In 2018, in MM, the Supreme Court upheld the ruling of the Court of Appeal that neither the Secretary of the State nor the Mental Health Tribunal had the power under the Mental Health Act 1983 as it then stood to impose conditions on the discharge of a restricted patient which would amount objectively to a deprivation of the patient’s liberty.
As we set out at the time in our comment on the case, there were three reasons for this
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 [2000] 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 been – 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)
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 [1910] AC 295 and the miner going down the mine for a defined shift in Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67. But that is not the situation here: there is no contract by which the patient is bound. (paragraph 32).
That led on to what Lady Hale identified as the third and most compelling reason, 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. The MHA 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.”
In 2018, also, the independent Review of the Mental Health Act 1983 recommended that:
Given the Supreme Court judgment, we suggest that the Government should legislate to give the Tribunal the power to discharge patients with conditions that restrict their freedom in the community, potentially with a new set of safeguards. If a solution is not found, the numbers of offenders held in hospital will continue to rise because they are unlikely to get out again. Not only is this clearly wrong for the individuals concerned, it also means they are taking up valuable bed space, and obstructing efforts to transfer people in from prison.
Fast forward to February 2018, and the first provisions of the Mental Health Act 2025 have come into effect to amend the MHA 1983 to provide for conditional discharge subject to conditions amounting to a deprivation of liberty. Guidance has been produced by both the First Tier Tribunal and HM Prisons and Probation Service[1] as to their operation. What both sets of guidance suggest, on their face, is that the intent to reverse MM may not have been achieved.
Whilst the MHA 1983, as amended, provides for the Secretary of State and the Tribunal to impose conditions on a conditional discharge giving rise to deprivation of liberty, both the Tribunal and HMPPS appear to take the view that such conditions are not enforceable. The former states:
Does a patient have to consent to being subject to conditions which deprive them of their liberty?
A patient may or may not have the capacity to consent, but the legislation does not refer to capacity in this regard. The relevant question to ask in each case is whether the patient either agrees with (or at least does not object to) the condition which deprives them of their liberty. If they do object to it, then it is unlikely they will comply with it and so it should not be imposed. It is essential to remember that the new legislation cannot force a deprivation of liberty condition onto an unwilling patient and the Tribunal making a CD (Dep) does not give any power to the placement to restrain a patient who, in breach of a condition, chooses to leave their accommodation unaccompanied.
The latter states that the new provisions are
2.2 […] not suited to patients whose risks to the public would be very difficult to manage in the community, recognising that the conditions of a conditional discharge are not enforceable and there is a requirement for the patient to accept supervision.
There is, with respect, something of a logical conundrum in relation to the positions being adopted, given that the definition of deprivation of liberty within the MHA 1983 as amended is, via its linking to the MCA 2005, directly linked to Article 5 ECHR (see s.145 MHA 1983). As the law stands at present, the domestic interpretation of Article 5 is that a deprivation of liberty is:
- A confinement to a restricted place for a non-negligible period of time, tested by asking whether they are free to leave that place, and subject to continuous supervision and control;
- To which the person either cannot or does not consent,
- Which is imputable to the state.
By definition, therefore, that means that the conditions under consideration must be ones which give rise to a non-consensual confinement, otherwise the person will not be subject to a deprivation of liberty at all. That, in turn, means that:
- Asking whether the patient is agreeing / not objecting is not an immediately obvious question;
- It appears that we may be in a Schrodinger’s Cat situation of the person being labelled both as being confined but at the same time not actually be subject to any framework which enforces that confinement.
I anticipate, unfortunately, therefore, that:
- It is likely that these provisions will be before the courts soon, although perhaps not until after the Supreme Court has handed down its decision in the Attorney General for Northern Ireland’s Reference where it is examining the domestic interpretation of Article 5 ECHR; and
- Trusts may well be continuing in the meantime to look to s.17(3) MHA 1983 (and / or, where relevant, the DoLS framework under the MCA 2005) as providing a clear route actually to deprive individuals of their liberty in the community.
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[1] Note, the HMPPS guidance refers to ‘supervised discharge.’ This is not a term which appears in the MHA 1983 as amended, and I would strongly suggest not using it; the Tribunal guidance says “[t]his term has fallen into common parlance when referring to the new provisions which will allow the Tribunal to conditionally discharge with conditions which deprive the patient of their liberty. Nowhere in the new Act’s provisions is the term ‘supervised discharge’ used. It is not a new legal concept. It is not a new form of discharge. It is not an alternative to a conditional discharge.”
