Two hospitals caring for detained psychiatric patients were wrong to disregard provisions on the use of seclusion—the hospital equivalent of solitary confinement—in the Mental Health Act code of practice, the Court of Appeal ruled last week.
The judgment, which lawyers and psychiatrists expect will have far reaching consequences, overturned two earlier High Court case rulings that held that the hospitals had to have regard to the code of practice but were not obliged to follow it.
The appeal court held that unjustified seclusion is a breach of article 8 of the European Convention on Human Rights: the right to respect for private life. The right can be interfered with only for a legitimate aim and only “in accordance with law.” The requirement for legality was met through adherence to a code of practice, said Lady Justice Hale, delivering judgment.
“We conclude that the code should be observed by all hospitals unless they have a good reason for departing from it in relation to an individual patient,” said the judge. She said hospitals could identify good reasons for “particular departures in relation to groups of patients who share particular well defined characteristics.”
But they could not depart from it “as a matter of policy and in relation to an arbitrary dividing line which is not properly related to the code's definition of seclusion and its requirements.”
The three appeal court judges held that Ashworth Special Hospital's own policy on seclusion—which departed from the code in several respects, particularly on the frequency of medical reviews—was unlawful. The hospital was “not justified in departing from the code of practice on a wholesale basis, rather than when there are good reasons to do so in an individual case.”
In the case of S, a 19 year old man with a manic illness who absconded and had a history of sexual offences, Airedale Hospital was not justified in keeping him in seclusion “from the time when it ceased to be a necessary and proportionate response to the risk he presented to others.” The judges said that seclusion “should not have been used simply as a means of keeping him in the hospital” while staff tried to find him a place in a secure unit.
Figure 1.
Lady Justice Hale: the right to respect for private life can be interfered with only for a legitimate aim
Credit: UPPA/TOPFOTO
The cases were brought against Airedale Hospital by S and against Ashworth Special Hospital by Colonel Munjaz, a 55 year old patient. Submissions were also made by the Mental Health Act Commission, the mental health charity Mind, the Royal College of Psychiatrists, and the health secretary—who argued that the code was for guidance only.
Mind's principal solicitor, Simon Foster, said: “The decision is a major victory in the battle to uphold the rights of people with mental health problems. We hope the secretary of state for health will now issue clear directions to health professionals on their duties under the code. We also call upon him to issue a new code as soon as practicable to take account of the Human Rights Act and to guarantee that any new mental health act will be accompanied by a legally enforceable code of practice.”
Tony Zigmond, a consultant psychiatrist and the Royal College of Psychiatrists' lead spokesman on mental health law reform, said: “We welcome the judgment.”