England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		Thursday 28th September 2000

1. MR JUSTICE JACKSON: This judgment is in four parts, namely: part 1, introduction; part 2, the background facts and statutory context; part 3, the four challenges to Ashworth Hospital's Seclusion Procedure; part 4, conclusion.

Part 1: Introduction

2. The applicant is a patient detained at Ashworth Special Hospital pursuant to section 37 of the Mental Health Act 1983. The applicant has been at Ashworth Hospital since March 1994. From time to time the applicant has been placed in seclusion at Ashworth Hospital as a result of behavioural problems.
3. In November 1999 the applicant commenced proceedings for judicial review, in order to challenge the legality of his seclusion. On 10th September 1999 Elias J granted permission to the applicant on a limited basis. The applicant was entitled to challenge the legality of Ashworth Hospital's general procedure in relation to seclusion; he was not entitled to challenge, on the facts, the appropriateness of seclusion in his own particular case.
4. When this matter came on for hearing on 14th June, it emerged that the parties had prepared their evidence on different bases. There was a misunderstanding between the parties as to the basis on which permission had been granted. In these unfortunate circumstances only limited progress could be made on 14th June. The hearing was then adjourned part heard in order that relevant evidence could be lodged by the respondent.
5. The adjourned hearing took place yesterday. It focused solely upon the respondent's general procedure in relation to seclusion. There was scarcely any reference to the specific circumstances of the applicant.
6. In essence, the applicant has advanced four challenges to the respondent's procedure. Before considering these four challenges, I must outline the background facts and the statutory context.

Part 2: The background facts and the statutory context

7. Section 4 of the National Health Service Act 1977 imposes a duty on the Secretary of State to:

"Provide and maintain establishments (in this Act referred to as 'special hospitals' for persons subject to detention under the Mental Health Act [1983] who in his opinion require treatment under conditions of special security on account of their dangerous, violent or criminal propensities."

8. There are three such special hospitals in England, namely Broadmoor at Crowthorne in Berkshire, Rampton near Retford in Nottinghamshire and Ashworth on Merseyside. These three special hospitals are the only high security mental hospitals in the country. Each of these hospitals is managed by its own special health authority. Since places at the three special hospitals are a scarce resource, the admissions criteria are inevitably quite restrictive. The admissions criteria for Ashworth Hospital include the following passages:

"It is an unacceptable infringement of a patient's civil rights to detain them in a higher level of security than they require. The special security available within Ashworth Hospital is of such a kind and degree to detain patients who, if at large, would present a grave danger to the public and who could not be safely contained within the security available at a regional secure unit...

Special hospital admission is not generally considered suitable for patients who:

(a)...

(b) though exhibiting extreme disruptive or anti-social behaviour in the community or local hospital are unlikely to inflict serious physical injury on others..."

9. It follows from admissions criteria such as these that the patients at Ashworth, Broadmoor and Rampton Hospitals are likely to be, and are in fact, distinctly more dangerous than patients at all other institutions which cater for the mentally ill.
10. I turn now to the Code of Practice. Section 118 of the Mental Heath Act 1983 provides:

"(1) The secretary of State shall prepare, and from time to time revise, a code of practice-

(a) for the guidance of registered medical practitioners, managers and staff of hospitals and mental nursing homes and approved social workers in relation to the admission of patients to hospitals and mental nursing homes under this Act [and to guardianship and aftercare under supervision under this Act]; and

(b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.

(2)...

(3) Before providing the code or making any alteration in it the Secretary of State shall consult such bodies as appear to him to be concerned."

11. Subsections (4) and (5) require the Code of Practice to be laid before Parliament for approval.
12. The current version of the Code of Practice, which has been duly approved by Parliament, came into force on 1st April 1999. In relation to seclusion the Code provides as follows:

"19.16 Seclusion is the supervised confinement of a patient in a room, which may be locked to protect others from significant harm. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.

Seclusion should be used:

* as a last resort;

* for the shortest possible time.

Seclusion should not be used:

* as a punishment or threat;

* as part of a treatment program;

* because of shortage of staff;

* where there is any risk of suicide or self-harm.

Seclusion of an informal patient should be taken as an indicator of the need to consider formal detention.

19.17 Hospitals should have clear written guidelines on the use of seclusion which:

* ensure the safety and well being of the patient;

* ensure the patient receives the care and support rendered necessary by his or her seclusion bothduring and after it has taken place;

* distinguish between seclusion and "time-out"(see paras 18.9-18.10);

* specify a suitable environment taking account of patient's dignity and physical well being;

* set out the roles and responsibilities of staff;

* set requirements for recording, monitoring, reviewing the use of seclusion and any follow-up action.

