Discharge conditions

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Case and summary Date added Categories
* Deprivation of liberty during conditional discharge Birmingham City Council v SR [2019] EWCOP 28(1) Both patients supported but lacked capacity in relation to the proposed care plans, which involved deprivation of liberty concurrently with a conditional discharge, and those plans were in their best interests. (2) Obiter, the division in the MOJ's post-MM guidance (MCA DOL for incapacitous patients whose risk is to themselves, but MHA s17 leave for incapacitous patients whose risk is to others and for capacitous patients) did not withstand scrutiny as it is in patients' best interests to be kept "out of mischief" and therefore out of psychiatric hospital. 2020‑10‑17 09:00:36 2019 cases, Cases, Deprivation of liberty, Discharge conditions, Judgment available on Bailii

* Conditional discharge and DOL MC v Cygnet Behavioural Health Ltd [2020] UKUT 230 (AAC)(1) Although, following MM, the First-tier Tribunal has no power to impose conditions which would amount to a deprivation of liberty, it does have the power to coordinate its decision with the provision of an authorisation under the MCA, either by "the different hats approach" (the same judge sitting in the COP and the FTT) or "the ducks in a row approach" (adjournment or deferred conditional discharge). (2) This involves no Article 14 discrimination in favour of incapacitous restricted patients as, under SSJ guidance, the equivalent outcome can be reached for capacitous patients by using s17 leave. (3) The FTT had misunderstood the MM decision and had been wrong to refuse to defer conditional discharge for a standard authorisation to be put in place. (4) The UT discharged the patient subject to conditions of residence, supervision and compliance with "all aspects of the care package" (surprisingly, as the care package would amount to a deprivation of liberty), to take effect on a specified future date (which s73 does not permit), and with permission to apply to the FTT for variation on a material change in circumstances (presumably only before conditional discharge). 2020‑07‑24 21:31:01

* Conditional discharge and DOL SSJ v KC [2015] UKUT 376 (AAC)(1) A conditional discharge may include conditions which will, on an objective assessment, give rise to a deprivation of liberty, if that deprivation of liberty is authorised under the MCA. (2) (Obiter) The same conditions would be lawful for a patient with capacity who gives real consent since this would mean there is no Article 5 deprivation of liberty. 2015‑07‑15 22:54:29 2015 cases, Cases, Deprivation of liberty, Discharge conditions, Judgment available on Bailii, Judgment available on MHLO, Transcript, Upper Tribunal decisions

SSJ v SB [2013] UKUT 320 (AAC), [2013] MHLO 56Deferred conditional discharge recommendation for technical lifer was unlawful as conditions would amount to deprivation of liberty. 2013‑08‑01 21:29:11 2013 cases, Brief summary, Discharge conditions, Judgment available on Bailii, MHLR summary, Transcript, Upper Tribunal decisions

Re T (A child: murdered parent) [2011] EWHC B4 (Fam)B killed his girlfriend, then spent four years as a restricted hospital order patient and a year as a conditionally-discharged patient (with exclusion-zone and no-contact conditions); he now applied for a contact order in respect of their daughter T. (1) There is no presumption that a parent who has murdered the other parent should have no contact with their child; however, having regard to the welfare checklist and other factors, there should be no contact of any kind between B and T. (2) An order under s91(14) Children Act 1989 (preventing further applications by B without leave) was made until T reaches 16 years of age. (3) The family court has no power to vary the conditions of a conditional discharge; however, the court is not constrained by the conditions when making orders; if the order would put the patient in breach of conditions then it should invite the Secretary of State to indicate to what extent he is prepared to vary them. (4) Since the only sanction for breach of conditions is recall to hospital (which is discretionary and dependent upon further medical evidence) the protection provided by the two conditions was illusory; orders of the court were required to enable the matter to be brought before the court in the event of breach: (a) the no-contact condition was made the subject of a non-molestation aorder pursuant to s42 Family Law Act 1996; (b) the exclusion-zone condition could amount to an occupation order (for which MS did not qualify); however, applying a broad meaning of 'molestation' it could also be a non-molestation order; if that were wrong then there is power to make the order under the High Court's inherent jurisdiction for the protection of children and/or under s37 Senior Courts Act 1981. (5) The LSC had discharged B's public funding certificate mid-proceedings following pressure from the special guardian; in the circumstances of this case it should not have done so. 2011‑03‑21 22:12:20 2011 cases, Brief summary, Discharge conditions, Transcript

