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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Colonel M, R (on the application of) v Ashworth Hospital Authority [2002] EWHC 1521 (Admin) (5 July 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1521.html Cite as: [2002] EWHC 1521 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London
		Friday 5 July 2002

Friday 5 July 2002

MR JUSTICE SULLIVAN:

Introduction

1. The claimant is a patient detained under section 37 of the Mental Health Act 1983 ("the Act") at Ashworth Special Hospital ("Ashworth"). He was admitted to Ashworth on 1 March 1994 from the Three Bridges Regional Secure Unit. He had previously been a patient at Ashworth between July 1984 and March 1992.
2. Ashworth is one of three hospitals which provide high security psychiatric services for persons who "require treatment under conditions of high security on account of their dangerous, violent or criminal propensities": see section 4 of the National Health Services Act 1977, as amended. The other two such hospitals are Broadmoor and Rampton.
3. On 1 April 2002 the defendant, the Mersey Care NHS Trust, took over responsibility for the provision of high security psychiatric services at Ashworth from the Ashworth Hospital Authority, the original defendant in these proceedings.
4. Section 118 of the Act provides so far as relevant for present purposes:

"(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 after-care 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.

....

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

(4) The Secretary of State shall lay copies of the code and any alteration in the code before Parliament; and if either House of Parliament passes a resolution requiring the code or any alteration in it to be withdrawn the Secretary of State shall withdraw the code or alteration and, where he withdraws the code, shall prepare a code of substitution for the one which is withdrawn.

....

(6) The Secretary of State shall publish the code as for the time being in force."

5. The current code was published in March 1999. In the foreword the then Secretary of State, Mr Dobson, said, inter alia:

"People with mental health problems deserve good care and support. They are often vulnerable, may have difficulty in expressing their needs and, in some cases, may not recognise that they need help. These patients, carers, and the general public, should be able to rely on health and social services which provide effective care and treatment.

....

The Code provides essential reference guidance for those who apply the Act. Patients and their carers are entitled to expect professionals to use it."

6. Paragraph 1 in the Introduction to the Code explains:

"This revised Code of Practice has been prepared in accordance with section 118 of the Mental Health Act 1983 by the Secretary of State for Health and the Secretary of State for Wales, after consulting such bodies as appeared to them to be concerned, and laid before Parliament. The Code will come into force on 1 April 1999. The Act does not impose a legal duty to comply with the Code but as it is a statutory document, failure to follow it could be referred to in evidence in legal proceedings."

7. Under "Guiding Principles" paragraph 1.1 says:

"The detailed guidance in the Code needs to be read in the light of the following broad principles, that people to whom the Act applies (including those being assessed for possible admission) should:

*receive recognition of their basic human rights under the European Convention on Human Rights (ECHR);

*be given respect for their qualities, abilities and diverse backgrounds as individuals and be assured that account will be taken of their age, gender, sexual orientation, social, ethnic cultural and religious background, but that general assumptions will not be made on the basis of any one of these characteristics;

*have their needs taken fully into account, though it is recognised that, within available resources, it may not always be practicable to meet them in full;

*be given any necessary treatment or care in the least controlled or segregated facilities compatible with ensuring their own health or safety or the safety of other people;

*be treated and cared for in such a way as to promote to the greatest practicable degree their self-determination and personal responsibility, consistent with their own needs and wishes;

*be discharged from detention or other powers provided by the Act as soon as it is clear that their application is no longer justified."

8. Part 19 of the Code is concerned with patients presenting particular management problems. Seclusion is dealt with in paragraphs 19.16 to 19.22 as follows:

"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 programme;

--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 both during and after it has taken place;

--distinguish between seclusion and 'time-out';

--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 [responsible medical officer] 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."

9. Then of critical importance in the present case paragraph 19.21 says:

"The need to continue seclusion should be reviewed

--every 2 hours by 2 nurses (1 of whom was not involved 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."

10. Paragraph 19.22 deals with the conditions of seclusion, for example, what facilities should be provided in the room used for seclusion.

The History

11. The claimant's condition is such that over the years he has been at Ashworth he has frequently been placed in seclusion. His responsible medical officer, Dr Collins, has explained in a witness statement that in the last two years the claimant has had periods of between four to five months during which his mood has been relatively stable. During these periods there is no particular cause for concern, then "something happens and he starts getting a bit high". This condition "will normally last for two or three weeks and during that time he is liable to be assaultative". Thus, in 2001 the claimant was generally settled from the beginning of the year until May, when his behaviour became increasingly disturbed. Dr Collins explains:

"One of the problems with this patient's disturbed behaviour is that not only can he become a threat to others, but his level of disturbance and his behaviour is such that other patients may make threats against him, and he also seeks to provoke violence by fellow patients against other patients."

12. The claimant was placed in seclusion from 26 to 30 May, between 2 and 20 June, from 18 December 2001 until 2 January 2002, and again between 28 March and 5 April 2002.
13. In February 1999 Ashworth Hospital Authority issued a "Seclusion Procedure" which was to be read in conjunction with Guidance Notes. Part 6.8 of the Guidance Notes dealt with "Reviewing the Need for the Continuance of Seclusion". Paragraph 6.8.1 was in the following terms:

"The use of seclusion and the safe practice that surrounds it, are the responsibility of the full clinical team who will be informed and expected to involve themselves in the resolution of the crisis.

If seclusion needs to continue, then regular reviews must take place. The role of persons present for review will be to establish the need for continuance of seclusion and that the seclusion procedure is applied correctly and to decide any additional management plans.

In normal circumstances, reviews will be as follows:

*The first review will be immediate by the persons initiating the seclusion.

*If the doctor was not present at the time of seclusion, he must initiate a review on arrival and then at:

4 hours

8 hours

12 hours or earlier

24 hours or earlier

Days 2 and 3 -- twice daily

Thereafter -- daily.

*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.

*The senior manager/nurse will conduct a review on arrival and then in accordance with the agreed review schedule.

*The nurse in charge will ensure that the patient's Consultant Psychiatrist, or their deputy is informed at the earliest opportunity.

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

*A Consultant Psychiatrist (who will be the RMO if available) must see the patient within 72 hours or on the first working day. If waiting until the first working day causes a delay, the duty Registrar must discuss the patient's care with the duty Consultant or RMO and seek agreement to the delay."

14. Paragraph 6.8.2 reads:

"If the patient remains in seclusion for more than 8 hours continuously or for 12 hours intermittently within a period of 48 hours, an independent review of the need to continue seclusion will take place by a team. This should involve clinicians who were not directly involved in the care of the patient at the time of the incident which led to seclusion took place. However, at least one clinician must not have been involved in the decision to seclude the patient."

15. The remainder of paragraph 6.8.2 deals with who should be included in the review team.
16. In November 1999 the claimant commenced proceedings for judicial review challenging the legality of his seclusion. Elias J granted him permission on a limited basis: he was entitled to challenge the lawfulness of the February 1999 procedure in relation to seclusion, but he was not permitted to challenge, on the facts, the appropriateness of seclusion in his own particular case. The claimant challenged the lawfulness of the 1999 seclusion procedure on four grounds. On 28 September 2000 Jackson J gave judgment in the claimant's favour on two of those grounds.
17. The first successful ground related to the review of a patient's seclusion carried out by the nursing staff. In paragraphs 18-23 of his judgment, Jackson J said this:

"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 ben 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. [Counsel], 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."

18. The second successful ground related to the frequency of reviews by a doctor. Paragraphs 24-30 of the judgment are as follows:

"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 [who appeared for the claimant before Jackson J and who appears as junior counsel on his behalf before me] 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 judgment 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 form the Code of Practice."

19. After hearing submissions as to the appropriate form of order, Jackson J granted a declaration that:

"a.the Ashworth Special Hospital Authority Seclusion Procedure is unlawful in that it does not require one of the nurses who carries out the 2 hourly review to be independent from the initial decision to seclude, and that it reduces the frequency of review by a doctor after a patient ha been secluded for more than 24 hours

b.the Ashworth Special Hospital Authority Seclusion Guidance at paragraph 6.8.1 is unlawful

for the reasons set out at Part 3 of the judgment."

