Source: All England Reporter
Publisher Citation: [2002] All ER (D) 107 (Jul)
Court: Administrative Court

Sullivan J

Representation Nigel Pleming QC and Fenella Morris (instructed by Hogans, Merseyside) for the claimant.
  John Howells QC and Phillipa Kaufmann (instructed by Reid Minty) for the defendant.
  Philip Sales and Ben Harper (instructed by the Treasury Solicitor) for the Secretary of State as interested party.
Judgment Dates: 5 July 2002


Mental health - Patient - Seclusion of patient - Patient bringing proceedings for judicial review contending seclusion policy adopted by hospital unlawful - High Court issuing declaration that policy unlawful and providing guidance - Hospital reviewing policy and issuing new policy not in accordance with judicial guidance or national guidance issued by Secretary of State - Patient challenging new policy - Whether new policy unlawful - s 118.

The Case

of the Mental Health Act 1983 merely required the Secretary of State to publish a code of practice. While it could be inferred that hospitals were obliged to have regard to that code, no more was required. The code of practice enacted under s118 was no more than guidance. Where reasons had been provided for a departure from the code, the question for the court was whether in the light of those reasons, the decision had been Wednesbury perverse.

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