Since the decisions of the Supreme Court in MM and PJ, lurking issues have remained about the position of individuals lacking capacity to make decisions about residence and care arrangements (the individuals in both cases having that capacity). Can they leave hospital into circumstances of deprivation of liberty either on a community treatment order or by way of conditional discharge, where that deprivation of liberty is authorised by way of either the Court of Protection or DoLS (in due course LPS)? Or is the logic of the Supreme Court’s approach in those two cases that any confinement to which the person is subject is unlawful? Sir William Charles made characteristically trenchant observations here (see pp.15 ff), in relation to conditional discharges in particular.
In a case determined on 5 July, Hayden J took the view in relation to CTOs that there was no jurisdictional bar to the Court of Protection authorising deprivation of liberty of a person on a CTO lacking the material decision-making capacity, so long as the conditions on the face of the CTO did not give rise to a confinement. Whilst there will be no reported judgment, Hayden J has given permission for the relevant recital to the order to be published, and it is reproduced below:
AND UPON the Court being satisfied that neither the decision in Secretary of State for Justice v MM  UKSC 60, nor that in Welsh Ministers v PJ  UKSC 66, prevents the Court of Protection making an order under s.16(2)(a) Mental Capacity Act 2005 authorising (by s.4A(3)) the deprivation of liberty in the community of an individual lacking the material decision-making capacity who is subject to a Community Treatment Order, so long as that Community Treatment Order does not contain conditions that on their face give rise to the confinement of the individual.
The logic of this decision would also apply to the situation where the deprivation of liberty is to be authorised under DoLS/LPS; it would also apply to conditional discharges (see also the MoJ guidance here).