0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Forgotten your password?

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.

Focus on...

Legal updates

Gosden and another v Halliwell Landau and another [2021] EWHC 159 (Comm)

This claim addressed the question, of when the date for assessment of damages in cases of negligence should be determined and shows that when appropriate the Courts will depart from the default position.

View

Legal updates

Assessing the scope of employers liability – Chell v Tarmac

These were the opening remarks of Mr Justice Martin Spencer when handing down his Judgment in the recent case of Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613, the latest in a series of appeals dealing with the scope of vicarious liability.

View

Legal updates

Non-payment of insurance premiums during the Coronavirus pandemic

The forced closure of many businesses as a result of the Coronavirus pandemic has had a huge impact on the nation’s Gross Domestic Product (GDP). Recent reports from the Office for National Statistics state that the economy was 25% smaller in April than it was in February this year.

View

Legal updates

Reinstatement for property damage losses – when does it apply?

The Court of Appeal has recently considered the correct test for measuring the indemnity for property damage losses and has provided useful guidance on whether an insured needs to intend to reinstate the property to its pre-loss condition.

View

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.

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up