Procedure for seclusion

19.18 The decision to use seclusion can be made in the first instance by a doctor or the nurse in charge. Where the decision is taken by someone other than a doctor, the rmo or duty doctor should be notified at once and should attend immediately unless the seclusion is only for a very brief period (no more than five minutes).

19.19 A nurse should be readily available within sight and sound of the seclusion room at all times throughout the period of the patient's seclusion, and present at all times with a patient who has been sedated.

19.20 The aim of observation is to monitor the condition and behaviour of the patient and to identify the time at which seclusion can be terminated. The level should be decided on an individual basis and the patient should be observed continuously. A documented report must be made at least every 15 minutes.

19.21 The need to continue seclusion should be reviewed

* every 2 hours by 2 nurses (1 of whom was notinvolved in the decision to seclude), and

* every 4 hours by a doctor.

A multidisciplinary review should be completed by a consultant or other senior doctor, nurses and other professionals, who were not involved in the incident which led to the seclusion if the seclusion continues for more than:

* 8 hours consecutively; or

* 12 hours intermittently over a period of 48 hours.

If the need for seclusion is disputed by any member of the multidisciplinary team, the matter should be referred to a senior manager."

13. I turn next to the manner in which seclusion is used at Ashworth Hospital. The respondent has issued to staff a document entitled "Seclusion Procedure". This provides as follows:

"THE DECISION TO SECLUDE

The decision to seclude can be made in the first instance by a Doctor, the Nurse in-charge of the Ward or a Senior Nurse.

The appropriate Doctor and Senior Nurse/Senior Manager will be informed immediately, if not already involved, and will attend the ward as soon as possible but not later than one hour.

The Central Clinical Administration Office will be informed immediately.

All main Team Members involved with the patient will be informed as soon as possible and wherever possible should make every effort to be involved in the review process, including, the Team Psychologist, Team Social Worker and the Consultant Psychiatrist (if not already involved). In addition, significant others as determined by the Patient Care Team should also be informed.

FREQUENCY OF REVIEW

At the first review (within the hour), which will be attended by a Doctor, Nurse In-charge and the Senior Nurse/Senior Manager, a decision will be made whether or not seclusion will be required to continue. If it is in the patient's best interest to remain in seclusion, the Doctor will record in the notes a collaborative Care Plan which will include the level of observation required and an agreed review schedule.

Levels of observation should be based on patient presentation, but a documented report must be made every 15 minutes.

Two nursing staff will carry out a review of seclusion every two hours. They will record the outcome in the observation text and they will both sign the entry.

Medical reviews will be carried out as follows:

Within the hour, at four hours, at eight hours, at twelve hours or earlier, at twenty-four hours or earlier, day two-three (twice a day), and thereafter on a daily basis. The Consultant Psychiatrist or deputy may formulate an alternative review programme at any time in consultation with nursing and other staff. This should be fully documented. (See guidance notes 6.8.3)

If at any review at 8 hours or subsequently the doctor is not a consultant psychiatrist the doctor during the review must consult with the patient's responsible medical officer or the duty consultant and this should be fully documented. (See guidance note 6.8.1)

The 8-hourly review should be carried out by a team which includes a Doctor, at least two nurses, one of whom will be the nurse in charge of the ward, and, where possible, at least one other health care professional. At least one of these clinicians must not have been involved in the original decision to seclude the patient. (See guidance notes 6.8.2)

A Consultant Psychiatrist (who would be the RMO, if available) must see the patient within 72 hours or on the first working day*.

If a patient is secluded for 3 days, a review will take place on the 4th day, or on the first working day*, by the patient's Clinical Team including the patient's Consultant or their deputy.

If a patient is secluded for 7 days, the chairperson of the patient's clinical team, or deputy, must consult with the Medical Director and the Executive Nurse Director. The Medical Director and Executive Nurse Director will arrange to see the patient or will ask the Ward Manager to contact two members of the SMG who will see the patient on their behalf. (See guidance notes 6.8.6 & 8). The Chief Executives office will also be notified."

14. This document is required to be read in conjunction with guidance notes. I shall set out the relevant parts of the guidance notes later in this judgment.

Part 3: The four challenges to Ashworth Hospital's Seclusion Procedure.

