Case digest

The court’s permission was not required to appeal against a decision of a nominated judge exercising the jurisdiction under the Mental Health Act 1983 Part VII
RE MB (A PATIENT) [2005] EWCA Civ 1293 CA
The patient suffered from Alzheimer’s disease. She also had three children. Under her will she had appointed her son, G, to be the sole executor and left the residue equally between her three children. An independent professional receiver had been appointed by the Court of Protection, rather than any of the three children, as there were family disputes. The receiver considered that it was inappropriate for G to continue as the sole executor and applied to the Court of Protection for a statutory will to be executed in which G was replaced as sole executor by the receiver. The master made the will on the terms sought. G appealed this under s.105 (1) of the Mental Health Act 1983, which provides that “… an appeal shall lie to a nominated judge from any decision of the Master of the Court of Protection or any nominated officer.” That appeal was dismissed.

G wanted to appeal the case further, so the issue arose as to whether a nominated judge exercising the jurisdiction under Part VII of the 1983 Act (the part that gives the Court of Protection its jurisdiction) was sitting as a judge in the High Court because, if he was not, G did not need permission to appeal against the decision.

HELD:

The right of appeal lay from the nominated judge to the Court of Appeal under s.105 (2) of the 1983 Act. The right of appeal to a county court, the High Court, or the Court of Appeal, may only occur with permission (Access to Justice Act 1999 s.54). However, permission had generally been imposed only in respect of appeals from the decision of a judge in the county court and the High Court (CPR r.52.3).

A nominated judge derived his position from his office as a judge of the High Court, when exercising the jurisdiction under Part VII of the 1983 Act but was not sitting in the High Court. As such, the requirement for permission did not apply to an appeal from the nominated judge’s decision. The Practice Direction 52, para 4 issued to assist with the application of the CPR 52, was not intended to and did not widen the scope of r.52.3 so as to impose a requirement for permission. G could proceed with his appeal against the judge's order without the need for permission.

The Mental Health Act 1983 Code of Practice issued pursuant to the Mental Health Act 1983 s.118 (1) provided guidance and not instructions

Regina v Ashworth Hospital (now Mersey Care National Health Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent) (2005) 3 WLR 793 [2005] UKHL 58

Mr Munjaz was a patient, detained under the 1983 Act at the high security, Ashworth hospital. He had been placed in seclusion for extended periods of time as he was becoming increasingly psychotic, aggressive and violent. The longest of periods lasted 18 days and the shortest four.

Section 118(1) of the 1983 Act provides for guidance to be issued in a code of practice, which underpins the 1983 Act. The Code is to be given parliamentary approval (s.118 (4)). Chapter 19 of the Code makes clear the seclusion is only appropriate as a way to contain severely disturbed behaviour, which is likely to cause harm to others. It should be used as a last resort and for the shortest possible time and should not be used as a punishment or threat; as part of a treatment programme; because of shortage of staff; or where there is any risk of suicide or self-harm. The Code provides that hospitals should have clear guidelines on the use of seclusion, including the frequency of reviews of the need to continue the procedure (chapter 19.17).

The Ashworth Hospital policy provided for less frequent medical reviews of seclusion, particularly after day seven, than is laid down in the Code. Mr Munjaz contended that the policy was unlawful.

HELD:

1. The code provided guidance and not instruction, but any hospital had to consider it carefully, and only depart from it, if it had cogent reasons for doing so. On the evidence before the court, Ashworth Hospital had carefully considered the code and large parts had been reproduced in its policy. The trust had justified why their policy departed from the Code. In particular it had taken into account the following:

a. The code had been directed to the generality of mental hospitals and had not addressed the special problems of high security hospitals;

b. The code did not recognise the special position of patients whom it was necessary to seclude for longer periods of time;

c. The statutory scheme had left the power and responsibility of the final decision to those who had the legal and practical responsibility for detaining, treating, nursing and caring for the patients.

2. The policy seen as a whole where properly operated, would be sufficient to prevent any possible breach of the Art.3 (the right not to be subject to torture, inhuman or degrading treatment or punishment). There was no evidence that the frequency of medical review provided in the policy risked any breach of those rights;

3. The policy, where properly applied, did not permit a patient to be deprived of any residual liberty to which he was properly entitled and as such did not breach Art 5 (the right to liberty and security);

4. It was difficult to see why the policy would be incompatible with Art.8 (the right to respect for family and private life) as its purpose was to define standards to be followed and to prevent abuse and arbitrariness. In any event, the policy was justified under Art.8 (2) as it was plainly necessary for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The policy satisfied the requirements of precision and accessibility and was in accordance with the law.

Note

This case is important as it sets out clearly the status of the Code of Practice that underpins the Mental Health Act 1983. Arguably the status of the eventual Code of Practice published under the Mental Capacity Act 2005 may equally only be a guide and not instructions.

Case digest compiled by Caroline Bielanska, TEP, solicitor and freelance consultant. She can be contacted at caroline.bielanska@ntlworld.com