CTOs: No implied power to detain

Hot on the heels of the judgment in MM v Secretary of State, (see this post) the Supreme Court has delivered its judgment in PJ’s appeal against the Court of Appeal’s decision that:

 (i) a responsible clinician (RC) has an implied power to impose conditions on a community treatment order which deprive the patient of his or her liberty and

(ii) the Mental Health Tribunal has no power to scrutinise the lawfulness of the conditions imposed by the RC.

The background facts:

PJ was in his forties, with diagnoses of mild learning disability an autistic spectrum disorder.  He was said to have had capacity to consent to his care arrangements.  In 2011 he was made subject to a CTO.  The conditions attached to the CTO were:

a.To reside at a specified care home with nursing and abide by the rules there

b.To abide by the joint s117 care plan and

c.To abide by the risk mitigation plans for community access with regards to levels of staff supervision.

The risk management plans were directed towards minimising possible sexual offending, excessive drinking and absconding.  

PJ sought discharge from the CTO and asserted that the conditions unlawfully deprived him of his liberty.  The MHRT upheld the CTO; found that PJ was restricted as opposed to being deprived of his liberty and concluded that the statutory framework in the MHA took “precedence over any human rights issues”.  

PJ appealed to the Upper Tribunal.  By the time his appeal was heard he had already been discharged from the CTO but Charles J proceeded to consider the appeal on the basis that it raised matters of general importance.  Charles J held firstly that PJ was deprived of his liberty and that the MHRT had erred in concluding otherwise.  Furthermore he held that the MHRT and FTT could not ignore considerations arising from the Convention.  He gave the Welsh Ministers and the Department of Health permission to appeal his judgment, commenting that “the sooner the relevant issues get to the Court of Appeal and then possibly the Supreme Court the better” (at [20]).

The Court of Appeal held that

a. The purpose of the CTO scheme is to provide a balance between the protection of the public and the receipt of medical treatment by the patient without his continued detention in hospital.

b.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.

c.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.

This judgment was greeted by significant concern.  CTOs were and remain one of the most controversial aspects of the amendments in the Mental Health Act 2007.    Intended for those described in the debates at the time of the 2007 act as “revolving door patients”, CTOs have outstripped the estimates of their use.  The Independent Review of the Mental Health Act commented in its interim report that:“...qualitative evidence suggests that CTOs are very often experienced as coercive and restrictive by people who are subject to them…..[w]e are not persuaded that CTOs should remain in their current form”

The Court of Appeal’s judgment raised the prospect of the “reach” of CTOS being further extended.PJ appealed to the Supreme Court.  Mind was given permission to intervene. 

The decision

 Lady Hale delivered the Supreme Court’s unanimous judgment.  She robustly dispensed with the Court of Appeal’s interpretation, largely on the basis of statutory construction and on a similar basis to her judgment in MM:

Firstly, the Court of Appeal’s approach “puts the cart before the horse. It takes the assumed purpose of a CTO - the gradual reintegration of the patient into the community - and works back from that to imply powers into the MHA which are simply not there” [24].  

Secondly Lady Hale accepted the appellant’s argument that fundamental rights cannot be over-ridden by “general or ambiguous” wording such as those governing CTO conditions in section 17B Mental Health Act.The test for necessary implication is a strict one and there is simply no evidence that Parliament would have included such a power had it been thought of.  The Court of Appeal’s description of the purpose of CTOs as “gradual reintegration” was not consistent with the purpose as set out in the Code of Practice (and indeed spelt out in much of the Parliamentary debates)- to allow suitable patients to be treated in the community and to prevent relapse.  Given that CTOs do not include the power to impose treatment, “how can Parliament have intended an even greater interference with his fundamental rights?” [27].

Thirdly, (again, resonating with the reasoning in MM at [34] and [35]):“28. The provisions which do apply to a CTO make none of the sort of detailed rules which we would expect if a CTO were to authorise the detention of the patient in a community facility. If the MHA had contemplated detention - or deprivation of liberty - in a place outside hospital, one would have expected, for example, a definition of the types of setting in which a patient could be so placed and the regulatory regime attached to them. And one would have expected an express provision saying who was entitled to detain the patient and who was entitled to recapture him if he escaped or went absent without leave.”

Lady Hale gave short shrift to the argument advanced by the Welsh Ministers that it was lawful to impose conditions that deprive a CTO of his or her liberty, because the conditions could not be enforced, or that the Cheshire West test should be modified in its application to those on CTOs. Lady Hale did not consider it necessary to turn to the jurisprudence of the ECHR but observed that

“29….it is doubtful, to say the least, whether the European Court of Human Rights would regard the ill-defined and ill-regulated power implied into the MHA by the Court of Appeal as meeting the Convention standard of legality”.