20. There was no appeal against that decision of Jackson J ("the judgment"). Following the judgment, Ashworth Hospital Authority conducted an extensive review of its seclusion policy and in the light of that review published in January 2002 a new draft Ashworth Hospital Authority Seclusion Policy and Procedure ("the policy"; I will refer to the 1999 procedure and guidance notes as "the old policy").
21. Subject to the outcome of these proceedings, it is anticipated that the defendant will approve the policy. Review is dealt with in part 9 of the policy, as follows:

"9.1The RMO is responsible for the use of seclusion. Regular reviews must take place involving the RMO or deputy or Ward Manager or deputy. The details of these are given below.

9.2If the doctor was not present at the time of seclusion, he must initiate a review on arrival within one hour and then at:

9.2.1First day -- medical review at 4, 8, 12 and 24 hours;

9.2.2Day 2 to day 7 -- twice per day;

9.2.3Day 8 onwards:

[i]daily review by Ward Manager or Site Manager from different wards;

[ii]three medical reviews every 7 days [one being by the RMO];

[iii]weekly review by multi-disciplinary patient care team to include RMO;

[iv]review by Seclusion Monitoring Group as per paragraph 10 below;

9.3If at any review at 8 hours or subsequently the doctor is not a consultant psychiatrist the doctor doing the review must consult with the patient's responsible medical officer or the duty consultant and this should be fully documented.

9.4The senior manager/nurse will conduct a review on arrival on the ward within one hour of the decision to seclude and then in accordance with the agreed review schedule.

9.5The nurse in charge will ensure that the patient's Consultant Psychiatrist, or their deputy is informed at the earliest opportunity. Others involved in the patient's care should also be informed.

9.6Two qualified nursing staff will carry out a review of the seclusion every two hours. They will record the outcome in the observation record and they will both sign the entry.

9.7Where practicable one of the nursing staff who carries out a review of seclusion should not have been involved in the original decision to seclude.

9.8The Consultant Psychiatrist (who will be the RMO if available or their designated deputy, eg out of hours or during absence from hospital) must see the patient within 72 hours or on the first working day. If waiting until the first working day causes a delay, the duty Registrar must discuss the patient's care with the duty Consultant or RMO and seek agreement to the delay.

9.9If the patient remains in seclusion for more than 8 hours continuously or for 12 hours intermittently within a period of 48 hours, an independent review of the need to continue seclusion will take place for this purpose. This should involve, where practicable, one or more clinicians who were not directly involved in the decision to seclude the patient as well as members of the Patient Care Team. However, at lest one clinician taking part in the review must not have been involved in the decision to seclude the patient.

9.10There is an appeal process available to all secluded patients, separate from and additional to the procedures set out within this paragraph. This process is set out at paragraph 16."

22. Paragraph 10 then deals with the monitoring arrangements. It provides:

"10.1All seclusion used within the hospital is reviewed by a multi-disciplinary group known as the Seclusion Monitoring Group."

23. That group is chaired by the Medical Director and reports to the Clinical Governance Committee.

Part 11 deals with the use of seclusion for patients posing continuing management problems and makes specific provision for patients for whom the clinical team has to institute seclusion in excess of seven days. Such cases are individually brought to the attention of the Medical Director or, in their absence, the Executive Nurse Director by the chair person of the patient's clinical team. Paragraph 11.7 provides:

"Each patient's case will be reviewed weekly by the clinical team and a written report sent monthly to the Seclusion Monitoring Group."

24. Paragraph 11.9 states:

"The Mental Health Act Commission will be informed if seclusion continues beyond 7 days and will receive progress reports on a regular basis."

25. Paragraph 15 provides for the monitoring of seclusion at Ashworth.
26. Regular performance management information on the use of seclusion will be reviewed with varying frequency at all levels of management. Review of seclusion policy and overall auditing will be the responsibility of the Clinical Governance Committee through the Clinical Audit and Effectiveness Committee.
27. The right of appeal is dealt with in part 16 of the policy:

"16.1If a patient or patient's representative want to make any representations they can do so. These representations should be made to the Medical Director, or the Medical Director's nominated deputy, who will conduct a formal review, taking into account any representations as well as all the circumstances before making a decision.

16.2The procedure is separate from and additional to the review procedure set out at paragraph 9 above, although any representations made by the patient or the patient's representative will be taken into account as part of the procedures set out under paragraph 9. This appeal procedure is to provide a further opportunity for representations to be made."

28. It will be noted that under the old policy reviews by a doctor took place daily after Day 3. On the evidence before him, Jackson J saw no justification for reducing such reviews to one a day and concluded that the claimant's concerns would be met if seclusion was reviewed by a doctor twice a day -- significantly less than the review every four hours referred to in paragraph 19.21 of the Code.
29. The outcome of Ashworth's policy review following the judgment is that under the new policy the frequency of reviews by a doctor has, from Day 8 onwards, been reduced from daily to three times a week, together with a weekly review by the patient care team, thus departing even further from the guidance in paragraph 19.21 of the Code.

The Present Claim

30. In July 2001 the claimant applied for permission to apply for judicial review on the basis that the original defendant had failed to review or amend its seclusion policy so as to accord with the judgment. On 14 September 2001, Jackson J granted permission, saying:

"The defendant has had more than sufficient time to implement the judgment dated 29 September 2000."

31. When the new policy was published in January 2002 the claim was amended and later re-amended so as to challenge the lawfulness of the new policy and to contend that during the claimant's periods of seclusion between January 2001 and April 2002 (see above), his seclusion was not reviewed with sufficient frequency by a doctor pursuant to the order of Jackson J. Complaint was also made of the failure to review his seclusion two-hourly by two nurses, one of whom was independent of the initial decision to seclude. That aspect of the claim has not been pursued since paragraph 9.7 of the policy above now complies with the first part of paragraph (a) of the declaration.
32. After the first day of seclusion the policy does not comply with the Code, but for the first week of seclusion it does comply with the judgment. The claimant's challenge to the lawfulness of the policy has therefore been focused on the reduction in the frequency of reviews by a doctor from Day 8 onwards. On the face of it, the reduction is substantial. If a patient remains in seclusion for a fortnight, as has the claimant on a number of occasions, during the second week, applying paragraph 19.21 of the Code would result in 42 reviews by a doctor; under the old policy there would be seven reviews; under the judgment there would be 14 reviews; under the new policy there would be four (including the weekly review by the patient care team).
33. However, the claimant does not suggest that he was inappropriately placed in seclusion on any occasion between January 2001 and April 2002. His sole complaint is that his seclusion was not reviewed with sufficient frequency by a doctor. But there is no evidence whatsoever which suggests that the claimant either was or was likely to have been kept in seclusion on any of those occasions for any longer than was necessary in order to protect his fellow patients and/or himself from harm.
34. Dr Collins has explained in some detail in his witness statements why the claimant was secluded on each occasion and why it was appropriate for him to remain in seclusion. It is unnecessary to rehearse the detail because there is no challenge to that evidence. On behalf of the claimant, Mr Pleming QC criticised certain aspects of the claimant's clinical notes and some of the entries made in his Seclusion Observation Schedules and Seclusion Observation Charts. But in reality there is nothing to gainsay, or even to cast any real doubt upon, Dr Collins' opinion that the claimant's seclusions continued for the appropriate lengths of time, that the seclusion periods were all ended at an appropriate time and that having two medical reviews a day would not have led to the claimant's seclusions being terminated any earlier. In summary, it is plain that in the claimant's case seclusion has indeed been used as a last resort and for the shortest possible time in accordance with paragraph 19.16 of the Code.
35. Thus, the challenge is effectively confined to a claim that the defendant is not, as a matter of principle, entitled to depart from paragraph 19.21 of the Code to the extent proposed in the policy. I say to the extent proposed in the policy because the claimant concedes that some departure from the Code is lawful, to the extent envisaged in the judgment, but says: "thus far and no further", and submits that Ashworth should not be permitted to re-litigate the issue of the frequency of reviews that was considered in the judgment.

