UK: Seclusion After the Human Rights Act: Important New Court Guidance

Last Updated: 11 September 2003
Article by Andrew Parsons

Originally published in August 2003

The power to seclude a patient has long been recognised as a necessary element in dealing with patients who are detained under the Mental Health Act 1983 and who pose a risk of significant harm to others. The Code of Practice defines seclusion as "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 had been a practice that, in view of its nature, inevitably has given rise to concerns. These concerns include the misuse of seclusion as a punitive measure and the risk of "therapeutic nihilism", where the clinical team become hopeless about the chances of successful treatment. It is therefore unsurprising that this practice has recently been challenged, with the aid of the Human Rights Act 1998, by patients who had been subject to seclusion. The case is particularly interesting in the importance that the Court of Appeal gave to the Code of Practice, which lacks statutory weight, in the protection of patients who by reason of their seclusion may be extremely vulnerable to breach of their human rights.

The Court of Appeal considered the lawfulness of seclusion in respect of psychiatric patients detained in hospital in connection with the cases of two separate patients who had challenged the lawfulness of the use of seclusion. Firstly, Colonel Munjaz challenged the nature of his seclusion at Ashworth Hospital, where he had been detained under a transfer from a medium secure unit (having committed various criminal offences). He had initially spent his first two years in seclusion at Ashworth and in later years had been placed in seclusion on 4 separate occasions. He did not challenge the decisions to place him in seclusion or the length of the seclusion. His challenge was to the lawfulness of Ashworth’s policy which he claimed departed from the Judgment in a previous case in which he had successfully raised issues concerning the policy and also departed from the Code of Practice. A fundamental element of the patient’s challenge related to the practice of review adopted by Ashworth, which he argued was a departure from the Code which posed a risk of breach of his rights under Articles 3 and 8 of the Human Rights Act. Ashworth’s policy (which had been reviewed following the original challenge by the Colonel) provided for medical reviews twice daily from days 2-7 of seclusion but thereafter for 3 each week (including one by the patient’s RMO) together with a weekly multidisciplinary review (also including the RMO).

S, the other Applicant in the case before the Court of Appeal, challenged the reasonableness of his seclusion. He had been admitted to Airedale General Hospital for treatment under Section 3 after an initial period of detention under Section 2, when he had shown aggression to the police and had been secluded. He had been assessed for possible admission to a secure unit in York, but that unit could not take the patient for another few days. When reviewing his seclusion, S’s RMO decided that S should not come out of seclusion until either a bed was available in a secure unit or he improved. His transfer did not take place because his family objected to him being moved so far away and threatened judicial review. He was then allowed out of seclusion and later transferred to a low secure unit where he was treated without any need for seclusion. He was transferred back to Airedale about 3˝ weeks later where he remained without seclusion until he was discharged a few days later. The patient argued that the latter period of continued seclusion had only been used because the Hospital had not been able to transfer him to another unit in the relevant period. Accordingly, the patient argued that seclusion had been used for a purpose not sanctioned by the Code of Practice; from the time when the decision should have been made to release the patient from seclusion amounted to a breach of his rights under Article 5 i.e. the right to liberty.

The Case of Colonel Munjaz – Departures from the Code

The Code requires review of seclusion every 2 hours by two nurses and every 4 hours by a doctor or a multidisciplinary review should the seclusion continue for more than 8 hours continuously or 12 hours intermittently over a period of 48 hours. Ashworth sought to justify departure from these requirements with reference to the nature of Ashworth as a special hospital and the risk assessment and risk management plan procedures that applied to all patients in the hospital. Ashworth held some very dangerous patients who were secluded for a long period of time; the hospital argued that the factors that rendered these patients dangerous were unlikely to be resolved in the short term and therefore their departure from the review requirements of the Code was justified. In contrast, where patients were on a short period of seclusion there was a real purpose for them to be subject to twice daily reviews, to check any improvements in their condition which would justify release from seclusion.

The Court of Appeal held that seclusion was capable of amounting to inhuman or degrading treatment as prohibited by Article 3. The Court referred to the test set down in the Strasbourg jurisdiction which stated, inter alia, that when considering whether treatment is degrading under Article 3 the Court should have regard to "whether its object is to humiliate or debase the person concerned and whether as far as the consequences are concerned it adversely affected him or his personality in a manner incompatible with Article 3. This has also been described as involving treatment such as to arouse feelings of fear, anguish and inferiority capable of humiliating or debasing the victim and possibly breaking their physical or moral resistance." The Court of Appeal stated that the detention of psychiatric patients was a means to an end i.e. the assessment and treatment of their mental disorder and a condition of detention which defeated rather than promoted that end was much more likely to amount to inhuman or degrading treatment. In this case, the patients did not argue that their rights under Article 3 had been breached but that given the State’s obligations not only to refrain from such treatment but more positively to protect the health of people deprived of liberty, there would always be a risk that seclusion would be in breach of Article 3. The State had a duty to prevent breach of patient’s human rights in this way. The Court emphasised the importance of the Code of Practice in achieving the State’s obligations to avoid ill-treatment of patients detained and, in these circumstances, secluded.

