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The Court of Appeal proceeded on the assumption that this proposition was correct and decided that the conditions imposed were not such as to amount to a deprivation of liberty and therefore that they were not ultra vires: [2002] EWCA Civ 1868; [2003] MHLR 202. ARG |
The MHA draws a clear distinction between being actually detained, being liable to be detained, and being neither. ARG |
A patient who is detained in hospital under compulsory powers such as a hospital order, including a restriction order, is actually detained. ARG |
A hospital order or other compulsorily detained patient who is granted leave of absence under section 17 of the MHA remains liable to be detained (see section 17(1)). ARG |
A patient who is released from hospital under a community treatment order under section 17A is not liable to be detained (see section 17D(2), as inserted by section 32(2) of the 2007 Act). ARG |
But a restricted patient who is granted a conditional discharge remains liable to be detained: this much appears from section 42(2), which states that a restricted patient who is absolutely discharged ceases to be liable to be detained, with the clear implication that a restricted patient who is conditionally discharge... |
This must mean that discharge has a different meaning when referring to restricted patients in sections 42(2) and 73(2) from the meaning that it has in sections 23 and 72 when dealing with the discharge of unrestricted patients. ARG |
Section 23(1) states that a patient who is for the time being liable to be detained shall cease to be so liable if ordered to be discharged by his responsible clinician, the hospital managers or (in certain circumstances) his nearest relative. ARG |
It contains no power to grant a conditional discharge. ARG |
Section 72 deals with the tribunals powers to discharge non-restricted patients who are liable to be detained and also confers no power to impose a conditional discharge. ARG |
Discharge in sections 23 or 72 must therefore mean an absolute discharge, not only from detention but also from the liability to be detained. ARG |
On the other hand, discharge in sections 42(2) and 73(2) when referring to the conditional discharge of restricted patients, cannot mean discharge from the liability to be detained, because the patient remains liable to be detained. Ratio |
It must therefore mean discharge from the hospital in which the patient is currently detained. Ratio |
Does it therefore follow, as Elias J considered, and the Court of Appeal agreed, that it must mean discharge from any sort of detention? Ratio |
In Secretary of State for Justice v RB [2010] UKUT 454 (AAC), the Upper Tribunal (Carnwath LJ, HHJ Sycamore and UTJ Rowland), held that it did not and that it was not bound by PH to hold that it did (para 54). Ratio |
In its view: The premise for exercise of the tribunals powers is that the patient has previously been lawfully detained (so that article 5 has been complied with); but that he does not now need to be detained in a hospital and that some other form of accommodation is appropriate, subject to the possibility of recall. R... |
The next step is to devise the conditions. Ratio |
At that stage, it is hard to see why the question whether the conditions would amount to detention for the purposes of article 5 should come into it. Ratio |
Even if they do amount to such detention, there will be no breach of article 5 because the 1983 Act makes provision for the procedural safeguards guaranteed by article 5. Ratio |
The tribunals concern should be simply to decide what is necessary for the well-being and protection of the patient, and the protection of the public and to satisfy themselves that the patient is willing to comply with the conditions and to that extent consents to them. Ratio |
We see no reason why Parliament should have wished them to concern with themselves with the fine distinctions which may arise under the Strasbourg case law on detention. Ratio |
(para 53) The only qualification was that the conditions could not impose detention in a hospital because, by definition, the tribunal had to have held that it was not satisfied that the criteria for such detention existed (para 55) (see para 10 above). Ratio |
The Court of Appeal did not agree: B v Secretary of State for Justice [2011] EWCA Civ 1608; [2012] 1 WLR 2043. Ratio |
The only form of detention of restriction order patients which was authorised by the MHA was detention in a hospital for medical treatment. Ratio |
Such an invasion of the fundamental common law right to liberty should not be read into the general words of section 73. Ratio |
This would be contrary to the principle of legality: R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115. Ratio |
It would conflict with the scheme of the Act, under which the Secretary of State could approve the patients transfer to another hospital or into guardianship. Ratio |
And the lack of criteria would mean that the detention was not in accordance with the law for the purpose of article 5 of the ECHR. Ratio |
The Court of Appeal adopted the reasoning in Bs case when reaching the same conclusion in this case. Ratio |
As to the ECHR, Mr Lock argues that there is no deprivation of liberty if the patient consents: in Storck v Germany (2005) 43 EHRR 6, the European Court held: the notion of deprivation of liberty within the meaning of article 5(1) does not only comprise the objective element of a persons confinement to a certain limite... |
Individuals can only be considered as being deprived of their liberty if, as an additional subjective element, they have not validly consented to the confinement in question. ARG |
(para 74) The same formulation was repeated by the Grand Chamber in Stanev v Bulgaria (2012) 55 EHRR 22, para 117. ARG |
Hence, in Storck, although there was a deprivation of liberty in respect of one period of detention in a psychiatric clinic, there was no such deprivation in respect of another, as the patient had consented to being there. ARG |
But it is also clear from Storck that an initial consent can be withdrawn, for example, where the patient attempts to leave the hospital. ARG |
