The Court of Appeal has handed down its judgment in the linked appeals in the cases of MM and WL from decisions of the Upper Tribunal. Both cases concerned the operation of the Mental Health Act and decisions of the First Tier Tribunal (Mental Health) (MM), and the Mental Health Tribunal for Wales (PJ).
MM sought a conditional discharge from hospital to conditions which would objectively give rise to a deprivation of his liberty, to which he (arguably) had capacity to consent. Charles J held that he could give a valid consent to this and as such Article 5 would not be engaged. A similar issue was in play in Secretary of State v KC  UKUT 0376 (AAC), where Charles J held that the FTT could impose conditions on a discharge that objectively deprived a patient of his or her liberty and hat the Court of Protection and/or a decision maker could consent to.
In PJ the MHRT refused to address human rights issues stating the statutory criteria in the MHA took precedence. Charles J held that the MHRT and FTT could not ignore considerations arising from the Convention.
The Court of Appeal has held in relation to MM:
- RB v Secretary of State for Justice  1 WLR 2043 was correctly decided and the MHA does not permit a Tribunal to impose conditions on a conditional discharge which extends to an objective deprivation of liberty; such a power would be unconstrained and without time limits and with an inferior review process (because only one application to the Tribunal is permitted in a two year period).
- The Court agreed with the MHA Code of Practice at 14.17 that threat of coercion is likely to invalidate apparent consent; and it is doubtful whether valid consent can prevent compulsory confinement being a deprivation of liberty. Hypothetical consent does not give the Tribunal a power that the statute does not provide.
- The power of deferment could be used to permit arrangements to be made for discharge to invoke the separate jurisdiction of the COP if the patient lacks capacity, but this is a decision for the COP not the Tribunal.
In relation to PJ the Court of Appeal held:
- The purpose of the CTO scheme is to provided a balance between the protection of the public and the receipt of medical treatment by the patient without his continued detention in hospital.
- The responsible clinician retains the ultimate power to detain and it would conflict with the purpose of CTOs if the RC could only restrict freedom of movement. Deprivation of liberty is permitted under a CTO but it must be a “lesser restriction on freedom of movement than detention for treatment in hospital”. There are sufficient safeguards adequately to protect a patient’s Article 5 rights.
- The Tribunal has no mandate to alter the statutory criteria. Its reasoning would have been better expressed had it said that the statutory framework contains all the safeguards required and that these can be read compatibly with Convention rights. The remedy for breach of these safeguards is judicial review.
The decision in relation to MM is perhaps unsurprising. The suggestion that a conditionally discharged patient could consent to the deprivation of his or her liberty under terms imposed by the Tribunal has always made uncomfortable reading and it is difficult to imagine how this could work in practice. It is perhaps fortunate on a pragmatic level that the Court of Appeal commented that authority could be sought to permit the deprivation of liberty of patients lacking capacity who are conditionally discharged, because the alternative would be to return to the position before the judgment in Secretary of State v KC, where the forensic patients were remaining in hospital longer than needed because there was no available legal framework.
The “reining back” of the Tribunal’s powers is consistent with the approach taken by the Upper Tribunal in cases such as JD 2016 UKUT 496 AAC, that the statutory criteria provide a complete Convention compliant code.
The finding that a patient can be lawfully deprived of his liberty under a CTO as long as this is less restrictive than treatment in hospital is likely to cause some consternation. Although the court noted the safeguards in the form of applications and references to the Tribunal, the criteria for discharge from a CTO differ to those for a detained patient because the Tribunal is required to consider the necessity of the power of recall rather than the necessity of detention. This is likely to require reconsideration of the Code of Practice which expressly states that conditions must not deprive a patient of liberty (29.31).