4.26R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58
The status of the Mental Health Act 1983 Code of Practice was such that any divergence from it would be unlawful, unless it was undertaken with great care and for cogent reasons
Facts: Mr Munjaz complained that his seclusion, whilst a psychiatric patient at a high security mental hospital, was unlawful in that the hospital’s policy departed from the Mental Health Act 1983 Code of Practice and in that it was incompatible with the ECHR.
Judgment: the House of Lords (Lords Bingham, Steyn, Hope, Scott and Brown) held that a hospital should only depart from the Code with great care and for cogent reasons, but that was the case here:
21. 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. Where, which is not this case, the guidance addresses a matter covered by section 118(2), any departure would call for even stronger reasons. In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires. [Lord Bingham of Cornhill]
Further, properly operated, the hospital’s policy would prevent any possible breach of rights under Articles 3, 5 or 8 ECHR.