Code of Practice rejected in House of Lords ruling:
Mind issues urgent plea for its defence

Thursday 13 October 2005

Code of Practice rejected in House of Lords ruling: Mind issues urgent plea for its defence
"…a set-back for a modern and just mental health law." Lord Steyn

Case: Regina v Ashworth Hospital (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent)

Mind is appalled today at the judgement given by The House of Lords in this important case concerning the use of seclusion, allowing Ashworth Hospital to reject the Mental Health Act 1983 Code of Practice*1 "lock, stock and barrel" (judge Lord Steyn), by a majority of three to two. The previous Court of Appeal ruling saw all three judges*2 unanimously supporting Mind's argument against Ashworth. 

What this could mean
The Code was drawn up to ensure that patients could rely on tolerable minimum standards of care. This ruling has opened the door for Ashworth and other hospitals to ignore the Code whenever they choose. Mind is deeply disappointed that the most senior court in England has seen fit to allow this state of affairs to develop. Hospitals and Local Authorities can now have policies not compliant with the Code on issues including sectioning decisions, restraint, patients' visiting and correspondence rights, random personal searches and aftercare. For example:

• The Code states that restraint must not involve tying a patient to any part of a building, but a hospital could potentially now have a policy allowing this. The patient would not be protected by the Code at the time, and so would now be forced to raise it afterwards as a human rights issue in court.

Mind intervened in the case because we believed it raised matters of great importance for all patients using mental health services. We believe the rules about how patients are secluded, or given forcible medical treatment, need to adhere to a nationally agreed standard. In this case, Ashworth Hospital made up its own rules which allowed the patient to be secluded for lengthy periods without proper safeguards in place to protect his human rights. This is a worrying reverse in a mental health system that has seen human rights progress far since the shocking days of asylums.

Both the claimant and Mind argued that all hospitals had to comply with the standards set by the Code, unless there were "good" reasons for departing from it. We argued that the Code had to have binding force in order for seclusion and many other practices covered by the Code to be compliant with safeguards set by the European Court of Human Rights.

In today's judgement from the House of Lords, the leading opinion was delivered by Lord Bingham, supported by Lords Hope and Scott, Lords Brown and Steyn dissenting. Lord Bingham overruled the Court of Appeal on the grounds that so long as a local policy was compliant with English common law and did not itself violate Convention law, there was nothing in English law which required local policies to be compliant with the Code. In his view, to give the Code the status attributed by the Court of Appeal deprives local managers of their judgmental authority and has a "strong (impermissable) centralising effect". Mind believes that he has therefore sold the rights of individual patients down the river to protect the "authority" of the local manager.

Mental Health Bill
Mind is seriously concerned at this reduction of the regulation of human rights at a time when the Government's draft Mental Health Bill proposals are likely to make many more members of the public subject to compulsory treatment.

Lord Steyn says "How society treats mentally disordered people detained in high security hospitals is, however, a measure of how far we have come since the dreadful ways in which such persons were treated in earlier times. For my part, the decision today is a set-back for a modern and just mental health law."

Henrietta Marriage, Head of Mind's Legal Unit says:
"This judgement will make it impossible to regulate the care and treatment of people in the most vulnerable situations possible. We will be doing our utmost to ensure that anyone who feels they have been mistreated as a result of this change in the law has the opportunity to challenge their treatment, taking cases to the European Court of Human Rights if necessary. We encourage people in this position to contact us for advice: E: legal@mind.org.uk; T: legal helpline, 0208 519 2122. "

*** Ends ***

1. Section 118 (1) of the 1983 Act is central to this appeal, and provides for the Secretary of State to prepare, and revise, a code of practice for medical staff as specified (contact Mind for further details).
2. The Court of Appeal comprised Hale LJ, Lord Phillips of Worth Matravers (MR at the time) and Latham LJ.