Liberty Protection Safeguards Scheme

Supreme Court MM v Secretary of State for Justice [2018] UKSC 60, Bison acted for the Appellant.

In November 2018, the Supreme Court handed down its long-anticipated judgment in the case of Secretary of State for Justice (Respondent) v MM (Appellant) [2018] UKSC 60. The decision of the Supreme Court was that neither the First-tier Tribunal (‘FTT’ or the MHRT for Wales) nor the Secretary of State for Justice (‘SSJ’) are permitted to impose conditions of discharge which would amount to a deprivation of liberty (‘DOL’).

In effect, the decision meant that restricted patients who lacked capacity could still be discharged conditionally into a care plan that was so restrictive that it amounted to a DOL, so long as the DOL was properly authorised by the Court of Protection, but that those restricted patients with capacity could not be conditionally discharged into the same care plan. For restricted patients with capacity to decide on their care and support arrangements, the effect of the Supreme Court’s decision is that they cannot in practice be conditionally discharged if they require a care plan in the community that amounts to a DOL.

Following the Supreme Court’s decision, the findings of the Independent Review of the Mental Health Act were published. One of their recommendations was for the government to legislate to “give the Tribunal the power to discharge patients with conditions that restrict their freedom in the community”.  This was one of many recommendations not accepted by the Government.

In January 2019, the SSJ responded to the Supreme Court’s decision by issuing guidance on discharge conditions that amount to a deprivation of liberty.[1] Their guidance repeated that conditions that amount to a DOL will be unlawful, other than in cases in which the patient lacks the relevant capacity and the DOL is authorised. In cases of patients with capacity, they recommend that the Responsible Clinician requests authorisation for an extended period of section 17 leave so that the patient can leave hospital and reside in appropriate accommodation with the appropriate package of care. They would, all the while, remain liable to be detained under section 37/41.

Anecdotally, we have found that this approach has led to a number of issues, including (but not limited to):

  • the patient would remain “in limbo”, liable to be detained, but authorised to be away from the hospital for up to a year at a time. This is likely to have a psychological impact on the patient, but also an impact on care providers who require care arrangements to be predictable in the longer-term;
  • the patient remains an inpatient and so would theoretically not have access to housing benefit, which has a knock-on effect on the availability of accommodation; and
  • such an approach would require the local clinical commissioning group (‘CCG’) to fund both a hospital bed and a community placement, at great cost.

These problems will mean that a significant proportion of the inpatient population is at real danger of becoming stuck in the system. In cases where the treating team has identified that no further treatment is required in hospital, but in the long term the patient will require a DOL, for the patient’s or the public’s safety, the patient can no longer be lawfully conditionally discharged by the FTT/MHRT/SSJ, nor sent on extended leave.

Theoretically, it will be possible for the Secretary of State for Justice or the FTT/MHRT to grant a conditional discharge that does not impose a conditional discharge. However, a Tribunal panel is unlikely to agree to exclude a condition that imposes a deprivation of liberty if they believe that a DOL is necessary in order to protect the patient or the public.

Meanwhile, the High Court has dented the impact of the SSJ’s guidance on those lacking capacity. The SSJ set out their view that cases in which patients lacking capacity require a DOL would fall into one of two groups: those who require the DOL in their best interests (e.g. due to an inability to look after themselves), and those who require a DOL in order to protect the public. For the former, they suggest that seeking an authorisation under the MCA alongside a conditional discharge would be appropriate. For the latter, they suggest that the responsible clinician seeks authorisation for extended leave as with patients with capacity. In Birmingham City Council v SR; Lancashire County Council v JTA [2019] EWCOP 28, Mrs Justice Lieven DBE criticised the distinction made by the Secretary of State for Justice between the two groups above. The Court was “not convinced” that the distinction “stands up to close scrutiny”, given the significant overlap between the patient’s interests and the protection of the public. It is in the patient’s interests, the Court accepted, not to commit further offences or to place himself at risk of recall under the MHA  [paras 41-42].

