CASE OF MUNJAZ v. THE UNITED KINGDOM
Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - award
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
6. The applicant was born in 1947. After a number of periods in prison and hospital the applicant was admitted to Ashworth Special Hospital (“Ashworth”) from prison under sections 47 and 49 of the Mental Health Act 1983 on 19 July 1984. He remained an in-patient until March 1992, when he was discharged by the Mental Health Review Tribunal. About a year later he was arrested and charged with a number of offences and was admitted, from prison, to a medium secure unit in August 1993. In that unit he became increasingly psychotic, aggressive and violent. He was placed in seclusion and transferred to Ashworth on 1 March 1994. While at Ashworth he has been secluded on a number of occasions for the protection of others: between 26–30 May 2001, 2–20 June 2001, 18 December 2001–2 January 2002 and 28 March–5 April 2002. Each period of seclusion involved confinement to his bedroom or another room; however, during each period of seclusion, the applicant was allowed periods of association either with staff or other patients. These periods ranged from five minutes to over eight hours. In the first period of seclusion, he had approximately six and a half hours’ association in total; in the second, fifty one hours’ association; in the third, twenty-seven hours’ association; and in the fourth, twenty-one hours’ association. There was only one day, 22 December 2001, when the applicant was not allowed any association at all. 7. Each period of seclusion was made by Ashworth pursuant to its seclusion policy (“the policy”: see paragraphs 26–28 below). There is a national Code of Practice, issued by the Secretary of State for Health under the Mental Health Act, which includes a section on seclusion of psychiatric patients (see paragraphs 23–25 below). The applicant maintains that the hospital’s seclusion policy differs substantially from the Code, particularly by reducing the number and frequency of reviews of his seclusion by a doctor from that laid down in the Code. 8. The applicant first challenged Ashworth’s seclusion policy on this basis in the High Court in 1999. On 10 October 2000, the High Court found that the hospital’s policy, by reducing the frequency of review of a patient’s seclusion below that provided for in the Code of Practice, was unlawful and was not justified by the fact that the hospital was a maximum secure hospital. In particular, the failure after the third day of seclusion to have twice-daily medical reviews of the continuation of seclusion was not justified. 9. Ashworth did not change its policy and the applicant commenced further judicial review proceedings on 12 July 2001. In December 2002, the hospital adopted a new policy, providing for medical review of the continuation of the use of seclusion twice daily on days 2-7 of the seclusion and thereafter three reviews a week by a doctor and a weekly multidisciplinary review. The applicant continued to challenge the legality of the policy on the grounds that from day 8 onwards it did not comply with the review procedures found necessary by the High Court. He also argued that the Code of Practice suggested that there should be medical reviews every four hours. Finally he argued that the hospital’s policy was incompatible with Articles 3 and 8 of the Convention. On 5 July 2002, the High Court ruled that the minimum level of severity required for Article 3 was not met and there was no breach of Article 8. It also found that the Code of Practice was merely guidance. The High Court also accepted the evidence of Ashworth that the applicant had not remained in seclusion for longer than had been necessary, and that there was no evidence that more frequent reviews would have reduced the time spent in seclusion. 10. The applicant appealed to the Court of Appeal and, on 16 July 2003, it allowed his appeal. Relying on X v. the United Kingdom, no. 6840/74, Commission decision of 2 May 1997, Decisions and Reports (DR) 10, p. 5 (cited in the judgment as A. v. the United Kingdom (1980) 3 EHRR 131), it found that seclusion of a detained psychiatric patient was capable of amounting to a breach of Article 3. On the basis of this Court’s ruling in Keenan v. the United Kingdom, no. 27229/95, §§ 108-112, ECHR 2001III, it also found that the Code of Practice, in so far as it regulated seclusion, had to have a status and weight consistent with the State’s obligation to avoid ill-treatment of patients detained by the State. Where there was a risk that agents of the State would treat their patients contrary to Article 3, the State should take steps to avoid this through the publication of a Code of Practice, which its agents were obliged to follow unless they had good reason to depart from it. 11. The Court of Appeal also held that seclusion would breach Article 8 of the Convention unless it could be justified under Article 8 § 2. In considering the need for any interference to be “in accordance with law” in terms of Article 8 § 2, it found that the transparency and predictability required by this provision were supplied by the Code of Practice. It found: “It would fly in the face of the original purposes of the Code if hospitals or professionals were in fact free not to follow it without a good reason. It is clear that section 118(2) (see para 4 above) cannot have been intended as a ‘take it or leave it’ provision. In relation to those matters where a patient’s human rights are or may be engaged, the arguments for according the Code the greater status are compelling. Where there is a risk that agents of the state will treat its patients in a way which contravenes Article 3, the state should take steps to avoid this through the publication of a Code of Practice which its agents are obliged to follow unless they have good reason to depart from it. Where there is an interference with the rights protected by Article 8, the requirement of legality is met through adherence to a Code of Practice again unless there is good reason to depart from it. The same will apply where the Code deals with the deprivation of liberty within the meaning of Article 5.... We conclude that the Code should be observed by all