And it is clear from later decisions, such as Buzadji v Moldova (Application No 23755/07), Grand Chamber Judgment of 5 July 2016, that consent given in circumstances where the choice is between greater and lesser forms of deprivation of liberty - there between detention in prison and detention under house arrest - may ... |
It is, of course, an irony, not lost on the judges who have decided these cases, that the Secretary of State for Justice is relying on the protection of liberty in article 5 in support of an argument that the patient should remain detained in conditions of greater security than would be the case were he to be condition... |
It is, however, difficult to extract the principle of the least restrictive alternative from the case law under article 5. Ratio |
This has not concerned itself with the conditions of the patients detention (which may raise issues under article 3 or 8), as long as the place of detention is appropriate to the ground upon which the patient is detained: thus, in Ashingdane v United Kingdom (1985) 7 EHRR 528, the court rejected a complaint that the pa... |
Mr Lock also argues that there is unjustified discrimination between a patient who has and a patient who lacks the capacity to decide for himself. ARG |
If the patient lacks capacity, the Court of Protection can authorise a deprivation of liberty in accordance with the sort of care plan which is envisaged in this case, provided that it is in his best interests, whereas if the patient has capacity, the FtT has no power to do so, even with his consent. ARG |
This is a new point, perhaps prompted by the obiter dictum in the Court of Appeal (at para 35), to the effect that the FtTs power to defer a decision might be used to invoke the jurisdiction of the Court of Protection to authorise the deprivation of liberty of an incapacitated patient under section 16 of the MCA. Ratio |
The Court of Protection cannot authorise the deprivation of liberty of an incapacitated person who is ineligible within the meaning of Schedule 1A to the MCA, section 16A (as inserted by section 50 of, and Schedule 8 to, the 2007 Act). Ratio |
A restricted patient who is actually detained in hospital is ineligible (falling within Case A in para 2). Ratio |
A restricted patient who is conditionally discharged from hospital falls either within Case B or Case C and is not wholly ineligible. Ratio |
A deprivation of liberty whose purpose consists wholly or mainly in medical treatment in hospital cannot be authorised, but a deprivation for other purposes can be authorised, provided that it is not inconsistent with the requirements of their MHA regime. Ratio |
Whether the Court of Protection could authorise a future deprivation, once the FtT has granted a conditional discharge, and whether the FtT could defer its decision for this purpose, are not issues which it would be appropriate for this court to decide at this stage in these proceedings. Ratio |
Assuming that both are possible, and therefore that there might be an incompatibility with article 14, read either with article 5 or with article 8, it would make no difference to the outcome of this case. Ratio |
The outcome of this case depends upon whether it is possible to read the words discharge subject to conditions in section 42(2) (dealing with the Secretary of States powers) and conditional discharge in section 73(2) (dealing with the FtTs powers) as including the power to impose conditions which amount to a deprivatio... |
Conditional discharge: what does it mean? Ratio |
The MHA is silent: it says nothing about the type or content of the conditions which may be imposed by the Secretary of State or the FtT. In this respect it has remained unchanged since the 1959 Act. Ratio |
There are several possibilities: (1) that the FtT cannot impose a condition of detention in a hospital but the Secretary of State may do so; (2) that neither may do so; (3) that both may impose a condition of detention in a place which is not a hospital within the meaning of the MHA whether or not the patient consents;... |
There is of course the argument that a condition which amounts to a detention or deprivation of liberty could nonetheless serve the rehabilitative purpose of the power of conditional discharge. ARG |
Just as there is nothing in the MHA which permits it, there is nothing in the MHA which prohibits it. Ratio |
The thinking of the experienced Upper Tribunal in RB (para 21 above) is worthy of respect. Ratio |
The main textual argument in favour of a power to impose such a condition is that a conditionally discharged patient remains liable to be detained within the meaning of the MHA (see para 18 above). Ratio |
As such, he is more akin to a hospital patient who has been given leave of absence than to a patient who is subject to a community treatment order. Ratio |
Discharge therefore cannot mean discharge from compulsion. Ratio |
Although it must mean discharge from the hospital where he is currently detained, it need not mean any more than that, and so could encompass a range of possible arrangements. Ratio |
Furthermore, although it is clear that the FtT cannot impose a condition of detention in a hospital for treatment, because by definition the FtT is not satisfied that the grounds for such detention exist (para 10 above), the same is not true of the Secretary of State. Ratio |
He has power to discharge the patient conditionally irrespective of whether the grounds for detention in hospital still exist. Ratio |
Moreover, if there is power to impose such a condition, it is difficult to see why the patients consent should be a pre-requisite. Ratio |
The patients willingness to comply with the conditions is always, of course, a highly relevant factor in deciding whether he is suitable for discharge; but this is a practical rather than a legal requirement. Ratio |
Yet no-one in these proceedings has suggested that there is power to impose such a condition without the patients consent. Ratio |
On the other hand, there are compelling reasons not to construe sections 42(2) and 73(2) in such a way. Ratio |
The first reason is one of high principle: the power to deprive a person of his liberty is by definition an interference with his fundamental right to liberty of the person. Ratio |