The first challenge:

15. Miss Fenella Morris, on behalf of the applicant, submits that the threshold for the use of seclusion at Ashworth Hospital is too low. For example, seclusion may be used in response to verbal aggression or in response to past conduct which has ceased. Also seclusion may be used as punishment. Miss Morris submits that all this follows from Appendix C to the guidance notes.
16. I do not accept this submission. Appendix C deals with the review of seclusion, not the initial decision to seclude. The criteria to be applied at the time of the initial decision to seclude are set out in section 5 of the guidance notes. The key parts of the section read as follows:

"USE OF SECLUSION

The only circumstances when seclusion can be used will be:

* in response to severely disturbed behaviour which is likely to cause harm to others.

* in a psychiatric emergency

* when it is the only means of gaining control ofa dangerous situation...

SECLUSION WILL NOT BE USED:

* as a punitive measure

* to enforce good behaviour

* as a treatment technique

* as part of any treatment programme

* to compensate for staff shortages

* where there is reason to suspect that thepatient may take their own life or otherwiseself harm."

17. In my view the criteria for seclusion set out in the guidance notes are appropriate and are in accordance with the Code.

The second challenge:

18. Two nurses are required to review a patient's seclusion every two hours. The Code of Practice provides that one of those nurses must not have been involved in the original decision to seclude. This latter provision does not feature in the Ashworth Hospital Seclusion Procedure. Nor does it feature in the guidance notes.
19. The respondent's solicitor, Mr William Irons, offers a justification for this departure from the Code in paragraphs 18-28 of his witness statement. Mr Irons makes the valid point that the Code of Practice applies to all institutions and all practitioners who deal with the mentally ill. It is not specifically tailored to Ashworth Hospital, where the patients have unusually severe behavioural problems and tend to remain in residence for a long time. I accept all these propositions.
20. Mr Irons next points out that nurses get to know the patients well. Several nurses may be involved in an initial decision to seclude. For example, the restraint of a patient could involve six nursing staff. It may not be practicable for every review of seclusion to be carried out by two nurses, one of whom had no involvement in the original decision.
21. I am not persuaded by this evidence. It appears from the documents that there are over 540 qualified nurses at Ashworth Hospital. There may, on occasions, be practical difficulties in finding an independent nurse to participate in a review. But that is no reason for the wholesale abandonment of an entirely sensible provision in the Code of Practice.
22. Mr Gregory Chambers, who appears for the respondent, points out that section 118 of the Mental Health Act 1983 does not make the provisions of the Code legally binding. I accept that. On the other hand, if the respondent proposes to depart from the Code there should be some good reason arising from the particular circumstances at Ashworth Hospital. In my view the Ashworth Hospital seclusion procedure ought to contain a provision along these lines:

"Where practicable, one of the nursing staff who carries out a review of seclusion should not have been involved in the original decision to seclude."

23. Such a provision meets all the relevant points which have been raised in Mr Iron's affidavit. There is no rational justification for the total abandonment by the respondent of the Code's requirement for an element of independence in nursing reviews.

The third challenge:

24. The Code of Practice requires that the seclusion of a patient should be reviewed by a doctor every four hours. However, the seclusion procedure at Ashworth Hospital requires that after three days a patient's seclusion need only be reviewed by a doctor once per day. Furthermore paragraph 6.8.3 of the guidance notes enables the consultant psychiatrist or his deputy to vary the review programme. Miss Morris contends that such variation may be adverse to the patient.
25. The respondent contends that seclusion beyond three days is not envisaged by the Code of Practice and that, accordingly, the respondent has had to draw up its own arrangements for medical reviews after three days.
26. I readily accept that seclusion of patients at the three high security hospitals is likely to last longer than seclusion of patients at other institutions. However, I do not accept that the Code of Practice is only directed at seclusions lasting for up to three days. In my judgement the Code is directed at all instances of seclusion. Thus the procedure at Ashworth Hospital clearly departs from the Code in relation to medical reviews.
27. Can such a departure be justified? The respondent has made provision for a clinical team review of seclusion after three days and for managerial staff to be involved in the review after seven days. Both of these provisions are sensible. However, I do not see any justification for reducing the regular reviews by doctors to one per day. It is not asserted in the respondent's evidence that more frequent reviews by a doctor would cause manpower problems.
28. In my view, the review of seclusion by doctors has an important function. It provides a second opinion from an objective and independent source. The nurses know the patients very well, as Mr Irons points out in his witness statement. This close relationship between nurses and patients can sometimes mean that a review of seclusion by nurses is less objective than a review by doctors.
29. I can certainly see that in the case of patients who require seclusion for many days, four-hourly visits by a doctor may neither be welcome nor necessary. But if doctors' reviews are reduced to one per day, this can be damaging to patients. To take the extreme example posed by Miss Morris during argument, a patient may be inappropriately held in seclusion between waking up at dawn and the doctor's visit in the early evening.
30. In my view the applicant's points would be met if seclusion were reviewed by a doctor twice per day. On the evidence put forward by the respondent, I see no justification for reducing medical reviews to one per day. That is too great a departure from the Code of Practice.

