Abstract
<p><em>R (on the application of Colonel Munjaz) v Mersey Care NHS Trust; S v Airedale NHS Trust</em></p><p><em>Interested Parties: 1) Secretary of State for Health; 2) Mind</em></p><p><em>[2003] EWCA Civ 1036 Court of Appeal (16th July 2003) Lord Phillips MR, Hale LJ, and Latham LJ</em></p><p>This is the Court of Appeal decision in two cases which raised questions about the status of the Mental Health Act Code of Practice. Although both cases concerned the use of seclusion, the judgment is likely to have a significant impact on any matter covered by the Code. At first instance Stanley Burnton J and Sullivan J had each held that the Code was merely guidance to which Trusts should have regard but from which they could depart. Such departure would only be unlawful if it was Wednesbury unreasonable.</p>
Highlights
The Code of Practice defines seclusion as: ‘The supervised confinement in a room, which may be locked to protect others from significant harm
Colonel Munjaz was a patient in Ashworth hospital
Ashworth issued a seclusion policy in 1999, which departed from the Code in a number of respects. It reduced the number of medical reviews from 4 hourly to twice daily on the second and third days and once daily thereafter
Summary
Hospitals are required by the Code to have clear written guidelines on the use of seclusion. Prior to the first instance hearings in these proceedings, Colonel Munjaz had brought Judicial Review proceedings heard by Jackson J He decided that departure from the Code would only be lawful if it was justified by a good reason arising from the particular circumstances at Ashworth. The appeal in Munjaz concentrated mainly on whether Ashworth’s policy of departing from the Code was unlawful given the risk that seclusion would breach Article 3 (right not to be subject to inhuman or degrading treatment). Mind intervened to argue that seclusion, and other matters dealt with by the Code, interfered with patients’ Article 8 rights (right to respect for private and family life) and would only be lawful if it was justified. These remedies would not be triggered by the use of seclusion in itself, nor even every use of seclusion about which legitimate complaint might be made, and certainly not every use of seclusion which did not comply with the Code of Practice[15]
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