Stubborn residue

Residual liberty is the freedom prisoners and mental health patients enjoy even though they are lawfully detained. The big question is whether it exists. The Court of Appeal has suggested that it does, at least in the case of prisoners (Iqbal v Prison Officers Association [2009] EWCA Civ 1310).

Mr Iqbal is serving a 15-year sentence. In August 2007, when he was at HMP Wealstun, there was a one-day strike by members of the Prison Officers Association (POA). All prisoners were locked in their cells by order of the governor and, as a result, Mr Iqbal lost the five hours he would have spent at work or in the gym. He claimed false imprisonment, but though he won at first instance he lost in the Court of Appeal.

By a bare majority, the court found for the POA: in failing to turn up for work, its members had not acted, they had omitted to act. While this might have breached their employment contracts, it did not make them liable at common law (Smith v Littlewoods Organisation Ltd [1987] 1 AC 241). Furthermore, the omission was not the direct cause of the claimant being confined to his cell; that was the governor's order.

The governor could not be liable to '“ and had not been sued by '“ the claimant, because the Prison Act 1952 provides that a prisoner may be lawfully confined in any prison (section 12(1)). If a prisoner enjoys no residual liberty, that would, of course, have been a further reason for rejecting the claim, but it did not figure here.

That prisoners have residual liberty was suggested in R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58. In Iqbal, the Master of the Rolls pointed out that the suggestion was obiter, but Sullivan LJ said: 'Even if [he is] lawfully within a prison by order of a court, a prisoner enjoys the liberty not to be further restrained by unauthorised action whether by fellow inmates or prison officers.'

Inconsistencies

That idea seems inconsistent with the decision in Munjaz v Mersey Care NHS Trust [2003] EWCA Civ 1036 and [2005] UKHL 58, a case concerning a patient detained in a high secure hospital under the Mental Health Act 1983 (MHA). He was placed in seclusion for days on end and, in judicial review proceedings, claimed that he had seen a doctor too infrequently. The case turned upon the MHA Code of Practice and whether its requirements were fully met, but the Court of Appeal and the House of Lords also found that, for detained patients, residual liberty '“ or what Lord Steyn called 'prison within a prison' '“ did not exist.

It is a shame that Munjaz wasn't mentioned in Iqbal (or Hague in Munjaz). The most recent judgment offers clear support for the notion of residual liberty. While no false imprisonment claim could have succeeded against the governor or someone acting under her order, the Court of Appeal felt a different result might be produced where the Prison Act did not apply, whether in the case of prison officers on a frolic of their own or of other prisoners.

Iqbal clearly has resonance in mental health cases, for, under the MHA, the managers of a hospital enjoy powers similar to those endowed upon the governor of a prison: a valid detention application enables a patient to be detained, but also to be re-taken if he absconds, treated against his will and, following the decision in Munjaz, placed in seclusion (MHA, section 6(3)). In most cases, that authority will cover the hospital managers and those that do their bidding, but it won't apply in other circumstances.

The cases of Iqbal and Munjaz are different '“ not least because the first was about a prisoner and the second about a patient, but also because they were decided according to substantially different authorities. Yet, each concerned a man who said he retained some freedom, even after his liberty was lawfully taken away. It may be, therefore, that in entertaining the notion of residual liberty the Court of Appeal has placed itself at odds not only with its earlier self, but also with the House of Lords.

And yet, the decision in this case goes to the heart of mental health care: it implies that in the right circumstances, a detained patient may challenge the decision to seclude him. No such challenge will lie against the principal detainers, of course: like the Prison Act in Iqbal, the Mental Health Act makes sure of that. But a claim might succeed where one patient locks another in a cupboard, or even where a formal decision to seclude a detained patient is inconsistent with established hospital policy. Until now, that was thought to be an impermissible notion.