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.

Related judgments

SSJ v RB [2011] EWCA Civ 1608

Other related cases:


RB was granted a deferred conditional discharge with a condition that he 'does not leave the grounds of [the care home] except when supervised'. The Secretary of State appealed, relying on a Court of Appeal case (PH) and three High Court cases (G, MP, IT) which had been decided on the basis that the Tribunal could not conditionally discharge with a condition which itself inevitably amounted to an Article 5 deprivation of liberty.

(1) The Upper Tribunal is bound by Court of Appeal decisions. But the UT was not bound by the CA decision in PH because the relevant point had not been decided but merely accepted as correct by the CA.

(2) The High Court is not bound by previous High Court decisions but follows them unless convinced they are wrong; the UT takes the same approach as the High Court except (a) the UT is bound where the High Court has judicially reviewed it, and (b) where highly specialised issues arise the UT may feel less inhibited in revisiting the issues. On the current issues, the High Court had been wrong.

(3) Discharge does not connote release from detention to a state of liberty. It means release from 'detention in a hospital for treatment'.

(4) If the patient no longer meets the criteria for detention in hospital for treatment, and some other form of accommodation (not being a hospital) is appropriate subject to the possibility of recall, the Tribunal must order a conditional discharge subject to suitable conditions without concerning itself with Article 5.

(5) Even if the conditions amount to detention there will be no breach of Article 5 because of the procedural safeguards in the MHA.

(6) A 'qualified PH principle' still applies: a Tribunal cannot conditionally discharge with conditions that amount to detention in a hospital for treatment, as this would be inconsistent with the discharge criteria.

(7) (Obiter) The condition amounted to a deprivation of liberty: (a) objectively, because of comparisons with ECHR cases (and the reasoning in PH about purpose did not apply, as here the condition was to protect the public); and (b) subjectively, because RB's consent was not free and unfettered since he only had the choice of two detention regimes.

(8) (Per Judge Rowland) Although the Tribunal can conditionally discharge from one regime of detention to another, only the Secretary of State can transfer from one regime of detention for treatment to another. The definition of 'hospital' is wide so the Tribunal cannot conditionally discharge to a regime of detention in any establishment where the patient will receive 'assessment or medical treatment' (England) or 'treatment or nursing' (Wales).

Tribunals Service summary

Mental health – deferred conditional discharge with condition of residence in a care home – whether conditional discharge lawful if conditions amount to detention. Upper Tribunal – judicial precedent – whether Upper Tribunal bound by decisions of the High Court exercising its supervisory role

Related judgments

SSJ v RB [2011] EWCA Civ 1608

Other related cases:

External link


Transcript on Tribunals Service website

Private Eye, 'Mental Health: Catch 22' (Eye 1277, 10-23 December 2010)

O'Donnells Solicitors, 'Deprivation of Liberty & Conditional Discharge' (Information sheet, January 2011 no 1)

Matthew Flinn, 'Can release from hospital be a deprivation of liberty?' (UK Human Rights Blog, 19/1/11)