hospitals unless they have a good reason for departing from it in relation to an individual patient. They may identify good reasons for particular departures in relation to groups of patients who share particular well-defined characteristics, so that if the patient falls within that category there will be a good reason for departing from the Code in his case. But they cannot depart from it as a matter of policy and in relation to an arbitrary dividing line which is not properly related to the Code’s definition of seclusion and its requirements.” It concluded that the hospital’s seclusion policy was unlawful. While the court considered Article 5 of the Convention on its own motion, relying on this Court’s rulings in Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, Aerts v. Belgium, judgment of 30 July 1998, Reports of Judgments and Decisions 1998V and Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, it found that seclusion did not amount to a further deprivation of liberty. 12. Ashworth appealed to the House of Lords. On 13 October 2005 the House of Lords (by a majority of three to two) allowed the appeal. 13. In the lead speech, Lord Bingham (with whom Lord Hope and Lord Scott agreed) found that the Code of Practice was only guidance and he was satisfied that the hospital had shown good reasons for departing from it. He stated: “21. It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. Where, which is not this case, the guidance addresses a matter covered by section 118(2) [of the Mental Health Act 1983 – see paragraph 22 below], any departure would call for even stronger reasons. In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires. 22. The extensive evidence adduced by the Trust makes clear that the Code was very carefully considered. This is indeed evident from the policy itself, which reproduces important parts of the Code and contains cross-references to it. But the policy did depart from the Code in providing for less frequent medical review after Day 7. As the [High Court observed], the Trust ‘has explained the justification for the policy in very considerable detail’. ... 23. In considering the frequency of medical review after Day 7 the Trust were in my opinion entitled to take account of three matters in particular. First, as pointed out in the Introduction to the policy, the Code was directed to the generality of mental hospitals and did not address the special problems of high security hospitals, containing as they inevitably do the most potentially dangerous patients in the country. Secondly, the Code did not recognise the special position of patients whom it was necessary to seclude for longer than a very few days. It has been the experience of the Trust that the condition of those secluded for more than a week does not change rapidly, and that it is in any event unsafe to rely on an apparent improvement without allowing enough time to pass to give grounds for confidence that the improvement will endure. Thirdly, the statutory scheme, while providing for the Secretary of State to give guidance, deliberately left the power and responsibility of final decision to those who bear the legal and practical responsibility for detaining, treating, nursing and caring for the patients. 24. The witness statements submitted by the Trust are very strongly challenged in statements and evidence on behalf of Mr Munjaz, Mind and the Mental Health Act Commission. This is a highly controversial subject, on which professional opinions differ. The 7-day divide between short-term and long-term secluded patients is criticised. So is the practice, adopted at Ashworth, of allowing secluded patients to spend periods of time, sometimes lengthy periods, in closely supervised association with other patients. There are differences of practice, not all of them fully explained, between Ashworth, Broadmoor and Rampton. It is not, however, for the courts to resolve debatable issues of professional practice, but to rule on issues of law. If a practice is supported by cogent reasoned justification, the court is not entitled to condemn it as unlawful. In the present case, even with the intense scrutiny called for, I cannot regard the long and detailed statements submitted by the Trust as failing to show good reasons for adopting the policy it has adopted, even though there are many eminent professional experts who take a different view.” 14. Lord Bingham found that Article 3 was not breached by the policy. He held as follows: “29...Despite much learned argument addressed to the House, I do not find it necessary to discuss the extent or probability of the risk or the extent to which it must be foreseen. For I agree with [the High Court] that the policy must be considered as a whole, that the policy, properly operated, will be sufficient to prevent any possible breach of the article 3 rights of a patient secluded for more than 7 days and that there is no evidence to support the proposition that the frequency of medical review provided in the policy risks any breach of those rights. The patient must be the subject of recorded observation by a nurse at least every 15 minutes and of recorded review by two qualified nurses every 2 hours, one of them (where practicable) not involved in the decision to seclude. In the ordinary course of things it is the nurses who know the patient best, and the nurse in charge of the ward can terminate seclusion at any time. There must be a daily review by a ward manager or site manager of a different ward: these, as the evidence shows, are senior and experienced people. There must be 3 medical reviews each week, one of them involving the patient’s responsible medical officer. There must in addition be a weekly review by a multi-disciplinary patient care team, including the patient’s RMO [Resident Medical Officer]. The seclusion of the patient must be monitored by the hospital’s Seclusion Monitoring Group, which includes the medical director, the hospital director, the head of psychology, the senior nurse, the head of social care, 2 nurses, the ward manager and a non-executive director of the Trust, some of whom must have seen the patient. It reports to the hospital’s Clinical Governance Committee. The Mental Health Act Commission must be informed once a patient has been secluded for 7 days and must thereafter receive regular progress reports: as already noted, it has statutory power to visit and investigate any complaint. The patient may, wherever possible, be visited by a relative. The patient or his representative may appeal to the medical director or his deputy, who must review the case and take account of any representations made. The patient may seek judicial review of the decision to seclude him or continue to seclude him, or to challenge the conditions in which he is secluded. It cannot in my opinion be said, bearing in mind that the standard set must obtain in all member states of the Council of Europe, that a policy containing these safeguards exposes a patient secluded for more than 7 days to any material risk of treatment prohibited by article 3.” 