Our analysis of the Supreme Court’s decisions regarding; deprivation of liberty, of capacitated patients, with CTOs and Conditional Discharges; the Ministry of Justice’s Guidance for Conditional Discharges and the potential use of the Inherent Jurisdiction.
Secretary of State for Justice v MM  UKSC 60 and Welsh Ministers v PJ  UKSC 66 and Hertfordshire County Council v AB  EWHC 3103 (Fam)
MoJ has published Guidance on Conditional Discharges Amounting to a Deprivation of Liberty:
Principle of Legality
Subjective Element of an Article 5 DoL
Comment: The Supreme Court’s judgements appear to be inconsistent with the case law on Article 5, which states that for there to be a DoL requiring regularisation, the three following elements must be present:
Arguably, capacitated 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.
There is an argument that a capacitated patient cannot provide valid consent – on the basis that, essentially, the patient is "coerced" or "unduly influenced" into giving consent to achieve discharge from hospital. Whilst this was raised, it doesn’t appear to have been the reason behind the Supreme Court’s decisions. Further, you could argue that the inability to provide "valid" consent would be the case with consent to any conditions on a CD (including those that don't amount to Article 5 interferences but potentially Article 8 interferences) and indeed, any consent to any CTO conditions; but these conditions aren’t ordinarily considered unlawful.
Comment: Is a capacitated person unfairly disadvantaged to remain in hospital longer than an incapacitated person because they cannot have a CTO / CD in circumstances amounting to an objective DoL in the community, whereas an incapacitated person can with a CoP Order/DoLS SA?
This is potentially an area that could be considered by the ECtHR – although, arguably, the discrimination is less if a capacitated patient is able to achieve the same practical outcome using s.17(3) / Inherent Jurisdiction.
Inherent Jurisdiction - First Instance Case
Potential Difficulties with MoJ Guidance
PJ is a 47 year old man who 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) Whereabouts monitored at all times and 15 minute observations;
c) Escorted for all community outings – including seeing his girlfriend;
d) Absconding protocol allowed restraint.
The rationale behind these conditions, as provided by PJ's responsible clinician, was for PJ's own safety and the protection of the public – abnormally aggressive and seriously irresponsible behaviour consisting of violent and sexual offending.
PJ had capacity.
PJ argued that the conditions for the CTO were unlawful and therefore he should be discharged from his CTO.
In the Supreme Court the Welsh Ministers argued that:
MM is a 35yr old man with a diagnosis of mild learning disability and autistic spectrum disorder. He was convicted of arson in 2001 (when aged 17); 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.
He was briefly conditionally discharged between December 2006 – April 2007; but apart from that, has remained in hospital ever since. Considered to be a serious risk of fire setting and behaving in a sexually inappropriate way towards women.
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 – living in a specified place, where he was not free to leave and community access would be with supervision/escort.
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.
It is understood that MM intends to appeal to the ECtHR.
28 year old man under s.37/41 following conviction in 2009 for 2 counts of rape and 1 count of sexual assault of a child (his half-brother who was aged 5 at the time) in 2006 (when AB was aged 16) with a mild learning disability.
In June 2016 AB was conditionally discharged by FTT with a condition to comply with his care plan and risk assessment – this involved 24 hour supervision and the wearing of an electronic tag.
Was agreed by all that objectively the conditions of the conditional discharge amounted to a DoL.
AB had capacity and consented to the conditions – he had been compliant with them since his discharge from hospital; but it was recognised that he still posed sufficient risk that the conditions could not be relaxed so as not to amount to an objective DoL.
Please see the following links for further information:
This case summary was written by Hannah Taylor, Partner.
Please contact Hannah Taylor if you wish to discuss this case or any related topics further.
Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.
Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.