Lawfulness of discharge conditions for mental health patients to go to the Supreme Court

The Supreme Court has granted permission to appeal in the case of The Secretary of State for Justice v MM [2017] EWCA Civ 194 This is the latest case in a series of decisions about whether detained mental health patients can be subject to conditions on discharge where the cumulative effect of the conditions amounts to a deprivation of liberty.

In March 2017 the Court of  Appeal ruled that imposing conditions which deprived a patient of his or her liberty as part of a community discharge was a breach of the patient’s human rights even though the patient had consented to the conditions and the discharge would have reduced the degree of restrictions on the patient.  That decision followed the earlier case of RB v Secretary of State for Justice [2012] 1 WLR 2043 where such conditions were held to be a breach of the patient’s human rights.

The RB and MM decisions have been hugely contentious amongst those advocating for the rights of mental health patients.  RB was not followed by Mr Justice Charles in Secretary of State for Justice v KC & Anor [2015] UKUT 0376 (AAC), who held that the First Tier Tribunal had jurisdiction to impose conditions on a conditional discharge that involve a deprivation of liberty and that a capacitated patient could give valid consent to such conditions.   The KC decision was not disapproved by the Court of Appeal in MM.

The Supreme Court will, in effect, be asked to resolve this difference of judicial views.

David Lock QC and David Blundell are instructed by Bison Solicitors on behalf of MM (but they did not act for MM in the Court of Appeal).  David Lock QC acted for KC in MM.