15. On Article 5, Lord Bingham endorsed the Court of Appeal’s finding that it did not apply and added: “The approach to residual liberty which appears to have prevailed in Canada (see Miller v The Queen (1985) 24 DLR (4th) 9) does not, as I understand, reflect the jurisprudence of the European Court. I do not for my part regret this conclusion since, as the Court of Appeal pointed out (in para 70 of its judgment), improper use of seclusion may found complaints under article 3 or article 8, and article 5(4) provides that a successful challenge should result in an order that the detainee be released, not in an order that the conditions of his detention be varied. I would not, for example, understand article 5(4) as enabling a prisoner, lawfully detained, to challenge his prison category. In any event, the Ashworth policy, properly applied as one must assume, does not permit a patient to be deprived of any residual liberty to which he is properly entitled: seclusion must be for as short a period and in conditions as benign as will afford reasonable protection to others who have a right to be protected.” 16. On Article 8 of the Convention, Lord Bingham doubted that seclusion, when properly used in order to protect others from violence and intimidation and when used for the shortest period necessary, was an interference with a patient’s Article 8 rights. He considered that “a detained patient, when in his right mind or during lucid intervals, would not wish to be free to act in such a way [to be violent or intimidating] and would recognise that his best interests were served by his being prevented from doing so.” However, for Lord Bingham, if there were an interference then the “in accordance with law” requirement of Article 8 § 2 had not been breached. He found (at paragraph 34 of the judgment): “The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied. This could of course have been achieved by binding statutory provisions or binding ministerial regulations. But that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder... it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable. It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a ‘necessary ingredient flowing from a power of detention for treatment’ treatment”: see Auld LJ in R v Broadmoor Special Hospital Authority, Ex p S, H and D (5 February 1998, unreported) and the Court of Appeal judgment in the present case, para 40. The procedure adopted by the Trust does not permit arbitrary or random decision-making. The rules are accessible, foreseeable and predictable. It cannot be said, in my opinion, that they are not in accordance with or prescribed by law.” 17. Lord Hope, in agreeing with Lord Bingham, stated: “In my opinion there is nothing that is arbitrary about the way in which Ashworth has departed from the Code in the framing of its Policy. A careful reading of it shows that it is based very substantially on the Code’s guidance, and that where it departs from it – with regard to the frequency of reviews in particular – it does so because of its perception of the way seclusion needs to be used in the special circumstances that obtain at Ashworth. The system that it lays down has been carefully designed to deal with its use for much longer periods than the Code’s guidance was designed for. Its purpose is to ensure that its use for these longer periods is not resorted to at random or arbitrarily. Following the Code’s example, that is the whole purpose of the Policy. 97. As for the question whether Ashworth was free to depart from the Code as a matter of policy, and not just in relation to individual patients or groups of patients, I do not see why this should be so, provided of course that it can demonstrate that it had a good reason for doing so. The distinction which the Court of Appeal made between a departure in the case of individual patients or groups of patients and a departure which takes the form of a written policy for dealing with a particular form of intervention is elusive, and I do not think that it can be regarded as acceptable. There is an obvious danger that, if the Code could be departed from in the case of individual patients or groups of patients where no written guidance was available, decisions to do this would be open to attack as being arbitrary because their consequences were unregulated and unpredictable. That, precisely, is what Ashworth’s Policy seeks to avoid. Good clinical and medical practice dictates that seclusion should only be used in particular situations to protect others and subject to particular conditions to ensure that the patient is not harmed or secluded for any longer than is necessary. The purpose of the Policy is to ensure that the conditions under which it is to be resorted to are clearly understood and carefully observed so that decisions that are taken about the management of this procedure are consistent and not arbitrary. 