Munjaz v. United Kingdom

The Applicant, a UK citizen born in 1947, alleged that the seclusion policy (“Policy”) of Ashworth Special Hospital (“Ashworth”), the maximum security hospital where he was committed for a mental illness, violated the European Convention on Human Rights.

After several instances of incarceration and hospitalization on account of various mental health issues, the applicant was admitted to Ashworth from 1984 to 1992. One year after being discharged, in 1993, the applicant was transferred to a medium secure unit in Ashworth after being arrested and charged for various offences. He became increasingly psychotic, aggressive and violent, and was, on several occasions, moved to seclusion for the protection of others. Seclusion involved confinement to his bedroom or another room. 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. Only on one day was the applicant denied any association.

The Applicant claimed that the Policy ran counter to the national Code of Practice (Code) under the Mental Health Act, in particular because it provided for fewer and less frequent of reviews of his seclusion than provided for in the Code. The Policy was found unlawful by the High Court in 2000 and was changed in 2002.

The applicant continued to challenge the legality of the amended Policy, now also claiming that the Policy was in violation of Articles 3 and 8 of the ECHR. In 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. The ruling was appealed to the Court of Appeals, which in 2003 concluded that the seclusion policy was unlawful. The Court of Appeals also considered Article 5 ex officio, however, not finding a violation. The Applicant unsuccessfully appealed further to the House of Lords.

In 2006 the applicant lodged the case with the European Court of Human Rights alleging that his seclusion at Ashworth Special Hospital, Merseyside, violated the following articles of the Convention: Article 3, as the number of reviews during seclusion placed him at real risk of ill-treatment; Article 5 § 1, as the seclusion amounted to a further deprivation of liberty; Article 5 § 4, as there was no right of review or appeal to an independent body outside the hospital; Article 8, as the Policy did not meet the requirement of being “in accordance with the law” since it lacked the necessary foreseeability and procedural safeguards, and; Article 14, in that the United Kingdom Government’s policy of permitting each hospital to seclude its patients according to its own procedures led to patients being treated differently depending on which hospital they were detained in, even though their conditions might be the same or materially similar. The UK government submitted that the safeguards set out in the Policy were adequate and sufficient to not amount to a violation of the alleged articles.

The Court dismissed Munjaz’ application. It held that only the claims of violation of Articles 5 and 8 were admissible, and both claims were dismissed on the merits.

The Court ruled that the claim of violation of Article 3 was inadmissible because it was manifestly ill founded. The Court declined to depart from the findings of fact of the national courts, as it required cogent reasons to do so that did not exist in this case. Further, whatever the frequency of review of seclusion provided for by the Policy, the risk of physical or psychological deterioration in a patient was significantly minimized as a nurse had to be within sight and sound of the seclusion room, periods of association were allowed and the conditions of seclusion could be adjusted according to the patient’s condition.

The Court found that Article 5 did not apply, as the seclusion did not entail a further deprivation of liberty; the applicant was as a patient already subject to lawful restrictions on his liberty. There was therefore neither a violation of Article 5 § 1 nor of Article 5 § 4. This decision was based mainly on the manner in which the applicant was secluded, in particular the fact that the applicant enjoyed long periods of association and there was only one day when he was not allowed any association at all.

Regarding Article 8, the Court determined that the seclusion amounted to an interference within the meaning of Article 8 § 1. The compulsory seclusion of the applicant interfered with his physical and psychological integrity and even a minor such interference must be regarded as an interference under Article 8 § 1. However, the seclusion was upheld on the basis that it was “in accordance with the law” under Article 8 § 2, which allows interferences that are justified and proportionate. The Court held that the Policy on seclusion met the requirements of the “quality of law” test as set out in the Court’s case law on Article 8 § 2. The Policy was adequately accessible and foreseeable, that is, it was formulated with sufficient precision to enable individuals to regulate their conduct. The Court noted that as some degree of flexibility was needed within the area of public health, the Policy’s deference to the mental health practitioners did not make the law unforeseeable and did not constitute a violation of Article 8 § 2, especially as the Policy was closely aligned with the law. On this determination the Court concurred with the decision by the House of Lords.

The Court rejected the Article 14 claim as the applicant did not rely on this article during the domestic proceeding and therefore had not exhausted his domestic remedies.

“Whatever the frequency of review of seclusion, the fact also remains that, under the policy, at all times, a nurse has to be within sight and sound of the seclusion room, periods of association are allowed and the conditions of seclusion can be adjusted according to the patient’s condition. These factors significantly minimise the likelihood of any physical or psychological deterioration in a patient who is placed in seclusion.” Para. 52.

 “[I]n determining whether someone has been deprived of his liberty, the starting point must be the applicant’s concrete situation and account must be taken of a whole range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance.” Para. 66.

“Finally, of greatest weight to the Court’s conclusion that there has been no further deprivation of liberty in the applicant’s case is the manner in which his seclusion was implemented. The Court accepts [the patients’] seclusion in their own rooms, the continual presence of staff, the opportunity to take meals in the ward, regular visits, and periods of association outside their rooms […] For this reason, and for the further reasons given above, the Court is satisfied that the applicant’s seclusion did not amount to solitary confinement […], still less a further deprivation of liberty within the meaning of Article 5 § 1 of the Convention.” Para. 72

“The Court notes that the applicant has not submitted that his seclusion failed to pursue a legitimate aim. Nor has he submitted that his seclusion had been unnecessary in a democratic society. The Court considers that there are no grounds to find that these requirements of Article 8 § 2 were not met. Accordingly, it finds no violation of Article 8.” Para. 96.