We envisage, therefore, that there will be a rise in the number of cases of restricted patients challenging findings that they possess the relevant capacity, and the number of cases in which restricted patients with capacity apply to the Tribunal for an absolute discharge from the MHA so that they can lawfully offer their consent to such packages of care without the conditions of discharge or liability to be recalled to hospital. Ordinarily, the chances of a restricted patient obtaining an absolute discharge from the FTT/MHRT are slim. If the patient requires a DOL on discharge, it is likely that they have a psychiatric diagnosis and considerable needs and risks. To succeed in an application for absolute discharge, the FTT/MHRT must be satisfied not only that the patient no longer requires inpatient care, but also that it is not appropriate that they remain liable to be recalled.

Case summary by Charlie Barrass- Evans, A Law Society Accredited Mental Health Panel Member. Mr. Barrass-Evans was involved in the SC appeal and instrumental to our case appeal preparation at The Supreme Court.


For further information, get in touch with Bison mental health solicitors, call 01252 268 068 or complete our contact form.

Child Custody - Your Rights & Responsibilities

Child Custody in the UK – What Are Your Rights and Responsibilities?

It’s first important to understand that whilst the term “custody” is the most commonly-used and well-known terminology around the contact with and care of a child, courts no longer refer to it in this way. “Custody” has had many names, including residency and contact orders, but courts now refer to all contact with a child as a “Child Arrangements Order”. The term “custody” is now rarely used within legal proceedings.

The equivalent of having custody of a child now would be to have a “live with order”; the other parent would have a “spend time with order”. These orders both come under the term “Child Arrangements Order”. However, for the purpose of this blog we will continue to use the term “custody”.

As you can see on our Child Law page, courts follow the Welfare Checklist when it comes to determining child custody. Family law and those who interpret it are rightly mainly concerned with the well-being, rights, wishes and feelings of the child above all else. The central point of any Child Arrangements application is “the welfare of the child is paramount”.

However, it’s important to fully understand what rights you have as a parent, what the law is regarding custody, and what you can do to help influence decisions that a court might make.

Knowing not just your rights but your responsibilities can also be a major factor in preventing disputes with your ex, and in keeping the whole process as amicable as possible.

What the law says

The 1989 Children Act defines parental responsibility as follows:

“All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

The mother automatically has parental responsibility and won’t lose it even if divorced. If the father was married to the mother when the child was born then he has parental responsibility as well. Following the change in the law, for children born after 1 December 2003, a father will also have parental responsibility if he is named on the birth certificate, even if he wasn’t married to the mother. And the father has it if he, or he and the mother, registered a parental responsibility agreement with the court or there was a court order.

If both parents are deemed to have responsibility then neither the mother nor the father have the automatic right for their child to live with them. In the past, the courts more often favoured the mothers, but with men often now more involved with childcare and more women working, courts often see joint custody as the way forward.

Even so, many fathers, rightly or wrongly, believe that they mothers will automatically be looked on more favourably after as separation or divorce. There’s also currently a campaign to change the law to bring in a legal assumption that the mother and father will share parenting of their child or children.

In the meantime, whether you’re a mother or father, it’s important that you get child custody advice at an early stage rather than waiting until the situation becomes complicated or acrimonious.

Our child law solicitors appreciate that every case is different. We will always listen carefully to what your situation is, along with your needs and wishes, in order to provide you with guidance on the best way forward.

Parental responsibility – agreements and orders

There are many other legal issues around the issue of parental responsibility. For example, just because you don’t have it doesn’t mean you’re absolved of all responsibilities towards your child – you may well have a duty of care in the form of child maintenance. You have rights too – for example, to apply for certain court orders.

Unmarried fathers can also, with the consent of the mother, obtain a Parental Responsibility Agreement that gives you parental responsibility.

If the mother refuses to allow the unmarried father to be registered or registered on their child’s birth certificate, or refuses to sign a Parental Responsibility Agreement, then he can apply for a Parental Responsibility Order.

Child custody legal advice – book a free consultation

As you can see, the law is complex and there are many variables that need to be taken into account. We’re here to help you clarify your options, and to decide the best path to take. That’s why we offer a free initial consultation of 30 minutes with one of our child custody lawyers. (Follow the link to view our Family Law team)

Our main office is in Aldershot, Hampshire, but we also have offices in Manchester, Cambridgeshire, the Isle of Wight and Somerset – whichever is most convenient for you.

To book your consultation, please email or call 01252 268 168.