Ashworth's Evidence

36. In these proceedings, the defendant has explained the justification for the policy in very considerable detail. In addition to the witness statements from Dr Collins, there are witness statements from Dr James, Consultant Psychiatrist (the defendant's Medical Director), Dr Finnegan, Consultant Psychiatrist (the lead Consultant for Mental Health Services at Ashworth), Dr Davenport, Consultant Psychiatrist (the lead Consultant for the Women's Service at Ashworth), Mr Barwood (the defendant's Executive Director of Nursing), and Mr Eley, the Deputy Director of Nursing at Ashworth.
37. Dr Collins produced three witness statements and Dr Finnegan produced no less than four witness statements to respond to the claim, as it was amended, re-amended, and subsequently amplified in submissions. It is not possible to do justice to the wealth of information contained in all of these witness statements, but it is beyond dispute that the defendant has had regard to the guidance as to the frequency of reviews in paragraph 19.21 of the Code, has given the most careful consideration as to whether or not that guidance should be followed given the particular circumstances which prevail at Ashworth and has concluded that it is "neither necessary nor helpful to conduct twice-daily reviews of all patients who are kept in seclusion" and that "twice-daily review would create real manpower problems".
38. Dr Finnegan describes the nature of seclusion. It is important to stress the fact that seclusion is not to be equated with "solitary confinement". Usually the patient is secluded in his own room and is kept under constant nursing observation. There is no consistency between hospitals as to what constitutes seclusion, but at Ashworth a patient who is free to associate on the ward during the day, but is locked in his room at night, is treated as being in seclusion, so that, for example, his condition is monitored in accordance with Part 19 of the code. Dr Finnegan points out that the three special hospitals deal with the most dangerous patients in the mental health system:

"There are some patients in special hospitals who simply cannot be reached with treatment and whose persistent illness renders them predictably dangerous almost all of the time. Where seclusion is applied to these patients as a means of risk management there is absolutely no purpose whatsoever to be served in reviewing their cases for need for ongoing seclusion even once a day, let along twice."

39. By massively increasing the ratio of staff to patients, and by reducing the numbers of patients on wards to between eight and nine, the Women's Service at Ashworth has managed practically to eliminate long-term seclusion. The resource implications have been significant. The Women's Service overspent its budget by well over £1 million last year. Because there are many more male patients, because they are more assaultative than the female patients, and because of their greater strength, the resource implications of pursuing a similar approach for the male patients would be significantly greater. Dr Finnegan discusses the reasons underlying the high rate of seclusion at Ashworth, and in particular why it appears to be higher than the rates at Rampton and Broadmoor. Crucially, he draws a distinction between "short-term" and "long-term" secluded patients. This distinction is endorsed by Dr James and Dr Collins. The majority of patients go into and come out of seclusion within seven days. They are described by Ashworth as in short-term seclusion. For this group, reviews at frequent intervals are medically justified because stable behaviour over a period of hours will be an important indicator of whether or not seclusion can be terminated: "There is a real purpose to be served, therefore, in having twice-daily medical review of the need for ongoing seclusion" for such patients.
40. However, "if patients are secluded for more than seven days (long-term seclusion), they are likely to be secluded for many, many weeks and more likely for months or even years". Anonymised lists of patients in long-term seclusion have been provided, indicating that most of those in long-term seclusion are there for over 50 days and that there is a significant number who have been in seclusion for years. Dr Finnegan explains:

".... the second group, comprising the long term secluded patients present an altogether different risk management problem. A small number progress out of seclusion at a low rate from long term seclusion. We would argue that this fact needs to be taken into account when deciding on the frequency and type of review which should be followed in the Hospital Seclusion Policy. There are a number of reasons why patients who are secluded for more than 7 days are almost universally secluded for very long periods. But what is common to them all is that the factor that renders them a danger to others is not one which is liable to resolve in the short term. The issue of whether such a patient can be safely managed without seclusion must be carefully tested over time. In this group of patients .... decisions to terminate seclusion must be based upon long term trends in behaviour and cognition, and cannot safely be based upon behaviour over an eight or 12 hour period, the period between twice daily medical reviews....

At Ashworth we have patients who are chronically hostile and predictably assaultative. To leave such a patient in contact with others is to put the health and safety of those others at serious risk. In their cases it is not a question of there being a short settled period of behaviour in seclusion after which they can be returned to the word because their condition is persistent over time.

.... The reality with patients who are secluded long term is that the decision whether to terminate will be looked at over a period of days or, in the longer term cases, even weeks because of the need to be satisfied of the enduring nature of the changes in the patient....

If one now tries to factor into the long term patient's seclusion monitoring regime a twice daily review of the need for ongoing seclusion, it should be clear that these reviews simply have no part to play. A period of stable behaviour on any one day for a period of a few hours is not going to cause any reviewing doctor to terminate seclusion. It is inevitable given the problems faced by long term secluded patients that the termination of seclusion will be a careful exercise based upon convincing evidence extending over time. Its termination will always depend upon forward planning, that is the consultant and Patient Care team specifying the steps to be taken to move a patient towards a termination of seclusion and the conditions upon which it can be terminated. No doctor, however well qualified, is going to come onto a ward on any one day and, in respect of a long term secluded patient, terminate seclusion because the observation charts show that the patient has been stable and passive in the last eight or 12 hour period. The doctor will want to see the patient is being managed in accordance with the directions of the RMO and the PCT. And those directions will themselves specify the conditions under which seclusion can be terminated."

41. He then explains that it will often be part of the secluded patient's care plan that he spends periods of time in association:

"Initially this will be in a specific part of the ward called the night station which allows a previously determined number of nursing staff, three or maybe four, to spend time chatting with the patient and making an assessment of their mental state. If this period of 10-20 minutes passes successfully and uneventfully the decision will be taken as part of the patient's care plan to allow them to spend further time out of their seclusion room on the ward not just in the company of staff, but as part of the ward community. The amount of time spent in this period of social contact will vary according to the patient's fluctuating mental state and the previously agreed care plan. It can be for several hours.

.... This period of time will be gradually increased according to the progress a patient shows, until it is felt that sufficient control has been gained for it to be safe to terminate seclusion. There may be periods when the patient is locked in their room at night but is otherwise up, in the ward community, during the day. I believe that at most times about 75% of the long term secluded patients are being nursed in extended association, despite being defined as 'secluded'. As at 13 January 2002 out of 27 long-term secluded patients, 20 patients have extended periods of seclusion during the day. This means that they will be up in the public areas of the ward interacting with staff and patients. In almost all cases these patients will have access to their own rooms and when secluded at night, or at any other time, they will be confined to their own rooms."

42. These are but a few extracts from a most careful and detailed analysis which leads Dr Finnegan to conclude:

".... I hope that I have now explained more fully the enduring nature of the danger that patients on long term seclusion present and why it is that once a patient has been secluded for a period of more than 7 days, twice daily medical review serves no useful purpose. I am firmly of the view that the new draft policy:

a.Properly distinguishes in the monitoring and review regime that it establishes between the first seven days of a patient's seclusion and any period of seclusion that follows.

b.Provides for an adequate level of medical review of long term secluded patients. The draft policy provides for 3 reviews to be conducted in a 7 day period (one to be by the RMO). In addition there must be a weekly review by the Patient Care Team. This will include the patient's RMO. The draft provides, therefore, for four medical reviews.

The proper continuation of seclusion can be monitored by measuring the patient's behaviour against that plan. A medical review conducted four times a week is quite sufficient for the doctor to ensure that nursing staff are properly administering the plan and that the patient remains properly secluded, particularly where two of those reviews are by the patient's RMO. In the event that the patient is nearing the point at which seclusion can be terminated the doctor can decide that the next medical review should be sooner or direct the nursing staff to take the patient out of seclusion without the need for further review.

We also consider that reviews at such intervals are sufficiently frequent to ensure proper monitoring of the patient's physical and mental health. Of course a doctor may be called at any time if the condition of a patient gives cause for concern. And the frequent observation of patients in seclusion means that any concerns over their health will quickly come to light."

43. Thus, Ashworth's evidence is unequivocal: there is simply no medical justification for twice-daily, much less four-hourly, reviews by doctors of patients in long-term seclusion. On the evidence, this is not a case where a policy which would be desirable in medical terms is not being implemented because of inadequate resources. But there would be resource implications if more frequent reviews by doctors were required. These resource implications are not limited to the question of funding. They would have an adverse impact upon the care of other patients. Putting the matter shortly, senior doctors could not carry out more frequent reviews and continue to discharge their other responsibilities to their patients. Resources would have to be found to recruit more senior doctors when there is already a significant national shortage of doctors with the necessary skills and experience and when funding is not available in any event. The task of reviewing could not be delegated to junior doctors because the Royal College of Psychiatrists does not consider that reviews of such a frequency are sufficiently connected with medical training. "They are seen as an administrative function rather than a clinical one and therefore not relevant to junior doctor training." It is vital that the hospital does not lose its junior doctors under training. If they are to remain, they must have "a clinically meaningful role", and they would not have such a role if they were frequently reviewing large numbers of secluded patient. If additional funds were available then they would be far better spent, not on increasing the frequency of reviews by doctors, but on increasing the ratio of nurses to patients on the wards, as has been done on the women's wards.

