Munjaz (No 2) , as I have called it. MISS STERN : My Lord, yes. MR JUSTICE STANLEY BURNTON : Maybe in relation to the Code of Practice, and the need for seclusion in this case, there is out of Central Government decisions and allocation of resources in a sense -- well, undoubtedly, because there was not a place available for S elsewhere. MISS STERN : My Lord, they did, whereas in Munjaz where general points are raised as to policies which are being applied in institutions, the more general points of public interest are directly raised, in this case it really was a question of fact as to whether or not things got so bad for S that it reached the threshold, and given your Lordship's conclusions and given the fact that this is, in essence, and I say this with no disrespect to the claimant, it is in many ways a dressed up negligence claim. MR JUSTICE STANLEY BURNTON : Well, that is something I pointed out, in a sense, or I intended to. MISS STERN : My Lord, yes, and given that whilst there may be broader issues which turn on whether or not the defendant could act otherwise, your Lordship has found that the threshold for liability was simply not crossed in this case and, in those circumstances, the defendant is very anxious to avoid the further costs of an appeal when the actual critical issues being raised against the defendant are academic from the claimant's point of view and, really, are unlikely to give rise to a real prospect of success on appeal, given the factual finding made by your Lordship. MR JUSTICE STANLEY BURNTON : Is there anything else you want to say? MISS SCOTT : My Lord, I do not think that it would be very helpful for me to go into it, but just to say that the grounds of appeal, the document grounds of appeal do clearly flag up that it is not just a question -- the grounds of appeal do not just turn on questions of fact. They are looking at the policy of the defendant for whether the policy not to lock wards, for example, is lawful and interpretation of the Mental Health Act and what medical treatment is needed and so, those, in my submission, do not turn on questions of fact. MR JUSTICE STANLEY BURNTON : Thank you very much. The question of permission to appeal troubles me, not least because of the costs involved in disputing, to some extent, the questions of principle where the defendant is a particular trust and where the Secretary of State has not been represented and has not made submissions or put in evidence. To a significant extent, my decisions were decisions on questions of fact and degree. While I see the force of Mr Seligman's draft, given the comments I have just made, given that so far as the claimant is concerned the questions were to some extent academic, in the sense that they were not directed against any continuing treatment of his, it seems to me that the better course is it is for the Court of Appeal, which will immediately have my judgment to determine whether this is an appropriate case to give permission to appeal and to hear an appeal. In saying that, I am clearly not saying this is an open and shut case, but I think it is better that the Court of Appeal should consider, in the light of recent authorities, whether this is an appropriate case for appeal. I would mention two matters. One, if an application is made to the Court of Appeal I would like it brought to their attention that the defendant on this application suggested that the Secretary of State should be served as an interested party and that I would endorse that suggestion, had I granted permission to appeal, I would have made that direction. My other concern is whether, in cases such as this, while the courts are the only form in which disputes as to treatment, whether medical or otherwise, can be disputed, the extent to which on an application for judicial review it is entirely appropriate for this to be the forum and that must be a matter for the Court of Appeal if they grant permission. As I indicated in my judgment, had this case been fought as a common law dispute claim I cannot see that the evidence would have been completed in less than a fortnight and perhaps it would have taken longer. So, Miss Scott, I think I have made it clear I have not said this is a case which is inappropriate for there to be permission to appeal, but it seems to me that in a case of this kind it is better for the Court of Appeal to give permission. Unless there are any other matters? Thank you. * * * * * IN THE HIGH COURT OF JUSTICE CO 3043/2001 QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW R (on the application of) YASIR WASEEM SADIQ Claimant - and - (1) AIREDALE NATIONAL HEALTH SERVICE TRUST (2) AIREDALE PRIMARY CARE TRUST (3) BRADFORD COMMUNITY TRUST Defendants ANNEX TO JUDGMENT OF STANLEY BURNTON J: BEHAVIOUR DURING SECLUSION 21 st July - 2 nd August 2001 22nd July 2001 4.10 am - complains of neck pain and nurse suggests that move pillow off bed 10.00 - banging on door 10.30 - acuphase and lorazepam given 11.06 - assisted by male staff from security and out of hours team. Administered 150 mg Acuphase, 4 mg lorazepam and urine bottle changed. Need restraining to administer medication. 16.15 - some aggression. Speech mildly slurred. “Dr K can xxxx off” 16.25 - began shouting abuse 17.55 - requested cigarette and verbally hostile on refusal 19.10 - obs taken. Verbally abusive 19.25 - given drink. Still verbally abusive 23rd July 2001 6.55 - staff offered him a drink and his reply was just verbal abuse 8.25 - banging on window 8.55 - 4 mg of lorazepam given IM to relieve agitation 9.10 - cornflakes thrown across floor. Verbally abusive 10.15 - verbally aggressive but cooperative with physical examination 12.30 - evidence of agitation. Punched the ceiling in the seclusion room. Injection of lorazepam given at about 9.00 15.30 - mildly sedated. He is disinhibited and threatening in his manner. He is still manic 18.10 - changed meal due to not liking it. abusive to staff 18.55 - escorted to toilet. Pushing boundaries. Accusing staff of being rascist. Also swearing 24th July 2001 9 - demanding of staff intervention. Some challenging behaviour and insulting comment made toward staff Kehoe review - he is disinhibited and elated. Smiling and giggling. Restless. 