In 2018 the Supreme Court considered whether a restricted patient could be conditionally discharged from hospital on terms that would deprive him of liberty. The patient agreed to the proposed restrictions. The appeal turned on whether the Mental Health Act 1983, as it then stood, authorised the tribunal or the Secretary of State to impose them.
The question
The issue was whether conditions attached to the conditional discharge of a patient detained under a hospital order and restriction order can, if the patient has capacity and consents, amount to a deprivation of liberty within article 5 of the European Convention on Human Rights.
What had happened
MM was detained under a hospital order and restriction order. He applied for conditional discharge so that he could live in the community. The Court considered a different route into community care, a community treatment order, in Welsh Ministers v PJ [2018] UKSC 66.
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The proposed placement would require MM to live at a specified address and to leave only with an escort. The parties agreed that he had capacity to consent and that the restrictions would otherwise amount to a deprivation of liberty. No placement had yet been identified.
The First-tier Tribunal held that it had no such power, following the Court of Appeal in B v Secretary of State for Justice. It also considered that any consent would not be genuine, properly considered and reliable. It made no decision on whether discharge would in fact be appropriate. The Upper Tribunal (Charles J) held that a condition of compliance with a care package could be imposed if the patient had capacity and consented. The Court of Appeal held that it was bound by B and that there was no power to impose conditions amounting to a deprivation of liberty even with the consent of a capacitous patient.
Conditional discharge under the Act
A restriction order provides for indefinite detention. The patient can be discharged only by the Secretary of State or the Tribunal, and a discharge may be conditional. A conditionally discharged patient remains liable to recall and must comply with conditions, but the Act says nothing about what those conditions may be and creates no sanction for breach other than possible recall. Recall is not automatic on breach, and the patient cannot be kept in hospital unless the statutory criteria for detention are met. The power to treat a detained hospital patient without consent does not apply after conditional discharge.
The purpose of conditional discharge is to support a safe move from hospital towards the community. “Discharge” in this context means discharge from the hospital in which the patient is detained, not release from all liability to be detained. The Act carefully distinguishes actual detention, liability to detention, and neither.
Why the majority rejected the power
Lady Hale held that neither the Tribunal nor the Secretary of State may impose conditions amounting to detention or a deprivation of liberty. The words used in the relevant provisions are entirely general. Under the principle of legality, explained by Lord Hoffmann in Ex p Simms, fundamental rights are not overridden by general or ambiguous words. Parliament was not asked to authorise a form of detention different from hospital detention, and without the criteria and procedural safeguards which the Act attaches to hospital detention. The Secretary of State, unlike the Tribunal, can impose whatever conditions he sees fit.
There were also practical objections. The patient’s continued co-operation is essential, and willingness to accept restrictions may be driven by the wish to leave hospital. Consent can be withdrawn. The Act gives no power to convey a conditionally discharged patient to the required place, detain him there, or retake him merely because he leaves. He can be taken into custody only after the Secretary of State has recalled him to hospital. There is no contract preventing him from revoking consent. A choice between remaining in hospital and accepting a lesser confinement may not be a real consent.
The structure of the Act pointed the same way. It authorises only specific forms of detention, principally in a place of safety or in hospital, and supplies express powers to convey, detain and recapture in those cases. It contains no equivalent machinery for a conditionally discharged patient required to live under restrictive conditions. The longer intervals between applications to the Tribunal after conditional discharge also suggest that Parliament did not contemplate conditions which themselves deprive the patient of liberty.
A restrictive community placement might serve rehabilitation and might be less severe than hospital, but nothing in the Act prohibited or authorised it in terms that could overcome these objections. No one suggested that such a condition could be imposed without consent, yet consent could not supply a power which the statute did not contain.
The dissent
Lord Hughes would have allowed the appeal. In his view, hospital and restriction orders had already lawfully deprived MM of liberty. Conditional discharge would relax that existing detention rather than impose a new one, provided the conditions were no more restrictive than the detention already authorised. Recall to hospital, followed by the Act’s powers over patients absent without leave, was a sufficient response if the patient later refused to comply. Consent was important in practice but was not a legal precondition of the power.
Verdict: By four votes to one, the Court dismissed MM’s appeal. Under the Act as it stood, neither the tribunal nor the Secretary of State could impose conditions amounting to a deprivation of liberty. Lord Hughes dissented. The Court left open the separate question of the Court of Protection’s powers in a case involving a person who lacked capacity.