The Mental Health Act Commission's Views

44. The Secretary of State has directed the Mental Health Act Commission ("the Commission") to discharge, on his behalf, the duty under section 120 to keep under review the exercise of powers under the Act in relation to patients who are detained or are liable to be detained: see sections 120 and 121. Thus, the Commission visits and interviews detained patients, investigates their complaints, is entitled to inspect patients' records and, in general terms, is responsible for protecting the interests of patients such as the claimant. One of the Commission's functions is to submit proposals as to the content of the Code of Practice to be prepared under section 118 to the Secretary of State. It produces a biennial report to the Secretary of State who must lay it before Parliament. But the Commission has no powers of compulsion in relation to either the defendant or the Secretary of State.
45. Faced with Ashworth's evidence, the claimant's solicitors, understandably, brought Ashworth's stance as to the frequency of reviews of seclusion to the Commission's attention and asked for its reaction. In a letter dated 27 March 2002, subsequently confirmed by a witness statement, Mr Kinton, the Commission's Policy Advice and Communications Manager, set out its stance as follows. The letter explains the lengthy process of drafting the Code, which began as long ago as 1983. The first version of the Code was laid before Parliament in 1989 and it has subsequently been revised on two occasions, in 1993 and 1999. Ashworth had pointed out the difficulties in applying the Code to its patient population:

"3. .... In its Sixth Biennial Report (1995) the Commission noted that the three High Security Hospitals 'acknowledge the presence of a very small group of patients who require periods of extended seclusion from time to time, which is not supported by the Code of Practice'....

4.The reasons why the MHAC nevertheless continue to impose the same Code on all Psychiatric Hospitals.

In relation specifically to seclusion, the Commission's view as expressed in its Sixth Biennial Report (1995) remains valid:

'The Mental Health Act Commission has a clear and consistent view that any use of seclusion which is not in accordance with the Code of Practice is unacceptable'

Whilst the Commission has acknowledged the representations made by High Security Hospitals over their difficulties in applying all of the Code's recommendations in relation to seclusion, it does not accept that the Code's guidance should be disregarded by any hospital at a policy or routine practice level. We take the view that deviations from the Code's guidance should only occur in exceptional circumstances, with full documentation of the reasons for such deviation, and never as a matter of policy or standard practice.

.... The Commission, in making submissions on the content of the Code during its most recent revision, certainly did not take the view that any revisions made to the Code's guidance on seclusion would limit the applicability of that guidance to certain groups of patients.

It is apparent that Ashworth Hospital have taken the view that particular problems in implementing the Code's guidance occur when patients are in seclusion for over 72 hours, and that the Code did not envisage such lengthy periods of seclusion and failed to take account of them. It is, perhaps, true that the Code is written on the assumption that seclusion, as a last resort response to dangerous behaviour, should not normally still be in place after three days, no matter how disturbed the patient may be at the time of the seclusion. It is arguable, for instance, that, by the time a patient has been secluded for three days, arrangements should have been considered for alternative management of the patient, such as a trial period of one to one (or more intensive) nursing, etc. The Commission takes the view that, where seclusion as defined by the Code of Practice does continue past 72 hours, the need for rigorous monitoring and review of its continuance is a pressing need.

The SHSA policy statement of 1993 noted that a very small number of patients were considered to be in long-term or 'continuous' seclusion in the High Security Hospitals but actually spent some, or even most, of their time in the ward community rather than in conditions of seclusion.... These patients were classed to be in permanent seclusion because such periods of association were viewed as being brief respites from seclusion, to which they would be returned once such association periods were over. In reality, such patients were secluded (as the term is defined in the Code of Practice) for relatively short periods on numerous occasions, sometimes several times each day. The SHSA required that the practice of considering such patients to be in 'continuous' seclusion must cease and each episode of seclusion be identified and monitored as required by the Code of Practice. Commissioners who visit Ashworth Hospital report that, even today, some patients who are considered to be in seclusion for long, uninterrupted periods in Ashworth Hospital are actually allowed to associate with other patients whilst escorted on wards, without the fact that such association ends the episode of seclusion being recognised. The statement of Dr Finnegan acknowledges that this practice continues, and is applied to three-quarters of his patients in 'long-term seclusion'. That the hospital fails to recognise that some 'long-term' secluded patients are actually not secluded 'long-term' at all not only distorts the hospital's monitoring of seclusion, but creates unnecessary difficulties in operating according to the Code's guidance. The Commission considers it unacceptable that Ashworth Hospital continues to operate a different definition of seclusion than that given in the Code of Practice, particularly when such definitions lead the hospital to the view that it is unable to comply with the Code's guidance on seclusion."

46. As with Dr Finnegan's evidence, I have cited only a few extracts from a lengthy, detailed and careful response by Mr Kinton on behalf of the Commission. It is clear from that response that there are fundamental disagreements between Ashworth and the Commission as to what should be regarded as seclusion, whether a distinction should be drawn between patients in short and long-term seclusion, and whether there is any medical justification for frequent reviews by doctors in the case of the latter.

The Adjournment

47. When the hearing opened on 29 April Mr Pleming, understandably, placed considerable emphasis upon the Commission's views. He submitted, in summary, that Parliament intended that the Code should be followed unless there was a very good reason not to do so. Ashworth had tried, during the lengthy consultation processes, leading up to the various revisions of the Code, to persuade the Commission and the Secretary of State that different provisions should be made in the Code for special hospitals, recognising the particular difficulties they faced in treating the most disturbed and dangerous patients, and had failed to secure any amendment to the Code to that effect. Thus, it could properly be inferred that the Secretary of State intended that Ashworth should follow the Code. Moreover, an indication was given that it would be submitted that adherence to the Code was necessary if the United Kingdom was to discharge its obligation to patients such as the claimant under article 3, to protect them, as particularly vulnerable persons (being mental patients detained against their will) from any treatment or punishment that might be in breach of article 3 of the European Convention on Human Rights.
48. In the light of these submissions I concluded that it was necessary to ascertain the views of the Secretary of State. He is, after all, the person responsible for publishing the Code. The claimant was complaining that the Secretary of State's guidance was not being followed, that the defendant's reasons for not doing so were inadequate, and that the defendant's failure might result in a breach of this country's obligations under the Convention. While it was for the court to decide whether or not the defendant's policy was lawful, the reaction of the Secretary of State to this departure from "his" Code was likely to be of considerable importance. I therefore adjourned the proceedings on 30 April and directed that both the Secretary of State and the Commission should be served as interested parties.

The Secretary of State's Evidence

49. At the resumed hearing the Commission did not appear, but provided a witness statement confirming the contents of its letter dated 27 March. The Secretary of State was represented by Mr Sales who produced two witness statements from Ms Arrundale, an official in the Department of Health, who was authorised to make the statements on behalf of the Secretary of State. Paragraphs 5-11 of her second witness statement are as follows:

"5. .... the Secretary of State has decided that the three special hospitals should be treated as falling within the scope of the Code of Practice. In accordance with his attitude to the Code of Practice referred to in the previous paragraph, as a matter of principle the Secretary of State recognises that Ashworth Hospital or indeed any other hospital may depart from the Code of Practice if circumstances justify departure.

6. As I understand it, there are in substance two questions raised by the learned Judge which fall to be addressed against this background. First, it is unacceptable as a matter of principle, in the view of the Secretary of State, for Ashworth Hospital to decide to depart from the Code of Practice as a matter of policy, rather than simply in exceptional, one-off cases (compare the view of the [Commission] .... that deviations from the Code of Practice should only occur 'in exceptional circumstances .... and never as a matter of policy or standard practice')? Second, has Ashworth Hospital put forward sufficient reasons why it should depart from the Code of Practice in this way?

