Mental health law briefing 188 – Is seclusion a deprivation of liberty?
In the recent case of Munjaz v. United Kingdom (Application no. 2913/06, ECtHR, 17. 7.12) the European Court of Human Rights (ECHR) re-visited the legality of Ashworth Hospital’s seclusion policy which departed from the Code of Practice to the Mental Health Act 1983. The House of Lords had previously rejected the challenge and found that the Code of Practice could be departed from if there were cogent reasons for doing so (see RLB Mental Health Law briefing number 94). M applied to the ECHR seeking declarations that the policy breached a number of articles of the European Convention on Human Rights, namely Article 3 (Prohibition of Torture), Article 5 (Right to Liberty and Security), Article 8 (Right to Respect for Private and Family Life) and Article 14 (Prohibition of Discrimination).
The ECHR found that none of the Articles had been breached. However, of interest was the Court’s consideration of Article 5 (Right to Liberty and Security) where the Court was asked to consider the contention that M’s seclusion at Ashworth had amounted to a further deprivation of liberty not prescribed under the Mental Health Act 1983 or any other statutory provision and was as such both unlawful and a breach of Article 5.
Of particular note were the Court’s comments in rejecting this aspect of the claim specifically indicating that “… whether or not there has been a further deprivation of liberty in respect of a person who is already lawfully detained must depend on the circumstances of the case”. Whilst on this occasion the Court found on the facts that there had been no further deprivation of liberty, the Judgment leaves open the possibility that on different facts there is the potential that a patient lawfully detained under the Mental Health Act could, through seclusion, be subjected to an unlawful deprivation of liberty.
M was admitted from prison to Ashworth Special Hospital. During his second period of detention in Ashworth he was secluded on a number of occasions for the protection of others. The last of these three occasions amounted to 18, 14 and 9 days respectively.
During each period of seclusion he was confined to either his bedroom or another room. However, the evidence was that M was allowed periods of association with other staff or patients during the periods of seclusion. These periods of association ranged from 5 minutes to over 8 hours.
M challenged Ashworth’s seclusion policy as it reduced the frequency of review of patients on seclusion below that provided in the then Code of Practice to the Mental Health Act 1983.
European Court’s Consideration of Article 5/Seclusion
The ECtHR found that none of the Articles of the European Convention were breached. As part of their Judgment the court specifically considered whether M’s seclusion in Ashworth amounted to a further deprivation of liberty which was not prescribed by either the Mental Health Act or any other statutory provision and was thus a breach of Article 5. In concluding that the seclusion of M did not amount to a further deprivation of liberty/breach of Article 5, they relied on the following four factors:
- M was a long-term patient in a high security hospital. They felt that therefore even when he was not in seclusion he was subjected to greater restrictions on his liberty than would normally be the case for a mental health patient.
- Whilst the seclusion imposed was coercive, it was not used as a form of punishment and its aim was to contain severely disturbed behaviour which was likely to cause harm to others. There were no arguments raised by M to suggest that any of the periods of seclusion were unnecessary or had failed to pursue a legitimate aim. Nor was there any suggestion that the seclusion had a lasting adverse effect.
- While the duration of the seclusion pointed towards a further deprivation of liberty, the Court considered that duration alone was not determinative and the length of seclusion was foremost a matter of clinical judgment.
- The final factor the court gave greatest weight to was the manner in which the seclusion was implemented. The Court noted the hospital’s approach to seclusion was to allow patients who were secluded the most liberal regime that was compatible with their presentation and the policy of seclusion was effectively applied. This included seclusion of patients in their own rooms, the presence of staff and the opportunity of secluded patients to take meals on the ward with regular visits and periods of association outside of their rooms. The Court noted that the seclusion was not felt to amount to solitary confinement or indeed a further deprivation of liberty.
Whilst M lost his challenge to the ECtHR, the Court’s decision has potentially wide ranging ramifications for those being cared for in circumstances amounting to seclusion. In particular, on different facts there is the potential that a patient lawfully detained under the Mental Health Act 1983 could, through seclusion, be subjected to an unlawful deprivation of liberty. Accordingly, following the ECtHR’s approach of carefully considering the nature and purpose of the seclusion, mental health professionals should take extra care to follow the seclusion requirements of the Code of Practice to the Mental Health Act and be prepared to justify the nature, purpose and lawfulness of any seclusion used.
 Munjaz v. United Kingdom (Application No: 2913/06) ECtHR paragraph 65
 Ibid. Paragraphs 69-72
 Code of Practice to the Mental Health Act 1983, 15.43-15.67
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.