MM v WL Clinic [2015] UKUT 644 (AAC)

Conditional discharge and DOL (1) For the purposes of Article 5, a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty. (2) In determining whether to discharge conditionally, the tribunal has to consider whether the consent is freely given and (as raised in KC at [134-139]) consider any practical problems arising from the ability to withdraw consent. (3) MM's case was remitted to the First-tier Tribunal with a direction that it apply the decisions in KC and this case. (Caution: see Court of Appeal 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: MHLR 2016.

Whether a restricted patient with capacity could consent to a conditional discharge that involved a deprivation of liberty - MM v (1) WL Clinic and (2) MHU – [2016] MHLR 198

Points Arising: Orders under the Mental Health Act 1983 authorise detention in hospital; a person with capacity could consent to detention outside hospital, and so that could be the outcome of a conditional discharge if consent was given.

Facts and Outcome: MM sought a conditional discharge on the basis of conditions which would involve a deprivation of liberty: but the Tribunal concluded that the consent was not genuine and in any event it could not discharge to a position that was detention. Charles J, in the Upper Tribunal, remitted the matter, finding that the Tribunal had made an error in the legal position, which affected its conclusion as to consent (which in any event was not supported by reasons).