7. As to the first of these questions, the Secretary of State does not consider that it is unacceptable as a matter of principle for a special hospital such as Ashworth Hospital to depart from the Code of Practice in stating the policy which it proposes to apply in secluding patients. As the Secretary of State sees it, the virtue of including Ashworth Hospital within the ambit of the Code of Practice is that the hospital has to give careful consideration to whether any departure from the Code of Practice is justified. But in doing so, the Secretary of State does not consider that it is in principle unacceptable for the hospital to conclude that the reasons justifying departure from the Code of Practice in some respect are of such wide application in the case of its patient population that they may best be reflected in a statement of policy as to the approach to be adopted, rather than piece-meal on a case by case basis. Indeed, there are -- potentially at least -- good reasons why a statement of policy might be very desirable in such circumstances, in the interests of transparency, trying to ensure like treatment of like cases and planning for the efficient use of resources. In that regard, I refer to paragraph 19.17 of the Code of Practice, which states that hospitals should have clear written guidelines on the use of seclusion.

8. Overall, it remains important in the Secretary of State's view that the care of individual patients is tailored to their particular needs (indeed, it is in part for that reason that the Secretary of State attaches considerable importance to accepting and promoting decision-making at the local level). If a policy were adopted by a hospital and applied in an inflexible way, the Secretary of State would be concerned. However, it appears from the first witness statement of Dr Finnegan [see above] .... that Ashworth Hospital is very alive to the fact that its proposed policy should be departed from if medical circumstances require that.

9. Since the Secretary of State does not regard the adoption of a policy of departure from the Code of Practice as in principle unjustifiable, the second question above arises: has Ashworth Hospital put forward sufficient reasons why it should depart from the Code of Practice in the way proposed in this case?

10. The Secretary of State is very well aware of the exceptional and extreme nature of the population of patients with which Ashworth Hospital and the other special hospitals have to deal. Such patients pose acute problems, not ordinarily encountered in the other institutions to which the Code of Practice also applies. The patients at the special hospitals can be regarded as exceptionally difficult to manage and treat, but within the hospitals themselves they are the norm. Therefore it appears to the Secretary of State that Ashworth Hospital is entitled to decide that in the ordinary way the controls and checks in respect of seclusion in relation to the type of patient with which it has to deal are best set out in a general policy (which admits of exceptions) such as that which it proposes to adopt.

11. The Secretary of State, for his part, attaches weight to the desirability of enabling decisions as to treatment to be taken by local decision-makers, who are in the best position to know the practical realities on the ground, have the most intimate knowledge of the patients concerned and have to make the day to day decisions as to how to match their finite resources (human and financial) with the needs of all the patients in their care. The Secretary of State has regard to Ashworth's evidence that the proposed policy has been formulated in consultation with the medical consultants who practise there, who represent an important pool of expertise as to the appropriate treatment of this very unusual patient population."

Submissions and Conclusions

50. Despite Mr Pleming's valiant efforts, I am not persuaded that the claimant's case under the European Convention on Human Rights even approaches, much less gets off, the starting blocks.
51. I accept that the claimant, as a person who is both mentally ill and detained against his will, is in a particularly vulnerable position: see Keenan v UK (2001) 33 EHRR 38, paragraph 110. This has to be taken into account in any consideration of the State's positive obligation under article 3:

"to take measures designed to ensure that individuals within their jurisdiction are not subject to torture or inhuman or degrading treatment .... These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have knowledge."

(See Z v UK 34 EHRR 3, at paragraph 73). Thus,

"the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with".

(See Herczegfalvy v Austria (1993) 15 EHRR 432)

52. That said, there is no evidence that the claimant has been, or is likely to have been, or that there is a real risk that he might have been, kept in seclusion for any longer than was justified in terms of the aim set out in paragraph 19.16 of the Code.
53. Secondly, there is nothing to suggest that the claimant has suffered in any way in consequence of having been kept in seclusion. The evidence of Dr Collins is to the contrary. At worst, the claimant has probably felt a degree of frustration, hence these proceedings. But seclusion has not caused him any distress, much less anything which might reasonably be described as suffering.
54. To fall within article 3, ill-treatment must attain a minimum level of severity. In Pretty v United Kingdom the European Court of Human Rights said in paragraph 52 of its judgment of 29 April 2002:

"As regards the types of 'treatment' which fall within the scope of Article 3 of the Convention, the Court's case-law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering .... Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 .... The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."

55. Acknowledging that the minimum level of severity is relative, and that the suffering which flows naturally from mental illness may be exacerbated by inappropriate or unnecessary treatment such that article 3 may in certain circumstances be engaged, the claimant's case on the facts falls so far short of the minimum threshold that there is no real risk that his rights under article 3 might have been infringed. Although Mr Pleming mentioned article 8, on the facts there is no more reason to believe that the claimant's article 8 rights might have been infringed.
56. Undaunted, Mr Pleming submitted that the Code was intended, together with the Act, to discharge the State's positive obligation to establish an appropriate framework for the protection of those who are particularly vulnerable: the mentally ill who are detained. The claimant did not have to establish that there had been a breach of the Convention in his case, merely that if hospitals such as Ashworth were entitled to depart from the Code, the State was failing to protect vulnerable persons such as the claimant from a risk that their rights under the Convention might be breached.
57. I find it unnecessary to refer to any more of the very many authorities dealing with Convention rights that were cited by Mr Pleming, by Mr Howell QC on behalf of the defendant, and by Mr Sales because there is simply no evidence to support the proposition that there is any risk of patients' rights generally under the Convention being breached as a result of the divergence between paragraph 19.21 of the Code and paragraph 9.2.3 of the Policy. Setting aside for one moment the court's reluctance to deal with hypothetical breaches of the Convention, it will be noted that the claimant's case has focused on one particular aspect of the Policy. In considering whether there is any risk that there might be a breach of article 3 (accepting, for the purposes of argument, that the claimant needs to establish no more than that hypothetical possibility), the frequency of reviews by a doctor should not be considered in isolation from the remainder of the Policy. Dr Finnegan explains that the doctor may decide that the next review may should place earlier, and that there are frequent observations by nursing staff who can call the doctor at any time if the patient's condition gives cause for concern (see above). In addition, there are two-hourly reviews by nursing staff, the weekly review by the Clinical Review Team which reports monthly to the Seclusion Monitoring Group, the fact that the Commission is informed if seclusion lasts for more than seven days, the fact that the use of seclusion generally is monitored at all levels in the management hierarchy under paragraph 15 of the Policy and the appeal procedures that are available under paragraph 16 of the Policy.
58. One should never be complacent when the rights of the mentally ill are in issue, but on the evidence this Policy framework, if it operates properly, will be sufficient to prevent any possible breach of the rights under article 3 or article 8 of those in long-term seclusion. I do not accept the proposition that the mere fact that the policy departs from the Code means that there is a risk that patients' rights under the Convention might be infringed. The Policy has to be read as a whole and when that is done it is clear that it contains adequate safeguards.
59. I turn from the Convention to the claimant's submission that the defendant may not depart from the Code without good reason. For this proposition Mr Pleming relied on dicta of Sedley J (as he then was) in R v London Borough of Islington, ex parte Rixon (1997) ELR 66, 71:

"What is the meaning and effect of the obligation to 'act under the general guidance of the Secretary of State'? Clearly guidance is less than direction, and the word 'general' emphasises the non-prescriptive nature of what is envisaged. [Counsel] for the local authority submits that such guidance is no more than one of the many factors to which the local authority is to have regard. [Counsel for the claimant] submits that, in order to give effect to the words 'shall .... act' the local authority must follow such guidance unless it has and can articulate a good reason for departing from it. In my judgment, Parliament in enacting s7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with many forms of non-statutory guidance issued by departments of state. While guidance and direction are semantically and legally different things, and while 'guidance does not compel any particular decision' (Laker Airways Ltd v Department of Trade [1967] QB 643, at p714 per Roskill LJ), especially when prefaced by the word 'general', in my view Parliament by s7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."

60. There are, however, important differences between section 118(1) above and section 7(1) of the Local Authority Social Services Act 1970, which was the enactment in issue in ex parte Rixon. Section 7(1) was as follows:

"Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."