98. I am in full agreement with all that my noble and learned friend Lord Brown of Eaton-under-Heywood has said about this case except with regard to the issues raised by article 8(2) of the Convention, as to which I have the misfortune to disagree with him. The point that divides us is whether the practice of seclusion carried out at Ashworth in accordance with the Policy is “in accordance with the law.” As his quotation from para 39 of the Court’s judgment in Hewitt and Harman v United Kingdom (1991) 14 EHRR 657 reminds us, it is the quality of the law that matters rather than the form it takes. The touchstones by which its quality is measured are, as Lord Brown says, its transparency, its accessibility, its predictability and its consistency. Where these qualities are present the measure protects against the abuse of power and against conduct which is arbitrary. There is no doubt that the Code satisfied these tests, notwithstanding the fact that there is no statutory obligation to comply with it. In my opinion Ashworth’s Policy, which is careful in all these respects to follow the Code’s example, does so too. It is, of course, true that Ashworth could alter its Policy. But if it did so every departure from the Code would have to be justified in the same way as the Policy itself has had to be justified. I do not think that the fact that Ashworth has its own Policy opens the door to further departures from the Code that could be described as arbitrary. 99. Assuming, of course, that Ashworth has shown - as it has - clearly, logically and convincingly that it had cogent reasons for departing from the Code in these particular respects in favour of its own Policy, I would hold that its decision cannot be said to have been unlawful. Concerns that a departure from the Code in this instance will lead to widespread variations in practice and undermine its status generally or that your Lordships’ judgment lowers the protection offered by the law to mentally disordered patients are misplaced, in my opinion. The requirement that cogent reasons must be shown for any departure from it sets a high standard which is not easily satisfied. The protection which the law provides to ensure that any departures are compatible with Convention rights is an additional safeguard. This has been amply demonstrated in practice since the Code was promulgated. Ashworth is the only place where a hospital has departed from what the Code says about seclusion in favour of its own policy. While I would respectfully endorse everything that Lord Brown says in the last paragraph of his speech [paragraph 127, quoted below], I believe that it would be wrong to see this judgment as opening the door to substantial departures from the Code on the part of individual hospitals. The decision of the majority should not be seen as an invitation to other hospitals to do this and resort to their own policies. The status of the Code remains unchanged, and so does the need to show cogent reasons if in any respect it is departed from. 18. Lord Scott, in agreeing that Ashworth’s policy was in accordance with the law for the purposes of Article 8, emphasised the duty the hospital owed to protect patients and staff from harm. Once it was accepted that Ashworth had no statutory obligation to have a seclusion policy that conformed in every respect to the Code and that Ashworth’s seclusion policy was rational and reasonable in itself despite its divergences from the Code, there could be no room for any suggestion that the implementation of Ashworth’s seclusion policy for the safety of other inmates was otherwise than in accordance with the law. 19. Lord Brown concurred in respect of Articles 3 and 5 and dissented in respect of Article 8. He did not find that the hospital’s policy was “in accordance with law” for the purposes of Article 8 § 2, since it did not have sufficient “quality of law”. In his view, for the requirements of Article 8 § 2 to be met, the Code of Practice had to be given the higher status of the force of law, disentitling individual hospitals to depart from it on policy grounds. He concluded: “125. Not without some considerable hesitation I have reached the conclusion that the Code must indeed be given this higher status. Without such a Code the legal position would be this. The only authority for seclusion would be, in the case of patients detained under the 1983 Act, the implied power of control over those lawfully detained; in the case of informal patients, the common law doctrines of necessity and self-defence. The actual use of seclusion in individual cases would not be regulated save insofar as each hospital practising it would be required to adopt, publish and practise a rational policy of its own. That, of course, is precisely what Ashworth does. But by the same token that Ashworth is permitted to adopt its own policy, so too may other hospitals. Much of the factual focus of the appeal was upon those of Ashworth’s patients who are detained for over seven days. But Ashworth’s policy departs from the Code much earlier than this: only for the first 12 hours does Ashworth conduct medical reviews at 4 hourly intervals as specified by the Code; from then until the end of the seventh day such reviews occur twice (rather than six times) a day. Other hospitals too may think it unnecessary to conduct reviews as frequently as provided for by the Code. And of course there is nothing to stop Ashworth altering its policy whenever it thinks it right to do so. The policy of an individual hospital can be changed with infinitely greater ease than the Code itself. ... 127.The Secretary of State’s Foreword to the 1999 issue of the Code stated that: ‘the Code should be followed’ until necessary new legislation came into force. It ended: ‘The Code provides essential reference guidance for those who apply the Act. Patients and their carers are entitled to expect professionals to use it.’ Under the ruling proposed by the majority of your Lordships, patients and their carers must be reconciled instead to substantial departures from the Code on the part of individual hospitals who may prefer to follow a different policy of their own. It is my reluctant conclusion that not only will these patients and carers be disappointed in their expectations but that the practices in the event adopted by any such hospital (rational though I acknowledge they must certainly be) will not have the necessary legal quality to render them compatible with the rule of law. Unless it is to the Code that one can look for regulation carrying the force of law it is not in my opinion to be found elsewhere. Hospital policies themselves provide too insubstantial a foundation for a practice so potentially harmful and open to abuse as the seclusion of vulnerable mental patients.” 