Supreme Court rules conditional discharge conditions cannot amount to a deprivation of liberty

The Supreme Court gave its judgment last week in the case of Secretary of State for Justice v MM.

Readers will recall from our earlier blog posts that MM was detained in hospital under a section 37 Hospital Order and was subject to a Restriction Order under section 41 Mental Health Act. For MM to be safely managed in the community, under a conditional discharge, it was envisaged that he would be required to live at a particular placement which he would not be free to leave and that he would not be allowed out without an escort. In other words, the conditions would amount to a deprivation of liberty (DoL). MM, however, was prepared to consent to such a placement order and it was considered that he had capacity to do so.

The Court of Appeal decided last year that the First-tier Tribunal does not have power under the MHA to order a conditional discharge of a restricted patient subject to conditions which amount to detention or deprivation of liberty. This decision has now been upheld by the Supreme Court (by a majority of four to one).

In giving the majority judgment, Lady Hale noted that the MHA says nothing about the type or content of the conditions which may be imposed on a conditional discharge either by the Secretary of State under section 42(2) MHA or by the Tribunal under section 73(2). However, the Supreme Court explain that there are a number of reasons why the power to conditionally discharge should not be interpreted as a power to impose conditions amounting to a DoL, the most compelling of which is that it would be contrary to the whole scheme of the MHA. The Act provides in detail for only two forms of detention (a) in a place of safety subject to section 136 and (b) in hospital subject to Part II or Part III of the MHA each with associated specific powers to convey patients, detain patients and retake patients. 

Lady Hale notes that there is no equivalent express power to convey a conditionally discharged restricted patient to the place where he is required to live or to detain him there, nor is he liable to be taken into custody and returned anywhere unless and until he is recalled to hospital by the Secretary of State. She also notes that the fact that a conditionally discharged restricted patient can apply far less frequently than a hospital patient to the First-tier Tribunal for his release indicates that Parliament did not consider that such patients might be subject to conditions, which required the same degree of protection, as those deprived of their liberty.

Implications: a new approach

The outcome of the decision is that patients such as MM are likely to remain detained in hospital in conditions of greater security than would be the case if they were conditionally discharged to the community.

Readers are reminded that the Supreme Court decision in the Welsh Ministers v PJ appeal, which was heard jointly with MM  before the Court of Appeal last year, is still awaited. In PJ the Court of Appeal decided that a Responsible Clinician could include a condition as part of a Community Treatment Order that amounted to a DoL. The Justices who gave the majority decision in MM also heard the PJ appeal and it will be interesting to see what the outcome of that appeal will be. We will keep you posted.