Secretary Of State For Home Department, R (on the application of) v Mental Health Review Tribunal

A mental health review tribunal cannot impose conditional-discharge conditions which inevitably deprive a patient of liberty. Whether conditions constitute deprivation rather than restriction is a question of fact and degree, including the purpose of the conditions. Where a patient presents a continuing danger to others unless continuously secured or escorted, requirements preventing departure from accommodation and unsupervised presence in the community amount to deprivation of liberty. A challenge is not premature merely because the tribunal’s discharge decision is provisional where the alleged unlawfulness is inevitable. Patient consent cannot make such conditions lawful.

The Secretary of State sought judicial review of a Mental Health Review Tribunal decision provisionally directing the conditional discharge of MP, a restricted patient detained under the Mental Health Act 1983. The discharge was deferred pending arrangements for accommodation and care.

The challenged conditions required MP to live in accommodation from which he could not leave without an escort and to remain escorted whenever outside. The tribunal intended to reconsider the conditional discharge after a care plan had been prepared. The central issues were whether the claim was premature, whether the conditions inevitably amounted to deprivation of liberty, and whether MP’s consent could validate them.

1. The claim was not premature. A tribunal’s deferred discharge decision is provisional and may be altered if there is a material change of circumstances, as explained in R(H) v Secretary of State for the Home Department [2003] 3 W.L.R. 1278. But where the alleged deprivation of liberty is inevitable, an immediate challenge is appropriate.
2. Under sections 72 and 73 of the Mental Health Act 1983, the tribunal may direct conditional discharge and defer that direction until the necessary arrangements are in place. It has no power to impose conditions which amount in substance to deprivation of liberty.
3. Whether conditions deprive a person of liberty is a question of fact and degree. The purpose of the conditions is relevant. The approach in the PH case, where restrictions were imposed for the patient’s benefit and the patient was not dangerous to others, was confined to its unusual facts and did not assist MP. The decision in MP v Nottinghamshire Healthcare NHS Trust [2003] EWHC 1782 (Admin) correctly identified the unusual character of that case, although the judge did not regard its facts as entirely unique.
4. MP remained a real danger to young boys if he were unescorted. The proposed conditions were designed to prevent him leaving secure accommodation without an escort and from ever being alone in the community. They therefore inevitably amounted to deprivation of liberty, even though the accommodation would be outside hospital.
5. The irrationality ground added nothing. If lawful conditions and suitable accommodation had been available, the tribunal’s decision would not necessarily have been irrational. MP’s consent could not render the conditions lawful.
6. The claim succeeded. The precise relief was reserved for determination after submissions.