Seclusion; Lord Steyn's Lament

Abstract

Towards the end of 2005, a long running battle over the seclusion of mentally disordered patients in hos??pitals reached the House of Lords. Over-ruling the Court of Appeal, their Lordships decided in Munjaz vs. Ashworth Hospital Authority that the strict guidelines of the Mental Health Act Code of Practice on seclusion were not always legally binding, and could in certain circumstances be departed from. This was seen as a victory for the hospitals and practitioners, who had fought long and hard for the decisions on seclusion to be made as “close to the ground” as possible, and for there to be leeway in how the Code of Practice was applied. Many on the patients' side, who had argued for the Code to be strictly followed so that patients could always know where they stood, likewise saw the result as a defeat.

However, the authors – who were respectively junior counsel and solicitor representing the patient in the case of S vs. Airedale NHS Trust with which Munjaz vs. Ashworth Hospital Authority was paired and heard together in the Court of Appeal – argue below that Munjaz has been misunderstood and the circumstances in which the Code of Practice can be departed from are strictly defined, in such a way that important arguments on the patients' side must be seen to have succeeded.