MM is a 35-year-old man with a diagnosis of mild learning disabilities, autistic spectrum disorder, and pathological fire setting. Following a conviction for arson, he was made subject to a hospital order with a restriction under ss37/41 Mental Health Act 1983 (‘MHA’).
It was considered MM could be managed in the community with a very restrictive care plan that would amount to a deprivation of liberty. MM applied to the First-tier Tribunal and asked them to discharge him onto a conditional discharge, the conditions being that he would comply with his care plan and be deprived of his liberty. MM was considered to have capacity to consent to the care plan.
The Tribunal refused, on the basis that it did not have the power to impose conditions on MM that amounted to a deprivation of liberty. MM appealed against this decision to the Upper Tribunal and was successful. However, this was overturned when the Secretary of State appealed to the Court of Appeal (see our discussion of this judgement here).
MM appealed to the Supreme Court. It was heard on its own on 26 July 2018, and the judgement was released on 28 November 2018.
The Supreme Court has made a decision, with a majority of 4 to 1, dismissing MM’s appeal, therefore confirming that the First-tier Tribunal does not have the power to grant a conditional discharge for a restricted patient that imposes conditions which create a deprivation of liberty.
Lady Hale’s decision included the following reasoning:
Interference with fundamental rights
The practical problem of consent
Going against the way the MHA is set up
The limited right of appeal
For the reasons outlined by Lady Hale, the Supreme Court concluded that neither the First-tier Tribunal, nor the Secretary of State can impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient.
We await to receive the Supreme Court’s decision on the linked case of PJ which was heard on 22 October 2018.