The Secretary of State for Justice v MM

A mental health tribunal cannot make a conditional discharge subject to conditions that objectively deprive a patient of liberty unless legislation clearly provides that power. Valid consent cannot create jurisdiction, make compulsory confinement lawful, or become irrevocable. A community treatment order may, within its statutory purposes and safeguards, impose a lesser restriction that objectively deprives a patient of liberty. The tribunal’s function remains limited to applying the statutory discharge criteria. It cannot revise CTO conditions or determine their Convention compatibility. Such challenges belong in judicial review. The objective test in [2014] AC 896 applies in both contexts. Both appeals were allowed.

Two conjoined appeals concerned the powers of mental health tribunals. MM was a restricted criminal patient seeking conditional discharge subject to a care plan which would objectively deprive him of liberty. The First-tier Tribunal refused discharge, but the Upper Tribunal allowed his appeal and remitted the matter.

PJ was a community patient subject to a community treatment order involving near-continuous supervision and limited unescorted leave. The Mental Health Review Tribunal for Wales refused discharge. The Upper Tribunal allowed his appeal and made declarations, reported at [2015] UKUT 0480 (AAC). The Court of Appeal considered whether tribunals could authorise or scrutinise objective deprivation of liberty in either statutory context.

Both appeals allowed. The declarations made by the Upper Tribunal in PJ’s case were set aside.

1. In MM’s case, sections 37, 41, 42 and 73 of the Mental Health Act 1983 authorised detention in hospital, conditional discharge and recall, but did not expressly or by necessary implication confer a power on the tribunal to impose a condition amounting to an objective deprivation of liberty outside hospital. The court followed RB v Secretary of State for Justice [2012] 1 WLR 2043, which it held to be correct and binding.
2. The tribunal could not infer an umbrella power from the statutory scheme. Any implied power would lack criteria, time limits and equivalent safeguards. It would also create an unjustified disparity in rights of review. The tribunal could use deferment to facilitate an application to the Court of Protection, but that did not enlarge its own jurisdiction.
3. Consent did not alter the conclusion. Even valid consent could not confer jurisdiction, waive the right to withdraw consent, or prevent compulsory conditions from constituting deprivation of liberty. Conditions had to be assessed by their real effect. A tribunal could impose or accept only conditions which did not objectively deprive liberty.
4. In PJ’s case, sections 17A and 17B of the Mental Health Act 1983, construed in context, permitted the responsible clinician to impose conditions which objectively deprived a community patient of liberty, provided they served the statutory purposes and imposed a lesser restriction than hospital detention.
5. The CTO scheme was prescribed by law and contained effective safeguards: statutory criteria, limited purposes, time limits, regular review, written conditions, and powers of recall, variation and suspension. The tribunal could discharge the patient under section 72, but could not revise CTO conditions, determine their proportionality or Convention compatibility, or create an additional discharge checklist. Any unlawful condition had to be challenged by judicial review.
6. The tribunals were inferior tribunals and lacked the High Court’s declaration and judicial review powers. The Upper Tribunal could not exercise such powers without an application or proper notice. The interpretation adopted below was also inconsistent with the fundamental features of the statutory scheme under section 3 of the Human Rights Act 1998.

• Court of Appeal (Civil Division): Both appeals allowed and the Upper Tribunal’s declarations in PJ’s case set aside: [2017] EWCA Civ 194.
• Upper Tribunal (Administrative Appeals Chamber): MM’s appeal was allowed and remitted to the First-tier Tribunal. PJ’s appeal was allowed and declarations were made, reported at [2015] UKUT 0480 (AAC).
• First-tier Tribunal / Mental Health Review Tribunal for Wales: MM’s application for conditional discharge was refused on 18 May 2015. PJ’s application for discharge was refused on 2 May 2014.