Secretary of State for Justice HM 1533 2010

JurisdictionUK Non-devolved
JudgeThree-Judge Panel / Tribunal of Commissioners
Judgment Date20 December 2011
Neutral Citation2010 UKUT 454 AAC
Subject MatterMental health
CourtUpper Tribunal (Administrative Appeals Chamber)
Docket NumberHM 1533 2010
AppellantSecretary of State for Justice

[2012] AACR 31

(Secretary of State for Justice v RB and Lancashire Care NHS Foundation Trust

[2011] EWCA Civ 1608)

Lord Justice Carnwath SPT HM/1533/2010

HH Judge Phillip Sycamore CP (F-tT (HESC))

Judge Rowland

20 December 2010

CA (Maurice Kay, Arden and Moses LJJ)

20 December 2011

Mental health – deferred conditional discharge with condition of residence in a care home – whether conditional discharge lawful if conditions amount to detention

Upper Tribunal – judicial precedent – whether Upper Tribunal bound by decisions of the High Court exercising its supervisory role

The First-tier Tribunal directed that a “restricted patient” be conditionally discharged with conditions that he live in a care home and not leave it without an escort. The Secretary of State for Justice appealed on the ground that the conditions amounted to detention and he relied on R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2002] EWCA Civ 1868; [2003] MHLR 202 and three High Court decisions that had followed it in support of the principle that the First-tier Tribunal could not discharge a person from one form of detention to another (the PH principle). The patient argued that that principle applied only if the detention was in a hospital and that, in any event, the conditions did not amount to detention. The Upper Tribunal held that it was not bound by the decisions relied on by the Secretary of State to hold that it was irrelevant whether a person was in a hospital, because the Court of Appeal did not decide that issue and High Court decisions in judicial review cases are not binding on the Upper Tribunal where the Upper Tribunal’s appellate role is the successor of the High Court’s supervisory role. The validity of the discharge did not depend just on whether the conditions amounted to detention, which they did, but also on whether the accommodation would be a hospital and, since the accommodation in this case was not a hospital, the discharge was lawful. The Secretary of State appealed to the Court of Appeal, contending that section 73 of the Mental Health Act 1983 (MHA) confers no power to make an order of this kind. When considering an application for discharge, the tribunal must consider whether the detention criteria are still satisfied and if they are not, the patient must be absolutely discharged.

Held, allowing the appeal, that:

  1. the Strasbourg court has made it clear that such an important matter as deprivation of liberty must be “prescribed by law” (Winterwerp v The Netherlands (1979) 2 EHRR 387) and, although the original order made against RB authorised only detention in a hospital (section 37 and section 41(3)(a)), section 73(2) concerning conditional discharge is wholly silent about deprivation of liberty (paragraphs 48, 53 to 57, 69, 70)
  2. it is clear that Parliament intended that the MHA should comply with rights under the European Convention on Human Rights but Parliament gave the Secretary of State power to consent to a transfer of a patient to other accommodation (MHA section 41(3)(c) read with section 19(3)), indicating that it envisaged such a situation arising and intended the matter to be dealt with by the Secretary of State (subject to the court’s supervisory jurisdiction) and not by the tribunal, and an interpretation of section 73(2) which permits (a) detention in an institution which is not a hospital, (b) detention other than for the purposes of treatment and (c) detention without appropriate medical treatment being available for the patient would be inconsistent with the criteria for admission and for a hospital order set out in sections 3 and 37 (paragraphs 49, 58 to 62, 69, 70)
  3. no justification has been shown for the different procedural guarantees given to restricted patients detained in hospitals and those that would be given to conditionally discharged patients detained in other institutions, as would be required by Article 14, taken with Article 5 (paragraphs 50, 63 to 65, 69, 70)
  4. therefore, a tribunal cannot rely on the patient’s best interest as a ground for ordering conditional discharge on terms that involve a deprivation of liberty, particularly if the detention would not be for the purpose of any treatment (paragraphs 66, 69, 70).



[2010] UKUT 454 (AAC)

Mr Robert Kellar of counsel, instructed by the Treasury Solicitor, appeared for the appellant.

Mr Simon Burrows of counsel, instructed by O’Donnells Solicitors of Preston, appeared for the first respondent.

The second respondent was not represented.

Decision: The appeal is dismissed and the decision of the First-tier Tribunal dated 24 April 2009 is upheld.

We direct that, save for the front sheet (which identifies the respondents by their full names), this decision may be made public.



The facts

  1. The first respondent (RB), who is now 75 years of age, is detained in a hospital managed by the second respondent (the Trust). He suffers from a mental illness in the form of a persistent delusional disorder, which has caused him to be a life-long paedophile attracted to boys aged between approximately nine and 13 years and strongly misogynistic. His detention arises under a hospital order and restriction order made on 30 June 1999, following his conviction for indecent assault of a boy under 16. It was made under sections 37 and 41 respectively of the Mental Health Act 1983 (the 1983 Act).
  2. For some time those caring for RB have supported a conditional discharge to enable him to move to a registered care home, provided that he does not have unrestricted access to the community, and RB has been willing to consent to conditions designed to satisfy this proviso. On this basis RB applied in 2007 to a mental health review tribunal for conditional discharge, indicating that he would agree to a condition that he be accompanied at all times by staff when taking any leave of absence from the care home. However on 10 July 2007 the tribunal refused the application. It concluded that a conditional discharge with such a condition attached would be unlawful because the condition would represent a deprivation of liberty.
  3. In the following year, RB made another application which came before the First-tier Tribunal at a hearing on 27 February 2009. The hearing was adjourned to give the Secretary of State an opportunity to comment on information about the care home and so that the manager of the care home could attend the next hearing.
  4. On 24 April 2009 the adjourned hearing took place before a differently constituted panel. RB was represented by Mr Burrows. The Trust was not legally represented. Its responsible clinician (Dr John McKenna) gave evidence supporting the proposal. His report dated 13 December 2008 stated that “the current supervision and treatment arrangements could be effectively replicated in the less physically secure and residential-scale setting of [the care home]”. He also said that the care home, which had experience in accommodating offenders, had close links with the police and probation service through multi-agency public protection arrangements and that the placement offered to RB was to be overseen through such arrangements. The Secretary of State was also not represented. He had submitted written statements opposing conditional discharge, not only because of concern whether the necessary conditions would be a deprivation of liberty, but also because RB “would represent a serious risk of offending if he were discharged into the community”.
  5. After hearing from, among others, the manager of the care home, the First-tier Tribunal decided on 24 April 2009 that RB should be discharged subject to conditions. However it deferred discharge until it could be satisfied that the necessary arrangements had been made. For that purpose it decided to reconvene no later than 10 July 2009. The conditions specified by the First-tier Tribunal were:

“[1] That he resides at [the care home]

[2] That he abides by the rules of that institution

[3] That he does not leave the grounds of [the...

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