This engages the rule of statutory construction known as the principle of legality, as explained in the well-known words of Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, at 131: the principle of legality means that Parliament must squarely confront what it is doing and acc... |
Fundamental rights cannot be overridden by general or ambiguous words. Ratio |
This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. Ratio |
In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. Ratio |
The words of sections 42(2) and 73(2) are about as general as it is possible to be. Ratio |
Parliament was not asked to consider whether they included a power to impose a different form of detention from that provided for in the MHA, without any equivalent of the prescribed criteria for detention in a hospital, let alone any of the prescribed procedural safeguards. Ratio |
While it could be suggested that the FtT process is its own safeguard, the same is not the case with the Secretary of State, who is in a position to impose whatever conditions he sees fit. Ratio |
The second reason is one of practicality. Ratio |
The patients continued co-operation is crucial to the success of any rehabilitation plan. Ratio |
There is, as the FtT found in this case, always a concern that the patients willingness to comply is motivated more by his desire to get out of hospital than by a desire to stay in whatever community setting he is placed. Ratio |
As Holman J pointed out in SH (para 13 above), the MHA confers no coercive powers over conditionally discharged patients. Ratio |
Breach of the conditions is not a criminal offence. Ratio |
It is not even an automatic ground for recall to hospital, although it may well lead to this. Ratio |
But a recalled patient cannot be kept in hospital if the grounds for detaining him there are not satisfied. Ratio |
The patient could withdraw his consent to the deprivation at any time and demand to be released. Ratio |
It is possible to bind oneself contractually not to revoke consent to a temporary deprivation of liberty: the best-known examples are the passenger on a ferry to a defined destination in Robinson v Balmain New Ferry Co Ltd [1910] AC 295 and the miner going down the mine for a defined shift in Herd v Weardale Steel, Coa... |
But that is not the situation here: there is no contract by which the patient is bound. Ratio |
This leads to the third and perhaps most compelling set of reasons against such a power: it would be contrary to the whole scheme of the MHA. Ratio |
That Act provides in detail for only two forms of detention: (1) detention for no more than 36 hours in a place of safety, which may be a hospital, under sections 135 and 136; and (2) detention in a hospital under the civil powers contained in sections 2 (for assessment), 3 (for treatment) and 4 (for assessment in an e... |
In each of those cases, the Act gives specific powers, both to convey the patient to the hospital or a place of safety and to detain him there: see sections 135(3) and 136(2) for detention in a place of safety; section 6(2) for detention in hospital under civil powers; sections 35(9) and 36(8) for remands to hospital f... |
There is no equivalent express power to convey a conditionally discharged restricted patient to the place where he is required to live or to detain him there. Ratio |
If the MHA had contemplated that such a patient could be detained, it is inconceivable that equivalent provision would not have been made for that purpose. Ratio |
The MHA also makes detailed provision for the retaking of people who absent themselves from the place of safety or hospital where they are detained. Ratio |
A person authorised to be detained in a place of safety is deemed to be in legal custody and the person authorised to detain him has all the powers of a constable for that purpose (section 137(1) and (2)). Ratio |
If he escapes from legal custody, he may be retaken by that person or by any constable or Approved Mental Health Professional (section 138(1)). Ratio |
For hospital patients, as already explained (para 18 above), the MHA draws a distinction between being detained and being liable to be detained. Ratio |
A patient who is granted leave of absence and a conditionally discharged restricted patient remain liable to be detained but are not in fact detained under the MHA (at least unless the responsible clinician has directed that a patient given leave of absence remain in custody, under section 17(3)). Ratio |
The MHA contains elaborate provisions for recovering patients who are absent without leave. Ratio |
These are: patients who have absented themselves from the hospital where they are detained without having been granted leave of absence under section 17; patients who fail to return to hospital from leave when they should have done; patients on leave who have been recalled to hospital; and patients who break a conditio... |
A conditionally discharged patient who is recalled to hospital by the Secretary of State is also treated as if he were absent without leave for the purpose of the powers in section 18 (MHA, section 42(4)(b)). Ratio |
Patients who are absent without leave may be taken into custody and returned to hospital (the hospital where they were previously detained or, in the case of a conditionally discharged restricted patient, the hospital specified in the Secretary of States warrant of recall) by any police officer, any Approved Mental Hea... |
Thus a conditionally discharged restricted patient is not liable to be taken into custody and returned anywhere unless and until he is recalled to hospital by the Secretary of State. Ratio |
Merely absenting himself from the place where he is required to live is not enough. Ratio |
Once again, if the MHA had contemplated that he might be detained as a condition of his discharge, it is inconceivable that it would not have applied the same regime to such a patient as it applies to a patient granted leave of absence under section 17. Ratio |
Added to those considerations is another which was influential with the Court of Appeal. Ratio |
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