Part II: Can you consent to your own deprivation of liberty?

The Court of Appeal recently considered the issue of deprivation of liberty in the context of conditional discharge and compulsory treatment orders under the Mental Health Act 1983 in The Secretary of State for Justice v MM and Welsh Ministers v PJ. Its long awaited decision provides clarity on the role and powers of the tribunal and responsible clinicians to place conditions on a patient.

The CA heard the appeals of MM and PJ together as both had capacity to consent to the community care arrangements that gave rise to their deprivation of liberty. You can read our earlier blog posting here.

Issues before the court

The case of MM raised the issue of whether the tribunal can direct a conditional discharge for a restricted patient, applying conditions that amounted to a deprivation of liberty, even where the patient was able to consent to such conditions.

  • Did the tribunal have the power to impose conditions that amounted to a DoLS?
  • What effect did the patient’s consent have on the tribunal’s decision when considering such a discharge? 

The case of PJ considered a similar situation by a Welsh panel, in the context of a community treatment order. 

  • What was the nature and extent of the power to make CTO conditions?
  • Did the MHA provide effective safeguards?
  • What were the tribunal’s powers in relation to the CTO?

The court’s decision

When considering the case of MM, the court found that the tribunal did not have the power to effect conditions that amounted to a deprivation of liberty. Article 5 European Convention on Human Rights provides a fundamental right to liberty, which cannot be removed without a clear authority. The MHA provides no power for a tribunal to detain a patient or deprive them of their liberty outside of a hospital. The fact that the patient has provided their consent did not allow the tribunal to impose such conditions. Where patients are consenting to supervision in the community, the tribunal should consider either an absolute discharge, or a conditional discharge that does not objectively deprive the patient of their liberty. The tribunal has no power to impose a DoL outside of a hospital.

In the case of PJ, the court set out that the purpose of a CTO is to reduce the restrictions in place on an individual’s freedom of movement. The wording of the MHA provides appropriate safeguards, as the responsible clinician is able to recall the patient, supervise them and undertake regular reviews. A tribunal does not have the power to intervene and control, amend or legalise the conditions put in place by the responsible clinician. The tribunal do, of course, have the power to discharge a patient from the MHA if the criteria is not met, as set out in section 72, but could not discharge a patient if the CTO deprived the patient of their liberty. The court identified that the MHA provides safeguards for a patient, that are compatible with the ECHR. Further, the court were clear that any challenge to the legality of a CTO should be made by way of a judicial review.

Comment

The CA has reinforced the tribunal’s role and powers within the context of restricted and un-restricted patients subject to the MHA. When considering a conditional discharge for restricted patients, the tribunal is only able to effect a conditional discharge where conditions do not deprive a patient of their liberty, whether they are able to consent to such conditions or not. If the patient is able to consent, the conditions should not be part of the discharge, as the patient should be able to effectively work with their community team to ensure their discharge goes well.

In relation to CTOs, the tribunal cannot direct the conditions that should be attached to a CTO. This is for the clinician to manage. The role of the tribunal is to consider whether the patient meets the criteria for continued detention or not. And where they do not, they should effect a discharge under section 72 MHA.

If you would like advice in connection with a patient’s detention or on a MHA issue do get in touch.

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