PJ v Welsh Ministers [2018] UKSC 66

The background

In 2011, PJ was made subject to a Community Treatment Order (CTO) following inpatient detention under the Mental Health Act. The conditions of the CTO included requirements that:

• He had to live at a particular nursing home and follow the rules
• He had to follow the section 117 aftercare plan
• He had to be supervised by staff in the community

PJ was assessed to have capacity to consent to his care arrangements. He applied to the First Tier Tribunal (Mental Health) and asked to be discharged because those conditions were so restrictive that they deprived him of his liberty.

PJ's case was appealed up through the ranks, ultimately ending up with the following questions before the Supreme Court:

• Can a Responsible Clinician impose CTO conditions that deprive a patient of their liberty?
• What can the mental health tribunal do where it finds that a patient is deprived of their liberty in this way?

Lady Hale, giving the chief judgment, concluded 'without hesitation' that CTO conditions cannot deprive a patient of their liberty. On the second question the court ruled that the tribunal does not have jurisdiction to consider the legality of conditions, though this may be a relevant in deciding whether to discharge. Where the tribunal does not discharge it may wish to adjourn the matter and 'explain to all concerned what the true legal effect of a CTO is.'

Comment

Mind has opposed CTOs since they were first mooted. In the last decade they have furthered the creep of coercive powers in the mental health system, even more than intended, and have proven ineffective in decreasing readmission rates or improving health outcomes. Our engagement work for the Mental Health Act Review highlighted how intrusive they are in people's lives. One individual described being on a CTO as 'a tag that nobody can see but you know it's around your mind'. This is why we intervened in this case and we are pleased with the judgment.

We have written a longer article for March's edition of the Legal Action Group magazine, which goes into more detail on the policy background and the steps that now need to be taken as a result of this judgment. Here is a brief summary on how to spot an unlawful CTO and what you can do about it.

A: What sort of conditions in a CTO would constitute a deprivation of liberty?

There are three elements to a deprivation of liberty:

1. the objective element – they must be confined for a not-negligible period of time
2. the subjective element – they have not provided valid consent to the arrangements
3. the confinement is imputable to the state – usually when the state is directly involved in the arrangements which amount to a deprivation of liberty

The objective test for a deprivation of liberty is whether a person is subject to continuous supervision and control and are not free to leave. Identifying conditions which amount to a deprivation of liberty will not always be straightforward. The overall impact of the CTO conditions, and how restrictive they are, will need to be considered when deciding whether they meet the objective test.

Whilst it's not possible to provide a list of conditions which will be unlawful, the following conditions could indicate a potential deprivation of liberty:

1. The person is required to reside somewhere under close supervision by staff
2. The person must be escorted at all times
3. The person is not free to leave the place of residence permanently
4. The person can only leave subject to strict limits on time and purpose
5. The person's leave must be agreed by their RC and can be stopped
6. Staff may prevent the person from leaving if they try to leave without permission

CTO conditions can be a deprivation of liberty, and therefore unlawful, even if:

1. The person has capacity and has agreed to the conditions.
2. The CTO means they will have more freedom than the alternative i.e. by allowing them to live in the community, rather than being detained in a hospital setting

B: What to do

If you believe that you are being deprived of your liberty by virtue of a CTO, there are a few things you can do:

1. Speak to your RC and ask them to reconsider the conditions of the CTO
2. Raise the conditions of the CTO with the responsible mental health trust
3. Make a complaint to the responsible mental health trust and ask for the conditions to be varied
4. Make an application to the Tribunal. Although the Tribunal can't change the CTO conditions, they could make recommendations which would put pressure on the RC to change the conditions
5. Speak to a public law solicitor who may be able to challenge the deprivation in court

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