Munjaz v United Kingdom
Summary: Colonel Munjaz challenged the legality of Ashworth Hospital's seclusion policy - which departed from the Mental Health Act's Code of Practice by reducing the number and frequency of medical reviews - on the grounds that it violated Articles 3, 5, 8 and 14 ECHR. The House of Lords had previously held by a majority that the Code could be departed from if there were cogent reasons for doing so and rejected the human rights arguments.
Article 3 The European Court of Human Rights ('ECtHR') found no evidence to support the argument that the less intensive frequency of medical reviews placed the patient at real risk of ill-treatment.
Article 5 Already detained under the Mental Health Act 1983, Munjaz contended that his seclusion amounted to a further deprivation of liberty that was not prescribed by law, with no right of review or appeal to an independent body. Significantly, the Court held that whether there was a further deprivation in respect of someone who was already detained would depend on the circumstances (paragraph 65). The criteria for determining their concrete situation (eg the measures' type, duration, effects, and manner of implementation) "must apply with greater force" when the person was already detained (paragraph 67).
However, on the facts there was no further deprivation of liberty because:
(a) Munjaz was a long-term patient in a high security hospital: even when he was not in seclusion, he was already subjected to greater restrictions on his liberty than would normally be the case for a mental health patient. (b) Seclusion, though coercive, was not imposed as a punishment but to contain severely disturbed behaviour likely to harm others. (c) While its duration, notably of 9, 14 and 18 days, would point towards a further deprivation of liberty, duration alone was not determinative and the length of seclusion was foremost a matter of clinical judgment. (d) The manner of implementing the seclusion policy carried the greatest weight: the hospital's approach was to allow secluded patients the most liberal regime that was compatible with their presentation, and seclusion was being flexibly applied.
Article 8 The patient argued that the policy also interfered with his Article 8 rights and was not in accordance with the law as it lacked the necessary foreseeability and procedural safeguards. The ECtHR reiterated the presumption that those deprived of their liberty continue to enjoy all of the other fundamental rights and freedoms guaranteed by the Convention. Disagreeing with the House of Lords, it held that compulsory seclusion did interfere with his right to respect for private life:
"80. … Moreover, the importance of the notion of personal autonomy to Article 8 and the need for a practical and effective interpretation of private life demand that, when a person's personal autonomy is already restricted, greater scrutiny be given to measures which remove the little personal autonomy that is left."
However, on the facts the seclusion policy was adequately accessible and sufficiently foreseeable as to be in accordance with the law and the discretion enjoyed by the hospital was exercised with sufficient clarity to protect Munjaz against arbitrary interference with his Article 8 rights.
Article 14 Whether permitting each hospital to seclude according to its own procedures resulted in unjustifiable discriminatory treatment was not an argument previously raised in domestic proceedings and was not therefore entertained by the ECtHR.
Comment: English law has hitherto rejected the concept of 'residual liberty', that is the idea that there can be a prison within a prison: R v Deputy Governor of Parkhurst Prison, ex parte Hague and Weldon  1 AC 58. Whether or not it can exist in law is significant: if it does, and a detained person is deprived of their residual liberty, arguably such a residual deprivation must also be in accordance with a prescribed legal procedure and on lawful grounds. Lord Steyn dissented when Munjaz was before the Law Lords and described the majority as "wrong to assume that under the jurisprudence of the ECHR residual liberty is not protected", and their decision as "a set-back for a modern and just mental health law".
The ECtHR's confirmation that there can be a further deprivation of one's liberty for Article 5 purposes is clearly significant. As a matter of legal principle, there is no obvious reason why the concept should not be equally recognized in respect of deprivations of liberty occurring in settings other than prison and high security hospitals. For example, it is not unknown for detained care home residents to be compulsorily kept in their own room to manage their disturbed behaviour.
It is also worth noting that, in considering whether there was a deprivation of liberty, the ECtHR took into account both the context of Munjaz's circumstances (paragraph 69) and, perhaps contrary to Austin v United Kingdom, the purpose and aim of the seclusion measures (paragraph 70). The relevance of these factors to the 'DOL question' will no doubt feature in the conjoined appeals in Cheshire West and P and Q which are now heading to the Supreme Court with permission to appeal having been given.
Finally, the Munjaz decision illustrates how Article 8 protects what might be referred to as 'residual privacy'. The decision recognises that the Article 8 interference that results from being deprived of liberty by the State is distinct from any further interferences with one's right to respect for private life. Indeed, moving from a 'familial care' setting into a 'public care' setting may have a bearing on a person's personal autonomy. But their right to respect for private life remains and, following Munjaz, a greater degree of scrutiny must be given to measures taken by public authorities which impact upon one's residual privacy.