The Secretary of State for Justice v RB & Anor

A mental health tribunal cannot conditionally discharge a restricted patient on conditions whose inevitable effect is a continuing deprivation of liberty. The power in section 73 of the Mental Health Act 1983 contains no clear statutory authority for detention outside a hospital.

The patient’s consent, welfare and improved quality of life cannot confer jurisdiction. The legal grounds for imposing and terminating any deprivation of liberty must be prescribed by legislation. The contrary construction would also permit detention for containment rather than treatment and would give conditionally discharged patients inferior review rights without justification.

RB was a restricted patient detained under hospital and restriction orders following a criminal conviction. Although his mental disorder continued to justify detention, clinicians considered that he could live in a less secure care home subject to conditions, including escorted access to the community. Those conditions would inevitably deprive him of his liberty, but RB consented to them and they would improve his quality of life.

The Upper Tribunal, in [2010] UKUT 454 (AAC), held that section 73 of the Mental Health Act 1983 permitted the proposed conditional discharge because the destination was a care home rather than a hospital. The Secretary of State appealed. The central issue was whether section 73 authorised a conditional discharge whose conditions inevitably continued the patient’s deprivation of liberty outside a hospital.

1. Appeal allowed. Section 73 of the Mental Health Act 1983 did not authorise a tribunal to conditionally discharge a restricted patient on conditions whose inevitable effect was a continuing deprivation of liberty. Arden LJ gave the judgment, with which Moses and Maurice Kay LJJ agreed.

2. The original hospital and restriction orders authorised detention in a hospital only. Section 73(2) was silent about detention elsewhere. Since liberty is a fundamental right, general or ambiguous statutory language could not authorise its removal. The statute had to specify both the grounds for imposing the deprivation and the grounds upon which the patient could obtain release from it.

3. The procedural safeguards required by article 5 of the Convention had to be prescribed by law. It was insufficient that the patient could apply to a tribunal when the legislation supplied no criteria governing the proposed form of detention. The patient’s consent, best interests and prospect of better living conditions could not supply jurisdiction that Parliament had not conferred.

4. The Upper Tribunal’s construction was also inconsistent with the statutory scheme. It would create detention outside a hospital, potentially for containment rather than treatment and without appropriate treatment being available. That conflicted with the admission and hospital-order criteria in sections 3 and 37. Parliament had instead provided transfer powers exercisable by the Secretary of State, subject to judicial review.

5. A conditionally discharged patient deprived of liberty outside a hospital would receive inferior safeguards, notably review only every two years under section 75(2), rather than annual review. There was no apparent justification for that difference. Article 14, read with article 5, therefore further weighed against the Upper Tribunal’s interpretation.

6. A tribunal may make a non-statutory recommendation that the Secretary of State transfer a patient. When considering proposed discharge conditions, the tribunal need determine only whether deprivation of liberty will be their inevitable result; it need not investigate every possible manner in which they might be implemented.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1608, unanimously allowed the Secretary of State’s appeal and held that section 73 of the Mental Health Act 1983 did not authorise the proposed conditional discharge.
2. Upper Tribunal (Administrative Appeals Chamber): In [2010] UKUT 454 (AAC), dismissed the appeal from the First-tier Tribunal and held that conditional discharge to a care home could be ordered despite the inevitable deprivation of liberty.
3. First-tier Tribunal: Ordered RB’s conditional discharge to a care home and found that he had given valid and unfettered consent. The citation is not stated in the judgment.