The Court also acknowledged that seclusion infringed a patient’s rights to private and family life under Article 8 unless it could be justified under the qualification in Article 8(2), any conduct that purported to be justified under 8(2) was required to be "in accordance with the law". The Court accepted that the Code of Practice had an important role to play in the safeguarding of the Article 8 rights of detained patients who were subject to seclusion.

The Court of Appeal held that the policy of Ashworth was unlawful insofar as it departed from the Code’s requirements on reviewing patients subject to seclusion. The hospital could not justify departure from the Code by reference to how long patients had been secluded. The Court stated that the Code should be observed by all hospitals unless they had a good reason for departing from it in relation to an individual patient. The Court recognised that because of the nature of the patient population at hospitals such as Ashworth, there were likely to be more individual cases in such hospitals in which there might be a good reason to depart from the Code. It might be possible to define specific characteristics which justified particular departures and for hospitals therefore to develop general guidelines which could be applied to all individuals who share those characteristics. However, the length of time in seclusion could not in itself amount to a good reason for such departure. The need for safeguards which was provided by regular medical reviews did not simply depend upon the period of time for which patients were secluded.

Comment

It will therefore be important, in the light of the Court’s comments, for hospitals to avoid having blanket policies which deny patients the safeguards such as regular reviews as provided for in the Code. Any guidance relating to particular categories of patients must be worded in a manner that allows discretion and consideration of the individual requirements of patients, rather than imposing a policy decision in connection with specific groups of patients.

The Case of Mr S – A Justified Seclusion?

At the hearing of the original application, which formed the subject matter of this appeal, expert evidence in psychiatry had been given on behalf of S and the hospital respectively. The hospital’s expert had expressed the view that the seclusion had been necessary and justifiable as there did not appear to be an effective and safe alternative at the time. The records had not confirmed that all the nursing and medical reviews required by the Code of Practice had taken place, but it did not appear that this had had a material effect. The expert called on behalf of the patient took the view that the initial decision to seclude was reasonable, but it was not necessary to continue seclusion for the length of period for which S had been detained. The expert stated that the decision to continue the seclusion appeared to have been largely precipitated by the information received from the police about the Claimant’s past history of sexual offending rather than by any change for the worse in his current mental state and behaviour. There had been no incident of current aggression to justify continued seclusion. While the history of past offending should have alerted staff to the risk of offending on the ward, the ward could have been locked to protect the public and the patient could have been "specialled" one to one to minimise the risk to other staff or patients.

The Court of Appeal identified the criterion for lawful seclusion as being that of reasonable necessity judged against the purpose for which the restraint is employed. The same criteria applied regardless of whether the underlying purpose of the seclusion was for treatment or control of the patient. Taking these considerations into account, the Court of Appeal held that the hospital were not justified in keeping Mr S in seclusion from the time when to do so was no longer a necessary or proportionate response to the risk he presented to others. The Court favoured the expert evidence given on behalf of the patient and stated that the evidence put forward on behalf of the hospital that seclusion was being used by the hospital because there was no other alternative at the time was not an adequate justification. The question of "proportionality" should now always be considered when patients are to be placed in seclusion.

Although the Court held that the seclusion of Mr S was unlawful in public law terms, it did not amount to a breach of the patient’s rights under Article 5, which the Court held was not concerned with the condition of detention. This was not a case where the patient had been detained in a type of institution which was inappropriate to meet the Article 5(1) purpose i.e. the lawful detention of persons of unsound mind.

The importance of the Code for Seclusion

The Court of Appeal, in reversing the decision of the lower Courts, held that the Code should be observed by all hospitals unless they had a good reason from departing from it in relation to an individual patient (see above). The Code was prepared for "the guidance" of doctors and others and the Court held that it would fly in the face of the original purposes of the Code if hospitals or professionals were free not to follow it without good reason. The safeguards provided by the Code were particularly important where there was a risk that patients might be treated in a manner which contravened their human rights. The Court held that the State should take steps to avoid such breaches of human rights through publication of a Code of Practice which its agents were obliged to follow unless they had a good reason to depart from it.

The Code requires that hospitals must have clear written guidelines on the use of seclusion it is advised that hospitals review their guidelines in the light of this recent judgment of the Court of Appeal.

Footnotes

1 Paragraph 19.16 Code of Practice Mental Health Act 1983.

2 R (on the application of Munjaz) v Mersey Care NHS Trust and R (on the application of S) v Airedale NHS Trust [2003]

3 Keenan v United Kingdom (2001)

4 See paragraph 19.17 of the Code of Practice.

© RadcliffesLeBrasseur

The content of the article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

 

 

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.