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The Royal College of Psychiatrists Improving the lives of people with mental illness

Seclusion and Human Rights

Todd Kanzara is a fifth year medical student at Newcastle University.

Last resort

Seclusion and Human Rights by Todd Kanzara

Seclusion in psychiatry is controversial. Critics argue that it is draconian and infringes the patient’s human rights whilst supporters assert that it is a last resort measure used to manage the risk posed to others.

 

The detention and treatment of psychiatric patients in the UK is covered by the Mental Health Act 1983 as amended in 2008. One would assume that the MHA 1983 also covers the issue of seclusion; it doesn’t. Seclusion is only covered in the Mental Health Act Code of Practice 1983 which only provides guidance and as such is not a legally binding instrument. This issue has provoked considerable debate in the domestic courts.

 

Seclusion is defined as: “The supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.”

 

It should not be used:

 

  • as a punishment or a threat,
  • as part of a treatment programme,
  • because of a shortage of staff,
  • where there is a risk of suicide or self-harm.

 

Potential for conflict

Todd Kanzara, fifth year medical student, Newcastle UniversityThe potential for conflict between seclusion and civil liberties is undeniable. However, the most pertinent issue is whether perceived infringements engage Articles 3 and 8 of the European Convention on Human Rights.

 

Article 3 provides that: “No one shall be subjected to torture or inhuman and degrading treatment or punishment.”

 

Article 3 robustly protects detained patients. It states that any interventions that cannot be justified under therapeutic necessity will breach the article. The patient must show that the interventions in question were not a therapeutic necessity. Therefore, in the absence of evidence that seclusion was unnecessary, it is presumed legal.

 

Seclusion potentially interferes with Article 8 (1) which provides that:“Everyone has the right to respect for his private and family life, his home and his correspondence.”

 

This is subject to derogation under specified conditions.

 

This being the case, it was established in the landmark decision in Munjazi that seclusion is justifiable if there was a threat to public safety, to prevent disorder or crime, to protect health and morals and to protect rights and freedom of others. Their Lordships stressed that used properly; seclusion is not a disproportionate measure because it matches the necessity that gives rise to its use.

 

The courts recognise the importance of seclusion in psychiatry. Along with this recognition comes a huge responsibility for psychiatric professionals to ensure its use is judicious.

 

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Comments

Re: Seclusion and Human Rights
please be aware there is significant errors , MHA was amended 2007, mental capacity act is 2005
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