Readers will recall our previous blog setting out the Court of Appeal’s decision in the case of Secretary of State for Justice and Welsh Ministers v MM and PJ in 2017.
The Court of Appeal made a number of points on tribunal powers and the effect of consent.
- The Mental Health Act does not provide a power for the First-tier Tribunal to impose conditions on a conditional discharge that extend to the imposition of an objective deprivation of liberty.
- Where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty.
- Conditions have to be considered by reference to their real and not technical effect.
- A condition of residence in itself is not a deprivation of liberty. The most common condition that might be a deprivation of liberty is continuous supervision, including the lack of availability of any unescorted leave.
- There is no scope for consent in a case such as this.
- The power of deferment to permit arrangements to be made to discharge could be used in an appropriate case to invoke the separate jurisdiction of the Court of Protection to authorise a deprivation of liberty, if the patient is incapacitated.
- It cannot be said that it was Parliament’s intention to authorise detention outside hospital when a patient is conditionally discharged. If that conclusion presents practical difficulty, then it is a matter for Parliament to consider.
This raised a lot of discussion within the world of mental health; one of the biggest concerns being the movement of restricted patients out of hospital. There was concern that we would see more patients remaining in hospital for a longer period of time due to the inability to move them to a less restrictive placement.
Commentators have waited with baited breath – would this case be appealed? We can now confirm that the judgment has been appealed by MM’s solicitor and is due to be heard by the Supreme Court on 26 July 2018.
Watch out for further updates as it unfolds.
Molly Sanghera, Senior Associate
Comments