R (Munjaz) v Mersey Care NHS Trust
[2005] UKHL 58
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
The Code of Practice issued under section 118 of the Mental Health Act 1983 is guidance, not instruction: it must be given great weight and considered with great care, and a hospital may depart from it only if it has cogent reasons for doing so, which the court will scrutinise with an intensity reflecting the importance and sensitivity of the subject matter. Ashworth's seclusion policy, which departed from the Code's frequency of medical reviews for patients secluded beyond seven days, was supported by cogent reasons and was compatible with articles 3, 5 and 8 of the Convention.
Facts
In December 2002 the Mersey Care NHS Trust, as managers of Ashworth Hospital — one of the three high security hospitals — implemented a written seclusion policy which provided for significantly less frequent medical review of seclusion, particularly after Day 7, than paragraph 19.21 of the Code of Practice laid down. Mr Munjaz, a patient at Ashworth who had been secluded on a number of occasions for the protection of others, challenged the general lawfulness of the policy. Sullivan J held the policy lawful, but the Court of Appeal declared it unlawful, holding that the Code should be observed unless there was good reason for departure in an individual case or for patients sharing well-defined characteristics; the Trust appealed.
Judgment Summary
The House of Lords allowed the Trust's appeal by three to two and held the seclusion policy lawful. Lord Bingham, with whom Lord Hope and Lord Scott agreed, held that the Code is guidance to be departed from only for cogent reasons subject to intense scrutiny, and that the Trust's detailed evidence — reflecting the special problems of high security hospitals and of patients secluded for more than a few days — showed good reasons for its policy. The policy, properly operated, was sufficient to prevent any breach of article 3, did not engage article 5 since seclusion of a lawfully detained patient deprived him of no residual liberty, and involved no breach of article 8: its rules were accessible, foreseeable and predictable and any interference was justified and proportionate. Lord Steyn and Lord Brown dissented, considering that the ruling permitted substantial departures from the Code and lowered the protection offered to vulnerable mentally disordered patients.
Key Quotes
"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."
— Lord Bingham of Cornhill, para 21(verbatim, verified against the judgment)
"They must give cogent reasons if in any respect they decide not to follow it. These reasons must be spelled out clearly, logically and convincingly."
— Lord Hope of Craighead(verbatim, verified against the judgment)
Subsequent Treatment
Upheld in Strasbourg: in Munjaz v United Kingdom (App No 2913/06) [2012] ECHR 1704 the European Court of Human Rights rejected the complaints arising from the Ashworth seclusion policy, finding no violation of the Convention. The cogent-reasons standard for departing from the Code remains the leading statement on the status of statutory guidance.
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