SSJ v MM  UKSC 60
The patient had capacity to and was prepared to consent to a conditional discharge requiring that he live at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort. (1) The Supreme Court decided 4-1 that the MHA 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient. (2) The dissenting decision was that the tribunal has the power to impose such conditions so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the (capacitous) patient.
- HM Prison and Probation Service, 'Mental Health Casework Section: Guidance: Discharge conditions that amount to deprivation of liberty' (January 2019) — The aim of this this operational policy is to ensure that, where appropriate, restricted patients can continue their rehabilitation in a community-based setting following the Supreme Court's decision in SSJ v MM  UKSC 60. For patients who lack capacity to consent to deprivation of liberty and the risk is to themselves, the solution is to allow conditional discharge with deprivation of liberty authorised under the Mental Capacity Act 2005. For patients who lack capacity and the risk is to others, and also for patients who have capacity, the solution, if further treatment and rehabilitation could be given in a community setting, is to consider long-term s17 escorted leave (use of the inherent jurisdiction is not considered to be the correct approach). The leave of absence would be for an initial period of up to 12 months. For patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to tribunal. The policy mentions reassessing patients who present risks to themselves in order to see if they lack capacity after all, which may an MCA authorisation possible.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
The WLR Daily case summaries
 WLR(D) 727Not on Bailii!
M v Secretary of State for Justice
2018 July 26;
Baroness Hale of Richmond PSC, Lord Kerr of Tonaghmore, Lady Black, Lord Lloyd-Jones JJSC, Lord Hughes
Mental disorder— Tribunal— Discharge of patient— Patient detained indefinitely in hospital under post-conviction restriction order— Patient seeking order for conditional discharge from hospital to community placement with restrictions as to patient’s movements— Patient agreeing to proposed conditions notwithstanding deprivation of liberty— Whether tribunal having power to order discharge on conditions involving deprivation of liberty— Mental Health Act 1983 (c 20), ss 42(2), 73(1)(2) (as amended by Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712), art 4, Mental Health Act 2007 (c 12), s 4(9) and Transfer of Tribunal Functions Order 2008 (SI 2008/2833), art 9, Sch 3, para 54) — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5
The applicant, then aged 17, was convicted of arson in 2001. Since he was considered to represent a serious risk of fire setting, and also of behaving in a sexually inappropriate way towards women, he was detained in hospital under a restriction order to protect the public from serious harm, pursuant to sections 37 and 41 of the Mental Health Act 1983. His clinical team opposed his discharge but two external experts instructed by the applicant’s legal representative considered that he could be safely managed in the community under a care plan that required him to live at a particular place and only allowed out with an escort. The applicant, who was prepared to consent to such a placement and had the capacity to do so, applied for a conditional discharge under section 73(2) of the Act, as substituted and amended, on that basis. Although in the absence of any available placement it was not possible for the First-tier Tribunal so to discharge him, the tribunal was invited to rule whether it would be lawful to discharge him on the sole condition that he comply with a care plan the terms of 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 The First-tier Tribunal ruled that there was no power to impose conditions which amounted to a deprivation of liberty, even with the consent of a patient with capacity to do so, and so any discharge on that basis would not be lawful. That decision was reversed by the Upper Tribunal but restored by the Court of Appeal.
On the applicant’s appeal—
Held, appeal dismissed (Lord Hughes dissenting). The principle of legality provided that any interference with a person’s right to liberty by a statute required express language or necessary implication. The Mental Health Act 1983 said nothing about the type or content of conditions which might be imposed by the Secretary of State discharging a restricted patient under section 42(2) of the Act, or by the First-tier Tribunal granting such a patient a conditional discharge under section 73(2). Although the Act provided in detail for the circumstances in which patients might be detained in hospital or a place of safety, including specifying who had power to take them to or detain them at such place, or to return them to it if they went absent without leave, there were no equivalent provisions in relation to a conditionally discharged restricted patient. Rather, there was nothing to prevent such a patient from withdrawing his consent to the care plan and demanding to be released. The only deterrent was the power of the Secretary of State to recall him to hospital. Any purported application of the powers under section 42(2) or section 73(2) which imposed conditions amounting to a deprivation of liberty within the meaning of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms would be outside the scheme of the Act and as such impermissible. Accordingly, 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 had been envisaged by the applicant’s advisors (paras 7, 28, 31–36, 38).
B v Secretary of State for Justice!, CA approved.
Dictum of Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms!, 131, HL(E) applied.
Decision of the Court of Appeal!; ! affirmed.
David Lock QC, Michael Paget, David Blundell and Zoë Whittington (instructed by Bison Solicitors, Farnham) for the applicant.
Sir James Eadie QC and David Lowe (instructed by Treasury Solicitor) for the Secretary of State for Justice.
Reported by: Colin Beresford, Barrister