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.


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