61. Mr Howell and Mr Sales submitted that a requirement to "act under the general guidance of the Secretary of State" was not the same as a requirement to have regard to guidance issued by the Secretary of State. I accept their submissions. Unlike certain enactments which require public authorities to have regard to certain policy guidance (for example, section 70 of the Town and Country Planning Act 1990 which requires local planning authorities in determining planning applications to have regard to the Development Plan and other material considerations), section 118(1) merely requires the Secretary of State to prepare, revise and publish a code, but it does not expressly require those to whom the code is directed to have regard to it. I readily accept that it can be inferred that this was Parliament's intention, and in any event a public authority when exercising a discretion is bound to have regard to all material considerations. The defendant does not dispute that the code is such a consideration, and it is clear that Ashworth did have regard to the code when formulating the policy. Was it obliged to do any more? The answer to that question must be "No".
62. In De Falco v Crawley Borough Council [1980] QB 460, the appellants complained that the responsible council had failed to follow the Code of Guidance, which was issued by the relevant government department under section 12 of the Housing (Homeless Persons) Act 1977. Section 12 provided that councils "shall have regard" to the Code. The Court of Appeal rejected the appellants' complaint. Lord Denning MR said this at page 477H:

"Now, if that paragraph were to be treated as a binding statute, the council ought not to have looked at the position of these families when they left Italy. They ought to have looked at the position when their relatives or friends in England threw them out. That the council did not do.

But I am quite clear that the code should not be regarded as a binding statute. The council, of course, had to have regard to the code: see section 12 of the statute; but, having done so, they could depart from it if they thought fit."

63. At page 482, Bridge LJ (as he then was) said this:

"The first ground of attack is not well founded since, although the authority must 'have regard' to the guidance given under section 12, that guidance is of no direct statutory force or effect and the local authority are not bound to follow it in any particular case."

64. When Parliament wishes a public body to do more than merely have regard to policy guidance, it says so in terms. The evolution of the Town and Country Planning code provides a useful example of this. Because Parliament felt that insufficient weight was being given to the Development Plan by local planning authorities when considering planning applications under section 70 of the 1990 Act, section 54A was introduced by the Planning and Compensation Act 1991 in the following terms:

"Where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

65. More prescriptive than section 7 of the 1970 Act, which was considered in ex parte Rixon, are the provisions of the Audit Commission Act 1998. Section 4(1) provides:

"The Commission shall prepare, and keep under review, a code of audit practice prescribing the way in which auditors are to carry out their functions under this Act."

66. The corresponding obligation of the auditors is set out in section 5(2) as follows:

"The auditor shall comply with the code of audit practice applicable to the accounts being audited as that code is for the time being in force."

67. The contrast between provisions such as these and the terms of section 118 is plain. The Code of Practice prepared by the Secretary of State under section 118 is no more than guidance to which the defendant was obliged to have regard as a material consideration.
68. At this stage it is convenient to deal with Mr Howell's submission that paragraph 19.21 of the Code was not issued under section 118(1). It does not fall within paragraph (a) because that is concerned with the admission of patients to hospital and with guardianship and after care. The Act draws a distinction between admission, which is dealt with in Part II, and treatment, which is dealt with in Part IV. Seclusion has nothing to do with admission procedures. Paragraph (b) is concerned with treatment, but advice as to the review of those in seclusion does not fall within paragraph (b) because paragraph 19.16 of the Code advises that "seclusion should not used as part of a treatment programme". The "sole aim is to contain severely disturbed behaviour which is likely to cause harm to others".
69. On behalf of the claimant, Mr Pleming submitted that the advice in paragraph 19.21 fell within paragraph (a) of subsection (1). The words "in relation to the admission of patients" embraced everything that flowed from their admission, including such matters as treatment and seclusion. Since seclusion was not treatment, it would not fall within paragraph (b). Paragraph (b) was enacted to enable guidance to be given by the Secretary of State for the benefit of medical practitioners in relation to the medical treatment of those who were not admitted to hospital under the Act: who were voluntary patients or who were being cared for outside hospital.
70. On behalf of the Secretary of State, Mr Sales accepted that paragraph 19.21 of the guidance was not issued under paragraph (a) in subsection (1) because that was confined to the admission of patients to hospital under the Act, but submitted that it fell within paragraph (b), in view of the wide definition of medical treatment contained in section 145(1) of the Act: "medical treatment includes nursing, and also includes care, habilitation and rehabilitation under medical supervision". A patient in seclusion was still receiving nursing care.
71. In Reid v Secretary of State for Scotland [1999] 2 AC 512, the House of Lords was concerned with the definition of "medical treatment" in similar terms in the Mental Health (Scotland) Act 1984. Lord Hope said this at page 529:

"The definition is a wide one which is sufficient to include all manner of treatment the purpose of which may extend from cure to containment. But in the case of those mental disorders to which the 'treatability' test applies, its purpose is satisfied only if such treatment is likely to alleviate or prevent a deterioration of the person's condition."

72. Lord Hope was considering the "treatability" test in a case where the appellant had a "psychopathic disorder". I accept that he was using the word "containment" in that context in the sense of containing the appellant's symptoms, and not in the sense of confining him. But at pages 530-531 he said:

"I appreciate that views differ among psychiatrists as to whether the kind of mental disorder from which the petitioner is suffering is susceptible to medical treatment of any kind. These differences of view were amply demonstrated by the written reports which were before the sheriff in this case. There was general agreement that medical treatment was not likely to alleviate the condition, and the petitioner has not been receiving any medication or other psychiatric treatment which is designed to achieve that result. Where views differed was in regard to the question whether the fact that his behaviour was being controlled while he remained in the hospital could be attributed to medical treatment which he received there, or whether it was due simply to the fact that he was being confined in secure conditions which prevented the symptoms of his condition from being manifested. It was agreed that his detention in the hospital was preventing a deterioration of his condition because his abnormally aggressive or seriously irresponsible behaviour was being controlled or at least being modified. So one of the two purposes to which the 'treatability' test is directed was being satisfied. But was this as a result of 'medical treatment' which he was receiving there or was it due simply to the fact that he was being detained in the hospital?

The expression 'medical treatment' is, as I have said, given a wide meaning by section 125(1) of the Act. It includes nursing, and it also includes care and training under medical supervision. The width of the expression is not diminished where it requires to be examined in the context of the 'treatability' test. Medication or other psychiatric treatment which is designed to alleviate or to prevent a deterioration of the mental disorder plainly falls within the scope of the expression. But I think its scope is wide enough to include other things which are down for either of those two purposes under medical supervision in the State Hospital. It is also wide enough to include treatment which alleviates or prevents a deterioration of the symptoms of the mental disorder, not the disorder itself which gives rise to them."

