The Supreme Court ruled on whether a conditionally discharged patient can consent to a deprivation of liberty.
MM was given a hospital order with a restriction (s37/41) having committed a crime. When he is discharged he will be subject to conditions and can be recalled to hospital. He understandably wanted to leave hospital so said that he would agree to a very restrictive regime in the community in order that this can happen. The Secretary of State argues that this is not legally allowed.
He applied for a tribunal requesting discharge. It was agreed that he had capacity to agree to the care plan which would include being required to live at a particular place, which he would not be free to leave, and would not be allowed out without an escort. At the time of the tribunal a placement hadn't been found but MM wanted to know if he could be discharged with a condition to comply with the care plan when one was found.
The tribunal said that they had no power to set conditions which are so restrictive that they deprive him of his liberty. They are also unable to impose a condition to comply with the care plan as this purposely tries to get around the problem. They also said that he couldn't really consent to the restrictions because it wouldn't be genuine or reliable and he may change his mind.
MM appealed to the Upper Tribunal where the Judge decided that there was power to set a condition of compliance with a care package, if the patient had the capacity to consent to it and did agree to it.
The Secretary of State appealed that decision to the Court of Appeal. They reversed the decision and said that there was no power to impose conditions which amounted to a deprivation of liberty, even with the consent of a patient with the capacity to do so.
The patient then appealed to the Supreme Court.
The Supreme Court dismissed the appeal. The Mental Health Act doesn't allow the tribunal or the Secretary of State to impose conditions which restrict a conditionally discharged patient that it amounts to a detention or a deprivation of liberty. They gave three reasons for coming to this decision.
The first reason is that liberty is a fundamental right and if this is going to be restricted, it needs to be done legally. This means that the law needs to be very clear about what it is doing.
The second reason is practicality. If the conditional discharge relied on the patient's compliance alone, he could withdraw his consent at any time and demand that he is released. Breaching a condition is not a criminal offence and a person is not automatically recalled although it may lead to it. It is not like there is a contract which would bind the patient to make sure he complied with the conditions of his discharge.
Thirdly, the Mental Health Act allows for only two types of detention: 1) detention in a place of safety for assessment under sections 135 and 136; and 2) detention in hospital under sections 2, 3, 4, 35, 36, 37, 38, 41, 45A, 47 and 48.
For each of these sections there is a power to take the person to the hospital or place of safety and to detain them there. There isn't a power to take a conditionally discharged patient to the place where they have to live or to detain them there. If it was intended that a conditionally discharged patient could be detained, there would be the same sort of power.
A person who is detained or liable to be detained can be returned to hospital for example, patients on section 17 leave that haven't returned. However, a conditionally discharged patient cannot be returned until they have been recalled by the Secretary of State.
A conditionally discharged patient doesn't have the same rights to apply to the tribunal as a patient on a hospital order. It is argued that this indicates that it was not intended that a conditionally discharged patient can be deprived of their liberty or they would have the same safeguards.
Lord Hughes disagreed with the majority and gave his reasons.
It is a real shame that this means that MM has to stay in hospital, but we think that this is the right decision on principle.
We are very worried about the increasing powers of restriction in the community. We have seen this with the introduction of community treatment orders. The Department of Health predicted that some 400–600 patients would be placed on CTOs in the first year but there were 2134 in 2008/09 which has risen to 5426 in 2015/16.
Our view is that if a person is ready for discharge as they no longer require treatment then they should be discharged. The MHA is for treatment and assessment rather than long-term containment or risk management. A further power to restrict in the community would be overused as doctors err on the side of caution as has been seen with community treatment orders.
We look forward to receiving the PJ judgment which will look at whether community treatment orders can restrict a person's liberty.
Our legal newsletter provides a regular update on cases and policy in relation to mental health, mental capacity, discrimination and community care. To receive the newsletter by email please click the link below.