The fourth challenge:

31. Appendix C to the guidance notes is headed:

"8 - HOUR REVIEW - GOOD PRACTICE GUIDANCE"

32. Appendix C defines one of the matters to be considered on review as follows:

"Present Behaviour - in Relation to behaviour just before exclusion and any Additional Comments:

Expression of remorse/apology;

General level of co-operation;

Explanation given regarding actions prior to seclusion."

33. Miss Morris submits that this provision is contrary to the Code of Practice and contrary to the recommendations of the report of the inquiry chaired by Louis Blom-Cooper QC in 1992.
34. In my judgement Appendix C is not contrary to the Code of Practice. If a patient expresses remorse for previous acts of aggression, this could well be an indication that his condition is improving. It is a relevant consideration. However, neither the presence of remorse nor the absence of remorse is a decisive factor one way or the other. Indeed, if one examines the clinical notes relating to the applicant during periods of seclusion, it can be seen that the question of remorse is treated as just one relevant factor.
35. I turn now to the 1992 inquiry report. This report contains the following passage:

"It is accepted that there is no place for seclusion as a punitive or disciplinary measure, although there is suspicion from time to time that patients are secluded as a disguised punishment for violent behaviour. Even if the seclusion can be justified objectively on some legitimate ground, patients at least perceive their removal from association as a punishment. There is some evidence that seclusion is ended only as and when the patient expresses remorse for the behaviour that led to seclusion. It is clear, however, that the ending of seclusion (if it is initially justified) should never in any sense be linked to the patient expressing remorse or sorrow for any assault or damage that had occurred."

36. This passage, although powerfully reasoned, is not reflected in the current version of the Code. In my view the last sentence goes too far, especially the words "in any sense". If a patient is genuinely remorseful for earlier acts of violence, that is a pointer towards improved condition and a factor favouring the end of seclusion. It should not be ignored.
37. For all these reasons I reject the fourth challenge to Ashworth Hospital's Seclusion Procedure.

Part 4: Conclusion.

