Background

PJ is a 47-year-old man with a borderline learning disability and difficulties falling within the autistic spectrum, accompanied by abnormally aggressive and seriously irresponsible behaviour consisting of violent and sexual offending. He had a history of contact with mental health services and, in May 2009, was detained under s3 Mental Health Act 1983 (‘MHA’).

On 30 September 2011, PJ was discharged on a community treatment order (‘CTO’) to live at a care home. Along with the two mandatory conditions, there were three bespoke conditions, which were:

• 1.To reside at the care home and comply to the rules of residence;
• 2.To abide by the s117 care plan; and
• 3.To abide by risk management plans for community access regarding staff supervision.

Part of the care plan and rules that PJ had to comply with under these conditions included:

• i.15-minute observations at all times when in the care home;
• ii.A ‘time out’ policy;
• iii.Escorted by staff on all community outings;
• iv.Unescorted leave to be agreed by RC and social supervisor;
• v.An absconding protocol allowing for use of restraint as a last resort;
• vi.Alcohol limited to four units/ week – breathalysed to secure compliance;
• vii.Unescorted leave to be stopped if risk factors increased.

PJ was considered to have capacity to consent to the care plan and the conditions.

PJ agreed to most of the care plan and staying in the care home, but wanted a bit more freedom. He appealed to the First-tier Tribunal against his CTO and argued that it amounted to an unlawful deprivation of liberty and therefore the Tribunal should discharge him.

Proceedings

The First-tier Tribunal refused to discharge on the basis that they did not consider PJ was deprived of his liberty and, even if he was, the need of the CTO took precedence over the human rights issues.

The Upper Tribunal decided the First-tier Tribunal had approached the question of deprivation of liberty in the wrong way. The Upper Tribunal did not make a decision on whether PJ was deprived of his liberty and did not send his case back to the First-tier Tribunal as PJ had since been discharged from his CTO. The judgement implied that a it would not be lawful for CTO conditions to deprive someone of their liberty.

The Welsh Ministers appealed to the Court of Appeal. The Court of Appeal concluded the responsible clinician had the power to impose CTO conditions which deprived a patient of their liberty and that the First-tier Tribunal had no power to discharge someone from the CTO on the basis that the conditions caused an unlawful deprivation of liberty. (see our discussion of this judgement here).

PJ appealed to the Supreme Court, and his case was heard on 22 October 2018. The judgement was published on 17 December 2018.

Decision

Lady Hale delivered the judgement which was unanimously agreed by all five law lords sitting in the Supreme Court.

Lady Hale noted that:

• In the Code of Practice, the Secretary of State for Health has (at paragraph 29.31) given their opinion that “the conditions [of a CTO] must not deprive the patient of their liberty”.
• CTO conditions are imposed with no judicial input or oversight.
• There are a lot of provisions in the MHA for detained patients (leave, recapture when AWOL, imposing medical treatment) that do not apply to those on a CTO.
• There are no sanctions for not complying with CTO conditions.
• Patients whose CTOs are revoked must be automatically referred to the First-tier Tribunal.

The Welsh Ministers argued that, as there is no sanction for failing to comply with CTO conditions, except for recall (under limited conditions), they cannot amount to a deprivation of liberty. This was rejected as Lady Hale emphasised the importance of examining the situation in fact, not just in law. On this basis, PJ’s CTO conditions did, in fact, amount to a deprivation of liberty.

The Court refused to distinguish the case from Cheshire West(in order to introduce a new definition of deprivation of liberty) and could not ignore the rule it had created.

The question remains:

Can a responsible clinician impose CTO conditions which have the effect of depriving a patient of his liberty?

The most important point, on which this decision is based, is found at paragraph 24, in which Lady Hale states: “to deprive a person of his liberty is to interfere with a fundamental right – the right to liberty of the person. It is a fundamental principle of statutory construction that a power contained in general words is not to be construed so as to interfere with fundamental rights.”

Lady Hale goes on to say that “The very general words in section 17B(2) [MHA] cannot authorise the RC to impose conditions which deprive a patient of the fundamental right to liberty”.

The purpose of the CTO was to allow patients to be safely treated in the community instead of detention; they cannot be made to take their medication, and they are not subject to the same detailed rules as detained patients (e.g. provision for returning AWOL CTO patients).

Lady Hale therefore concludes, at paragraph 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”.

The powers of the First-tier Tribunal

The Tribunal has no powers to review CTO conditions; however, these may be relevant to assessing whether a patient meets the statutory criteria for detention. Lady Hale found that the Tribunal can “explain to all concerned what the true legal effect of a CTO is” but, in reality, if a patient is unlawfully detained, “the remedy is either habeas corpus or judicial review”. The likelihood is, with this change in the law, responsible clinicians will no longer attempt to implement restrictive care plans using CTOs.

Comment

This decision is likely to make the CTOs of a lot of mental health patients unlawful. Local authorities will now need to look into deprivation of liberty procedures (for patients lacking capacity) or less restrictive care plans (for patients with capacity).

Conroys Solicitors LLP can advise on detention and CTOS under the MHA. Please feel free to contact us on 01872 272 457 for a free initial legal advice consultation.