The Supreme Court held that a responsible clinician cannot attach conditions to a community treatment order which in practice deprive the patient of liberty. The Mental Health Act 1983 permits conditions supporting treatment in the community, but it contains no express or necessarily implied power to authorise detention outside hospital. The Court allowed PJ’s appeal and made a declaration to that effect, without deciding whether his own care-home regime had in fact deprived him of liberty.
Community treatment orders were introduced into the Mental Health Act 1983 in 2007. They allow a responsible clinician to discharge a detained patient into the community, subject to conditions and to possible recall to hospital. Lady Hale, with whom Lord Kerr, Lord Wilson, Lady Black and Lord Lloyd-Jones agreed, asked whether those conditions may deprive the patient of liberty under article 5 of the European Convention on Human Rights. The Court considered the separate power to discharge a restricted patient in Secretary of State for Justice v MM [2018] UKSC 60.
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PJ’s order and the restrictions
PJ had previously been detained in hospital. His care team proposed that he live in the community under supervision.
He moved to a care home under a community treatment order. Unlike the restricted patient in the companion appeal, PJ was not subject to a restriction order.
Every such order must require the patient to make himself available for examinations connected with renewal and, where relevant, certification of treatment. PJ’s order also required him to live at the care home and follow its rules, to abide by his section 117 after-care plan, and to follow risk-management plans on supervised community access. The clinician, with the agreement of an approved mental health professional, considered those conditions necessary or appropriate to ensure treatment, prevent harm to PJ, or protect others.
Staff monitored PJ’s movements and generally accompanied him on outings. Some unescorted leave was permitted by agreement. He was willing to live in the home but wanted more freedom to leave it.
The earlier decisions
In May 2014 the Mental Health Review Tribunal for Wales rejected the argument that the arrangements unlawfully deprived PJ of liberty. It found that he had significant unsupervised time and a progressive plan for more, so he was not under continuous supervision and control. It added that, even if he was deprived of liberty, the need for the order took precedence over human rights issues.
Charles J in the Upper Tribunal held that this was the wrong approach. The tribunal had looked at supervision without asking whether PJ was free to leave or to refuse the conditions. Whether someone is deprived of liberty depends on the concrete situation, not on whether the regime is legally enforceable. Charles J did not decide the factual question, although he found it hard to see how further analysis would conclude that there was no deprivation. He held that an unlawful deprivation could not be allowed to continue merely because a community treatment order was in force. He did not remit the case: PJ was no longer subject to the order.
The Court of Appeal held that the Act necessarily implied a power to restrict movement to the point of deprivation of liberty, so long as the restriction was less than detention in hospital and served the purposes of the scheme. It also held that the tribunal could not discharge the order even if its terms produced an unlawful deprivation. No one argued there that the tribunal could properly have found these conditions were not a deprivation of liberty. The Mental Health Act Code of Practice, by contrast, states that the conditions must not deprive the patient of their liberty.
Unenforceable conditions can still deprive of liberty
The Welsh Ministers then argued that the conditions could not be a deprivation of liberty because they could not be enforced. A community patient’s liability to detention in hospital is suspended. He cannot be compelled to accept treatment if he has capacity and refuses. There is no sanction for breach of the additional conditions, although breach may be considered when deciding whether the limited grounds for recall exist. There is no power to recapture him merely because he leaves the care home.
Lady Hale accepted that account of the legal effect, but not the conclusion. The protection of liberty must be practical and effective. Courts look at the concrete situation; otherwise an unlawful detention might go without remedy precisely because there was no power to impose it. The appeal proceeded on the basis that PJ’s circumstances amounted to a deprivation of liberty, but the Court was not asked to decide that factual issue. The question was whether the clinician may impose conditions which have that effect.
The Court also refused to modify the Cheshire West test because the regime was intended to enhance freedom. The test is whether the person is under continuous supervision and control and is not free to leave. Purpose is not one of the factors, and the Court was not asked to depart from that decision.
No power in the Act
Section 17B(2) does not expressly authorise conditions which deprive a patient of liberty. The Court of Appeal had implied such a power from an assumed purpose of gradual reintegration. Lady Hale said that this put the cart before the horse. Liberty is a fundamental right, and general words are not read as authorising interference with it unless the statute does so expressly or by necessary implication. A necessary implication must follow from the statute; it is not enough that the power would have been sensible.
Nor was there reason to attribute that intention to Parliament. The Code explains that these orders allow suitable patients to be treated safely in the community, help prevent relapse and harm, and support recovery. They are not invariably a scheme of gradual reintegration. The reforms followed extensive consultation and strong opposition to compulsory treatment outside hospital. The Act reflects that limit: a capacitated community patient who refuses cannot be forced to accept treatment. The provisions authorising hospital detention, by contrast, specify who may convey, detain and recapture a patient. A community treatment order contains none of the definitions or powers that would be expected if Parliament had authorised detention in a community setting.
Lady Hale therefore held, on ordinary principles of construction and without needing the Human Rights Act, that there is no power to impose conditions whose concrete effect is to deprive a community patient of liberty. She also doubted that the ill-defined power accepted by the Court of Appeal would satisfy the Convention requirement of legality.
The tribunal
The tribunal cannot revoke or vary the conditions. It may discharge the patient, and must do so if it is not satisfied that the statutory criteria are met. It was argued for PJ that unlawful deprivation should lead to discharge, including because treatment could not then be appropriate. The Welsh Ministers said that legality of the conditions was a matter for judicial review, and that recall was the proper course if hospital treatment was required.
Lady Hale regarded the difficulty as more theoretical than real. The patient’s actual situation may be relevant to whether the criteria are met, and a tribunal which identifies an unlawful deprivation may explain the true legal effect of the order. It still has no power to alter the conditions. If a patient is in reality being unlawfully detained, the remedy is habeas corpus or judicial review. A conscientious clinician, and the hospital managers who must explain the order to the patient, should now proceed on the basis that conditions cannot be used to deprive him of liberty.
Verdict: The Court unanimously allowed PJ’s appeal and declared that community treatment order conditions could not lawfully deprive a patient of liberty. It did not decide whether PJ’s arrangements had done so in practice. His order had ended, so there was no remittal.
