Welsh Ministers v PJ

The Supreme Court held that the Mental Health Act 1983 does not permit a responsible clinician to impose conditions in a community treatment order (CTO) which have the practical effect of depriving the patient of his or her liberty within the meaning of Article 5 of the European Convention on Human Rights. The court applied the principle of legality and strict tests for necessary implication, concluding there was no express or necessarily implied statutory power in sections 17A–17F to authorise a deprivation of liberty in the community. The judgment relied on the "acid test" from Cheshire West (continuous supervision and control and lack of freedom to leave) for identifying a deprivation of liberty and rejected arguments that the unenforceability of many CTO conditions or the benevolent purpose of CTOs justified implying a power to impose measures that in practice detain a patient. The court further explained the limited role of the Mental Health Review Tribunal (MHRT) where a tribunal finds an unlawful deprivation of liberty under a CTO and identified habeas corpus or judicial review as available remedies where unlawful detention is occurring.

Background and facts. The appellant, PJ, a man with learning disability and autistic-spectrum difficulties and a history of offending, was discharged from hospital on a CTO in 2011 and placed in a locked care-home regime subject to both mandatory conditions in section 17B(3) and bespoke conditions under section 17B(2). The regime included close supervision, escorted community access, limited unescorted leave and alcohol restrictions.

Procedural posture. PJ challenged the CTO before the Mental Health Review Tribunal (MHRT) in 2014 arguing the arrangements amounted to an unlawful deprivation of liberty; the MHRT upheld the CTO. On appeal to the Upper Tribunal, Charles J held the MHRT had applied the wrong test and joined the Welsh Ministers as parties but did not finally determine deprivation of liberty. The Court of Appeal ([2017] EWCA Civ 194) concluded that the MHA permitted, by necessary implication, conditions that could amount to deprivation of liberty. The case then came to the Supreme Court.

Nature of the claim / relief sought. PJ sought a declaration that the CTO conditions amounted to an unlawful deprivation of liberty and relief from the CTO; the central legal question was whether the MHA authorises a responsible clinician to impose CTO conditions that have the practical effect of depriving a patient of liberty.

Issues framed by the Court. (i) Whether the RC may impose CTO conditions that amount to a deprivation of liberty under Article 5 ECHR; (ii) whether the unenforceability of many CTO conditions precludes them from amounting to a deprivation of liberty; (iii) whether the MHRT has power to discharge a CTO where its conditions amount to unlawful deprivation of liberty and what remedies are appropriate.

Reasoning and decision. The court accepted that the practical facts on the ground determine whether a deprivation of liberty exists (the Cheshire West "acid test"), and rejected the Welsh Ministers' contention that unenforceability of CTO conditions precludes a finding of deprivation. Applying the principle of legality and the strict test for necessary implication, the court concluded there was no express power in section 17B(2) nor any power necessarily implied into the MHA to authorise deprivation of liberty in the community. The court noted indicative statutory features that pointed against such an implication, including the absence of power to compel treatment in the community, the detailed statutory safeguards that apply to hospital detention but not to community placements, and the Code of Practice guidance stating conditions must not deprive patients of their liberty. On the MHRT's powers, the court explained the tribunal cannot vary or revoke CTO conditions but may discharge a patient if statutory criteria are not met; where unlawful deprivation is identified, habeas corpus or judicial review may be the appropriate remedies and MHRT findings should clarify the legal effect of CTOs for all concerned.

Wider context. The court emphasised the centrality of protecting liberty and the expectation that responsible clinicians and tribunals will act consistently with this legal position, referencing the Code of Practice obligation to inform community patients of the effect of CTOs.

Appeal allowed. The Supreme Court declared that the Mental Health Act 1983 does not authorise a responsible clinician to impose conditions in a community treatment order which have the practical effect of depriving the patient of his or her liberty. The court applied the principle of legality and a strict test for necessary implication, concluded there was no statutory power to authorise deprivation of liberty in the community, and explained the remedial and tribunal implications.

MHRT decision (May 2014) upholding the CTO; Upper Tribunal appeal (Charles J, May 2015) held the MHRT applied the wrong test and joined Welsh Ministers; Court of Appeal [2017] EWCA Civ 194 held there was by necessary implication power to impose CTO conditions that could amount to a deprivation of liberty; Supreme Court [2018] UKSC 66 allowed the appeal and declared there is no such power.