View source for ICLR (2017) WLR(D) 235

Court of Appeal

'''MM v Secretary of State for Justice'''

'''PJ v Welsh Ministers'''

[2017] EWCA Civ 194

2016 June 8, 9; 2017 March 29	 	

Sir James Munby P, Gloster , Ryder LJJ

''Mental disorder — Tribunal — Discharge of patient — Patient detained indefinitely in mental hospital under post-conviction restriction order — Medical experts agreeing to patient’s discharge on conditions — Patient agreeing to conditions involving deprivation of liberty — Whether appropriate tribunal having power to order discharge on conditions amounting to deprivation of liberty — Whether patient with capacity able to consent to deprivation of liberty imposed by state — Mental Health Act 1983 (c 20) (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 6, Sch 3, paras 41, 54), ss 37, 41, 73''

''Mental disorder — Tribunal — Discharge of patient — Detained patient discharged under community treatment order — Whether appropriate tribunal having power to scrutinise and revise conditions imposed on community patient by responsible clinician — Whether power to examine compatibility of conditions with patient’s Convention rights and remedy breach — Mental Health Act 1983 (c 20) (as amended by Mental Health Act 2007 (c 12), s 32(2) and Transfer of Tribunal Functions Order 2008 (SI 2008/2833), art 6, Sch 3, para 53), ss 3, 17A–17E, 42, 72 — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5''

In the first case the claimant, MM, was convicted of arson in 2001 and a criminal court imposed a hospital order and restriction order upon him under sections 37 and 41 of the Mental Health Act 1983, respectively. The First-tier Tribunal (“FtT”) refused his application for a conditional discharge under section 73 of the Act. Although MM’s responsible clinician and treating team opposed discharge, two external experts considered that MM could be safely managed in the community under a conditional discharge. It was common ground that any care plan would involve an objective deprivation of his liberty but MM contended that such deprivation of liberty would be lawful if he consented to it. The Upper Tribunal, allowing his appeal and remitting the matter to the FtT for a new determination, held that the FtT had jurisdiction to impose conditions on a conditional discharge which involved a deprivation of liberty and that a capacitous patient such as MM could give valid consent to such conditions. The Secretary of State appealed, submitting that it was not lawful for a FtT to direct the conditional discharge of a patient detained under Part III of the 1983 Act where (i) the conditions imposed would necessarily involve a deprivation of liberty, (ii) the patient had capacity, and (iii) the patient purported to consent to the conditions.

In the second case the claimant, PJ, a capacitous patient who had been detained in a hospital between 1999 and 2007 following a conviction for actual bodily harm and threats to kill, was again detained in 2009 under section 3 of the Mental Health Act 1983. In 2011 he was made the subject of a community treatment order (“CTO”) by his responsible clinician, which had the effect of significantly restricting PJ’s liberty by providing for near continuous supervision and only very limited unescorted leave from his residential placement. In 2014 his application for discharge under section 72 of the 1983 Act to the Mental Health Review Tribunal for Wales (“the MHRTW”) was refused. His appeal to the Upper Tribunal was allowed, the judge purporting to make declarations that the FtT and the MHRTW, when exercising their discretion under section 72(1) of the 1983 Act, had to take into account whether the implementation of the conditions of a CTO would or might breach article 5 or any other right under the Convention for the Protection of Human Rights and Fundamental Freedoms and, if they concluded that it did, had to exercise their powers with the aim of bringing the breach to an end. The Welsh Ministers appealed on the grounds that the Upper Tribunal judge had erred in law (i) in determining that the Upper Tribunal had jurisdiction to revise conditions under a CTO and/or to adjourn proceedings for such conditions to be revised and/or to take into account article 5 of the Convention when exercising its powers of discharge under section 72 of the 1983 Act in respect of CTOs; and (ii) in holding that the MHRTW had erred in its approach to the question whether PJ had been deprived of his liberty.

