Secretary of State for Justice v MM [2018] UKSC 60

The conditionally discharged patient and consent to deprivation of liberty – the Supreme Court speaks

Today has seen a hotly anticipated judgement (for some of us), handed down by the Supreme Court. In a majority judgement, the court determined that even if a patient detained under the Mental Health Act 1983 (“MHA”) is eligible for a conditional discharge, and consents to being discharged subject to conditions which will amount to a deprivation of his liberty, the MHA does not permit such a discharge to take place. What, some of you may say, does that mean?

The judgement bears reading in full, but here we endeavour to set out a very brief overview of the decision.

The decision affects capacitous and consenting MHA patients subject to restriction orders – orders imposed on an offender by the criminal courts for the purposes of public protection. Those patients can-not be conditionally discharged into the community, if the arrangements amount to a deprivation of his liberty.

A conditional discharge granted by the Secretary of State or the first tier tribunal, means a patient can leave hospital and live elsewhere, but subject to particular conditions. For example, they must keep appointments with the community mental health team, or only live in a particular place. A breach of those conditions may result in consideration being given to them being brought back to hospital.

MM has been subject to an order under section 37/41 MHA since 2001, when he was just 17 years old, save for a period of some 5 months around 2007. MM is diagnosed with learning disabilities, autistic spectrum disorder and pathological fire setting. In 2015 MM appealed against his detention in hospital to the first tier tribunal. Contrary to the view of his treating team, two independent experts recommended that MM could be safely managed in the community on a conditional discharge subject to an appropriate care plan. For MM, this would mean being subject to supervision and monitoring which would amount to a deprivation of his liberty within the meaning of Article 5 ECHR. He would have to live in a particular place and he could not leave to go anywhere without an escort. MM was nevertheless agreeable to this and was assessed as having capacity to agree to the arrangements.

The tribunal found that it did not have the power to discharge MM on conditions that he comply with the care plan which would deprive him of his liberty. MM appealed. The Upper Tribunal disagreed and found the power did exist. The Secretary of State appealed and the Court of Appeal agreed with the first tier tribunal, thus MM could not as a matter of principle be conditionally discharged. MM appealed to the Supreme Court.

In broad summary the reasons given were:

• A patient may consent to live in such restrictive arrangements, but that consent can not bind him contractually to continue to consent. As co-operation with a care plan is necessary for the success of the same, discharge in circumstances which rely on that consent would not be practical.
• If the MHA had contemplated that a patient might remain “detained” after a conditional discharge i.e. deprived of his liberty, it would have applied a regime similar to that of patients on leave from hospital for example, should they breach the conditions of that leave. For instance, if a patient goes AWOL on leave, the MHA provides mechanisms to be implemented for their forcible return. The MHA is silent on this for conditionally discharged patients save that they remain liable to be recalled to hospital by the Secretary of State, and particular consideration would be given to recall if conditions are breached.

Lord Hughes dissented from the majority in what may be seen by some as a more pragmatic judgement. If a conditionally discharged patient breaches the conditions of his discharge, whether or not the patient is deprived of his liberty the Secretary of State can still consider whether it is appropriate to recall the patient to hospital. Providing the conditions into which the patient is discharged are not more restrictive than those he is being discharged from Lord Hughes felt there was no reason why the tribunal did not have the requisite power of discharge. Further, a patient’s capacity should not even come into it.

A point raised on behalf of MM was that the position MM finds himself in as a patient with capacity to consent to the arrangements for his discharge, is different, one may consider worse, than the position a patient who lacks capacity would be in. A patient who lacks capacity to consent to his discharge arrangements, could have those arrangements authorised by the Court of Protection if they are in his best interests, and therefore be conditionally discharged. MM finds himself prejudiced because he has capacity to make the decision. However, as any consideration of whether that position was right would not have impacted on the decision in MM’s case, the court chose not to consider it further.

It can’t be predicted whether or not the tribunal would have conditionally discharged MM even if it had the power. At the time there was nowhere to discharge him to and the tribunal was invited to determine the principle rather than the reality. On the above point alone though, one can see the potential for further litigation on the topic. For now the consequence would seem to be that some MHA patients who it might be possible to safely discharge from hospital, will have to remain in hospital indefinitely.

If you have questions about this, the Mental Health Act, or deprivation of liberty issues, please contact our team on 0113 4830188 or enquiries@mjc-law.co.uk