In Welsh Ministers v PJ  UKSC 66, the Supreme Court has reversed the curious and controversial decision in PJ, in which the Court of Appeal had held that the MHA contained within it by necessary implication the power for the patient’s responsible clinician to set conditions on a community treatment order (‘CTO’) that amounted to a deprivation of liberty, so long as it was a lesser restriction on their freedom of movement than detention for treatment in hospital.
Until shortly before the hearing, the Welsh Ministers’ principal argument was that the Court of Appeal had been correct. Lady Hale, giving the unanimous judgment of the court, noted that:
[i]t would, to say the least, have been helpful to this court to have the views of the Secretary of State for Health, no doubt after consultation with the Secretary of State for Justice, on an issue which affects England as much as it affects Wales. It may, however, be possible to deduce the views of the Secretary of State from the Mental Health Act Code of Practice, which he is required to draw up and lay before Parliament under section 118 of the MHA. The current edition (revised 2015) states quite clearly that “The conditions must not deprive the patient of their liberty” (para 29.31)
Shortly before the hearing however, and to the visible surprise of the Supreme Court, the Welsh Ministers advanced an entirely an alternative and diametrically opposed argument. This was, in short, that because the conditions in a CTO cannot be enforced, they could not in law amount to a deprivation of liberty and it was therefore permissible to impose them.
Lady Hale had little truck with this argument:
18. The Welsh Ministers are entirely correct in what they say about the legal effect of a CTO. But it does not follow that the patient has not in fact been deprived of his liberty as a result of the conditions to which he is subject. The European Court of Human Rights has said time and time again that the protection of the rights contained in the European Convention must be practical and effective. When it comes to deprivation of liberty, they and we must look at the concrete situation of the person concerned: has he in fact been deprived of his liberty? Otherwise, all kinds of unlawful detention might go unremedied, on the basis that there was no power to do it. That is the antithesis of what the protection of personal liberty by the ancient writ of habeas corpus, and now also by article 5 of the Convention, is all about.
As the case had always proceeded on the basis that PJ’s factual circumstances amounted to a deprivation of liberty, Lady Hale held that this was enough for the Supreme Court’s purposes to proceed on the basis that there was a deprivation of liberty on the ground. The question was therefore whether the RC had power, under the MHA, to impose conditions which have that effect.
The Welsh Ministers had a further argument as to why PJ’s circumstances should not be seen in law as a deprivation of liberty, namely that the ‘acid test’ from Cheshire West “should be modified for cases of this sort where the object is to enhance rather than further curtail the patient’s freedom.” They relied, in particular, upon the observations of the European Court in Austin v United Kingdom to the effect that “[i]n order to determine whether someone has been ‘deprived of his liberty’ within the meaning of article 5(1), the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance.”
However, Lady Hale somewhat tartly dismissed this contention:
21. This is indeed the test which has been propounded by Strasbourg for many years, beginning with Guzzardi v Italy (1980) 3 EHRR 333. The jurisprudence was examined in detail in Cheshire West, where all members of the court agreed that the “acid test” of a deprivation of liberty was whether the person was under continuous supervision and control and not free to leave. The concrete circumstances of PJ in this case are much the same as those of P in the Cheshire West case, although PJ is not as seriously disabled as was P. And in both cases, the object of the care plan was to allow them as much freedom as possible, consistent with the need to protect their own health or safety or, at least in PJ’s case, that of others. But, as Lord Walker pointed out in the House of Lords in Austin v Comr of Police of the Metropolis  AC 564, at para 43, “It is noteworthy that the listed factors, wide as they are, do not include purpose”. There is no reason to distinguish this case from Cheshire West and we are not – and could not be as a panel of five – asked to depart from it.
Lady Hale therefore turned to the real issue, namely whether the power to impose conditions amounting to a deprivation of liberty could be read into the MHA by necessary implication. She considered that the approach of the Court of Appeal had been to put before the cart before the horse, taking the:
assumed purpose of a CTO – the gradual reintegration of the patient into the community – and works back from that to imply powers into the MHA which are simply not there. We have to start from the simple proposition that to deprive a person of his liberty is to interfere with a fundamental right – the right to liberty of the person.
