The latest decision on conditional discharge and deprivation of liberty

The background

In November 2018, the Supreme Court handed down judgment in the case of MM. They held that the Mental Health Act 1983 (MHA) does not permit either the Mental Health Tribunal or the Secretary of State to order a conditional discharge of a restricted patient with conditions which amount to detention or a deprivation of liberty. For patients who lack capacity, such conditions can be authorised under the Deprivation of Liberty Safeguards. However, this left a gap for those with capacity.

In January 2019, the Secretary of State issued guidance setting out their response. To ensure such patients did not unnecessarily remain in hospital beds, they concluded:

• Patients with capacity, who require conditions amounting to a deprivation of their liberty, should not be conditionally discharged but instead placed on long-term escorted leave of absence under section 17(3) MHA.
• This would ensure they are managed safely, detained in an appropriate setting, detained in accordance with a procedure prescribed by law and are subject to the safeguards of a detained patient.

Following this guidance, such patients who were already subject to a conditional discharge were technically recalled and placed on section 17(3) MHA: they were not physically recalled to hospital. This included patients who had been subject to a conditional discharge for many years.

The consequences of the High Court’s decision

On 9 November 2021, the High Court handed down its judgment in the case of EG. EG had capacity and had been subject to a conditional discharge since 2014 with conditions that amounted to a deprivation of liberty. Following the case of MM, he was technically recalled and placed under section 17(3) MHA. He was then automatically referred to the Mental Health Tribunal. EG did not challenge his status but the Tribunal concluded that it had no choice but to discharge EG because he did not meet the criteria:

“The key issue for the Tribunal was whether the nature and degree of EG's mental disorder made it "appropriate for him to be liable to be detained in a hospital for medical treatment", under s.72(1)(b)(i). If that condition was not met then the Tribunal was obliged to discharge him, either absolutely or conditionally, subject to the application of s.73 MHA”.

They suspended their decision to allow for an appeal.

Mrs Justice Lieven heard the case sitting both as:

• The Upper Tribunal (Administrative Chamber) to hear the appeal from the First Tier Tribunal (Mental Health); and
• The Family Division of the High Court to hear an application under Part 8 for the Court to use its inherent jurisdiction to deprive EG of his liberty if the appeal from the FTT was refused and EG therefore could not be detained under the MHA.

The issues in the case were:

• Whether section 72 MHA can be construed to allow the detention of a restricted patient in a community setting pursuant to section 17(3) MHA where that person has not resided in, or been treated by, a hospital for a considerable period of time.
• If the answer to (a) is no – then whether the patient, assuming he has capacity and therefore does not fall within the jurisdiction of the Court of Protection, can be subject to a conditional discharge and deprived of his liberty pursuant to the inherent jurisdiction of the High Court.

The conclusion reached can be summarised as follows:

• You can continue to utilise section 17(3) for these patients. Mental Health Tribunals do not need to discharge them under section 72(1)(b)(i). This is because the wording “liable to be detained” can be interpreted as “liable in law to be detained for treatment, even where that treatment is being provided in the community, so long as it could lawfully be provided in hospital”.
• You cannot use the Inherent Jurisdiction to authorise a deprivation of liberty for someone with capacity who is subject to a conditional discharge that deprives them of their liberty.

Comment

The case of MM has affected a relatively small cohort of patients who have capacity, but have been subject to a conditional discharge with conditions that deprived them of their liberty in the community (some for many years). They have suddenly been subject to a technical recall and placed under section 17(3) MHA.

Whilst some patients have simply accepted this, others see this as a step backwards:

• Section 17(3) MHA is often used to test out restricted patients before a conditional discharge is granted.
• They are liable to be detained in hospital again. 
• It may involve a greater level of supervision and often a change to an inpatient Responsible Clinician.

We need Parliament to address this more satisfactorily as part of the MHA reforms, in particular to:

• Debate how far the coercive powers of the MHA should actually extend into the community (i.e. depriving people of their liberty in the community under the MHA where they have capacity); and
• What safeguards are required as a result of this.

We have experience of cases similar to EG should you wish to discuss the practical consequences of this decision, please do get in touch.