G, R (on the application of) v Mental Health Review Tribunal

A condition of conditional discharge is unlawful if, in its practical effect, it continues the patient’s detention. The distinction between deprivation of liberty and restriction of movement is one of degree and intensity. The court must examine the individual’s concrete situation, including the type, duration, effects, implementation and cumulative effect of the restrictions. Their purpose is relevant but cannot be given disproportionate weight. A court determining the issue reviews the facts as a question of law, although borderline decisions attract restraint. Consent to remain in hospital cannot convert a deprivation of liberty into a lawful conditional discharge or confer jurisdiction on a tribunal.

The claimant was a restricted patient detained under hospital and restriction orders following serious offences. A tribunal directed conditional discharge but deferred it until suitable accommodation and supervision were arranged. The proposed hostel became unavailable, and the tribunal later concluded that residence at the claimant’s existing hospital, under substantially the same regime, would amount to a significant deprivation of liberty.

The claimant sought judicial review, arguing that the proposed conditions merely restricted movement, or alternatively that his consent enabled him to remain as a voluntary patient. The issues were whether the tribunal had correctly applied Article 5 of the European Convention on Human Rights and the Mental Health Act 1983, and whether consent or section 131(1) altered the position.

1. The claim was dismissed. The tribunal correctly concluded that residence at the existing hospital under substantially unchanged conditions would amount to continued detention and therefore could not lawfully be imposed as a condition of discharge.
2. A tribunal has no power to direct a transfer between places of detention. Conditions which maintain the patient’s detention are ultra vires. Conditional discharge ordinarily involves release to supervised accommodation with a view to staged discharge, although the legality of conditions depends on the circumstances of the individual case.
3. The Article 5 inquiry begins with the concrete situation. The court must consider the type, duration, effects and manner of implementation of the restrictions, together with their cumulative effect. Purpose is relevant, particularly where restrictions principally protect the patient, but it cannot outweigh the actual degree of control. The claimant remained subject to close control of his movements, an inflexible hospital regime and supervision primarily directed to protection of the public.
4. Whether the facts establish deprivation of liberty is a question of law for the reviewing court. In borderline cases the court should avoid intervention unless the decision is wrong in law; perversity or irrationality is unnecessary. This was not a borderline case.
5. The claimant’s consent could not alter the legal character of the restrictions. A conditional discharge leaves the patient liable to recall under section 73. Section 131(1) did not apply because an order or direction continued to render him liable to detention, and a tribunal could not acquire jurisdiction to impose an otherwise unlawful deprivation merely because the patient agreed to remain.
6. The court observed that efforts should continue to secure suitable hostel accommodation. Although section 117 did not strictly apply, equivalent after-care efforts would be appropriate.