The answer to this thorny issue has been awaiting a decision by the Court of Appeal. The Court has now handed down its judgment.
The Court of Appeal held that neither the Secretary of State nor the Tribunal has the power to deprive the patient of their liberty outside hospital. There is no such express provision included with the law and nor could such a power be implied. Accordingly, the conditions applicable to a discharge by the Tribunal cannot lawfully create a deprivation of liberty.
Even if the patient has capacity to consent, the agreement of the patient does not prevent a deprivation of liberty. The most common such condition is likely to be a requirement for continuous supervision including the lack of availability of unescorted leave. However, the Court confirmed that such consent would be ineffective as a matter of fact as it cannot be irrevocable.
The issue of consent is, however, relevant as the Tribunal may decide that because of such consent the Tribunal can make an order for absolute discharge, or a conditional discharge on conditions that do not amount to a deprivation of liberty.
Where the patient lacks capacity, the Court held that it cannot be said that it was Parliament’s intention to authorise detention outside hospital subject to conditional discharge even utilising the Mental Capacity Act.
The Court held the position was very different to conditional discharge. The Court found that by necessary implication, the patient’s responsible clinician (but not the Tribunal) does have the power to provide a CTO with restrictive conditions that amount to a lesser restriction than detention in hospital would create.
There may be an objective deprivation of liberty but that is nevertheless lawful as long as the CTO does not have the effect of increasing the level of restriction to which a patient is subject beyond those applicable in hospital detention. The reason for this is that deprivation of liberty under a CTO is intended to be a lesser restriction on freedom of movement than detention in hospital.