R (on the application of Munjaz) v. Mersey Care NHS Trust

Colonel Munjaz sought judicial review of Mersey Care NHS Trust’s (Mersey Care) policy on the seclusion of patients detained at the hospital. He claimed that the policy violated both domestic law and the European Convention on Human Rights (ECHR), as incorporated into United Kingdom law by the Human Rights Act 1998 (HRA).

Colonel Munjaz was a mental health patient with a history of violence, who had previously been jailed several times. Because of his mental disorder, he was transferred to a hospital run by Mersey Care, which was one of the few high security mental health facilities that could cope with his dangerous behaviour. Colonel Munjaz was subjected to seclusion four times because of the danger posed to others by his violent outbursts. The longest period of his seclusion lasted for 18 days.

Section 118(1) of the Mental Health Act 1983 (MHA) provided that the Secretary of State for Health should prepare a code of practice to guide medical practitioners, managers and staff of hospitals and mental nursing homes in relation to the admission and medical treatment of patients suffering from mental disorder. The code prepared under this section by the Secretary (the Code) contained a section on seclusion. The mental health facility’s policy on seclusion differed from the guidelines prescribed by the code, in that they required less frequent medical reviews. However, the policy still required frequent monitoring and notification to the Mental Health Act Commission of any seclusion of more than seven days, and provided for appeals to the medical director and for judicial review.

Munjaz challenged the lawfulness of the hospital’s policy, arguing that it was unlawful under domestic law because it was inconsistent with the Code, and that it violated the right to private life, the right to freedom from inhuman or degrading treatment, and the right to freedom from arbitrary detention under the ECHR. The claim related solely to the general lawfulness of the hospital’s policy; complaints on Munjaz’s own seclusion were not pursued. The lower court found the policy to be lawful in respect of both the MHA and the HRA. The Court of Appeals reversed the decision, “concluding that the code should be observed by all hospitals unless they had a good reason for departing from it in relation to an individual patient.” Mersey Care appealed to the House of Lords.

The Court held that Mersey Care’s policy was consistent with both the MHA and the HRA and allowed the appeal.

With regard to the MHA, Mersey Care argued that its policy did not need to be consistent with the Code as the policy did not relate to “admission” or “medical treatment” and therefore did not fall under s 118(1) of the MHA; that the Code was in any case non-binding; and that the Code was directed to hospitals in general, rather than the special needs of high-security mental health facilities. The Court rejected the first argument, but accepted the second and third. It considered that the language of s 118(1) was wide enough to cover seclusion, and hence the Code was covered by s 118(1) of the MHA. However, the Court also considered that the Code was intended to be guidance, not binding rules, although the Code would be given great weight in determining whether action was otherwise lawful. The Court therefore concluded that it was lawful for the hospital to depart from the Code as long as a deviation was “supported by cogent reasoned justification”.

In this case, Mersey Care could lawfully deviate from the Code, because it had special needs as a high-security mental hospital that were not addressed in the Code, because patients placed into long-term seclusions often needed to be observed for longer periods of time before hospital staff could be sure of their improvement, and because the statutory scheme clearly intended to leave the final decision in the hands of the medical practitioners. The hospital had considered the Code at great length, and the Court could not consider that Mersey Care had failed to show good reason for adopting its policy.

The Court also held that the Code was not inconsistent with ECHR rights. While the Court considered that seclusion, if improperly used, could violate a patient’s ECHR rights, in this case, it was not a particular case but the policy itself that needed to be shown to be  inconsistent with those rights. This could not occur on the present case – the policy, if complied with, had sufficient safeguards to prevent inhuman or degrading treatment, and the rights to privacy and freedom from arbitrary detention allowed seclusion if it was done in accordance with a reasonable law and was necessary for public safety. The many safeguards in the policy and the extensive deliberation that was taken in its adoption showed that the policy was not incompatible with these rights.

“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 s 118(2), 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.” Para. 21.

“The seven-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.” Para. 24.

“As a party to the convention the United Kingdom is bound in international law, by art 1 of the convention, to secure to everyone within its jurisdiction the rights and freedoms with which this appeal is concerned. As a contracting party it is answerable for any failure to do so. But the internal distribution of powers within member states is not regulated by the convention. It is for them to resolve, through the democratic process, what power shall be exercised and by whom to secure the observance of convention rights. If, therefore, as in this case, Parliament chooses to establish a framework of binding statutory provisions, and to supplement those provisions by a code which will guide but not bind local managers and healthcare professionals, leaving the final decision to them, there is nothing in the convention which invalidates that decision. The evidence makes plain that there are those who would favour binding central direction on the use of seclusion, but that is not the choice which Parliament has made and not a course the Secretary of State supports.” Para. 27.