Welsh Ministers v PJ

A responsible clinician has no power under the Mental Health Act 1983 to impose community treatment order conditions whose concrete effect is to deprive a patient of liberty. General statutory language cannot authorise interference with a fundamental right.

Whether liberty has been deprived depends on the patient’s practical situation, not on whether the conditions are legally enforceable. The applicable acid test is continuous supervision and control combined with a lack of freedom to leave. A benevolent purpose does not alter that test.

A mental health tribunal may explain the true legal effect of an order and consider the patient’s actual circumstances when deciding whether discharge is appropriate. Where unlawful detention is occurring, habeas corpus or judicial review provides an immediately available remedy.

PJ, a patient with learning disability and autistic-spectrum difficulties, was discharged from hospital under a community treatment order. Its conditions required residence at a specified care home, compliance with a care plan and adherence to supervised community-access arrangements. His daily regime closely monitored his whereabouts and severely restricted unescorted leave.

The Mental Health Review Tribunal for Wales upheld the order. The Upper Tribunal held that the tribunal had applied the wrong test to deprivation of liberty but did not determine the factual issue because the order had ended. The Court of Appeal, in [2017] EWCA Civ 194, held that the Mental Health Act 1983 authorised liberty-depriving conditions by necessary implication and that the tribunal could not discharge the order merely because its conditions caused an unlawful deprivation.

The central issue was whether a responsible clinician could impose community treatment order conditions having the concrete effect of depriving a patient of liberty within article 5 of the Convention.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Kerr, Lord Wilson, Lady Black and Lord Lloyd-Jones agreed, declared that a responsible clinician has no power under the Mental Health Act 1983 to impose community treatment order conditions which have the effect of depriving a patient of liberty.

2. The unenforceability of community treatment conditions does not prevent them from causing a deprivation of liberty. Convention rights must be practical and effective. The court must examine the patient’s concrete situation. Otherwise, unlawful detention could escape a remedy merely because no lawful authority existed for it.

3. The acid test stated in Cheshire West remained whether the person was under continuous supervision and control and was not free to leave. The purpose of the arrangements was irrelevant to that classification. A regime intended to enhance freedom or promote recovery could therefore amount to a deprivation of liberty. The court proceeded on the basis that PJ’s concrete circumstances did so, without itself determining that factual question.

4. Section 17B(2) contained no express authority for liberty-depriving conditions, and no such authority arose by necessary implication. Under the principle of legality, general or ambiguous statutory words do not authorise interference with fundamental rights or confer such authority on another decision-maker. A necessary implication must follow from the statutory language and context; it is insufficient that the implication would be reasonable or useful.

5. The wider statutory scheme confirmed that conclusion. A community patient cannot ordinarily be detained, recaptured or forcibly treated outside hospital. The Act contains none of the precise powers, safeguards or regulation expected if Parliament intended detention in community facilities. Its careful express provisions governing hospital detention contrasted with the absence of equivalent community powers.

6. The tribunal cannot revoke or vary community treatment conditions, but it has a general discretion to discharge the patient and must consider whether the statutory criteria remain satisfied. The patient’s actual treatment and circumstances may be relevant to that inquiry, and the tribunal may explain the order’s true legal effect. Where the reality is current unlawful detention and tribunal access is not immediate, the remedy is habeas corpus or judicial review.

1. United Kingdom Supreme Court: Allowed PJ’s appeal and declared that community treatment order conditions cannot lawfully have the effect of depriving a patient of liberty: [2018] UKSC 66.
2. Court of Appeal: Allowed the Welsh Ministers’ appeal, holding that liberty-depriving conditions were authorised by necessary implication and that the tribunal lacked power to discharge the order on account of unlawful conditions: [2017] EWCA Civ 194; [2017] 1 WLR 4681.
3. Upper Tribunal: Held that the tribunal had applied the wrong deprivation-of-liberty test and that the community treatment order framework could not take precedence over human rights. It declined to determine the factual issue or remit because the order had ended.
4. Mental Health Review Tribunal for Wales: Upheld the community treatment order, finding no continuous supervision and control and, alternatively, treating the need for the order as taking precedence over human-rights concerns.