73. Strictly speaking, it is unnecessary to resolve this dispute for the purposes of this judgment, since Mr Sales contended, and Mr Howell accepted, that Ashworth had to have regard to the guidance even if it was non-statutory in origin. But since submissions were made I should indicate my view. I prefer Mr Sales' submissions. I do not accept Mr Pleming's submissions. The admission of patients to hospitals under the Act is dealt with in Part II of the Act, and is to be distinguished, given the structure of the Act, from the treatment of patients once they have been admitted to hospital. In effect, Mr Pleming invites the court to read the words "in relation to the admission of patients to hospital" as though they said "in relation to patients who are admitted to hospital". For whatever reason, Parliament chose to deal with admission in paragraph (a) and treatment in paragraph (b) of subsection (1). The fact that seclusion is not treatment and that its sole object is to contain severely disturbed behaviour does not mean that review of its duration falls outside the wide definition of "medical treatment" in section 145(1). The nurses will still be caring for their patient whether or not he is in seclusion. Their continual observations and periodic reviews are part and parcel of the caring process to ensure that the patient does not suffer during or as a result of his seclusion. Applying the approach of Lord Hope in Reid (above), the claimant's assaultative behaviour is being controlled whilst he is in seclusion. Thus, the symptoms of his illness are being "contained", even though the object of seclusion is to protect other patients from harm and the claimant from retaliation.
74. Although the defendant is obliged to have regard to the Code, whether it is statutory guidance under section 118 or non-statutory guidance issued by the Secretary of State, it is under no obligation to give reasons for departing from the Code or for the adoption of the policy. I accept that if a public body which is under an obligation to have regard to a Code of Guidance fails to follow the Code for no apparent reason, it runs the risk that the court will infer either that it did not have regard to the Code at all (see, for example, ex parte Rixon at page 79H), or that there was indeed no reason for the failure to follow the Code, so that its decision was Wednesbury perverse: see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, per Lord Pearce at pages 1053-1054.
75. However, if reasons are given, and they disclose that the Code has been taken into consideration, the question for the court is not whether those reasons are "adequate" (as in those cases where the statute requires a public body to give reasons for its decision, such as a Secretary of State's decision letter granting or refusing planning permission) but whether, in the light of the reasons given, the decision can be said to be Wednesbury perverse. It is not for the court to substitute its own view as to whether, and if so to what extent, there should be a departure from the Code.
76. While the question of lawfulness is for the court to decide, the fact that the Secretary of State, who is responsible for publishing the Code, accepts the good sense of Ashworth adapting the Code to respond to the particular problems posed by its "very unusual patient population", means that it is, for all practical purposes impossible to contend that Ashworth's decision to depart from the Code was Wednesbury perverse.
77. Mr Pleming submitted that since the court was concerned with patients' rights under the Convention, a heightened standard of review would be appropriate: see, for example, R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, per Lord Steyn at pages 546-547. For the reasons set out above, the Convention is, on the facts of this case, some considerable way over the horizon. But even if it was appropriate to apply a proportionality approach, I would have had no hesitation in concluding that Ashworth's policy is a proportionate response to the particularly difficult problems which it faces as a special hospital. The fact that the other two special hospitals adopt different policies does not mean that Ashworth's policy is disproportionate. Dr James, Dr Finnegan and Mr Eley all address the differences between the regimes in the three special hospitals. For example, at Broadmoor patients on high dependency wards are not allowed out of their rooms, whether or not they are locked in, without permission. Overall, there appeared to Mr Eley when he visited Broadmoor to be a more "controlled" environment there. Dr Finnegan explains that Ashworth has received patients from Broadmoor and Rampton because those other hospitals have had difficulty in dealing with them. Dr James refers to a number of factors such as the nature of Ashworth's patient group (two patients in long-term seclusion were recently transferred from Broadmoor because of the extreme difficulties their care presented in that environment; at the beginning of this year six our of 28 patients in long-term seclusion at Ashworth fell within the Broadmoor catchment area), ward sizes, different recording methods, different interpretations of what amounts to seclusion, the numbers, skills and training of nursing staff, etc. Given these differences, there is no reason why there should be uniformity of practice as between the three special hospitals. Each hospital is entitled to adapt the Code so as to meet the particular needs of its patient population.
78. For the sake of completeness, I should mention Mr Pleming's principal criticisms of the policy. He submitted that Ashworth had misunderstood the nature of seclusion in two respects. Firstly, Ashworth treated patients who were locked in their rooms at night, but free to associate during the day, as secluded. He pointed to the guidance in paragraph 18.9 of the Code relating to "time out", where the patient is denied an opportunity to participate in an activity for up to 15 minutes, as a behaviour modification technique: "Time out should never include the use of a locked room and should be clearly distinguished from seclusion which is for use in an emergency only and should never form part of a behavioural programme".
79. The sole aim of seclusion "is to contain severely disturbed behaviour which is likely to cause harm to others" (see paragraph 19.16). Regularly locking a patient in his room each night did not amount to such an emergency measure to contain severely disturbed behaviour. It was no more than the kind of routine security measure envisaged in the Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000, under which there has to be a risk assessment for each patient to decide whether or not he should be locked in his room at night: see regulations 30 and 31. The patient's risk management plan has to be reviewed under the directions as necessary and at least once a year: see regulation 30(6).
80. Secondly, almost all of the patients in long-term seclusion had periods of extended association of varying lengths during the day. Those who were regularly in association during the day could not be said to be secluded. He accepted that the gradual re-introduction of a secluded patient back into association might well be necessary to enable the patient's reaction to association to be assessed in order to decide whether he could safely be taken out of seclusion.
81. It may well be that Ashworth adopts a more liberal interpretation of seclusion than, say, Broadmoor. But the practical consequence would be more frequent nursing observation and review. It would not be sensible to regard the period of seclusion as ending every time the patient, as part of his care programme, was reintroduced into association for a temporary period in order to see how he responded. There is a note appended to the table setting out the anonymised details of the patients in long-term seclusion who are in extended association: "Where patients have 'extended association during the day', this is dependent on their clinical presentation on that day". Given the nature of Ashworth's patient population it will be difficult to draw hard and fast lines. Even if it is assumed that Ashworth adopts an unduly broad definition of what constitutes seclusion, how does this impact on the claimant, or on the interests of patients in long-term seclusion generally?
82. Mr Pleming submits that it diverts nursing and medical resources from those like the claimant who are "genuinely" in long-term seclusion. Thus, there are insufficient doctors to review the claimant's seclusion more frequently because they are reviewing other patients who should not be regarded as being in seclusion at all. There is no evidence to support this assertion, but even if it is true, it does not address the rationale which underlies the policy. It is not that there are insufficient doctors to conduct four-hourly or twice-daily reviews of patients in long-term seclusion (although this is the case, see above), it is because there is no medical justification for reviews to be conducted at such a frequency. In saying that there is nothing to gainsay Ashworth's evidence to this effect, I do not overlook the letter from the Commission. Although

"the Commission takes the view that, where seclusion as defined by the Code of Practice does continue past 72 hours, the need for rigorous monitoring and review of its continuance is a pressing need"

no justification has been provided for the proposition that some medical purpose would be served by a doctor reviewing the condition of a patient who may have been secluded for many months, if not years, every four hours. It follows that, subject to the effect of Jackson J's judgment, this application for judicial review must fail.

83. Mr Pleming points to the declaration granted by Jackson J and submits that:

".... a declaration in public law proceedings as to the lawfulness of a policy is res judicata absent a change in the circumstances in which the policy is implemented."

84. He cites Zamir and Woolf, The Declaratory Judgment:

"A declaration by the court is not a mere opinion devoid of legal effect: the controversy between the parties is determined and is res judicata as a result of the declaration granted. Hence, if the defendant acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings. By contrast, the claimant may then again go to court, this time for damages to compensate for the loss he has suffered or to seek a decree to enforce the rights established by the declaration."

85. It is submitted that to hold otherwise would render the grant of a declaration by way of relief in vain: the claimant's victory would be purely academic, and public bodies could continue to apply unlawful policies. The alternative would be a never-ending round of applications for declarations, each with merit, but none of them having any practical impact.
86. Ashworth's counsel (neither Mr Howell nor Miss Kaufmann with whom he appears before me) before Jackson J had asserted that mandamus was unnecessary since Ashworth was bound to amend its policy in the light of the judgment. Ashworth failed to appeal, although it was entitled to do so. Since the making of the declaration there has been no or no relevant change of circumstances. All that has happened is that Ashworth wishes to put in more evidence, much of which was available to it at the time of the earlier proceedings. There are insufficient grounds to permit Ashworth to re-litigate the issue that was determined by Jackson J.
87. Alternatively, it is submitted that to allow Ashworth to adduce such evidence would amount to an abuse of process. Mr Pleming cited Henderson v Henderson [1843] Hare 100, where Sir James Withram enunciated the principle that:

".... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter that might have been brought forward as part of the subject in context, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case."

88. That approach was reviewed by the House of Lords in Johnson v Gore Wood [2001] 2 WLR 72. Lord Bingham said:

"The underlying public interest is the same: that there should be finality in litigation and that a party should not be vexed twice in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interest of the parties and the public as a whole .... [There] should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and which takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise the issue which could have been raised before ...."

89. Mr Howell submitted that the doctrine of issue estoppel did not apply in connection with applications for judicial review. In R v Secretary of State for the Environment, ex parte Hackney London Borough Council [1983] 1 WLR 524, the Divisional Court held that a decision on an application for judicial review could not give rise to an issue estoppel in subsequent proceedings. That judgment was approved in the Court of Appeal: see [1984] 1 WLR 592. As Ackner LJ (as he then was) pointed out, referring to ex parte Hackney LBC when giving the judgment of the Court of Appeal in R v Stratford upon Avon District Council, ex parte Jackson [1985] 1 WLR 1319 at page 1323:

".... in judicial review proceedings there is no true lis inter partes or suit by one person against another."

