Seclusion policy at Ashworth hospital

In the case of R (Munjaz) v Mersey Care NHS Trust, Mr Munjaz is detained at Ashworth hospital pursuant to the Mental Health Act 1983. He challenged the hospital’s seclusion policy on the basis that it was inconsistent with the code of practice to the MHA 1983. The code says that a patient’s seclusion should be reviewed by a doctor every four hours and, if it continues for more than eight hours continuously (or 12 hours intermittently over 48 hours) by the multidisciplinary team.

Ashworth hospital’s seclusion policy, which had been revised following an earlier successful challenge to it by Mr Munjaz, stated that medical reviews would only occur twice daily from the 2nd to the 7th day of seclusion, and for any three such reviews per week thereafter.

The appeal court rejected Mr Munjaz’s challenge.

The House of Lords agreed with the court of appeal and rejected Mr Munjaz’s challenge.

It held that having regard to the nature of the client group at Ashworth the policy was lawful, even though it departed from guidance given in the code of practice. It further said that:

• The code of practice is not binding: it is simply guidance

• However, it is guidance that must be considered with great care, and from which healthcare providers and practitioners should depart only if there are cogent reasons for doing so

• Those reasons must be spelled out clearly, logically and convincingly.

In the case of R (MH) v secretary of state for health the House of Lords has now considered this case and has overturned the appeal court’s judgment.

Briefly, the facts were that MH was an adult woman severely disabled by Down’s syndrome. She was detained under section 2 of the Mental Health Act 1983. Her mother, acting as nearest relative, applied for her discharge and the RMO, concerned that MH was “dangerous”, barred it.

An order was sought displacing the mother as nearest relative. As a result, pursuant to section 29(4) of MHA 1983, MH’s section 2 detention was extended while the displacement proceedings were resolved.

The appeal court had held that section 2 of the MHA breached article 5(4) of the convention because it does not guarantee that an incapable patient will have her case reviewed by a MHRT: and that section 29(4) breaches article 5(4) because, where it extends a patient’s section 2 detention beyond 28 days, it does not give her a right of review.

The House of Lords has overturned the appeal court. Bareness Hale gave the leading judgment. She said that article 5(4) only requires that a patient has the right to take proceedings, and if it is thought that she wishes to do so, “every sensible effort” should be made to assist in that regard. Alternatively there were provisions in the Mental Health Act (section 67) whereby MH’s relatives could ask the secretary of state to refer her case.

In relation to section 29(4), Bareness Hale said that if the displacement proceedings were allowed to become protracted then it is possible a patient’s article 5(4) rights might be compromised. To avoid this such proceedings should be resolved quickly, with the court making an interim order if necessary.

Hempsons have suggested that in light of this judgment practitioners should consider the following: –

• Hospitals and practitioners should review the means by which they inform patients of their rights

• Systems should be in place to ensure that every sensible effort is made to assist incapable patients that might wish to do so to apply to a MHRT

• Similar care should be taken with patients – whether incapable or capable – whose section 2 detention is extended by section 29(4). All involved in the proceedings must act expeditiously. If there is delay, it might be prudent to ask the secretary of state to refer the case to a MHRT.

In the case of R (B) v SS, SOAD and health secretary, B was a patient detained pursuant to the MHA. He said he had capacity and could therefore only be given treatment without his consent if it was necessary to prevent harm either to members of the public or himself.

The appeal court disagreed stating it was only necessary to show that the treatment proposed was a therapeutic necessity. A capable detained patient may be treated for mental disorder without his or her consent.

Adam Hartrick
Hempson’s solicitors

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