In the case of S v Airedale NHS Trust a young mental health
in-patient challenged his detention in seclusion by the trust while
they sought a more suitable placement to meet his needs.
The high court rejected the claim, saying that not all cases of
seclusion would amount to a breach of article 3 of the European
Convention of Human Rights (ECHR). In the case of “S”,
he found that the conditions were not poor enough to constitute a
breach of article 3, and that to a degree the conditions of the
detention were caused by S’s lack of cooperation.
He “anxiously scrutinised” the evidence to decide
whether the continuation of the seclusion was reasonable and
lawful, and decided in the circumstances where the trust was
actively looking for a suitable placement, that resources were a
factor which should be taken into account when deciding on
the legality of the trust’s actions. He concluded that the
trust had acted lawfully, but warned that this should not be a
“green light” to justify seclusion in all cases.
However, S appealed to the court of appeal which considered his
case along with that of a Colonel Munjaz, who was challenging the
policy of Ashworth Hospital not to follow the Mental Health Code of
Practice when patients were secluded for more than three days. In
Munjaz v Mersey Care NHS Trust  EWCA Civ 1036 (16 July 2003)
the court gave judgment in both cases.
The court of appeal considered the questions posed above, under
three headings. Firstly, it considered the position in private
domestic law; secondly the position under the ECHR and the Human
Rights Act; and thirdly, public law and the status of the code of
The court accepted that there was an implied power, once a
person was formally detained under the Mental Health Act (MHA), for
the authorities to seclude a person within the hospital as a
“necessary ingredient flowing from the power of detention for
treatment”. In addition, seclusion could, in some cases,
amount to medical treatment under the MHA and for most detained
patients consent is not required under section 63 of the MHA for
treatment considered necessary by the responsible medical
If a patient was not detained then the common law doctrine of
necessity was relevant. For those with capacity the doctrine could
be invoked to protect other persons from the patient. If a patient
lacked capacity then there would be a power to provide treatment
and care which was in his or her best interests.
The primary submission of the patients was that the state must
take steps to prevent seclusion breaching article 3 (right to
freedom from inhuman and degrading treatment) in a particular case,
in order to satisfy its positive obligation to protect the health
of those deprived of their liberty, and that an effective code of
practice was one of those steps.
In relation to article 8, MIND the mental health charity, argued
that seclusion would always be a breach of the right to respect for
private life, and the question was whether the breach could be
justified under article 8(2). To do so, not only must the breach be
for a legitimate aim and proportionate, it must also be “in
accordance with law”. This included the transparency and
predictability required by the convention concept of legality,
which was provided by the code of practice so long as it was
The status of the code of practice
From the above, it can be seen that the code of practice
occupied a central position in these cases in the court of appeal.
The court observed that the code is, in the MHA, said to be
provided for guidance and there is no statutory requirement for it
to be complied with or to give reasons for departing from it.
However, taking human rights obligations into account, the court
decided that the arguments for according the code of practice a
status whereby it must be followed unless there were good reasons
not to, were compelling. In relation to article 3 this status was
necessary so that agents of the state were obliged to follow the
code (unless there were good reasons not to) to lessen the risk
that they may treat patients in an inhuman or degrading manner. In
relation to article 8, the requirement of legality in article 8(2)
was likewise met by adherence to the code.
The courts conclusions in the individual
In the Munjaz case, the court held that the wholesale departure
from the code in certain groups of cases based on the length of
time spent in seclusion was unlawful. Ashworth would, however, be
permitted to consider departure from the code for good reason in
In S’s case, on the facts, the court found that his
seclusion in breach of the code on the basis that there was nowhere
else for him to go was not justified. In both cases appropriate
declarations were granted.
Comment: Seclusion of mental health patients is
treated as a very important issue in this case, and not one where
the problems and difficulties highlighted by the authorities have
been determinative of the case before the court.
The code has taken on a new importance – any departure
from it, at least where fundamental rights are concerned, will need
to be justified. Practitioners will need to become more familiar
with its terms if they are not already up to speed. The argument
may be heard that the duty placed on the detaining authorities to
abide by the guidance is too onerous. However, it is noteworthy
that social services departments have statutory duty to “act
under” departmental guidance.
Doughty Street Chambers