Seclusion After the Human Rights Act: Important New Court Guidance

Originally published in August 2003

The power to seclude a patient has long been recognised as a necessary element in dealing with patients who are detained under the Mental Health Act 1983 and who pose a risk of significant harm to others. The Code of Practice defines seclusion as "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 had been a practice that, in view of its nature, inevitably has given rise to concerns. These concerns include the misuse of seclusion as a punitive measure and the risk of "therapeutic nihilism", where the clinical team become hopeless about the chances of successful treatment. It is therefore unsurprising that this practice has recently been challenged, with the aid of the Human Rights Act 1998, by patients who had been subject to seclusion. The case is particularly interesting in the importance that the Court of Appeal gave to the Code of Practice, which lacks statutory weight, in the protection of patients who by reason of their seclusion may be extremely vulnerable to breach of their human rights.

The Court of Appeal considered the lawfulness of seclusion in respect of psychiatric patients detained in hospital in connection with the cases of two separate patients who had challenged the lawfulness of the use of seclusion. Firstly, Colonel Munjaz challenged the nature of his seclusion at Ashworth Hospital, where he had been detained under a transfer from a medium secure unit (having committed various criminal offences). He had initially spent his first two years in seclusion at Ashworth and in later years had been placed in seclusion on 4 separate occasions. He did not challenge the decisions to place him in seclusion or the length of the seclusion. His challenge was to the lawfulness of Ashworth's policy which he claimed departed from the Judgment in a previous case in which he had successfully raised issues concerning the policy and also departed from the Code of Practice. A fundamental element of the patient's challenge related to the practice of review adopted by Ashworth, which he argued was a departure from the Code which posed a risk of breach of his rights under Articles 3 and 8 of the Human Rights Act. Ashworth's policy (which had been reviewed following the original challenge by the Colonel) provided for medical reviews twice daily from days 2-7 of seclusion but thereafter for 3 each week (including one by the patient's RMO) together with a weekly multidisciplinary review (also including the RMO).

S, the other Applicant in the case before the Court of Appeal, challenged the reasonableness of his seclusion. He had been admitted to Airedale General Hospital for treatment under Section 3...