20. Lord Steyn dissented on all three points. On Articles 3 and 8 he approved the reasoning of the Court of Appeal. On the status of the Code of Practice, by section 118(1) of the Mental Health Act 1983 (which directs the Secretary of State to prepare such a code) he found: “...in section 118(1) Parliament had authorised a Code with some minimum safeguards and a modicum of centralised protection for vulnerable patients. This is inconsistent with a free-for-all in which hospitals are at liberty to depart from the published Code as they consider right. Indeed, it seems unlikely that Parliament would have authorised a regime in which hospitals may as a matter of policy depart from the Code. After all that would result in mentally disordered patients being treated about seclusion in a discriminatory manner, depending on the policy adopted by the managers and clinicians in particular hospitals.” He also found Article 5 to be applicable, stating as follows: “Under English law a convicted prisoner, sentenced to imprisonment, retains all his civil rights which are not taken away expressly or by necessary implication: Raymond v Honey [1983] AC 1, at 10G, per Lord Wilberforce. To that extent the prisoner has a residual liberty. The concept of residual liberty is a logical and useful one as demonstrated by the decision of the Canadian Supreme Court in Miller v The Queen (1985) 24 DLR (4th) 9. The reasoning in Miller shows that in a case of a prisoner where solitary confinement is unlawfully and unjustly superimposed upon his prison sentence the added solitary confinement can amount to ‘prison within a prison’: it is capable of constituting a material deprivation of residual liberty ... It would also be wrong to assume that under the jurisprudence of the ECHR residual liberty is not protected. There is relevant European authority not placed before the Court of Appeal. In Bollan v United Kingdom, App No. 42117/98, the European Court of Human Rights, albeit in an admissibility decision, considered the point. The complaint was a comparatively weak one: the prisoner had been confined to her cell, unlawfully it was said, for some two hours. The evidence was that she was a heroin addict who objected to that restriction on her residual liberty. In European terms the case simply did not reach the necessary threshold of severity. The European Court of Human Rights dealt with the legal principles arising under the ECHR as follows: ‘It is undisputed in the present case that Angela Bollan was lawfully detained in Corton Vale prison pursuant to a court order remanding her in custody pending sentence for a criminal offence. Nor is it disputed that the prison was an appropriate establishment for that type of detention or that there was anything inappropriate concerning her place of detention within the prison. The principal issue is whether the decision of the prison officers to leave Angela Bollan in her cell until lunchtime - a period of less than two hours - in itself disclosed an unjustified and unlawful deprivation of her liberty within that prison. The court does not exclude that measures adopted within a prison may disclose interferences with the right to liberty in exceptional circumstances. Generally however, disciplinary steps, imposed formally or informally, which have effects on conditions of detention within a prison, cannot be considered as constituting deprivation of liberty. Such measures must be regarded in normal circumstances as modifications of the conditions of lawful detention and therefore fall outside the scope of Article 5 § 1 of the Convention (see Application no. 7754/77, dec. 9.5.77, D.R. 11, p 216. In appropriate cases, issues may arise however under articles 3 and 8 of the Convention.’ (My emphasis) Plainly, the ECtHR has not ruled out as a matter of principle the concept of residual liberty. On the contrary, it accepts that there is scope for such a doctrine. It will be noted also that the ECtHR observed that in such cases ‘in appropriate cases, issues may arise however under articles 3 and 8 of the Convention’. To that it must be added that, if substantial and unjust seclusion of a mentally disordered patient cannot in our domestic law be protected effectively under articles 3 and 8, the case for protection under article 5 becomes ever stronger. It follows that a substantial period of unnecessary seclusion of a mentally disordered patient, involving total deprivation of any residual liberty that the patient may have within the hospital, is capable of amounting to an unjustified deprivation of liberty.” 21. The relevant domestic law and practice are set out in the speech of Lord Bingham in the House of Lords’ judgment in the present case (paragraphs 4-17) and may be summarised as follows. 22. Section 118 (1) of the Mental Health Act 1983 provides: “1) The Secretary of State shall prepare, and from time to time revise, a code of practice— (a) for the guidance of registered medical practitioners, managers and staff of hospitals and mental nursing homes and approved social workers in relation to the admission of patients to hospitals and mental nursing homes under this Act and to guardianship and after-care under supervision under this Act; and (b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.” Before preparing or altering the Code of Practice the Secretary of State is required to consult such bodies as appear to him to be concerned (subsection (3) of the same section). The Code and any revised Code must be laid before Parliament, and either House may within a specified period require its alteration or withdrawal (subsections (4) and (5)). The Code must be published (subsection (6)). By section 120(1) of the 1983 Act the Secretary of State is required to keep under review the exercise of the powers and the discharge of the duties conferred or imposed by the Act so far as they relate to the detention of patients under the Act, and is further required to make arrangements for persons authorised by him in that behalf to visit and interview privately patients detained in hospital under the Act and to investigate complaints made by persons who are or have been detained under the Act. By section 121(2) the Secretary of State must direct that these functions shall be performed by the Mental Health Act Commission, an