The Court of Appeal has given judgment in two cases, MM and PJ, which were heard together and related to conditions being imposed upon conditional discharge or on a community treatment order (CTO) which objectively meant the patient was deprived of his liberty. They were heard together as initially the Court felt the issues relating to both types of discharge were analogous.
The decision is that they are in fact very different.
The judgment in The Secretary of State for Justice -v- MM and PJ  EWCA Civ 194 can be accessed here.
MM had a mild learning disability and autistic spectrum disorder and had a history of arson. This remained a risk factor and it was common ground that the proposed care plan would objectively give rise to a deprivation of his liberty having regard to the ‘acid test’ set out in Cheshire West and Cheshire Council -v- P . MM was assessed as having capacity to consent to his care plan and was in agreement with the conditions proposed.
The Court reaffirmed the decision in RB -v- SSJ  1 WLR 2043, that it is not lawful for the tribunal to impose conditions for conditional discharge which would ‘objectively’ amount to a deprivation of liberty, notwithstanding the willingness of the patient to consent to those conditions.
Community treatment orders
PJ was diagnosed with a mild learning disability and an autistic spectrum disorder associated with significant behavioural impairment. PJ had been detained in hospital for eight years until 2007 following a conviction for assault and threats to kill. He was re-detained in 2009 under section 3 of the Mental Health Act 1983.
PJ was discharged to a residential facility for men with moderate to borderline learning disabilities with challenging behaviours subject to a CTO.
The Court held that the responsible clinician (RC) retains the ultimate power to detain the patient by virtue of the power of recall. Deprivation of liberty is permitted under a CTO but it must be a ‘lesser restriction on freedom of movement than detention for treatment in hospital’.
It remains open to the tribunal to conditionally discharge patients where the conditions proposed do not amount to a deprivation of liberty and the patient agrees to abide by a restrictive care plan. However, the tribunal must balance such a decision with the risk if the patient withdraws from compliance with the care plan. Pragmatically, it is reassuring that for patients who lack capacity to consent to restrictions in the community, the availability of a deferred conditional discharge remains to allow an authorisation for a deprivation of liberty to be obtained from the Court of Protection or local authority alongside a conditional discharge.
The decision in PJ goes against the previously held view that a CTO could not be used to deprive a patient of their liberty. Significantly, for those subject to a CTO who lack capacity, there is no longer a need to have a deprivation of liberty authorised by the COP or the local authority, alongside the CTO. RC’s will be able to impose conditions which constitute a deprivation of liberty as part of the CTO subject to these being less restrictive to detention in hospital. This is likely to require revision of the Mental Health Act code of practice which sets out at chapter 29.31 that a deprivation of liberty must not arise from CTO conditions. In practice, this may lead to a greater use of restrictions in CTOs in future, but for capacitous patients the issue of compliance will still need to be considered.