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Neutral Citation Number:	2015 UKUT 644 AAC
Reported Number:
File Number:	HM 2133 2015
Appellant:	MM
Respondent:	(1) WL Clinic and (2) MHU
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	28/11/2018
Date Added:	25/11/2015
Main Category:	Mental health
Main Subcategory:	All
Secondary Category:
Secondary Subcategory:
Notes:	Supreme Court decision reported as [2019]AACR 7 Mental disorder—tribunal—discharge of patient—indefinite detention in hospital under post-conviction restriction order— consent – power of tribunal to order discharge on conditions involving deprivation of liberty The patient was convicted of arson in 2001 when he was seventeen years old. He was diagnosed with mild learning disabilities, autistic spectrum disorder and pathological fire setting. He was considered to represent a serious risk of fire setting and of behaving in a sexually inappropriate way towards women, and was detained in hospital subject to a hospital order pursuant to section 37 and a restriction order pursuant to section 41 of the Mental Health Act 1983. His responsible clinician and clinical team opposed his discharge but two external experts considered that he could be safely managed in the community under a care plan that required him to live at a particular place which he would not be free to leave, and would not be allowed out without an escort. The patient was prepared to consent to such a placement and it was agreed that he had the capacity to do so. He applied for a conditional discharge under section 73(2) of the Act on that basis. Although in the absence of any available placement it was not possible for the First-tier Tribunal to discharge him on that basis, it was invited to rule whether it would be lawful to discharge him on the sole condition that he complied with a care plan containing terms which would amount to a deprivation of his liberty within the meaning of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’). The First-tier Tribunal decided that it had no such power and the patient appealed to the Upper Tribunal which decided that there was power to impose a condition of compliance with a care package provided that the patient had capacity to consent and did consent. The Secretary of State appealed to the Court of Appeal which held that it was bound by B v Secretary of State for Justice [2011] EWCA Civ 1608 and that there was no power to impose conditions which amounted to deprivation of liberty, even with consent. The patient appealed to the Supreme Court. Held, dismissing the appeal (Lord Hughes dissenting), that: 1. sections 42(2) and 73(2) of the Mental Health Act 1983 did not permit the Secretary of State and the First-tier Tribunal respectively to impose on a restricted patient’s discharge a condition which would amount to a deprivation of his liberty within the meaning of article 5 of the ECHR, even with his consent, because the principle of legality required general words such as those used in sections 42(2) and 73(2) to be construed as not interfering with a person’s Convention rights in the absence of express language or necessary implication to the contrary, 2. such a condition would be impracticable since there was no sanction for breach of it other than the possibility of the Secretary of State recalling the patient to hospital and the patient might then have withdrawn his consent to the deprivation of liberty at any time and demand to be released, 3. a power to impose such a condition was contrary to the whole scheme of the 1983 Act, which contained nothing in relation to a conditionally discharged restricted patient equivalent to the detailed provisions which it made for the circumstances in which patients might be detained in hospital or a place of safety; and the First-tier Tribunal had been correct in ruling that it did not have power to make a section 73(2) order subject to conditions such as sought by the applicant.
Decision(s) to Download:	HM 2133 2015-00.doc [2019] AACR 7ws.pdf