90. See also Wade's Administrative Law, 8th Edition, at page 255. Mr Sales adopted these submissions.
91. Mr Howell further submitted that, in any event, the parties are not now the same; nor is the issue in the proceedings the same. The substantive question in the present proceedings is whether the policy is lawful, given the reasons which existed for adopting it. The question in the case before Jackson J was whether the old policy was one which was unreasonable on the material then before the court. The declaration granted by Jackson J has no more effect than to decide that the old policy was unlawful. Moreover, no question of issue estoppel arises if there is a change in circumstances. There has been such a change in the present case. Not merely is the policy different, it is based on a wholly new analysis of the nature of patients in seclusion, which was not available in the previous proceedings. Similarly, evidence of the consequences of more frequent medical reviews after seven days in terms of the implications for resources is now available. Such evidence was not placed before Jackson J.
92. Mr Howell submits that when a public body has been found to have exercised its discretion unreasonably on the material then placed before the court, it must in any event review how it proposes to redetermine the matter, carrying out, as it considers appropriate further investigations and consultations. If it then decides in the light of that new material that it will adopt a policy which is one that a reasonable authority could adopt on the material which it then has before it, it cannot be an abuse of process for the public authority to be able to adduce such evidence in order to defend a challenge to its new policy. For the court to hold otherwise would in effect be to require the public body in whom Parliament has vested the discretion not to exercise it in a way which is lawful and which it considers to be in the public interest.
93. I am not impressed by the submission that the parties are not now the same. It is true that the original defendant has been abolished and the defendant has taken over its responsibilities. But under the statutory scheme of transfer, the defendant has inherited the rights and obligations of the original defendant. Subject to that one caveat, I accept Mr Howell's submissions on this issue. Jackson J was concerned with the lawfulness of the old policy. He concluded, on the limited evidence then available before him, that there was no justification for reducing the regular reviews to one per day. He therefore declared that the old policy was unlawful for the reasons set out in Part 3 of his judgment. As I understand paragraphs 24-30 of the judgment Jackson J concluded that no reasonable authority could have adopted the old policy on the material then available.
94. Following the judgment it was incumbent upon Ashworth to review its policy. That it has done and the question before me is whether the new policy is lawful. The public interest would not be served by preventing Ashworth from presenting a full explanation of the reasoning underlying the adoption of the new policy. The fact that at least some of that reasoning could have been advanced before Jackson J (although it is clear that a great deal more analysis has been undertaken) is beside the point. There is no true lis inter partes in judicial review proceedings. Unlike ordinary civil proceedings the court is not itself resolving the issue between the parties; it is reviewing the manner in which a public body has reached a decision. In a case where there is an obligation to give reasons, the decision may be quashed because the reasons given are inadequate. In other cases the decision may be quashed because on the material then available, no reasonable authority could have reached such a decision. But if further reasons are provided, or if more information is obtained and considered, the public body may well be entitled to reach precisely the same conclusion. There is no sense in which it can be "estopped" from doing so by reason of the court's earlier decision.
95. The court has a discretion to prevent an abuse of process, but it could not possibly be said that Ashworth's very careful reconsideration of the issue of the frequency of medical reviews, and the presentation of evidence relating to that reconsideration, amounts to an abuse of the court's process.
96. For these reasons this application for judicial review must be dismissed.
97. In conclusion, I would wish to express my thanks for the very considerable assistance which I have been given by counsel for all three parties.

MISS KAUFMANN: My Lord, that just leaves me to make an application for costs. The claimant is legally aided and so I just make an application for the usual order against a legally-aided claimant. I understand that is opposed.

MR JUSTICE SULLIVAN: Yes. What do you want to say about that, Miss Morris?

MISS MORRIS: My Lord, I oppose it for two reasons. I quite see how obviously costs might ordinarily follow the event, but the first reason is that the history of this case is rather peculiar. We did obtain judgment against Ashworth and, in my submission, it was not unreasonable for the proceedings to be issued. Crucially, my Lord, you will remember the chronology. Judgment and the order were obtained in September and October 2000.

MR JUSTICE SULLIVAN: Yes, and they have not done anything.

MISS MORRIS: They did nothing. In fact, they did nothing until 18 months later. More than six months after proceedings had been issued, nothing really had been done.

MR JUSTICE SULLIVAN: At least up to January 2002 you would be in the clear, you say?

MISS MORRIS: My Lord, yes, and in fact these proceedings were due to be heard in December 2001 and were adjourned at Ashworth's request. So if they had gone ahead and Ashworth had not been successful in that adjournment, we might well have been successful. I say that for at least a substantial proportion of the case, perhaps Ashworth was not entirely in the clear.

MR JUSTICE SULLIVAN: Is there any conceivable reason for imagining that Colonel M might actually win the pools or the lottery? He has been in Ashworth for years and years and years. For all I know, he may have pots of money, but it does not really sound very likely.

MISS MORRIS: As far as I am aware he does not have pots of money. Occasionally patients do, but he is not one of them. Presumably the likelihood of his winning the lottery is similar to the likelihood of one of us winning it, which is not terribly high.

MR JUSTICE SULLIVAN: Yes.

MISS MORRIS: For those reasons I would suggest that an appropriate order in this case is in fact no order for costs.

MR JUSTICE SULLIVAN: Yes, thank you. Do you want to say anything else, Miss Kaufmann?

MISS KAUFMANN: No, my Lord, I am certainly not going to push it.

MR JUSTICE SULLIVAN: Very wise. I think in all the circumstances it would be pointless and inappropriate to make any order for costs, save for detailed assessment.

MISS MORRIS: I am grateful. The second matter that arises is an application for permission to appeal.

MR JUSTICE SULLIVAN: Yes.

MISS MORRIS: At the forefront of that application is really the public interest. My Lord, in my submission there is a significant issue between the Mental Health Act Commission and the Secretary of State in this case. He has derogated his functions to the Mental Health Act Commission. The two bodies are not in agreement and, further, we say that there is a substantial issue about the application of the Code because although my Lord has been concerned with the issue of seclusion, it is quite apparent that the Code itself covers the whole range of treatment of patients. Equally, although this case has been concerned with patients in one special hospital, there are many thousands of patients detained under the Mental Health Act, all of whom rely upon the protection of the Code. My Lord, I can say in my own experience that it is very often cited, and very often requests are made that it should be abided by by doctors or hospitals.

My Lord, in my submission, there is a substantial public interest in determining precisely what its status is, if it is indeed as my Lord has held, and what consequences that might have for a whole panoply of rights engaged under the ECHR, not just article 3 in this case, because it deals with treatment, detention and so on.

The second aspect of public interest relates to the issue of res judicata and abuse of process in this case and what is a proper response when this court has adjudicated on an issue of law. I say again that that is the third issue of public interest. It is always difficult to make any submission on the merits, particularly after such a clear finding on the facts as my Lord has given, but I would say that public interest weighs particularly heavily in this case. In those circumstances I would ask for permission to appeal.

MR JUSTICE SULLIVAN: Thank you very much. I do not need to trouble you, Miss Kaufmann, thank you. I am not persuaded that it would be right to give permission to appeal in this case. I think for the reasons set out in the judgment there is no prospect of success, let alone any reasonable chance of success on the facts. So far as questions of public interest are concerned, the Commission and the Secretary of State will simply have to sort it out through the normal political channels rather than Colonel M carrying the banner for the Commission and Ashworth carrying the banner for the Secretary of State. They can engage with each other directly outside the courts if they want to. So far as the status of the Code is concerned, I have to say that it seems to me that the position is clear beyond any doubt, given the way the legislation is framed. So I do not think it would be appropriate to grant permission.

MISS MORRIS: My Lord, despite those negative remarks, I wonder whether we could nevertheless ask for expedition of production of the transcript to assist in our considering whether there should be an application for permission to appeal.

MR JUSTICE SULLIVAN: Would it not be more sensible, because it was a long judgment, for me simply to give you a certain amount of time after you receive the final judgment? In other words, I will extend your time for appealing.

MISS MORRIS: Yes, that would be as practicable.

MR JUSTICE SULLIVAN: I would have thought that was the better way of doing it. I will give you fourteen days from the date of receipt of the approved transcript. I recognise that it has been a long judgment. It is only reasonable that you should have an opportunity to consider it carefully before you decide whether or not you want to ask the Court of Appeal.

MISS MORRIS: My Lord, I am grateful.

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