Case Summary: SOSJ –v- MM & Welsh Ministers –v- PJ [2017] EWCA Civ 194

Case

SOSJ –v- MM & Welsh Ministers –v- PJ [2017] EWCA Civ 194

Relevant Topics

• Discharge
• Patient with capacity;
• Community Treatment Order ("CTO")
• Conditional Discharge of Restricted Patients
• Deprivation of Liberty ("DoL")
• Patients detained under the Mental Health Act 1983 ("MHA")
• First Tier Tribunal and Upper Tier Tribunal (together the "Tribunal")

Practical Impact

CTOs

• With capacitated patients, you can use a condition of a CTO to deprive someone of their liberty as long as the CTO is less restrictive, in effect, than the hospital environment.
• For patients detained under the MHA, ready for discharge, who need to be deprived of their liberty there is now scope for care plans to be used to significantly restrict a patient's liberty under a CTO. Such care plans will have to justify infringement of the patients other human rights, such as a right to privacy and family life, will have to be less restrictive in effect than the hospital environment and will need to be carefully prepared before any implementation of a CTO.
• Any challenge to the lawfulness of a condition on a CTO should be by way of Judicial Review now to the Tribunal (as the Tribunal has no powers to regulate the conditions of a CTO).
• For patients who lack capacity, still best advised to use CTO plus DoLS Standard Authorisation/CoP Order.

Arguably, this judgement doesn’t take us any further forward than the law was previously for a capacitated consenting patient who is agreeing to a condition of a CTO that would objectively deprive them of their liberty. It would not be a DoL for the purposes of Article 5 in any event, because the subjective element is not met.

The change in the law here is in relation to capacitated objecting patients. Arguably, this judgment means that the condition of the CTO could provide the lawful framework for the objective deprivation of their liberty where there is no subjective consent. The difficulty that might arise here is one of practical implementation and enforcement. A recognised limitation of the CTO is that breach of a non-mandatory condition does not result in a right to automatically recall the patient to hospital; they are often referred to as "toothless tigers" in this regard and therefore usually only effective with compliant patients. Does this judgement now mean that for capacitated objecting patients, the CTO condition acts akin to a DoLS Standard Authorisation/CoP Order for an incapacitated patient – providing the power to enforce the deprivation of liberty? How this satisfies the requirements of Article 5 remains unclear.

Conditional Discharges:

• A capable restricted patient cannot consent to a Conditional Discharge that objectively amounts to a DoL – even though, a DoL only requires regularisation under Article 5 if the subjective element (i.e. lack of valid consent) applies;
• An incapable restricted patient can be placed on a Conditional Discharge with a simultaneous Deprivation of Liberty Safeguards Authorisation/Court DoL Authorisation;
• A capable patient can agree to an Absolute Discharge with arrangements that objectively amount to a DoL; but these can't be enforced.

The CoA's position on Conditional Discharges appears inconsistent with the case law on Article 5, which states that for there to be a DoL requiring regularisation, the three elements must be present:

1. Objective element – the circumstances objectively amount to a DoL;
2. Subjective element – there is a lack of valid consent to the DoL;
3. State involvement.

Capacitated restricted patients could provide valid consent (i.e. rendering the subjective element of a DoL for Article 5 purposes unmet) – meaning that there is no DoL for the purposes of Article 5 requiring regularisation. However, the CoA's decision does not appear to take this into account.

There is an argument that a capacitated restricted patient cannot provide valid consent – on the basis that, essentially, the restricted patient is "coerced" or "unduly influenced" into giving consent to achieve discharge from hospital, but that doesn’t appear to have been the reason behind the Court of Appeal's decision. Further, you could argue that this inability to provide "valid" consent would be the case with consent to any conditions on a Conditional Discharge (including those that don't amount to Article 5 interferences but potentially Article 8 interferences) and indeed, any consent to any CTO conditions (which doesn’t appear to have troubled the Court of Appeal in the PJ case).

For capable restricted patients, therefore, there are the following options:

1. Remain in hospital;
2. Conditional Discharge with conditions that do not amount to a DoL;
3. Absolute Discharge – either with or without conditions amounting to a DoL – but these can't be enforced;
4. Removal of Restriction Order which would make them eligible for a CTO – could enforce a DoL through a condition of the CTO.
5. Potentially consider s.17(3) long-term leave under custody.

Practical Guidance for Capacitated Restricted Patients Considering Conditional Discharge

• Check whether they really do have capacity;
• Reduce the restrictions as far as possible so that they do not amount to an objective DoL;
• Consider alternative structures that could be used to indirectly enforce restrictions – e.g.:
  • Offender Licence;
  • Tenancy Agreement;
• Consider if you could remove the Restriction Order and use a CTO or s.17(3) long-term leave.

For further guidance, please see the NHS England Guidance: http://www.mentalhealthlaw.co.uk/media/2017-11-24_MM_and_PJ_NHS_England_briefing_note.pdf

Summary

The Court of Appeal ("CoA") heard the cases of PJ and MM together in order to consider whether a patient (detained under the MHA) who is discharged into the community (subject to conditions – either through a CTO or a Conditional Discharge) can be deprived of their liberty if he or she has the capacity to consent to restrictions imposed upon them.

