Secretary of State for Justice v MM

The power to order the conditional discharge of a restricted patient does not authorise the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty. General statutory language cannot authorise an interference with the fundamental right to liberty unless Parliament has used express words or the power arises by necessary implication.

The detailed scheme of the Mental Health Act 1983 authorises detention only in specified places and circumstances, accompanied by safeguards and enforcement powers. Its omission of equivalent provisions for conditionally discharged patients demonstrates that Parliament did not contemplate their detention in the community. A patient's capacity and consent cannot create a statutory power which the Act does not confer.

MM was a restricted patient detained under hospital and restriction orders made under sections 37 and 41 of the Mental Health Act 1983. He sought conditional discharge into community accommodation under a care plan involving continuous supervision and control and an inability to leave unescorted. It was accepted that the proposed arrangements would amount to a deprivation of liberty under article 5 of the European Convention on Human Rights.

The First-tier Tribunal held that it lacked power to impose such conditions. The Upper Tribunal reversed that conclusion: [2015] UKUT 644 (AAC). The Court of Appeal allowed the Secretary of State's appeal, holding itself bound by B v Secretary of State for Justice: [2017] EWCA Civ 194; [2017] 1 WLR 4681.

The issue before the Supreme Court was whether the Tribunal or the Secretary of State could impose conditions amounting to a deprivation of liberty where a capacitous patient consented.

1. Appeal dismissed by a majority of four to one. Lady Hale, with whom Lord Kerr, Lady Black and Lord Lloyd-Jones agreed, held that neither the First-tier Tribunal nor the Secretary of State may impose conditions amounting to detention or a deprivation of liberty upon the conditional discharge of a restricted patient.

2. In sections 42(2) and 73(2) of the Mental Health Act 1983, “discharge” cannot mean release from liability to detention because a conditionally discharged restricted patient remains liable to be detained. It means discharge from the hospital in which the patient is currently detained. That linguistic conclusion does not, however, supply a power to detain the patient elsewhere.

3. A power to deprive a person of liberty interferes with a fundamental right. Under the principle of legality explained in R v Secretary of State for the Home Department, Ex p Simms, general or ambiguous words do not override such a right. Sections 42(2) and 73(2) contain no express language or necessary implication authorising a different form of detention without equivalent statutory criteria, safeguards or enforcement provisions.

4. The statutory scheme was decisive. The Act specifies the places and circumstances in which detention is authorised, provides powers to convey and detain patients, and regulates the retaking of patients who are absent without leave. It provides no corresponding power to convey a conditionally discharged patient to community accommodation, detain him there, or retake him merely because he leaves. The longer intervals between tribunal applications for conditionally discharged patients also indicate that Parliament did not contemplate that they would remain deprived of liberty.

5. Consent could not cure the absence of statutory power. A patient's willingness to comply is practically important, but consent may be withdrawn and the Act supplies no coercive means of enforcing community conditions short of recall to hospital. The possible use of the Court of Protection for an incapacitated patient, and any resulting issue under article 14, were left undecided because they could not affect the statutory construction issue.

6. Lord Hughes dissented. He considered conditional discharge to be a relaxation of an existing lawful deprivation of liberty. In his view, conditions satisfying the Cheshire West test were permissible if they imposed no greater loss of liberty than the hospital and restriction orders already authorised. He would have allowed the appeal.

1. United Kingdom Supreme Court: The patient's appeal was dismissed by a majority of four to one: [2018] UKSC 60.

2. Court of Appeal: The Secretary of State's appeal was allowed. The court held that it was bound by B v Secretary of State for Justice and that the relevant powers did not permit conditions amounting to a deprivation of liberty, even with the consent of a capacitous patient: [2017] EWCA Civ 194; [2017] 1 WLR 4681.

3. Upper Tribunal: Charles J held that a condition requiring compliance with a care package could be imposed where the patient had capacity and consented: [2015] UKUT 644 (AAC); [2016] MHLR 198.

4. First-tier Tribunal: The Tribunal held that it had no power to impose conditions which themselves, or through a required care plan, amounted to a deprivation of liberty.