Published: 12/08/2004, Volume II4, No. 5918 Page 25

Appeal Court judgements on seclusion must be heeded, say Christopher Curran and Anthony Deery

The use of seclusion to manage severely disturbed behaviour that may place others at risk has sparked a great deal of debate. The Mental Health Act 1983 code of practice defines seclusion as 'the supervised confinement of a patient in a room, which may be locked to protect others from significant harm'. Previous regulation was accidentally repealed in the Mental Health Act 1959.

However, in a recent case, the Court of Appeal used an alternative definition, which may be wider and therefore cover more forms of intervention (R (on the application of Colonel Munjaz) v Mersey Care trust;

S v Airedale trust [2003] EWCA Civ 1036). The court also said the code should be observed by all hospitals unless they have a good reason for departing from it. Failure to do so is likely to be unlawful.

Although the practice is not expressly regulated by statute, the Court of Appeal found that the act contains an implied power to seclude a detainee where it is 'reasonably necessary' to do so.

Also, under the common law doctrine of necessity, an informal patient may be secluded in order to protect others from the immediate risk of significant harm.However, in such circumstances the code says seclusion should be taken as an indicator of the need to consider formal detention.

But it is questionable whether the 'necessity' doctrine may be invoked to permit the seclusion ofan informal patient who possesses the capacity to give or withhold consent. If a hospital has no seclusion policy, it may be acting unlawfully.

The Court of Appeal also considered seclusion against the requirements of the European Convention on Human Rights. It said that article 3 (the prohibition oftorture and of inhuman or degrading treatment) would only be breached in exceptional circumstances. Article 5 (the right to liberty) was not engaged where a person's basic detention was lawful, and where - as with seclusion - the complaint is essentially about a 'prison within a prison'.

Finally, with regard to article 8 (the right to respect for, among other things, one's private life), the court said the need to comply was at the heart of the court's decision on the status of the code.

In essence, the code is required in order to ensure that seclusion, or any potential breach of article 8, can be said to be 'in accordance with the law'.

As seclusion will be used in a psychiatric emergency, hospitals should ensure that a suitably qualified and experienced doctor can attend each seclusion episode (lasting more than five minutes) 'immediately' (code 19.18).We believe if this is not possible, seclusion should not be used.

The Mental Health Act Commission has suggested the way some hospitals manage challenging behaviour is seclusion in all but name.

For example, they might call it 'removal from the environment'.

Seclusion involves a significant curtailment of an individual's rights and freedom.

The result is that some hospitals may not be complying with the code and may therefore be acting unlawfully. l Christopher Curran is visiting fellow, Hull School of Health and Social Care, Lincoln University, and senior professional adviser, private and voluntary healthcare mental health team, Healthcare Commission.Anthony Deery is head of PVH mental health, Healthcare Commission.Thanks to Catherine Grimshaw (solicitor).

Cracking the code: what the MHAC wants

The Mental Health Act Commission's 10th Biennial Report suggests that some hospitals fail to comply with the code, prepare an up-to-date seclusion policy and provide a well-designed and properly equipped seclusion facility.Curran and Deery recommend that the government:

reviews seclusion as part of the new Mental Health Act;

returns to the statutory regulation of seclusion;

requires every hospital to record the gender and ethnic origin of every patient who is secluded;

requests that the National Institute for Clinical Excellence develops a national minimum standard for the design, equipping and furnishing of seclusion facilities;

requires every hospital to appoint a senior manager responsible for auditing seclusion;

appoints a trust board member or registered individual (independent hospitals) to monitor seclusion;

gives the Healthcare Commission the statutory responsibility to review seclusion.