The Status Of The Code Of Practice

Author:Mr Andrew Parsons
Profession:RadcliffesLeBrasseur
 
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Originally published October2003

The Code of Practice to the Mental Health Act 1983 gives guidance on how the Act should be applied. In the foreword to the Code, it is said that it "should be used by everyone who works with people with mental health problems".

The Code of Practice is prepared in accordance with Section 118 of the Act. However, the Act does not impose a legal duty to comply with the Code. Nevertheless, as it is made under statute, failure to follow it can be referred to and used as evidence in legal proceedings.

The precise legal status of the Code has now been considered by the Court of Appeal, specifically in connection with the issue of seclusion (which is dealt with at paragraphs 19.16 - 19.22 of the Code).

In connection with seclusion, the Code provides a careful commentary on how this should be implemented and the checks and safeguards that should be in place. In the Munjaz case (heard with the Airedale Trust case) it was argued by the patient that the guidance in the Code should be followed (in that particular case the hospital's internal seclusion policy did not precisely follow the guidance in the Code).

The Court of Appeal found the assertion that the Code of Practice should be followed, particularly where it related to issues concerning an individual's Human Rights to be a persuasive argument. It held that the Code was an integral part of the protection of human rights. The Court stated:

"where there is a risk that agents of the state will treat patients in a way which contravenes Article 3 the state should take steps to avoid this through the publication of a Code of Practice which its agents are obliged to follow unless they have good reason to depart from it. Where there is an interference with the rights protected by Article 8 the requirement of legality is met through adherence to a Code of Practice, again unless there is good reason to depart from it. The same will apply where the Code deals with the deprivation of liberty within the meaning of Article 5".

Although the Munjaz case and this dicta technically apply to seclusion, it is likely that this approach will affect the status of the Code for all purposes, particularly where human rights are engaged.

Accordingly, although it remains the case that the Code does not have the same status as legislation, the guidance in the Code should be adhered to unless there is a reason why it is inappropriate to follow it for a particular patient or group of...

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