The Munjaz Case

One of the most worthwhile things I ever did was sit down in 2003 for a couple of hours on a night shift and read the Code of Practice to the Mental Health Act (Wales)- cover to cover.  Twice.  And then I read individual chapters of more relevance to the police – again and again and again:

I think all police officers, but especially sergeants and inspectors, should read chapters 10 (Place of Safety), 11 (Conveyance), 21 (Leave of Absence) and 22 (AWOL).  If you’re really feeling interested, you could also try chapter 4 (applications for admission) and chapter 33 (patients concerned in criminal proceedings).

But what was the point; what is the significant of a Code of Practice? 

The reason I think this is both an interesting and important question is because culturally at least, it has appeared to me that the police and the NHS have different answers to it.  As a legal document, surely the standing or status of Codes of Practice must be roughly the same across organisations?

Of course it would be utterly naive to suggest that the police never inadvertently or wilfully and without justification breach Codes of Practice to the various Acts of Parliament; or to suggest that all officers know all parts of the Codes which apply to them – most notably the Police and Criminal Evidence Act 1984.  This Act alone has eight separate Codes, pertaining to stop/search, treatment in custody, ID procedures, etc., etc..  There are other Codes for RIPA (surveillance), the CPIA (criminal investigation and disclosure of materials for trial) and others.

It is drilled in to you early on: you only breach the requirements of these documents if you have a very, very good reason.  You may or you may not have to learn this lesson the hard way because the culture of the service ensures that (formal) advice is given, or disciplinary action taken against officers who breach the codes without justification., the latter more likely if it were deliberate.  Such ‘professional development’ has included senior officers at ‘inspecting’ or ‘superintending’ ranks, from time to time.

So it is against that backdrop that I have often been nothing short of stunned to find a more ‘relaxed approach’ by just some NHS professionals.  I repeat: the police are far from perfect.

So here’s my point – when local MHA protocols and procedures represent or require breaches of a Code of Practice, I and several other police officers start to get deeply confused as to what to do.  Should we ignore a statutory document, issued by a Secretary of State under the authority of an Act of Parliament; OR should we disregard a local protocol document, which contravenes this statutory guidance?  If we must breach something, how do we choose?

And so it was with some considerable interest that I came across the case of R (Munjaz) v Ashworth Hospital Authority which was heard by the House of Lords in 2005.  In fact, it was a healthcare professional who brought this case to my attention as tool with which to push back against wilful, inexplicable breaches.

I’m not a lawyer and am not attempting to provide any level of legal analysis, but it is worth summarising the case:  Mr Munjaz was detained in Ashworth High Security hospital in 2002, following his arrest and prosecution for serious offences.  During detention he became violent and disturbed and the Responsible Clinician decided he should be ‘secluded’ for his own and others’ safety.  The Code of Practice contains a chapter (15) about how decisions around seclusion should be taken, managed and reviewed, including timeframes and oversight.  Ashworth Hospital operated a policy which was very different in nature to that chapter of the Code and legal challenges commenced.

The initial question for the High Court was whether the policy of seclusion was unlawful, either because it contravened the European Convention on Human Rights OR because it contravened domestic law.   Mr Munjaz lost his case in both regards – it contravened neither the ECHR nor UK law.  However, this decision was overturned by the Court of Appeal.  By the time it reached our highest court, there was an additional legal question at stake, following arguments in the lower courts:  “What is the status of a Code of Practice?”

During the various hearings and appeals, different arguments had been put forward:  was the Code of Practice – a legal document – “binding instruction” to be followed always; or was it simply “advice” which could be taken or not, as preferred by the individual hospital or doctor?  The House of Lords ruled, by majority, that the document was neither of these things.  Lord Justice Bingham summed it up:

“It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so.”

(Incidentally – the House of Lords ruled that Ashworth’s policy was not unlawful because it was a very specialist medical facility dealing with particular kinds of psychiatric patients.  The breaches of the Code represented a thoroughly considered policy, appropriate for the kind of patients to whom it related and who were detained there.  Much evidence was produced by the Trust to support their claim.)

So here’s a frequent problem by way of example:  in many areas s136 Place of Safety policy it will more or less say “A&E is not a place of safety except for injury / medical emergency; use the psychiatric facility but if it is unavailable or unsuitable, use the police station.”  However, para 10.22 to the CoP MHA states that the police station should not be considered the automatic second choice, if the first choice (psych unit) is unavailable: “alternatives should be considered”.  So when a custody sergeant asks, “What alternatives did you consider before coming here?” they are going to feel entitled to receive answers to those questions BEFORE they authorise the detention of that person in a cell block.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2011

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I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk