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 power to deprive someone of their liberty is an interference with a patient’s fundamental rights. Therefore, it requires explicit wording in in the law; it cannot be implied.
  • The wording of the law in the MHA is general and does not include this power.

The practical problem of consent

  • A patient may consent to the conditions of a conditional discharge just to get out of hospital. They may change their mind at any moment and wish to be released from any deprivation of liberty.
  • Breaching a condition of a conditional discharge is not an offence and is not a ground for recall on its own.
  • Therefore, even if the patient initially agrees to the conditions, they could change their mind and they would not be bound by the initial consent.

Going against the way the MHA is set up

  • For all the different types of detention under the MHA, there are corresponding powers to convey the patient to hospital or a place of safety and detain them there. There is no equivalent power to convey a conditionally discharged patient to their community placement and detain them there, suggesting it was not intended by the MHA.
  • If a conditionally discharged patient is recalled to hospital, they are treated under the MHA as if they are absent without leave and should be returned to hospital. There is no provision under the MHA for a conditionally discharged patient to be returned anywhere other than hospital; and only if recalled to hospital by the Secretary of State.
  • If the MHA intended that conditionally discharged patients could be deprived of their liberty, it would have made provision for returning them to their community placement.

The limited right of appeal

  • A restricted patient in hospital can apply to the First-tier Tribunal to challenge their detention once in the second six months of their detention, and then once a year after that. A conditionally discharged restricted patient can only apply once within the second 12 months of their discharge and then once every two years.
  • It is clear that the MHA did not think conditionally discharged patients would need the same amount of protection as those who are detained/ deprived of their liberty. Therefore, it follows that a conditionally discharged patient cannot be deprived of their liberty by the conditional discharge.

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.