authoritative professional body established under section 11 of the National Health Service Act 1977 and continued by section 121(1) of the 1983 Act. 23. The Code of Practice was promulgated in March 1999. Chapter 19, entitled “Patients presenting particular management problems”, addresses seclusion. Paragraph 19.16 defines seclusion as follows: “Seclusion is 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 should be used; • as a last resort • for the shortest possible time Seclusion should not be used; • as a punishment or threat • as part of a treatment programme • because of shortage of staff • where there is any risk of suicide or self- harm.” 24. Paragraph 19.17 provides: “Hospitals should have clear written guidelines on the use of seclusion which: • ensure the safety and well being of the patient; • ensure the patient receives the care and support rendered necessary by his or her seclusion both during and after it has taken place; • distinguish between seclusion and ‘time-out’ (see paras 18.9-18.10); • specify a suitable environment taking account of patient’s dignity and physical well being; • set out the roles and responsibilities of staff; • set requirements for recording, monitoring, reviewing the use of seclusion and any follow-up action.” 25. The procedure for seclusion is set out at paragraphs 19.18-19.21: “19.18 The decision to use seclusion can be made in the first instance by a doctor or the nurse in charge. Where the decision is taken by someone other than a doctor, the RMO or duty doctor should be notified at once and should attend immediately unless the seclusion is only for a very brief period (no more than five minutes). 19.19 A nurse should be readily available within sight and sound of the seclusion room at all times throughout the period of the patient’s seclusion, and present at all times with a patient who has been sedated. 19.20 The aim of observation is to monitor the condition and behaviour of the patient and to identify the time at which seclusion can be terminated. The level should be decided on an individual basis and the patient should be observed continuously. A documented report must be made at least every 15 minutes. 19.21 The need to continue seclusion should be reviewed • every 2 hours by 2 nurses (1 of whom was not involved in the decision to seclude), and • every 4 hours by a doctor. A multidisciplinary review should be completed by a consultant or other senior doctor, nurses and other professionals, who were not involved in the incident which led to the seclusion if the seclusion continues for more than: • 8 hours consecutively; or • 12 hours intermittently over a period of 48 hours. If the need for seclusion is disputed by any member of the multidisciplinary team, the matter should be referred to a senior manager.” 26. The policy of Ashworth Hospital applicable to the applicant is as follows. The introduction to the policy states at paragraph 2.4: “The Code of Practice provides guidance on how registered mental health practitioners, managers and staff of hospitals should proceed when undertaking duties under the Act. The Code of Practice revised in March 1999 was written to encompass a wide range of mental health services and does not specifically consider the special situation of a high security hospital.” 27. The policy repeats verbatim the definition of seclusion in the Code of Practice and the Code’s statements on when seclusion should be used and that it should not be used as a punishment or threat or as part of a patient’s treatment. Paragraph 6 of the policy addresses the decision to seclude and provides: “6.3 The decision to use seclusion will be made usually in the first instance by the nurse in charge of the ward. It must be clear which individual made the decision. The RMO or deputy and the Ward Manager or deputy should be informed immediately. 6.4 The doctor and Ward Manager or deputy will attend the ward as soon as possible within the hour to assess the situation and review with the nurse in charge whether or not seclusion is required to continue and assess alternative responses. The doctor will record in the notes any agreed level of observation or intervention in excess of the standard seclusion observation.” A nurse is to be readily available within sight and sound of a room in which a person is secluded at all times, and a paper recording of direct visual observation of the patient is to be made at least every 15 minutes (paragraph 7.1). Paragraph 8 provides for the keeping of detailed records and for a detailed plan for management of the ending of seclusion to ensure its ending at the earliest possible time. 28. The review of seclusion and possible challenges to it are set out in paragraphs 9-11 of the policy which provide as follows: “9 Review 9.1 The RMO [Resident Medical Officer] is responsible for the use of seclusion. Regular reviews must take place involving the RMO or deputy and Ward Manager or deputy. The details of these are given below. 9.2 If a doctor was not present at the time of seclusion, he must initiate a review on arrival within one hour and then at: 9.2.1 First day - medical review at 4, 8, 12 and 24 hours; 9.2.2 Day 2 to day 7 - twice per day; 9.2.3 Day 8 onwards:- [1] daily review by Ward Manager or Site Manager from different ward; [ii] three medical reviews every 7 days [one being by the RMO]; [iii] weekly review by multi-disciplinary patient care team to include RMO; [iv] review by Seclusion Monitoring Group as per paragraph 10 below; 9.3 If at any review at 8 hours or subsequently the doctor is not a consultant psychiatrist the doctor doing the review must consult with the patient’s responsible medical officer or the duty consultant and this should be fully documented. 9.4 The senior manager/nurse will conduct a review on arrival on the ward within one hour of the decision to seclude and then in accordance with the agreed review schedule. 9.5 The nurse in charge will ensure that the patient’s Consultant Psychiatrist, or their deputy is informed at the earliest opportunity. Others involved in the patient’s care should also be informed. 9.6 Two qualified nursing staff will carry out a review of the seclusion every two hours. They will record the outcome in the observation record and they will both sign the entry. 