The Supreme Court has given permission for an appeal in the case of Welsh Ministers v PJ. Readers may recall that this follows a decision earlier this year to allow an appeal in the case of Secretary of State v MM.
The Court of Appeal heard the appeals in MM and PJ jointly in 2017 and had considered whether the conditions pertaining to a conditional discharge or a community treatment order respectively could amount to a deprivation of liberty.
In MM the Court of Appeal held that, when making an order for conditional discharge, it is not lawful for the Tribunal to impose conditions amounting to a deprivation of liberty. Whereas in PJ, the Court of Appeal held that a Responsible Clinician can impose a condition as part of a Community Treatment Order (CTO) that amounts to a deprivation of liberty, provided that the conditions are less restrictive than detention in hospital.
An appeal had been anticipated, not least because the decision in PJ appeared to contradict paragraph 29.31 of the Mental Health Act Code of Practice which sets out that a deprivation of liberty must not arise from a CTO condition.
The appeals before the Supreme Court will be heard separately. MM has been listed for 26 July and we understand that PJ is due to be heard on 22 October 2018. We will provide updates on the decisions.
We regularly advise clients on matters arising under the Mental Health Act and you should not hesitate to contact our specialist team with any queries.