MM v WL Clinic & Anor

An application for permission to appeal may properly be refused where the proposed grounds raise potentially wide and important issues that should instead be considered by the Court of Appeal, with suitable directions for expedition and representation if permission is granted there.

The Upper Tribunal did not determine the substantive questions concerning conditional discharge, consent, deprivation of liberty, or the scope of powers under the Mental Health Act 1983. It treated those questions as matters requiring appellate consideration.

The appeal raised whether a restricted patient with capacity could validly consent, for the purposes of Article 5, to conditions of conditional discharge which would objectively deprive the patient of liberty when implemented.

The issue followed the Upper Tribunal’s earlier decision in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] UKUT 0376 (AAC), concerning a patient without relevant capacity. The Secretary of State advanced grounds challenging the Upper Tribunal’s reading of the authorities and the power to impose such conditions.

The Upper Tribunal considered that the points potentially affected restricted patients, community treatment orders and guardianship, and were therefore apt for consideration by the Court of Appeal.

1. The application for permission to appeal was refused. The Upper Tribunal considered that the background and the wider importance of the proposed grounds meant that the application should be determined by the Court of Appeal if pursued there.

2. The Tribunal did not decide the substantive jurisdictional or consent questions. It recorded its earlier view that the ratio of the RB litigation went no further than that the Mental Health Act 1983 alone could not meet the Article 5 lawfulness requirements for a deprivation of liberty arising from conditions of conditional discharge. On that view, the First-tier Tribunal could not impose conditions which would create an unlawful deprivation of liberty.

3. The Secretary of State’s proposed contrary argument was capable of affecting not only restricted-patient conditional discharges, but also discharge by the Secretary of State, community treatment orders and guardianship. The Tribunal regarded those wider implications, and the need for effective representation and expedition, as matters the Court of Appeal should be able to address.

4. The Tribunal was not persuaded that the jurisdictional ground was arguable. It also indicated that, unless the same argument extended to the Court of Protection’s ability to authorise deprivation of liberty for a person lacking capacity, the consent ground was not sufficiently arguable.

5. If the Secretary of State pursued and sought expedition of an application for permission to appeal before the Court of Appeal, the order remitting the case to the First-tier Tribunal was stayed pending determination of that application.

• Upper Tribunal (Administrative Appeals Chamber): refused permission to appeal. It stayed the remittal to the First-tier Tribunal if the Secretary of State pursued and sought expedition of an application for permission before the Court of Appeal.
• First-tier Tribunal: the judgment refers to a remittal to the First-tier Tribunal, but gives no citation or substantive determination in this litigation.