The appeals also raise questions about the nature and extent of the powers of the First-tier Tribunal and the Upper-tier Tribunal in England (which hears appeals from mental health patients).

The following issues arose before the Court:

a) The powers of the tribunal to legitimise a deprivation of liberty; and

b) The effect of a P's valid consent.

PJ

PJ had capacity to make decisions about the restriction of his liberty and was subject to a CTO. As a result of the conditions imposed on him under the CTO, he was subject to near continuous supervision and only limited escorted leave. Although, in PJ's case, these particular circumstances may not have amounted to an objective DoL, the court took the opportunity to consider how conditions under a CTO may impinge on a patient's right to freedom. 

Instead of starting with the primary rule that any fundamental right, such as a right to freedom, can only be removed if there is express statutory authority to that effect, the court noted that where the wording of a statute is not specific, the power to remove freedom can be implied where it is necessary to do so and the purpose of the statute would otherwise be frustrated.

With this in mind the court concluded that it is permissible to impose a deprivation of liberty on a patient subject to a CTO where that is a lesser restriction on freedom of movement than detention for treatment in hospital. So, as long as the conditions a Responsible Clinician imposes on a patient fit the criteria set out in ss.17A(4)-(5) of the Mental Health Act and the patient is no more restricted than he had been in hospital, the patient may be deprived of his liberty. 

MM

MM was a restricted mental health patient, detained by a criminal court who sought to be conditionally discharged into the community. It was believed that MM had the capacity to make decisions as to whether his liberty should be deprived and had expressed a wish to agree to a lesser form of restriction than detention in hospital.

The CoA:

"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."

Essentially, the CoA stated that because s.73 MHA (power to conditionally discharge a restricted patient) does not expressly provide for conditions that amount to a DoL, Parliament could not have intended s.73 to be used in that manner. There was no express statutory authority to remove the fundamental right of freedom of movement here.

As set out above, this appears to fail to address the crux of the matter, which is that, if MM has capacity and is consenting to an objective DoL, he fails the subjective element of the test of a DoL under Article 5 requiring regularisation – and such, it doesn’t matter whether s.73 MHA expressly provides for the fundamental right to be removed.

There is no concept of continuing deprivation of liberty in the criminal context only continuing liability to detention.

PJ

PJ had a diagnosis of mild learning disability, which can be described as a significant impairment of his behaviour. PJ was detained in hospital between 1999 and 2007 following a conviction for actual bodily harm and threats to kill. In 2009 PJ was further detained under s.3 MHA.

PJ was made the subject of a CTO and was discharged from hospital into a residential care home for men with learning disabilities and challenging behaviours. The conditions of the CTO were as follows:

a) PJ was to reside at a care home and adhere to the rules of residence at the home.

b) PJ was to abide by the s.117 MHA care plan drawn up with the multi-disciplinary team.

c) PJ was to abide by the risk mitigation plan from community access which specified the extent of supervision required.

The rationale behind these conditions, as provided by PJ's responsible clinician, was for PJ's own safety and the protection of the public. These conditions were not disputed by the Upper Tier Tribunal, which determined that PJ's actual CTO conditions did not amount to an objective DoL. The CoA agreed; PJ's conditions on his CTO didn’t in fact amount to an objective DoL – but if they had, the CTO was statutory authority to remove him of his fundamental right to freedom. As long as the circumstances arising under the CTO were less restrictive than the hospital environment.

MM

MM had a diagnosis of mild learning disability and was convicted of arson in 2001; the criminal court described his behaviours as "pathological fire starting", and imposed a hospital order upon him under s.37 MHA and a restriction order under s.41 MHA.

MM had agreed to a conditional discharge to a community placement, the circumstances of which would have amounted to an objective deprivation of his liberty. The CoA considered whether the Upper Tier Tribunal was right to conclude that the First Tier Tribunal could make it a condition of discharge that he is to comply with a care plan which would objectively deprive him of his liberty. The reasons given were relatively straightforward: liberty is a fundamental right which cannot be overridden without clear and unambiguous words in a statute to that effect.

CTO

• A patient subject to a CTO can be subjected to conditions imposing a deprivation of liberty as long as they are consistent with the requirements of s.17A(4)-(5) and are less restrictive than detention in hospital.

Conditional Discharge

• Only the Secretary of State can lift the restrictions imposed by s.41 MHA (empowers the court, where it has made a hospital order, and where it considers it necessary for the protection of the public, to make a restriction order)
• There is nothing in the terms of sections 37, 41 and 42 MHA which provides a power in either the Secretary of State or a Tribunal to detain or otherwise deprive a patient of his liberty outside of hospital.
• Even where a patient consents to restricting arrangements in the community, this does not legitimise the deprivation. In such circumstances, if a patient agrees to stay in a placement and is likely to do so, the better outcome is that he should be absolutely discharged.
• A capable restricted patient cannot consent to a deprivation of liberty which enables him to be managed in the community so that the deprivation of liberty can be enforced. This is because if a patient can consent, the likelihood is that they can withdraw their consent at any time, making the deprivation of liberty unlawful, undermining the protective principles of the MHA 1983.
• The First Tier Tribunal has no power to impose conditions on a restricted patient through a requirement to comply with a care plan, for example, which give rise to a deprivation of liberty.