On the appeals—

Held, appeals allowed. (1) There was no statutory authority in the Mental Health Act 1983 which permitted the FtT to direct a deprivation of liberty as a condition or consequence of a direction that a patient be conditionally discharged. Such a power had to be prescribed by law and it was not. As a matter of statutory construction, having regard to domestic law principles, there was no power in the FtT or MHRTW other than that set out in section 73 of the 1983 Act to impose conditions on a conditional discharge that extended to the imposition of an objective deprivation of liberty. Furthermore, where conditions amounting to a deprivation of liberty were compulsorily imposed by law, the agreement of an individual could not prevent that compulsory confinement from constituting a deprivation of liberty, a principle which was equally firmly described in the jurisprudence of the European Court of Human Rights. A purported consent, even if valid, could arguably go no further than to provide for the subjective element of the article 5 test, but it could not create in the FtT or MHRTW a jurisdiction it did not possess to impose a condition that was an objective deprivation of liberty. If the FtT or MHRTW was satisfied that a patient would validly consent to supervision in the community and that would protect both the patient and the public then it was open to the tribunal to grant an absolute discharge or a conditional discharge on conditions that did not involve an objective deprivation of liberty. Article 5 of the Convention did not provide any free-standing jurisdiction in a tribunal to impose conditions which had the effect of authorising a deprivation of liberty. Nor was there any “umbrella” power that could be exercised by the FtT to authorise a patient’s deprivation of liberty outside hospital (paras 17, 18, 27, 28, 30, 31, 34–36).

De Wilde v Belgium (1970) 1 EHRR 373 and B v Secretary of State for Justice   [2012]  1  WLR  2043, CA applied.

(2) Under the CTO scheme set out in sections 17A to 17E of the 1983 Act, as inserted, a “community” patient who was subject to a CTO was not liable to be detained in hospital although he might be recalled for treatment under section 17E. The exercise of the power of recall, which rested solely with the responsible clinician, was not dependent upon any compliance with or alleged breach of the CTO conditions. The consequence was that the power to deprive a community patient of his liberty during the imposition of a CTO came not from the powers arising out of a compulsory admission for treatment under section 3 of the 1983 Act but from the statutory scheme which provided for the CTO. The appropriate tribunal had a distinct and separate power under section 72 of the 1983 Act to discharge the patient if the statutory criteria for detention were not met. In particular, there was no power in the CTO scheme for a tribunal to consider the terms of a CTO or to change those terms, nor to revise the conditions or examine the legality of the CTO, including the proportionality of the interference with the patient’s article 5 or other Convention rights. The remedy for any illegality, including any Convention illegality, was to challenge the CTO by judicial review. Neither the Convention nor the Human Rights Act 1998 conferred jurisdiction on a tribunal. There was nothing in the general role and function of a FtT or MHRTW permitting it to exercise a function that it did not have by statute. The power to discharge a patient in the circumstances provided for in section 72 of the 1983 Act did not extend to a power exercisable by a tribunal to scrutinise the lawfulness of the conditions imposed by the responsible clinician; that challenge had to go to the High Court in judicial review where the court could take steps to remedy an unlawful condition without risking discharge of a patient in respect of whom the criteria for discharge were not made out (paras 47, 48, 50, 55, 56, 59, 62).

Per curiam. The FtT and the MHRTW are inferior tribunals. Unlike the Upper Tribunal, they are not a superior court of record: see section 3(5) of the Tribunals, Courts Enforcement Act 2007, nor do they possess the powers, rights, privileges and authority of the High Court granted to the Upper Tribunal by section 25(1)(a) of the 2007 Act. The FtT and the MHRTW cannot make binding declarations or exercise the judicial review jurisdiction of the High Court or the Upper Tribunal. None of the FtT, MHRTW and Upper Tribunal is able to exercise the jurisdiction of the Court of Protection, although this should not be taken to suggest that a judge authorised in a tribunal jurisdiction cannot also sit in the Court of Protection and vice versa so that in appropriate circumstances the judge may exercise both jurisdictions concurrently or separately on the facts of a particular case (paras 32, 60).

Decision of the Upper Tribunal (Administrative Appeals Chamber) [2015] UKUT 644 (AAC) reversed.

Decision of the Upper Tribunal (Administrative Appeals Chamber) [2015] UKUT 480 (AAC) reversed.

'''Appearances:'''
 
James Eadie QC and David Lowe (instructed by Treasury Solicitor) for the Secretary of State.
 
Michael Paget and Zoe Whittington (instructed by Bison Solicitors) for the claimant MM.
 
Richard Gordon QC and Amy Street (instructed by Blake Morgan LLP) for the Welsh Ministers.
 
Peter Mant (instructed by GHP Legal) for the claimant PJ.

Reported by: Jeanette Burn, Barrrister