In Secretary of State for Justice v KC and C Partnership NHS Foundation Trust  UKUT 0376 (AAC), Charles J has clarified that it is entirely possible for a person to be given a conditional discharge from detention under the MHA 1983 if the conditions of that discharge amount to an objective deprivation of their liberty, so long as it possible for that deprivation of liberty to be authorised under Schedule A1 to the MCA 2005. In other words, if the person lacks the material decision-making capacity and are to be accommodated in either a care home or a hospital, it is quite possible for them to be given a conditional discharge with a DOLS then to run alongside.
His conclusions can be found at paragraph 141, namely that:
“1. The FTT has power to impose (and so direct a conditional discharge on) conditions that when implemented will, on an objective assessment, give rise to a deprivation of liberty that is lawful because it has been authorised by the Court of Protection under the MCA or pursuant to the DOLS contained in the MCA (the MCA authorisations) and so complies with Article 5.
2. The FTT should consider and generally should include in the protective conditions it imposes an ability to apply to it for a variation or discharge of them on the basis of a material change in circumstances (a) if a variation or discharge is refused by the Secretary of State or the FTT agrees to consider the application, and (b) if the FTT is invited to consider such an application by the Court of Protection (or a DOLS decision maker).
3. The FTT should consider and generally should include in the protective conditions it imposes an ability to apply to it for a variation or discharge of them on the basis of a material change in circumstances (a) if a variation or discharge is refused by the Secretary of State or the FTT agrees to consider the application, and (b) if the FTT is invited to consider such an application by the Court of Protection (or a DOLS decision maker).
4. The MCA authorisations can only be given if the relevant restricted patient lacks capacity to consent to the relevant conditions and is not ineligible to be deprived of his or her liberty by the MCA. Provided that the terms and conditions that give rise to the deprivation of liberty do not conflict with conditions the FTT have decided are necessary and have identified the restricted patient will not be ineligible and such authorisations can be given under the MCA applying the tests it sets out.
5. Both of the MCA authorisations can be given to come into effect at a future date or on a future event but the MCA decision maker needs to know the conditions (including those that when implemented will objectively give rise to a deprivation of liberty) that the FTT considers necessary to satisfy the tests under the MHA, before the MCA decision maker can properly make the relevant MCA decision.
6. So, the FTT needs to identify what conditions it considers need to be in place as and when the direction for the conditional discharge of the restricted patient takes effect so that the MCA decision maker knows what they are when applying the MCA tests.
7. The FTT will need to be satisfied that the proposed placement on the relevant conditions (and so the relevant care plan) is sufficiently defined and an available option in practice and if it is not when it will be so available (see KD v A Borough Council, the Department of Health and Others  UKUT 0251 (AAC) at paragraph 68).
8. The parties will therefore need to provide the necessary evidence on this and any other factors that will need to be taken into account by the FTT
9. The FTT should apply the guidance given by Upper Tribunal Judge Jacobs in DC v Nottinghamshire Healthcare NHS Trust and the Secretary of State for Justice  UKUT 92 (AAC) on when the FTI should adjourn, make a decision under s. 73(7) of the MHA or a provisional decision in reliance on R(H) v SSHD  QB 320 and  2 AC 253).
10. The Court of Protection and the DOLS decision makers cannot override the conditions identified by the FTT and so can only choose between alternatives that include them.“
This is a very important decision, significantly limiting the damage (as I perceive it) done by SSJ v RB ( EWCA Civ 1608) to the sensible operation of the conditional discharge regime. Charles J also in expressly obiter, but carefully worded, comments made it clear that he considered that it would be perfectly proper for an individual with the relevant decision-making capacity to consent to conditions, even if they took place in an environment of coercion.
The implications of the decision go wider than merely those of conditional discharge, and surely suggest that it is equally possible (as the wording of Sch 1A to the MCA, the DOLS Code of Practice and the new MHA Code of Practice suugest) for Section 17 leave to be given for a detained patient for them to receive treatment for a physical disorder in a general hospital in circumstances amounting to a deprivation of their liberty – i.e. that (as we made clear in our note) A Local Health Board v AB  EWCOP 31 was wrongly decided.
Until we have legislation to rip up Schedule 1A, we must blunder along as best we can: this decision will significantly assist front-line health and social practitioners to navigate the fault-lines.