SSJ v RB [2010] UKUT 454 (AAC)(1) The Tribunal may conditionally discharge with conditions which amount to a regime of detention (deprivation of liberty) to any establishment which is not defined as a 'hospital'. [Caution.] (2) The Upper Tribunal will follow High Court decisions unless it is convinced they are wrong, but where highly specialised issues arise the UT may feel less inhibited than the High Court in revisiting the issues. 2011‑01‑13 23:51:30 2010 cases, Deprivation of liberty, Detailed summary, Discharge conditions, Judgment available on Bailii, Transcript, Upper Tribunal decisions

R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC)RB was conditionally discharged with a condition that he should not leave a care home without an escort; the MoJ sought a review on the basis that the condition constituted a deprivation of liberty and there was therefore no lawful discharge; the Regional Tribunal Judge set aside the conditional discharge, remitted the case to the First-tier Tribunal, and refused permission to appeal to the Upper Tribunal. (1) It is only appropriate for the First-tier Tribunal to exercise its set-aside powers where there has been a clear error of law; where the legal points are contentious the case should be allowed to proceed to the Upper Tribunal. (2) The RTJ's decisions were quashed/set aside, and permission was given to the MoJ to appeal against the conditional discharge. 2010‑06‑09 23:29:56 2010 cases, Detailed summary, Discharge conditions, Judgment available on Bailii, Transcript, Upper Tribunal decisions

R (SSHD) v MHRT, re PH [2002] EWHC 1128 (Admin)Condition of discharge not to leave without escort not unlawful on the facts. 2009‑04‑12 13:01:39 2002 cases, Brief summary, Deprivation of liberty, Discharge conditions, Transcript

R (IT) v SSJ (2008) EWHC 1707Recall of patient unlawful where no new relevant information available to MoJ after discharge by MHRT; the element of the discharge plan requiring leave to be escorted was a temporary measure and so did not amount to continuing deprivation of liberty. 2008‑11‑03 16:41:04 2008 cases, Detailed summary, Discharge conditions, Ministry of Justice, Transcript, Unlawful detention cases

* Residence for s117 purposes R v MHRT, ex p Hall [1999] EWHC Admin 351The provisions of s117 Mental Health Act 1983 are designed to ensure that there is always an aftercare authority, being the place where the patient resided before detention or, if there was no such residence, the place where the patient was to be sent on release; the duty as to aftercare included the provision of information to a Tribunal and so arose before discharge. [MHLR.] 2008‑09‑12 16:09:40 1999 cases, After-care, Cases, Discharge conditions, Judgment available on MHLO, Judgment missing from Bailii, MHLR summary

R (Hall) v MHRT [1999] EWCA Civ 2052The fact that there will be delay in the implementation of conditions in a conditional discharge does not mean that they are unlawful; it would have been open to the Tribunal to be proactive in adjourning for reports as to the progress of an aftercare package. [MHLR.] 2008‑09‑12 16:07:52 1999 cases, After-care, Brief summary, Discharge conditions, Judgment missing from Bailii, MHLR summary, Transcript

R (SH) v MHRT [2007] EWHC 884 (Admin)Condition "that the patient shall comply with medication" was lawful. 2007‑05‑17 21:39:39 2007 cases, Detailed summary, Discharge conditions, Transcript

R (SSHD) v MHRT, re PH [2002] EWCA Civ 1868Conditions of discharge are lawful so long as they do not amount to a deprivation of liberty: in this case, a condition that the patient could not leave a hostel unescorted was lawful; so too could be a condition of residence at a hospital (rough summary) 2007‑02‑06 18:15:31 2000 cases, Brief summary, Deprivation of liberty, Discharge conditions, Transcript

R (G) v Mental Health Review Tribunal [2004] EWHC 2193 (Admin)The Tribunal were right to conclude that the conditions which the claimant patient contended for (continued residence at Thornford Park) would be a deprivation, rather than a restriction, of his liberty. The patient's consent to this continuing deprivation of liberty would not confer jurisdiction on the Tribunal.' 2006‑04‑10 20:46:03 2004 cases, Brief summary, Deprivation of liberty, Discharge conditions, Judgment available on Bailii, Transcript

R (SSHD) v MHRT, re MP [2004] EWHC 2194 (Admin)Conditions attached to conditional discharge of restricted patients must not be so severe as to deprive the patient of his liberty (as opposed to merely restricting it). In this case the condition that the patient may not leave a hostel without escorts deprived him of his liberty. Re PH distinguished: the purpose of the restrictions (and the hope in PH that the need for them might diminish) was different. 2006‑04‑10 20:33:12 2004 cases, Brief summary, Deprivation of liberty, Discharge conditions, Judgment available on Bailii, Transcript