PJ v A Local Health Board [2015] UKUT 480 (AAC)

The MHRT for Wales had rejected PJ's argument that his CTO should be discharged because its conditions unlawfully deprived him of his liberty. He appealed to the Upper Tribunal. (1) In deciding that PJ was not deprived of his liberty, the MHRT had erred in law in its application of the Cheshire West decision. (2) The MHRT also erred in law in concluding that the CTO framework must take precedence over any human rights issues. The tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 or any Convention right. If an issue remains to be decided on whether a breach exists or could be avoided (by authorisation or consent, or changing conditions), then generally the tribunal should adjourn to give an opportunity to make lawful the implementation of conditions. But if the treatment could not be provided without breach of Convention rights then the tribunal (whether by the statutory criteria or under its discretion) should discharge the CTO. (3) Guidance to tribunals was given under the following (paraphrased) headings: (a) whether implementation of the conditions will objectively amount to a deprivation of liberty; (b) whether the patient has capacity to consent; (c) if the patient has capacity, whether consent avoids a breach of Article 5; (d) if the patient lacks capacity, whether the objective deprivation of liberty can be authorised under the MCA; (e) if the patient lacks capacity, whether s64D can be relied upon to avoid an Article 5 breach; (f) how the conclusions on the above should help decide whether to adjourn, or discharge or uphold the CTO. This is an important judgment and a fuller summary will follow in due course.

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