In Secretary of State for Justice v MM  UKSC 60, the Supreme Court (Lord Hughes dissenting) has upheld the ruling of the Court of Appeal that neither the Secretary of the State nor the Mental Health Tribunal has the power to impose conditions on a discharge of a restricted patient which would amount objectively to a deprivation of the patient’s liberty.
The parameters of the problem are clearly defined: the patient, MM, “is anxious to get out of hospital and is willing to consent to a very restrictive regime in the community in order that this can happen. The Secretary of State argues that this is not legally permissible.” It was agreed that MM had capacity to consent to the restrictions, which undoubtedly satisfied the ‘acid test’ set down in Cheshire West.
As Lady Hale (for the majority) noted (at paragraph 24) that:
It is, of course, an irony, not lost on the judges who have decided these cases, that the Secretary of State for Justice is relying on the protection of liberty in article 5 in support of an argument that the patient should remain detained in conditions of greater security than would be the case were he to be conditionally discharged into the community.
However, Lady Hale considered that there were three key reasons why MM could not consent to conditions amounting to confinement:
(1) The first was one of high principle, as the power to deprive a person of his liberty is by definition an interference with his fundamental right to liberty of the person, it engaged the rule of statutory construction known as the principle of legality, as explained by Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, at 131:
… the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
Lady Hale took the view that Parliament had not been asked – as they would have to have be – as to whether the relevant provisions of the MHA:
Included a power to impose a different form of detention from that provided for in the MHA, without any equivalent of the prescribed criteria for detention in a hospital, let alone any of the prescribed procedural safeguards. While it could be suggested that the FtT process is its own safeguard, the same is not the case with the Secretary of State, who is in a position to impose whatever conditions he sees fit. (paragraph 31)
(2) The second was one of practicality. The MHA confers no coercive powers over conditionally discharged patients; as Lady Hale noted (although many may not realise): “[b]reach of the conditions is not a criminal offence. It is not even an automatic ground for recall to hospital, although it may well lead to this.” The patient could therefore:
withdraw his consent to the deprivation at any time and demand to be released. It is possible to bind oneself contractually not to revoke consent to a temporary deprivation of liberty: the best-known examples are the passenger on a ferry to a defined destination in Robinson v Balmain New Ferry Co Ltd  AC 295 and the miner going down the mine for a defined shift in Herd v Weardale Steel, Coal and Coke Co Ltd  AC 67. But that is not the situation here: there is no contract by which the patient is bound. (paragraph 32).
(3) That led on to what Lady Hale identified as the third and most compelling set of reasons, namely that she considered that to allow a person to consent to their confinement on conditional discharge would be contrary to the whole scheme of the MHA. This provided in detail for only two forms of detention: (1) in a place of safety; and (2) in hospital. Those were accompanied by specific powers of conveyance and detention, which were lacking in relation to conditionally discharged patients – “[i]f the MHA had contemplated that such a patient could be detained, it is inconceivable that equivalent provision would not have been made for that purpose” (paragraph 34). There was, further, no equivalent to the concept of being absent without leave to that applicable where a patient is on s.17 leave, it again being “inconceivable” that “if the MHA had contemplated that he might be detained as a condition of his discharge […] that it would not have applied the same regime to such a patient as it applies to a patient granted leave of absence under section 17” (paragraph 36). Finally, the ability of a conditionally discharged patient to apply to the tribunal is more limited than that of a patient in hospital (or on s.17 leave), this being “[a]t the very least, this is an indication that it was not thought that such patients required the same degree of protection as did those deprived of their liberty; and this again is an indication that it was not contemplated that they could be deprived of their liberty by the imposition of conditions.”
Lord Hughes, dissenting, took as his starting proposition that what was in question was not the removal of liberty from someone who is unrestrained. Rather:
The restricted patient under consideration is, by definition, deprived of his liberty by the combination of hospital order and restriction order. That deprivation of liberty is lawful, and Convention-compliant. If he is released from the hospital and relaxed conditions of detention are substituted by way of conditional discharge, he cannot properly be said to be being deprived of his liberty. On the contrary, the existing deprivation of liberty is being modified, and a lesser deprivation substituted. The authority for his detention remains the original combination of orders, from the consequences of which he is only conditionally discharged.
He then took on each of the set of reasons given by Lady Hale for the majority before concluding at paragraph 48 that:
[i]t seems to me that the FTT does indeed have the power, if it considers it right in all the circumstances, to impose conditions upon the discharge of a restricted patient which, if considered out of the context of an existing court order for detention, would meet the Cheshire West test, at least so long as the loss of liberty involved is not greater than that already authorised by the hospital and restriction orders. Whether it is right to do so in any particular case is a different matter. The power to do so does not seem to me to depend on the consent of the (capacitous) patient. His consent, if given, and the prospect of it being reliably maintained, will of course be very relevant practical considerations on the question whether such an order ought to be made, and will have sufficient prospect of being effective. Tribunals will at that stage have to scrutinise the reality of the consent, but the fact that it is given in the face of the less palatable alternative of remaining detained in hospital does not, as it seems to me, necessarily rob it of reality. Many decisions have to be made to consent to a less unpalatable option of two or several: a simple example is where consent is required to deferment of sentence, in a case where the offence would otherwise merit an immediate custodial sentence.
It is clear that this is not a judgment that the majority wished to reach, for the self-evident reason that it will both prevent restricted patients from being discharged from hospital and (worse) require the recall of any patients who are out of hospital on conditions amounting to a confinement, at least where they have capacity to consent to those conditions. Despite Lord Hughes’ heroic efforts to find a way through to a different answer, it is in reality difficult to see how the majority’s iron logic was not correct.
Of course, in at least some situations, the judgment will prompt very careful consideration of whether all of the actual or proposed conditions are in fact strictly necessary, which could only be a good thing. But the combination of this decision and the earlier decision in Cheshire West, making clear how low the bar for the test of confinement is set, does seem to lead to an odd outcome. The only way in which that outcome could be reversed, it is clear, is by way of legislation. In the circumstances, perhaps it is no bad thing that there is at present a review of the Mental Health Act underway, and hence a realistic possibility that there may, in due course, be legislation to respond to that review, in which consideration could be given of what should happen in this situation, and opposed to what (on the logic of the Supreme Court decision) must currently happen.
It is important to note that Lady Hale for the majority expressly declined to engage with the question of whether “the Court of Protection could authorise a future deprivation, once the FtT has granted a conditional discharge, and whether the FtT could defer its decision for this purpose.” This was, in part, because it had been raised too late in the day, but also because even if this did give rise to discrimination against those with capacity, it could make no difference to the outcome of the case, which depended solely on the construction of the relevant provisions of the MHA. Lady Hale did not entirely close down the possibility that the Court of Protection could supply the necessary authority, or that it could be provided by way of a DoLS. This may, therefore, remain one of the very few areas where it is a curious (even perverse) benefit to lack capacity in a material domain.
It will be fascinating to see how a slightly different composition of the Supreme Court tackle the question of CTOs, and whether they can authorise a deprivation of liberty, in the judgment to be handed down in due course in PJ.