The Supreme Court has today addressed the question of whether a detained mental health patient subject to restrictions, who would be eligible for conditional discharge, could be made subject to conditions by the First Tier Tribunal or Ministry of Justice that amount to a deprivation of liberty. The answer is, unfortunately, no.
MM is a patient with a mild learning disability and Autistic Spectrum Disorder who had a propensity towards starting fires. In April 2001, MM was convicted of arson and detained in hospital under Section 37 of the Mental Health Act 1983 (MHA) and had restrictions imposed upon him under Section 41 MHA.
MM was conditionally discharged in 2006 under Section 73 MHA, but due to a deterioration in his behaviour was recalled to hospital the following year.
In 2015, MM applied for conditional discharge and expert evidence suggested that discharging MM would be appropriate on the condition that he complied with his care plan.
The First Tier Tribunal refused this application and stated that discharge conditional on compliance with a care plan would not be permissible. The Tribunal reached this conclusion as it stated doing so would contravene the principle that an individual cannot be deprived of their liberty unless it is the clear effect of statute. This was found to be the case despite all parties otherwise agreeing to these conditions. When heard in the Upper Tribunal, it was held that discharge conditional on compliance with a care plan was permitted provided that the patient had capacity to consent to these arrangements and was consenting to them, regardless of whether such arrangements objectively satisfied the criteria for a deprivation of liberty. On appeal to the Court of Appeal, the decision of the Upper Tribunal was reversed.
The Supreme Court, by way of a majority decision (Lord Hughes dissenting), has affirmed the decision given by the Court of Appeal in this matter, that the MHA does not permit either the First Tier Tribunal nor the secretary of state to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient, regardless of whether that patient consents. They therefore dismissed the appeal of MM.
Lady Hale gave the leading judgment in this matter and dismissed this appeal on a number of grounds.
Lady Hale firstly relied on principle. The wording of the sections permitting conditional discharge is general in nature and parliament has not been asked to consider whether these provisions included a power to impose a different form of detention from that expressly provided for in the MHA. There are no equivalent, detailed criteria to those permitting detention in a hospital in the MHA for a power to deprive a conditionally discharged patient of their liberty, and as such there are none of the accompanying safeguards.
Lady Hale also placed great weight on the notion that to enable the secretary of state or the First Tier Tribunal to have such a power would be ‘contrary to the whole scheme of the MHA’. Wherever the MHA permits detention of an individual, specific powers are set out. Lady Hale stated that if the MHA had contemplated that a patient could be detained under conditional discharge, it is ‘inconceivable’ that such equivalent provision would not have been made for this purpose.
Lady Hale also reiterated a consideration that had proved influential with the Court of Appeal. Currently, a hospital order patient can apply to the First Tier Tribunal once within the second six months of his detention, and once within every 12 month period thereafter. However, a conditionally discharged patient who has not been recalled to hospital can only apply once within the second 12 months of their discharge, and once in every two year period thereafter. This demonstrated to the Supreme Court that it was not thought that patients who were conditionally discharged required the same protection as those deprived of their liberty, which they believe further indicates that it was not contemplated that patients could be deprived of their liberty through conditional discharge.
When addressing the specific facts that this patient was consenting to the conditions, Lady Hale stated that practicality necessitated that this appeal be dismissed. Lady Hale noted that whilst a patient breaching their conditions may lead to recall to hospital, that hospital was powerless to detain a patient if the grounds for doing so are not satisfied. In these circumstances, Lady Hale indicated that a consenting patient could simply withdraw their consent and demand to be released; in these circumstances ‘there is no contract by which the patient is bound’.
In reaching this decision, the Supreme Court was heavily influenced by the lack of specific legislative provision relating to this proposed power. Due to the fundamental nature of the rights that would be infringed by depriving a conditionally discharged patient of their liberty, the Supreme Court deferred to parliamentary supremacy and was unwilling to permit this without express legislative provisions and therefore the accompanying safeguards.
Therefore, when imposing any conditions on patients deemed suitable for a conditional discharge, these conditions must not be so onerous as to satisfy the objective test for a deprivation of liberty.
This means that there is a group of patients who continue to pose a threat to members of the public who may never be released from detention in hospital. The First Tier Tribunal is faced with the stark choice of continued detention in hospital or discharge without the necessary protections in place. This is likely to have an effect on Transforming Care plans.
The Tribunal is more likely to consider discharge for those patients who lack capacity to agree to their care arrangements in the community, where a deprivation of liberty authorisation can be obtained under the DoLS scheme or from the Court of Protection.