R (Munjaz) v Mersey Care NHS Trust

The case of R (Munjaz) v Mersey Care NHS Trust involved an appeal against a decision of the Court of Appeal which declared the seclusion policy of Ashworth Hospital to be unlawful. The policy, implemented by the Mersey Care NHS Trust, governed the seclusion of patients detained at the hospital. The issue in the appeal was whether the policy was unlawful, either because it was inconsistent with domestic law or because it failed to comply with the European Convention on Human Rights. The Court of Appeal had held that the policy was unlawful, but the Trust challenged that decision.

The House of Lords, in a split decision, allowed the appeal and held that the policy was lawful. The majority of the Lords held that the Secretary of State's Code of Practice, which provided guidance on the use of seclusion, should be regarded as guidance rather than instruction, and that hospitals were entitled to depart from the Code if they had cogent reasons for doing so. The Lords found that the Trust had provided cogent reasons for departing from the Code in relation to the frequency of medical reviews for patients who were secluded for more than seven days. The Lords also held that the policy did not violate any of the Convention articles under consideration, and that there was no warrant for resorting to section 3 of the Human Rights Act 1998 to give the Code a meaning and effect other than that which Parliament gave to it.

The dissentient Lord Brown of Eaton-under-Heywood argued that the Code must be given a higher status, akin to the force of law, in order to ensure that the practice of seclusion was compliant with the Convention. He argued that without such a Code, the legal position would be that the 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. He expressed the hope that a comprehensive and compulsory scheme for the regulation of seclusion and its periodic review may be laid down in the future.