As to the powers of the Tribunal, Lady Hale concluded (emphasis added):

“33. In my view, this problem is more theoretical than real. The MHRT has no jurisdiction over the conditions of treatment and detention in hospital, but these can be relevant to whether the statutory criteria for detention are made out, especially in borderline cases. The RC’s report to the tribunal must cover, inter alia, full details of the patient’s mental state, behaviour and treatment; and there will also be a nursing report and a social circumstances report (Tribunals Judiciary, Practice Direction, First-tier Tribunal Health Education and Social Care Chamber, Statements and Reports in Mental Health Cases, 2013). His treatment and care may well feature in the debate about whether he should be discharged. The tribunal may recommend that the RC consider a CTO and “further consider the case” if the recommendation is not complied with (section 72(3A)(a). Similarly, the tribunal has no power to vary the care plan or the conditions imposed in a CTO, but the tribunal requires an up to date clinical report and social circumstances report, including details of any section 117 aftercare plan. The patient’s actual situation on the ground may well be relevant to whether the criteria for the CTO are made out. Furthermore, if the tribunal identifies a state of affairs amounting to an unlawful deprivation of liberty, it must be within its powers to explain to all concerned what the true legal effect of a CTO is. But the patient can only apply to the tribunal once during each period for which the CTO lasts (six months, six months, then once a year). If the reality is that he is being unlawfully detained, then the remedy is either habeas corpus or judicial review.

34. Furthermore, once it is made clear that the RC has no power to impose conditions which amount to a deprivation of liberty, any conscientious RC can be expected not to do so. This is reinforced by section 132A(1) of the MHA, under which it is the duty of the hospital managers to “take such steps as are practicable to ensure that a community patient understands … the effect of the provisions of this Act applying to community patients”. Those steps must include giving the information both orally and in writing. The Mental Health Act Code of Practice makes it quite clear that community patients must be informed - in a manner which they can understand - of the provisions of the Act under which they are subject to a CTO and the effect of those provisions and of the effect of the CTO, including the conditions which they are required to keep and the circumstances in which their RC may recall them to hospital (para 4.13). This information should be copied to the patient’s nearest relative, unless the patient requests otherwise (para 4.31). Patients should be told of this and there should be discussion with the patient as to what information they are happy to share and what they would like to be kept private (para 4.32).

Comment:  

After the decision in MM, the Supreme Court’s conclusions as to the RC’s implied power to detain are perhaps unsurprising.   The judgment will, it is hoped, provide reassurance to those anxious at the possibility that restrictive  conditions could become the “new normal” in a culture which – as Sir Simon Wessley has observed in his thoughtful foreword to the Mental Health Act Review’s final report-has become increasingly risk averse.  The Review recommended that “it should be hard to restrict a person’s liberty under a CTO”.The conclusions as to the powers of Tribunals will have implications for practitioners in this field.    

Importantly at [30] Lady Hale notes (emphasis added):“Its only power is to discharge the patient, either immediately or at some future date. But the MHA gives the MHRT a general discretion to order discharge in any case, alongside a duty to do so if not satisfied that the statutory criteria for the CTO are made out.”

The Supreme Court did not specifically address Charles J’s conclusions about the interface between section 72 MHA and the HRA 1998 (which would have been useful).  For the purpose of Tribunal practice, it is suggested that the following principles emerge:

(i)The discretion in section 72(1) is a general one;

(ii)The Tribunal can take the conditions of detention and treatment into account in reaching a view as to the statutory criteria “especially in a borderline case”.  One can envisage issues about conditions being considered in relation to the test as to whether treatment is necessary, and to the appropriate medical treatment test.

(iii)If the Tribunal identifies an unlawful deprivation of liberty it has the power to explain “to all concerned what the true legal effect of a CTO is”.  If the Tribunal does not do this of its own motion, it may well be asked to do so on behalf of the patient.

Lady Hale emphasises that any “conscientious”  RC can be expected to avoid imposing unlawful deprivations of liberty.   RCs and Mental Health Trusts will therefore wish to review the conditions attached to CTOs and vary those which give rise to a deprivation of liberty,  or consider whether they can be otherwise authorised.  RCs and hospital managers should be fully alert to the duty to ensure that patients and their families are fully – and clearly - informed as to the true limit of the powers that arise under a CTO.  They may wish to review the information provided to patients and families to ensure that it achieves this objective.   Those representing patients subject to CTOs should be proactive in drawing any unlawful deprivations of liberty arising from CTOs to the attention of RCs and the relevant Mental Health Trusts.  In the longer term, the Independent Mental Health Act Review recommends significant changes to the criteria for CTOs which it estimates would reduce their use by around half.