12.20 - presentation remained changeable with some element of elation 14.20 - given procyclidine for side effects 14.30 - 2 mg of lorzepam oral at time of writing 15.35 - wailing. Wants to be let out of room 16.20 - complaining of toothache. Voltarol given 17.35 - banging on wall and door. Verbally abusive 17.50 - constant wailing. Thrown food across floor 18.20 - requesting to be let out. Abusive on denial. Banging on windows. 18.35 - given paracetamol for toothache and 4 mg of lorazepam due to aggressive state 20.25 - Has been agitated and verbally abusive. Threw his tea on the floor. Fluctuated from appearing to be choking to getting up and kicking the door. 25th July 2001 Has been banging on door Escorted to toilet. Washed. Given breakfast. Verbally abusive to staff 13.50 - banging door 15.29 - restless, banging on windows 15.50 - restless. Spitting at observation windows 16.45 - earlier this evening urinated in the room and threw most of his meal on the floor 17.20 - poured ½ litre of coke on the bed 26th July 2001 More restless night. 4 mg lorazepam given for reported agitation. 9.50 - complaining of tooth pain. Given 500 mg of paracetamol 10.05 - escorted to toilet. Aggressive and verbally abusive 11.20 - agitated. Banging fists and head on window. Verbally abusive to ward staff (racially abusive) 11.35 - agitated. Banging fists on window and door verbally abusive 12.11 - as morning progress, more aggressive behaviour displayed in the form of banging wall windows and doors. Refuse medication this morning. On last escort to toilet sat on floor and refused to move. Threatened to assault staff. 14.20 - requesting to go to toilet. Refused due to staff restraints. Became verbally abusive and smashed water jug 14.50 - became verbally abusive and attempted to strike at staff member when returning to seclusion 15.45 - medication being administered by staff 22.20 - requesting night time medication. Medication given 27th July 2001 12.20 - in interview room, came out, attempting to intimidate female staff, returned to IR with minimum prompting. 12.50 - forced way out of seclusion when retrieving meal. Had to be physically restrained to be returned to seclusion. Physically and verbally violent with staff. Biting SN Hancox 13.00 - when sister was off the ward, Yasar came out of interview room on more than one occasion, invasive of staff personal space. Verbally hostile. 14.20 - asking for door to be opened. Verbally aggressive on refusal 20.20 - given 4 mg lorazepam intramuscularly following incident described above. 21.15 - found to be smoking in seclusion room. Asked to desist. Cigarette and lighter removed from trouser pocket. Hostile to this 21.20 - asking for sleeping tablets 21.35 - asking for lorazepam (not given). Medication given. escorted for smoke (security present). 21.50 - pacing room. Demanding more medication 22.,20 - becoming verbally threatening. Asking for medication. Exercising 22.35 - appears physically well but is agitated and requesting lorazepam. Has had 9 mg already today 23.05 - asking for medications 28th July 2001 6.20 - awake. Banging on door. Wanting to go to toilet. Let out to use toilet. Security present. Care plan - risk of inappropriate or threatening behaviour necessitating restricted use of area of the ward 13.05 - pushing boundaries on occasion. 20.20 - appears restless at times and needed to be reminded about agreements. He was restless pushing boundaries of areas it had been agreed he could go in. As last night he was very demanding that he be given lorazepam tablets, although the amount of apparent agitation was mild because of his repeated requests. 22.00 - given lorazepam 29th July 2001 7.30 - awake. Allowed to toilet with close escort - 2 staff and security officer 12.20 - he is more settled though still on the high side with some evidence of over-familiarity and disinhibition 20.10 - states he is a master criminal and the streets are safer as he is in hospital. Left the ward on one occasion in a half-hearted manner returning without incident when prompted. 22.00 - asking for medication. Night time medication given 30th July 2001 Kehoe RMO review - he has had intensive nursing. He ran off yesterday and had to be escorted back from Hospital Reception. On another occasion he became agitated and would not agree to limitations put upon him on open ward. He also was insisting that he be let home. Currently he is taking CBZ and OLANSAPINE Making repeated requests for lorazepam 13.30 - one attempt to leave ward. Given lorazepam. Brought back from main entrance and placed in seclusion 10.10 - 12.10 19.30 - visited in friends who brought him some cannabis resin. Room and his person searched. Admit to smoking on the ward. 31st July 2001 Bunch of keys found on him including a car key 13.00 - became restless and agitated following visit by father/younger brother and lawyer. Given lorazepam 2 mg. Still tending to push parameters allowed for free movement on the ward. His interaction with females still shows signs of disinhibition. Same selected 3 observation to minimise confrontations. 19.40 - after family visit S was frustrated and stated the family are doing my head in. 1st August 2001 Generally restless around the ward since Monday. Remains rather hostile to certain member of staff. Has required 2 male staff in close contact all the time. Appears rather sedated. A little unsteady on feet. Good eye contact. Restless. Easily distracted wearing baseball cap. Irritable. A little hostile. 12 noon - mental state remained the same - elation, distractability and quiet agitation 2nd August 2001 As required lorazepam on request prior to bed

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