Applying very similar analysis that that undertaken in the MM case with which PJ had been linked at the Court of Appeal stage, and observing the pre-history of CTOs, Lady Hale found that:
29. […] the MHA does not give the RC power to impose conditions which have the concrete effect of depriving a community patient of his liberty within the meaning of article 5 of the European Convention. I reach that conclusion without hesitation and in the light of the general common law principles of statutory construction, without the need to turn further to the jurisprudence of the European Court of Human Rights or to resort to the obligation in section 3(1) of the Human Rights Act 1998 to read and give effect to legislation in a way which is compatible with the Convention rights. However, it is doubtful, to say the least, whether the European Court of Human Rights would regard the ill-defined and ill-regulated power implied into the MHA by the Court of Appeal as meeting the Convention standard of legality.
In relation to the subsidiary question of the powers of the Mental Health Tribunal (or in PJ’s case, the Mental Health Tribunal for Wales) if it finds on the facts that the community patient is being deprived of their liberty, Lady Hale held that:
33. […] The MHRT has no jurisdiction over the conditions of treatment and detention in hospital, but these can be relevant to whether the statutory criteria for detention are made out, especially in borderline cases. The RC’s report to the tribunal must cover, inter alia, full details of the patient’s mental state, behaviour and treatment; and there will also be a nursing report and a social circumstances report (Tribunals Judiciary, Practice Direction, First-tier Tribunal Health Education and Social Care Chamber, Statements and Reports in Mental Health Cases, 2013). His treatment and care may well feature in the debate about whether he should be discharged. The tribunal may recommend that the RC consider a CTO and “further consider the case” if the recommendation is not complied with (section 72(3A)(a)). Similarly, the tribunal has no power to vary the care plan or the conditions imposed in a CTO, but the tribunal requires an up to date clinical report and social circumstances report, including details of any section 117 aftercare plan. The patient’s actual situation on the ground may well be relevant to whether the criteria for the CTO are made out. Furthermore, if the tribunal identifies a state of affairs amounting to an unlawful deprivation of liberty, it must be within its powers to explain to all concerned what the true legal effect of a CTO is. But the patient can only apply to the tribunal once during each period for which the CTO lasts (six months, six months, then once a year). If the reality is that he is being unlawfully detained, then the remedy is either habeas corpus or judicial review.
34. Furthermore, once it is made clear that the RC has no power to impose conditions which amount to a deprivation of liberty, any conscientious RC can be expected not to do so. This is reinforced by section 132A(1) of the MHA, under which it is the duty of the hospital managers to “take such steps as are practicable to ensure that a community patient understands … the effect of the provisions of this Act applying to community patients”. Those steps must include giving the information both orally and in writing. The Mental Health Act Code of Practice makes it quite clear that community patients must be informed – in a manner which they can understand – of the provisions of the Act under which they are subject to a CTO and the effect of those provisions and of the effect of the CTO, including the conditions which they are required to keep and the circumstances in which their RC may recall them to hospital (para 4.13). This information should be copied to the patient’s nearest relative, unless the patient requests otherwise (para 4.31). Patients should be told of this and there should be discussion with the patient as to what information they are happy to share and what they would like to be kept private (para 4.32).
This decision is hardly surprising, especially in light of the MM decision from an almost identical panel. The last-minute change of tack by the Welsh Ministers was brave, but doomed – PJ’s circumstances (as described in paragraph 8) were factually not far off those in a medium secure unit, and to describe them as anything other than a deprivation of liberty would have been deeply problematic.
Unlike MM, this decision does not cause head-scratching in terms of its practical consequences, but rather represents the re-aligning of the law as interpreted by the courts with that set down in the ‘soft law’ of the Code of Practice (at least for England) and what has always been good practice for RCs. Following this decision and that of MM, and in light of Cheshire West, it is now absolutely clear that the spade of confinement must be called a spade, and powers to impose it must be express. This therefore places added pressure on the government to think through with care precisely what level of coercion it thinks should occur in the community when it comes to respond to the recommendations of the MHA Review.