Conditional discharge and deprivation of liberty

The Supreme Court has held that the Mental Health Act did not permit to impose conditions which amounted to detention or deprivation of liberty.

The Supreme Court decision in Secretary of State for Justice v MM [2018] UKSC 60

Executive summary

In a keenly-anticipated decision, the Supreme Court has held that sections 42(2) and 73(2) of the Mental Health Act 1983 (‘the MHA’) did not permit either the First-tier Tribunal (‘FtT) or the Secretary of State for Justice (‘SoS’) to impose conditions which amounted to detention or deprivation of liberty on a conditionally discharged restricted patient, regardless of whether the patient consented to such conditions.

Background

The appellant in this case, referred to as MM, had mild learning disabilities, autism spectrum disorder and pathological fire setting. He was convicted of arson offences in 2001 at the age of 17 and was made the subject of a hospital order and a restriction order, following which he had been detained in hospital almost constantly ever since. He was considered to be at serious risk of fire setting and behaving in a sexually inappropriate way towards women.

MM applied to the FtT for conditional discharge in May 2015, but the proposed care plan (to which MM consented) required him to live in a particular place which he could not leave without an escort, which constituted a deprivation of liberty according to the Cheshire West case ‘acid test’ – i.e. whether the individual is subject to continuous supervision and control and not free to leave. The FtT, however, found that it could not impose conditions on discharge which constituted a deprivation of liberty. The Upper Tribunal took the contrary view but on appeal by the SoS, the Court of Appeal agreed with the FtT, finding that the FtT could not impose such conditions outside hospital, as the MHA did not provide for this.

MM appealed against this decision to the Supreme Court.

The Supreme Court’s decision

By a 4:1 majority, the Supreme Court dismissed the appeal, holding that the MHA permitted neither the FtT nor the SoS to order a conditional discharge of a restricted patient subject to conditions amounting to detention or a deprivation of liberty.

The court found that the purpose of conditional discharge was to enable the individual to make a safe transition from an institutional setting to the community. The word ‘discharge’ in the relevant sections of the MHA when referring to conditional discharge of restricted patients, had to mean actual discharge from the hospital where they were detained, and whilst there was nothing in the MHA expressly prohibiting a condition which amounted to a detention or deprivation of liberty in a different setting, there were, in the court’s view, compelling reasons not to construe the legislation in that way:

The court observed that it was difficult to see why the patient’s consent would be required for the exercise of a power to impose such a condition, yet all parties agree that consent was needed. The power to deprive someone of their liberty was an interference with a fundamental right to liberty, engaging the principle of legality. Parliament had not been asked to consider whether the general terms of sections 42(2) and 73(2) of the MHA included a power to impose a different form of detention from that provided for in the Act, without any equivalent of the prescribed criteria and procedural safeguards relating to detention in a hospital.

Co-operation from the patient was crucial to the success of any rehabilitation plan, the court noted, and there was always a concern that the patient's willingness to comply was motivated more by a wish to get out of hospital than by a desire to stay in whatever community setting in which they were placed. The patient could withdraw consent to the deprivation at any time and demand to be released, and there would be no contract binding them. Of great significance, in the Supreme Court’s view, was that such a power would be contrary to the whole scheme of the MHA, which provided for detention in various situations, in each case giving specific powers to convey the patient to a hospital or place of safety, to detain them, and to re-take them if they absented themselves without leave. There was no equivalent express power for a conditionally discharged restricted patient. If the Act had contemplated that such a patient could be detained, it was inconceivable, the court found, that equivalent provision would not have been made for that purpose. The court also noted that the fact that a conditionally discharged restricted patient could apply to the FtT for release far less frequently than a hospital patient indicated that Parliament did not consider that such patients might be subject to conditions which needed the same level of protection as those who were deprived of their liberty.

Comment

The Supreme Court’s decision settles the issue of the imposition of conditions which amount to a deprivation of liberty around conditionally discharged patients, regardless of whether the patient consents. The key point for practitioners and those involved in the provision of such services will therefore be to consider which conditions do and do not amount to a deprivation of liberty and to ensure that they avoid trying to impose those falling into the former category.

 

If this raises any questions please speak to your usual contact in the Weightmans healthcare team or contact Cheryl Rowbotham, Associate, cheryl.rowbotham@weightmans.com, 0151 242 6814.

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