9.7 Where practicable one of the nursing staff who carries out a review of seclusion should not have been involved in the original decision to seclude. 9.8 A Consultant Psychiatrist [who will be the RMO if available or their designated deputy, e g out of hours or during absence from hospital] must see the patient within 72 hours or on the first working day. If waiting until the first working day causes a delay, the duty Registrar must discuss the patient’s care with the duty Consultant or RMO and seek agreement to the delay. 9.9 If the patient remains in seclusion for more than 8 hours continuously or for 12 hours intermittently within a period of 48 hours, an independent review of the need to continue seclusion will take place for this purpose. This should involve, where practicable, one or more clinicians who were not directly involved in the decision to seclude the patient as well as members of the Patient Care Team. However, at least one clinician taking part in the review must not have been involved in the decision to seclude the patient. 9.10 There is an appeal process available to all secluded patients, separate from and additional to the procedures set out within this paragraph. This process is set out at paragraph 16. 10 Monitoring arrangements 10.1 All seclusion used within the hospital is reviewed by a multi-disciplinary group known as the Seclusion Monitoring Group (SMG). 10.2 The functions of the group are as follows: • to monitor the implementation and adherence to the policy and procedure for the use of seclusion • to monitor and review the use of seclusion throughout the hospital • to monitor and review patients secluded under conditions of paragraph 8 of the seclusion procedure • to receive and analyse data relating to seclusion and to monitor overall trends in the use of seclusion • to review documentation for the collection of information about the use of seclusion and alternative management strategies • to examine training and educational needs to support staff mechanisms and make recommendations to the Hospital Authority Board • to prepare and submit reports to Clinical Teams, Executive Directors, Authority Board • to consider any other matters relating to seclusion that occur • to share and disseminate good practice, hospital wide. 10.3 The Seclusion Monitoring Group is chaired by the Medical Director and reports to the Clinical Governance Committee. 11 The use of seclusion for patients posing management problems 11.1 Any patient for whom the clinical team has to institute seclusion in excess of seven days, will be individually brought to the attention of the Medical Director or in their absence the Executive Nurse Director, by the chairperson of the patient’s clinical team, with a resume of the reasons for the continuing use of seclusion, the care and treatment which the patient will be receiving and what is hoped will be achieved. 11.2 The Medical Director will inform the Chief Executive and request a formal case presentation to the next planned meeting of the SMG. 11.3 The Medical Director and Executive Nurse Director, or two representatives of the Seclusion Monitoring Group acting on their behalf, must see the patient whether or not they are familiar with the case. 11.4 Following the case presentation at 10.2, monitoring arrangements will be agreed between the SMG and the patient’s clinical team. 11.7 Each patient’s case will be reviewed weekly by the clinical team and a written report sent monthly to the Seclusion Monitoring Group. At the initial review meeting, and with the patient’s consent, consideration will be given by the team to notifying the patient’s key relative(s). 11.8 After six months, the Medical Director and Executive Nurse Director will participate in a clinical team review. The case will then be discussed at the Executive Team Meeting. 11.9 The Mental Health Act Commission will be informed if seclusion continues beyond 7 days and will receive progress reports on a regular basis.” 29. The Government provided the following information on the nature of Ashworth hospital, and the practice of seclusion there, in the form of witness statements, which had been before the domestic courts in the present case. Those statements were prepared by various senior clinicians at the hospital, including the applicant’s Responsible Medical Officer. 30. Ashworth is one of three hospitals in England providing high security accommodation for persons detained under the Mental Health Act. It includes patients who cannot be reached by treatment and whose persistent illness renders them predictably dangerous. The aim of seclusion at Ashworth is to contain severely disturbed behaviour which is likely to cause harm to others. The majority of those secluded go into and come out of seclusion within seven days. Those who are secluded for more than seven days are likely to be secluded for much longer periods. The common factor in such patients is a danger to others which is not liable to be resolved in the short term, and the decision to terminate seclusion is one to be made over days or even weeks, because of the need to be satisfied of the enduring nature of changes to the patient. Even in such cases, reviews and other safeguards exist to ensure that the patient will not be secluded for longer than necessary, including the possibility of more frequent medical reviews, if necessary. 31. The approach of Ashworth is to allow secluded patients the most liberal regime that was compatible with their presentation. Most patients are secluded in their own rooms and, only if that is not possible, in modified bedrooms or, in the most serious cases, in special seclusion rooms. Staff are always within sight and sound. Meals can be taken in-room or, if the risk permits, on the ward. Secluded patients received regular and frequent visits. Periods are also spent “in association” outside the room, either with staff or other patients, and can last up to several hours. Walks in a secure garden and occupational therapy are also possible. 