38. For the reasons set out in part 3 of this judgment the applicant succeeds in his second and third challenges to the respondent's Seclusion Procedure. The applicant fails on the other grounds.
39. I thank both counsel for their considerable assistance in this case. I will now hear counsel's submissions as to the appropriate form of order.
40. MISS MORRIS: My Lord, what I would ask for is a declaration, perhaps either in broad terms or perhaps better in narrow terms, in relation to your Lordship's decisions on the second and third challenges. I then also ask for mandamus requiring Ashworth to review their policy in the light of those declarations. My Lord, I ask for that because sometimes judges of this court take the view that the granting of a declaration is enough, but unfortunately it very often is not, if I can give the example of the cases concerning charging under section 117 of the Mental Health Act, this court and the Court of Appeal have both declared that it is unlawful to charge but even the public bodies who are involved in the cases are continuing to charge and it is necessary to obtain injunctions on individual bases in each case. In those circumstances I would ask for both a declaration and mandamus.
41. MR JUSTICE JACKSON: What time limit should I put on the mandamus, because there are procedures to be gone through? It cannot be done overnight.
42. MISS MORRIS: Absolutely, perhaps it should be a period of within three months.
43. MR JUSTICE JACKSON: Thank you very much. I will hear Mr Chambers. Yes, Mr Chambers?
44. MR CHAMBERS: My Lord, certainly as regards the declaration it should be, and we may have to discuss this between ourselves, in the narrow form rather than the broad, in other words specifically referring to the two successful challenges.
45. MR JUSTICE JACKSON: Yes.
46. MR CHAMBERS: I am not in a position, because of lack of instructions, to give undertakings as regards any amendments but I would submit that there is little doubt that the hospital has already been warned of the likelihood of the fact that this court will indicate that certain aspects of the policy are unlawful but the hospital will, in any event, take steps to alter these matters. Plainly we will have to do so, otherwise we are going to face another challenge very quickly in respect of someone else who is put in seclusion. So there may be circumstances in which mandamus is necessary, but quite plainly in this particular case if the declaration was made, that is to be made, was not followed by the hospital it would almost certainly be followed by another application because the policy itself has to be changed otherwise we would face that. So I would suggest we do not need a mandamus if your Lordship takes the view there should be an order for mandamus. I am also in difficulty as to how long it will take, there are certain procedural matters that have to be gone through.
47. MR JUSTICE JACKSON: Yes, it sounds to me as if mandamus is not required. The respondent special health authority is alive to the challenge and is alive to the fact that it is likely to lose on certain heads, although you cannot give an undertaking with respect to the judgment, subject to any appeal.
48. MR CHAMBERS: I am quite sure, and I think as to the fourth one I made is if we do not act on it then we are going to be merely back here again.
49. MR JUSTICE JACKSON: Well, I see a huge amount of force in that. Now what about the drafting of the declaration? Do you want to reply on the mandamus point?
50. MISS MORRIS: Not particularly.
51. MR JUSTICE JACKSON: Well, I am afraid I am against you, Miss Morris.
52. MISS MORRIS: My Lord, I suppose it could be in terms such as these: a declaration that the - and then set out the two relevant bits of the Ashworth Special Hospital Policy - are unlawful. If we just set out those two chunks, that is what I would suggest. I do not know if that meets with the approval of Mr Chambers. I think it is two fairly easy bits, is it not? It is review by nurses and then not requiring an independent nurse and then secondly--
53. MR JUSTICE JACKSON: The doctor point.
54. MISS MORRIS: --the provision in relation to the doctors.
55. MR JUSTICE JACKSON: Yes. That rather leaves it in the air, if I just simply say they are unlawful.
56. MISS MORRIS: Well, the difficulty is that although your Lordship has very helpfully suggested what they might be, I do not know whether this court often does make such suggestion and I am a bit adrift as to how that might be expressed in an order.
57. MR JUSTICE JACKSON: Can I say that those two sections -- can the declaration read: 'the two sections of the Ashworth Hospital's seclusion policy are unlawful for the reasons set out in part 3 of the judgment'?
58. MISS MORRIS: That sounds absolutely fine.
59. MR CHAMBERS: I am quite happy with that. I would rather have it relate to the alternatives that your Lordship did most helpfully suggest because obviously they will be the alternatives that will be put to the hospital and they differ in themselves, at least in one respect, well perhaps in both respects, from the strict wording of the Code of Practice.
60. MR JUSTICE JACKSON: Yes, indeed.
61. MR CHAMBERS: So we do not want to get in a muddle then, in fact I think that would be the most helpful way.
62. MR JUSTICE JACKSON: Yes, my formula? Because that refers to the judgment--
63. MR CHAMBERS: Yes, I would be very happy with that.
64. MR JUSTICE JACKSON: --which acknowledges special circumstances at Ashworth which call for some departure from the code.
65. MR CHAMBERS: I am very happy with that.
66. MR JUSTICE JACKSON: Very well then, the declaration will read that those two sections of the policy--
67. MISS MORRIS: Of the Ashworth Special Hospital Seclusion Procedure and guidance--
68. MR CHAMBERS: And guidance notes.
69. MR JUSTICE JACKSON: Procedure and guidance notes are unlawful for the reasons set out in part 3 of the judgment.
70. Might I ask counsel to draw the order up because you have the relevant documents? If you could agree the wording of the order and lodge it with the associate.
71. MISS MORRIS: Certainly, my Lord.
72. MR JUSTICE JACKSON: Thank you both very much.
73. MISS MORRIS: My Lord, I do have to make, unfortunately, an application for costs, given the current legal aid climate. It is very difficult when one brings a legal aid claim against a public body but unfortunately you may or may not be aware that under the new guidelines there are quite stringent consequences for solicitors and barristers who bring a case and do not obtain an order for costs at the ends. In those circumstances, I must make the application, but I also equally understand that it is another arm of Government, essentially, or the public sector, which is on the other side. I can see from your Lordship's somewhat crumpled expression that--
74. MR JUSTICE JACKSON: Well, you have won two points and lost two points, have you not?
75. MISS MORRIS: Perhaps in those circumstances my Lord would say it is 50/50 and each party should bear its own costs.
76. MR JUSTICE JACKSON: First of all, I fully appreciate that you have to make the application, but from my perspective both parties have had a measure of success and subject to anything that Mr Chambers may say the just order would be that each side would bear its own costs so that would mean that the legal aid authorities would bear the applicant's costs.
77. MISS MORRIS: My Lord, I would be content with that order, save of course for a request for legal aid taxation.
78. MR JUSTICE JACKSON: Certainly.
79. MR CHAMBERS: My Lord, I am very happy with that. It saves me, as I was otherwise going to have to do, going through the somewhat tangled thicket of the history of this matter and the various --
80. MR JUSTICE JACKSON: Yes.
81. MR CHAMBERS: Thank you.