Deprivation of liberty and Community Treatment Orders (CTOs): MM and PJ decided

Thursday 25 May 2017

SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194, [2017] MHLO 16, 29 March 2017. A Community Treatment Order can be a statutory alternative to compulsory detention even though it amounts to an objective deprivation of liberty, but a capacitous patient cannot consent to this.

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SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194, [2017] MHLO 16, 29 March 2017

A Community Treatment Order (CTO) can be a statutory alternative to compulsory detention even though it amounts to an objective deprivation of liberty, but a capacitous patient cannot consent to this.

This long awaited Court of Appeal decision concerns two cases jointly heard in June 2016.

MM was subject to s.37/41 of the Mental Health Act as a result of a conviction for arson in 2001 and wanted to be conditionally discharged. Refused by the First-tier Tribunal (FtT), the Upper Tribunal (UT) allowed the appeal and remitted the case back to the FtT for a fresh decision holding that the FtT had jurisdiction to impose conditions on a conditional discharge which would amount to a deprivation of liberty and that a capacitous patient such as MM could give valid consent to such conditions.

The Secretary of State appealed, arguing that the FtT could not lawfully direct the conditional discharge of a detained where (i) the conditions imposed would necessarily involve a deprivation of liberty, (ii) the patient had capacity, and (iii) the patient purported to consent to the conditions.

The Court of Appeal decided that:

(a) the tribunal has no power to impose a condition that is an objective deprivation of liberty;

(b) a general condition of compliance with a care plan would be an impermissible circumvention of this jurisdictional limitation;

(c) purported consent, even if valid, could not provide the tribunal with jurisdiction.

PJ was also a capacitous patient made subject to a community treatment order (‘CTO’) in 2011 after a substantial period of in-patient treatment following a conviction for actual bodily harm and threats to kill. The conditions of PJ’s CTO were such that they constituted near continuous supervision with only very limited unescorted leave from his residential placement in accordance with reasons advanced by PJ’s RC.

PJ applied to the Mental Health Review Tribunal (MHRT) for Wales in 2014 for discharge but his application was refused. The UT allowed PJ’s appeal and made declarations the effect of which was that the FtT and MHRTW must, when exercising their discretion take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 or other Convention right. If there is a breach, they must try and rectify this by bringing it to an end. Further, the UT found that the MHRTW erred in law by finding that if PJ was deprived of his liberty in breach of Article 5, the CTO framework must take precedence over any human rights issues.

The Welsh Ministers appealed on the basis that the UT had erred in law (i) in determining that the Upper Tribunal had jurisdiction to revise conditions under a CTO and/or to take into account article 5 of the Convention when exercising its powers of discharge in respect of CTOs; and (ii) in holding that the MHRTW had erred in its approach to the question whether PJ had been deprived of his liberty.

In allowing the appeal. the Court of Appeal noted that although the conditions of the CTO had not been agreed before the tribunal to constitute a deprivation of liberty, no party had argued before it that such a conclusion was not open to the tribunal. It found that it was neither necessary not appropriate for the FtT/NHRTW to investigate or determine whether there is an objective deprivation of liberty under a CTO given the statutory framework which contains safeguards which can be read compatibly with human rights jurisprudence.

The tribunal’s decision is whether to discharge a patient from liability from detention not to scrutinise the lawfulness of the conditions set by the RC, any challenge to which is by way of judicial review.

A CTO can provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty, provided it is used for the specific purposes set out in the CTO scheme.

The full judgment is available: SSJ v MM; Welsh Ministers v PJ [2017] EWCA Civ 194, [2017] MHLO 16, 29 March 2017

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