32. “Count Me In” is a national census of inpatients in mental health and learning disability services in England and Wales, which is carried out jointly by the Healthcare Commission, the Mental Health Act Commission and the National Institute for Mental Health in England. The 2007 census found that approximately 3% (957 of 31,187 patients surveyed) had experienced one or more episodes of seclusion in their period of admission (or in the previous three months, whichever was shorter). 33. The Mental Health Act Commission is a statutory body under section 121 of the Mental Health Act 1983 and has the task, inter alia, of reviewing the operation of the Act and publishing a biennial report (section 121 (11)). Chapter 11 of the Mental Health Act Commission’s Tenth Biennial Report (2001-2003) addressed the legality and practice of seclusion at length. It found that many hospitals failed to comply with the Code of Practice’s provisions on seclusion and recommended that it was now appropriate to provide a framework of statutory regulation of seclusion (at paragraphs 11.17 and 11.24 of the report). A similar recommendation was made in its Eleventh Biennial Report (paragraphs 4.224 et seq.). 34. The Parliamentary Joint Select Committee on Human Rights considered seclusion of mental health patients as part of its report entitled “Deaths in Custody” (Session 2003-2004, Third Report, 14 December 2004. The Committee concluded (at paragraphs 235 and 245): “We remain concerned at the evidence we have received, including from the statutory body responsible for review of mental health services, attesting to the low level of compliance with guidelines on the use of seclusion and of physical force against vulnerable people who have been deprived of their liberty. This situation carries a serious risk of breach of rights under Article 2, Article 3 and Article 8 of the Convention. ... [W]e remain concerned at the under-enforcement of guidance in this highly human rights-sensitive area. We are not confident that Convention compliance can be effectively and comprehensively ensured without some statutory obligations in this area. This should include statutory obligations on all health authorities to keep comprehensive records of all violent incidents.” 35. In its report on the Mental Health Act 2007, during its passage as a Bill, the Joint Committee returned to the issue of seclusion and recommended: “We urge the Government to ensure that, whatever method of regulation is adopted, sufficient safeguards are included on the face of the bill to ensure that seclusion is only used when strictly necessary and that individuals subject to it should have access to review at intervals to ensure that it is brought to an end when no longer necessary.” 36. The Mental Health Alliance (a coalition of seventy-five organisations working in the field of mental health) also campaigned for an amendment to the Mental Health Act 2007 to provide statutory regulation of seclusion. It adopted the views of the Joint Committee and the Mental Health Act Commission set out above. The proposed amendment was not adopted. 37. On 17 December 1991, in resolution 46/119, the General Assembly of the United Nations adopted “Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care”. Principle 11 is entitled “Consent to treatment” and at paragraph 11 it provides: “Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient’s medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.” 38. Recommendation Rec2004 (10) of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder, where relevant provides as follows: “Article 25 – Reviews and appeals concerning the lawfulness of involuntary placement and/or involuntary treatment 1. Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right: i. to appeal against a decision; ii. to have the lawfulness of the measure, or its continuing application, reviewed by a court at reasonable intervals; iii. to be heard in person or through a personal advocate or representative at such reviews or appeals. 2. If the person, or that person’s personal advocate or representative, if any, does not request such review, the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals. ... Article 27 – Seclusion and restraint 1. Seclusion or restraint should only be used in appropriate facilities, and in compliance with the principle of least restriction, to prevent imminent harm to the person concerned or others, and in proportion to the risks entailed. 2. Such measures should only be used under medical supervision, and should be appropriately documented. 3. In addition: i. the person subject to seclusion or restraint should be regularly monitored; ii. the reasons for, and duration of, such measures should be recorded in the person’s medical records and in a register.” 39. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) is required to draw up an annual general report on its activities. The substantive sections of those reports are collected in CPT/Inf/E (2002) 1 - Rev. 2006: “the CPT Standards”. Chapter V of the CPT standards covers involuntary placement in psychiatric establishments and paragraph 49 provides: “Reference should also be made in this context to the seclusion (i.e. confinement alone in a room) of violent or otherwise "unmanageable" patients, a procedure which has a long history in psychiatry. There is a clear trend in modern psychiatric practice in favour of avoiding seclusion of patients, and the CPT is pleased to note that it is being phased out in many countries. For so long as seclusion remains in use, it should be the subject of a detailed policy spelling out, in particular: the types of cases in which it may be used; the objectives sought; its duration and the need for regular reviews; the existence of appropriate human contact; the need for staff to be especially attentive. Seclusion should never be used as a punishment.” 40. In Miller v The Queen (1985) 24 DLR (4th) 9), 12 October 1984, the Supreme Court of Canada considered whether a prisoner who had been placed within a “Special Handling Unit” at his normal place of detention could bring habeas corpus proceedings to challenge that placement. In finding that he could, the court stated that a prisoner was not without some rights or residual liberty and that there may be significant degrees of deprivation of liberty within a penal institution. In effect, a prisoner had the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution (Le Dain J for the Court at paragraph 32).