The MHRT for Wales had rejected PJ's argument that his CTO should be discharged because its conditions unlawfully deprived him of his liberty. He appealed to the Upper Tribunal. (1) In deciding that PJ was not deprived of his liberty, the MHRT had erred in law in its application of the Cheshire West decision. (2) The MHRT also erred in law in concluding that the CTO framework must take precedence over any human rights issues. The tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 or any Convention right. If an issue remains to be decided on whether a breach exists or could be avoided (by authorisation or consent, or changing conditions), then generally the tribunal should adjourn to give an opportunity to make lawful the implementation of conditions. But if the treatment could not be provided without breach of Convention rights then the tribunal (whether by the statutory criteria or under its discretion) should discharge the CTO. (3) Guidance to tribunals was given under the following (paraphrased) headings: (a) whether implementation of the conditions will objectively amount to a deprivation of liberty; (b) whether the patient has capacity to consent; (c) if the patient has capacity, whether consent avoids a breach of Article 5; (d) if the patient lacks capacity, whether the objective deprivation of liberty can be authorised under the MCA; (e) if the patient lacks capacity, whether s64D can be relied upon to avoid an Article 5 breach; (f) how the conclusions on the above should help decide whether to adjourn, or discharge or uphold the CTO. (Caution: see Court of Appeal decision.)
This document (see link below) is issued to tribunal judges as guidance and states:
|PJ v A Local Health Board & Otrs  UKUT 0480 (AAC)Not on Bailii
||A CTO condition required the patient to live in a care home where he was under continuous supervision and control, and was not free to leave. The condition therefore led to a deprivation of liberty, to which the patient (who had capacity) had not given consent. The U.T. held that the tribunal should not have ignored or disregarded the breach of Article 5 ECHR, even though the tribunal did not impose the CTO conditions and had no legal jurisdiction over them.
This appears to rephrase the position found to be unlawful by the Upper Tribunal. The Upper Tribunal's approach would generally involve adjournment, and possibly discharge. [Update: see the Court of Appeal's decision.]
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2016 are available here: Text:MHLR 2016.
Whether a Tribunal was correct not to consider whether the conditions of a Community Treatment Order breached Art 5 ECHR; the role of arguments under the ECHR in Tribunal proceedings - PJ v (1) A Local Health Board (2) The Welsh Ministers (3) The Health Department –  MHLR 178
Points Arising: A deprivation of liberty involves an objective element, turning on the level of supervision and control and whether the person was free to leave; the purpose of conditions is irrelevant. It also involves a subjective lack of consent, which required an assessment of capacity; consent did not arise from a lack of objection.
A Tribunal could not just consider the criteria under the Mental Health Act 1983 or rely on habeas corpus or judicial review. It was the body designed to comply with Art 5(4) ECHR and so had also to consider whether the factual situation breached human rights standards, including whether an order reflected the least restrictive option, whether conditions amounted to an unlawful deprivation of liberty, whether any medical treatment was lawful (without which it would not be available for the purposes of the statute), and could use its discretion if the statutory criteria were met (or adjourn if arrangements could be made to secure lawfulness – eg through changing the CTO conditions or securing an authorisation under the Mental Capacity Act 2005 in the case of a person without capacity).
Facts and Outcome: Charles J, in the Upper Tribunal, found that a Tribunal had erred in law in the case of PJ, who had a learning disability and autism. He objected to a Community Treatment Order on the basis that there was an unlawful deprivation of liberty, such that the Tribunal should exercise its discretion to discharge. The Tribunal finding that there were restrictions on rather than a deprivation of liberty was in error: it had not considered all the relevant aspects of the objective aspect of a deprivation of liberty. The Tribunal had also erred in concluding that the value of the CTO framework outweighed any human rights issues,
Guidance: A Tribunal should consider if conditions objectively deprive someone of their liberty; if it may, it should consider capacity to consent (or adjourn to have that matter determined by the Court of Protection); if there is capacity and consent, does this avoid a breach of Art 5; if there is no capacity to consent, can an appropriate authorisation or order be made under the Mental Capacity Act 2005; the impact of s64D Mental Health Act 1983 should be considered in case it makes it unnecessary to make use of the 2005 Act.
Transcript - provided by Simon Burrows of Kings Chambers
Listing news: "Lord Justice Moor-Bick has directed that [C3/2016/0561 Re MM] be expedited into the court list and be heard with C3/2015/4104 Re: PJ with a combined time estimate of 2 days. It has now been imposed into the list floating over the 8th and 9th June 2016." (Email from Civil Appeals Office, 17/3/16)