Discharge from detention can’t be deprivation

The Supreme Court handed down judgment in the case of PJ on Monday (17 December), in a decision which is harmonious with that handed down in the case of MM from a couple of weeks ago. The full judgment is here.

Both cases considered issues relating to deprivations of liberty for patients who had been detained under the Mental Health Act, but whilst MM was concerned with the conditional discharge of restricted patients, PJ is of wider application. It considered the position of patients on compulsory treatment orders (CTOs) where the actual circumstances of their discharge amount to a deprivation of liberty.

In both cases, the Supreme Court has found that a patient who is being discharged from detention in hospital cannot be deprived of their liberty under the provisions of the Mental Health Act as part of their discharge plan.

Background

PJ (aged 47) was the subject of a section 37 Hospital Order following a conviction of assault occasioning actual bodily harm and threats to kill. He had previously been on a supervised discharge order (for those old enough to remember them) but was resectioned under section 3 of the Mental Health Act in 2009.

In September 2011, he was discharged from hospital on a CTO and placed in a care home under a regime where his whereabouts were monitored at all times and he was subject to 15 minute observations. His community leave (including his college attendance and visits to his girlfriend) was escorted and he was permitted very restricted unescorted leave, for example, for banking and shopping. His alcohol use was limited to four units per week and he was breathalysed to secure compliance – any alcohol reading after home leave to see his mother or after contact with his brother would result in immediate suspension of his leave.

PJ understood the effect of the CTO and understood what breach of the conditions attached to it could mean for him. Evidence given to his First-tier Tribunal was that he was happy to stay at the care home and understood the CTO brought benefits, but he wanted more freedom, particularly to see his girlfriend and his family.

The CTO was upheld by the First-tier, not upheld by the Upper Tier, upheld by the Court of Appeal and the patient then appealed to the Supreme Court.

Judgment

In a relatively brief judgment, the Supreme Court held that “the Mental Health Act does not give the Responsible Clinician the power to impose conditions which have the concrete effect of depriving a community patient of his liberty within the meaning of Article 5 of the European Convention.”

The Supreme Court specifically looked at what the Code of Practice said at paragraph 29.5 and 29.31 – that conditions on a CTO must not deprive the patient of their liberty. They were critical of the Court of Appeal for “putting the cart before the horse” when reaching their judgment.

As a secondary issue, the Supreme Court confirmed that if a patient is being unlawfully detained, the appropriate remedy is either habeas corpus or judicial review, and not an application to a Tribunal. The Tribunal can explain the position to the patient and their nearest relatives but they have no power to vary the conditions imposed in a CTO. Responsible Clinicians should not impose conditions that they have no power to impose and which may amount to a deprivation of liberty.

So, what should you do?

We are aware of a number of patients who are on CTOs but are, as a matter of fact, being deprived of their liberty as a result of their current care regime. These patients should be reviewed immediately and consideration given to varying the conditions of their CTO and reducing the restrictions of the regime they are subject to.

If a deprivation of liberty really is in their best interests and they lack capacity (not as straightforward as you might think, if they can understand the conditions of the CTO) consider whether an application for authorisation of the deprivation under the Re X procedure is appropriate.

There will always be some difficult cases that throw up problems: if you need further advice on how to approach those, we have a friendly, expert team available to guide you through what can be a complex area.

Jill Weston, Helen Burnell and Molly Sanghera

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