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SSJ v MM & Welsh Ministers v PJ Case [2017] EWCA Civ 194

The Court of Appeal considers whether conditional discharges and Community Treatment Orders can deprive patients of their liberty without further authorisation.

Two cases were joined together for the Court of Appeal to consider whether a deprivation of liberty is appropriate for mental health patients who have capacity to make decisions about whether their liberty can be deprived in the community. Both the First Tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales were involved and there was no distinction between them in terms of their powers. We have referred to both as Mental Health Tribunals (MHT) for convenience.

MM was given a hospital order with restrictions under section 37/41 MHA. He applied for a conditional discharge which was refused. His care team opposed the conditional discharge but two external experts thought he could be managed in the community provided that there was a suitable care package in place. However, the care package would mean that he would be subject to a deprivation of liberty as set out in Cheshire West and Cheshire Council v P [2014] AC 896.

A previous case (RB v Secretary of State for Justice [2012] 1 WLR 2043) had held that a tribunal is unable to impose conditions which amount to a deprivation of liberty for someone to be conditionally discharged.

MM argued that the deprivation of liberty would be lawful because he has capacity to consent to it. He also argued that the MHT could impose a condition that he must comply with the care plan which in itself would not be a deprivation of liberty even though the terms of the care plan would. This would be different from the RB case because the conditions themselves didn't deprive him of his liberty.

It was decided that the MHT could not impose conditions which would amount to a deprivation of liberty whether it was a condition that deprives the person of their liberty or a general condition to comply with the care plan which would then deprive him of his liberty. The court concluded that having a general condition to comply with the care plan was a way of avoiding the judgment in RB case and was not legal.

MM was unable to give valid consent because the threat of coercion is likely to invalidate consent. Any claims of consent would not allow the MHT to make a deprivation of liberty.

PJ was subject to a Community Treatment Order (CTO) and the conditions were that he needed to reside at the care home and comply with their rules; abide by the care plan; and abide by the risk mitigation plan for community access. The order therefore significantly restricted his liberty.

The court found that CTOs provide a power to restrict freedom in the community- although it is intended to be less restrictive than if a patient was detained in hospital for treatment. This means that responsible clinicians (RC) are able to make conditions which objectively deprive someone of their liberty provided it is less restrictive than being detained in hospital. However, the MHT is unable to consider those conditions and is limited to discharging a patient from detention.

We understand the decision is going to be appealed. We will keep you updated when we have more information.

The judgment can be found here:

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