SSJ v MM; Welsh Ministers v PJ [2017]

In a recent case, in which appeals from 2 separate cases were heard, the Court of Appeal had another opportunity to consider the possibility of a detained patient being discharged from hospital, subject conditions that deprive them of their liberty.

It is important to note that these cases both dealt with patients who had capacity to make the relevant decisions.

Each case dealt with slightly different aspects of the Mental Health Act 1983 (MHA) and the powers of the First-tier Tribunal:

MM: consenting to a deprivation of liberty as a restricted patient


MM had been convicted of arson and detained under s37 MHA. He wanted to be conditionally discharged but the proposed care plan he would have to comply with was so restrictive that it would amount to a deprivation of liberty. He argued that the Tribunal could impose those restrictions on him if he consented to them.


A restricted patient is a patient who has been detained under the MHA following conviction for a criminal offence and has an order on them which means the Ministry of Justice has to agree to where they are placed.

A restricted patient can be conditionally discharged from hospital by the Ministry of Justice or a Tribunal. Either of these decision makers may allow the patient to leave hospital as long as they comply with certain conditions; for example, compliance with a specified care plan.

A person is deprived of their liberty when they are confined in a particular restricted place for a non-negligible period of time (see paragraph 23 of the judgement).

Decision of the Court of Appeal

The Court decided that the First-tier Tribunal does not have the power to conditionally discharge a restricted patient in a way that would lead to the patient being deprived of their liberty, even if the patient themselves consented. This was because:

  • The right to liberty is a fundamental right; the First-tier Tribunal cannot have the right to deprive someone of their liberty unless Parliament has expressly allowed it. As they have not, the First-tier Tribunal cannot be able to impose conditions that would deprive someone of their liberty.
  • When a restricted patient is detained in hospital, they have a right to apply for an independent review once in the first 6 months, once in the second 6 months, and then once a year after that. When a restricted patient is conditionally discharged, they have no opportunity for an independent review in the first year, and then they can only apply every 2 years. There is therefore "an inferior right of review" that would not be appropriate if a deprivation of liberty could be imposed as part of the conditional discharge.
  • Consent cannot make the deprivation of liberty lawful:
  • It is questionable whether the consent is truly free if it is made with the threat of otherwise being detained in hospital hanging over the patient's head.
  • Just because the patient consents now, they may not once they have been conditionally discharged; this creates a strong problem for enforceability of the conditions.

Therefore, a First-tier Tribunal cannot conditionally discharge a restricted patient where the conditions would amount to an objective deprivation of liberty.

PJ: reviewing CTO conditions that amount of a deprivation of liberty


PJ had been detained under s3 MHA. He was placed onto a CTO which had conditions which deprived him of his liberty. He appealed to the First-tier Tribunal and asked the Tribunal to amend his CTO conditions so it no longer amounted to a deprivation of liberty.


At CTO is a Community Treatment Order. This can be a way of discharging a patient who was detained under s3 into the community whilst still subjecting them to a level of control. Patients are placed onto CTOs by their Responsible Clinician ('RC') and it is the RC who makes the conditions.

Decision of the Court of Appeal

The Court decided that the First-tier Tribunal could not review the CTO conditions so that they did not amount a deprivation of liberty, because:

  • The First-tier Tribunal only has the power to discharge or not discharge a patient from their CTO; they cannot amend the CTO conditions.
  • Fundamental rights are still protected because, if a patient thinks a CTO is unlawful because it breaches their fundamental rights (e.g. it deprives them of their liberty), they have a way to challenge it through judicial review; i.e. the patient can go to the High Court and claim the RC has acted illegally.
  • Fundamental rights are also protected by the fact that a patient cannot be recalled to hospital just because they have breached their conditions; they have to require treatment for their mental disorder and pose a risk to themselves or others (under s17E MHA).

Therefore, if a CTO is causing a patient to be deprived of their liberty, they have the right to challenge it in the High Court; a First-tier Tribunal is not the appropriate forum to bring that challenge.

Conroys Solicitors LLP can provide advice to patients who have been detained under the Mental Health Act 1983.