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R v Mersey Care NHS Trust, House of Lords, 13 October 2005

25 October 2005
The issues

Mental Disorder – Patient – Seclusion

The facts

Whether the policy adopted by the Defendant’s Managers of a high security hospital providing for the seclusion of psychiatric patients compulsory detained under the Mental Health Act 1983 was legal insofar as it provided for medical reviews at less frequent interviews than recommended by the Secretary of State for Health’s Code of Practice under Section 118 (1) of the Act or whether it contravened Articles 3, 5 and 8 of the Convention for the Protection of Human Rights.

The Judge at first instance had dismissed the Claimant’s claim for judicial review. The Court of Appeal had allowed that appeal. The Defendant Trust appealed to the House of Lords.

The decision

The Code of Practice did not have the binding effect of a statutory provision. It amounted to guidance rather than direction or instruction. A hospital should only depart from it for very good reasons. The evidence had showed that the Defendant’s considered the Code carefully and justified their policy in detail and in so doing taken into account amongst other things that the Code was directed to mental hospitals in general and did not deal with the special problems relating to high security hospitals. It could not be said to be unlawful.

Assuming that the policy was properly operated there was no risk of an Article 3 breach nor similarly was there a breach under Article 5 in that the policy if properly applied did not permit a patient to be deprived of any residual liberty to which he was properly entitled under that Article.

Seclusion did not show a lack of respect for the patient’s private life within Article 8 (1) on the assumption that it was used as the only way of protecting other people from violence or intimidation and for the shortest period that was necessary. In the alternative, any interference with the patient’s rights would be justified under Article 8 (2). It would not be disproportionate because it would match the necessity that gave rise to it.

Lord Steyn dissented, Lord Hope and Lord Scott both agreed with the main speech delivered by Lord Bingham.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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