RB and Lancashire Care Foundation Trust – Deprivation of Liberty/ Mental Health Act decision from the Court of Appeal This Court of Appeal decision, handed down on 20 December 20111, relates to the Secretary of State’s appeal against the decision of the Upper Tribunal2 to order (pursuant to section 73 Mental Health Act 1983 (MHA) the conditional discharge of patient RB into the community to reside in a care home, despite the conditions amounting to a deprivation of liberty.
The Court of Appeal concluded that Parliament could not have intended to create a new species of detention that was potentially more detrimental to liberty than detention under the MHA, particularly where the patient would have no right to the review of his detention by a tribunal.
RB is a 75-year-old who suffers from persistent delusional disorder and is detained in a psychiatric hospital. Following a conviction for indecent assault in 1999 the court imposed a restriction order, meaning that RB is liable to be detained indefinitely until he is discharged by the Secretary of State for Justice or the First Tier Tribunal (Mental Health).
Psychiatric experts decided that RB could now be cared for in a location with less security than a psychiatric hospital, but that he would need to be subject to conditions in such an environment; including a condition that he should only have escorted access into the community. RB applied for a conditional discharge.
RB obtained an order pursuant to section 73 MHA from the Upper Tribunal that he should be conditionally discharged to reside in a care home in the community. Despite the conditions imposed upon him amounting to a deprivation of liberty, RB was in agreement and so were the clinical team. There was no dispute that his quality of life would improve in a care home environment as opposed to a psychiatric hospital.
The Secretary of State appealed against the order for conditional discharge, contending that section 73 MHA (the power to discharge restricted patients) conferred no power on a Tribunal to make such an order.
The MHA has to be interpreted as far as possible to be compatible with the European Convention on Human Rights (ECHR). Of particular relevance here is Article 5, the right to liberty and security, which states that a person may only be deprived of their liberty in certain situations (including the lawful detention of “persons of unsound mind”), and in accordance with a procedure prescribed by law.
Article 5 (4) states that a person deprived of their liberty must be entitled to take proceedings by which the lawfulness of detention shall be decided speedily by a court.
The MHA provides for detained patients to have the right of review once a year by a Tribunal, however a conditionally discharged patient can only apply to the Tribunal for a review every two years (section 75(2) MHA). If the decision of the Upper Tribunal were to stand, RB would have conditions imposed which continue to deprive him of his liberty and yet an inferior right of review. In addition, leave of absence under section 17 only applies where a patient is detained in hospital.
Decision of the Upper Tribunal
The Upper Tribunal considered whether the natural meaning of ‘discharge’ mandated a conclusion that entailed release from a state of detention to one of liberty, and found that it did not. They concluded that it meant release from detention in hospital for treatment without any connotation that a person is “being released from deprivation of liberty in the legal sense”. The Upper Tribunal reached the view that it was sufficient that the discharge was to an institution which was not a hospital (ie, a care home).
Therefore, the Upper Tribunal considered that the tribunal had the power under section 73 to order a conditional discharge on the terms sought; if it was satisfied that it was in the best interests of RB.
Court of Appeal - summary
The Court were very much of the view that there were difficulties of statutory interpretation that could not be overcome. They made reference to previous cases which spoke this as “a curious area of human rights jurisprudence”.
The Court noted that the Secretary of State was in the unusual position of seeking to argue against a conditional discharge, on the terms sought on the basis of human rights jurisprudence when a) those terms would produce a more humane result and b) RB was content with them.
Issues considered by the Court of Appeal
The core issue considered by the Court of Appeal was whether there is any statutory authority for deprivation of liberty once an order for conditional discharge has been made (the “prescribed by law issue”). The MHA does not specify the circumstances in which a tribunal can order a conditional discharge on terms that amount to a deprivation of liberty. The Court’s starting point was that the original Hospital Order only authorised detention in hospital.
Lady Justice Arden was in agreement with the submission that Parliament could not have intended to create a new species of detention, which is potentially more detrimental to personal liberty than detention under the MHA. For section 73 to be construed as wide enough to authorise detention for the purpose of containment rather than treatment is contrary to the policy of the MHA. She specifically noted that sections 42 and 73 make no reference to detention otherwise than in a hospital and this would indicate that Parliament did not contemplate that on discharge a patient would be detained in an institution which was not a hospital.
In light of that the Court considered whether the MHA could nonetheless be read as conferring that authority in a manner not incompatible with Article 5 of the ECHR (the “incompatibility issue”), where RB would benefit from one of the safeguards being abandoned. The Court of Appeal took the view that it was quite clear that Parliament intended that the MHA should comply with Convention rights.
Finally, the Court went on to consider whether there could be justification for the different procedural guarantees given to restricted patients detained in hospitals and those detained in other institutions (the “justification issue”), in particular with reference to the right of a review of detention by the tribunal. The Court of Appeal found that there was no apparent reason for such a disparity of rights, which indicated that the interpretation placed on section 73 by the Upper Tribunal was incorrect.
The final point the Court of Appeal considered was about the extent of factual inquiries to determine whether the terms of a conditional discharge involved an inevitable deprivation of liberty. The court felt that this was unlikely to be a difficult issue in every case, and noted that tribunals often need to determine complex questions of fact. Overall they were of the view that the tribunal need not fully explore every possible outcome but only determine whether deprivation of liberty will be the inevitable result.
The Tribunal cannot rely on a patient’s best interests as grounds for ordering a conditional discharge, on terms that amount to a deprivation of liberty as that cannot have been the intention of Parliament, particularly where the detention would not be for the purpose of any treatment.
An interpretation of section 73(2) MHA that permitted detention in an institution which was not a hospital, for purposes other than treatment and without appropriate medical treatment being available for the patient, would clearly be inconsistent with the criteria for admission.
The Court of Appeal were mindful that the decision of the Upper Tribunal was very concerned with the individual position of RB and his best interests, but the Court concluded that the difficulties of interpretation could not be overcome. The Court took the view that the position was mitigated by the fact that the Secretary of State has the power to order a transfer in an appropriate case. They did however accept that the Tribunal could express some helpful non statutory recommendations for transfer in an appropriate case.
Deprivation of Liberty cases have been gathering momentum in the latter part of 2011. It remains to be seen what 2012 brings. This case dissects the interesting cross-over between the Mental Health Act and deprivation of liberty. However it remains a complex area of law.