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