Campaigners have condemned a law lords judgement allowing a secure hospital to depart from statutory guidance and set its own policy on the seclusion of patients.
Mental health charity Mind believes the judgement will open the door for hospitals to ignore the Mental Health Act 1983 code of practice whenever they choose.
The case was originally brought by Colonel Munjaz, and backed by Mind, after he was placed in seclusion four times at Ashworth Special Hospital, Merseyside, in 2001-2.
Munjaz claimed Ashworth’s policy on seclusion was unlawful because it allowed for less frequent medical review of the practice than is laid down in the code.
But the law lords ruled by three to two in favour of Mersey Care NHS Trust, which manages Ashworth, arguing that the code constituted guidance, not instruction.
Lord Bingham said the code was “directed to the generality of mental hospitals and did not address the special problems of high security hospitals”.
But one of the dissenting peers, Lord Steyn, described the judgement as a “setback for a modern and just mental health law”.
The Department of Health’s backing for Ashworth in the case amounted to a “virtual disowning” of the code, he said.
“If Ashworth Hospital is permitted in its discretion to reject the code lock, stock and barrel regarding seclusion, it will be open to other hospitals to do so too. The code would then be seriously undermined,” he warned.
Mind said it was “appalled” by the judgement, saying the code was drawn up in 1999 to ensure tolerable minimum standards of care. It believes that hospitals and local authorities will now be able to introduce policies on issues such as sectioning, restraint and random personal searches that do not have to comply with the code.
Henrietta Marriage, head of Mind’s legal unit, said: “This judgement will make it impossible to regulate care and treatment of people in the most vulnerable situations.”
Mersey Care said it had always taken heed of the code but Ashworth patients could be in seclusion for long periods because of the danger they posed. It said providing medical checks by a doctor every four hours, as specified in the code, imposed “a very heavy burden on an already overstretched medical team”.