The Secretary of State for Justice v MM
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lady Justice Gloster,Sir Ernest Ryder |
| Judgment Date | 29 March 2017 |
| Neutral Citation | [2017] EWCA Civ 194 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2015/4104 PJ and C3/2016/0561 MM,C3/2015/4104 PJ and C3/2016/0561 MM |
| Date | 29 March 2017 |
[2017] EWCA Civ 194
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
CHARLES J
HM/2133/2015 & HM/1518/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lady Justice Gloster
Vice-president of the Court of Appeal (Civil Division)
and
THE SENIOR PRESIDENT OF TRIBUNALS
Case No: C3/2015/4104 PJ and C3/2016/0561 MM
Mr James Eadie QC and Mr David Lowe (instructed by Government Legal Department) for the Appellant Secretary of State for Justice
Mr Michael Paget and Ms Zoe Whittington (instructed by Bison Solicitors) for the Respondent MM
Mr Richard Gordon QC and Ms Amy Street (instructed by Blake Morgan LLP) for the Appellant Welsh Ministers
Mr Peter Mant (instructed by GHP Legal) for the Respondent PJ
Hearing dates: 8 and 9 June 2016
Approved Judgment
Sir James Munby, President, Lady Justice Gloster, Vice-President, and Sir Ernest Ryder, Senior President:
Introduction:
This is the judgment of the court. We heard the appeals of MM and PJ together because they raise the issue of deprivation of liberty in two contexts a) where a mental health patient who is detained by a criminal court seeks to be conditionally discharged into circumstances that deprive him of his liberty (MM) and b) where a mental health patient who is detained in a non-criminal context seeks to be moved from hospital under a community treatment order which has the effect of depriving him of his liberty (PJ). Both appeals are allowed.
The appeals raise questions about the nature and extent of the powers of the First-tier Tribunal [FtT] in England and the Mental Health Review Tribunal for Wales [MHRTW] which hear appeals from mental health patients. For the avoidance of doubt, there is no distinction between the FtT and the MHRTW that is relevant to an issue in these proceedings. All of the relevant sections of the Mental Health Act 1983 [MHA] are set out in a schedule to this judgment.
Part One – MM:
MM is a patient who has a diagnosis of mild learning disability and autistic spectrum disorder, whose behaviours are described as including pathological fire starting. He was convicted of arson on 27 April 2001 and a criminal court imposed a hospital order upon him under section 37 MHA and a restriction order under section 41 MHA. In 2006 he was conditionally discharged under section 73 MHA but his behaviour deteriorated and, in April 2007, he was recalled to hospital.
MM has capacity in respect of the question whether his liberty should be deprived and has expressed his wish to agree to a lesser form of restriction than detention in hospital.
MM applied to the FtT for a conditional discharge which was refused on 18 May 2015. MM's responsible clinician and treating team opposed discharge but were of the opinion that his transfer to another low security unit would be appropriate. Two external experts considered that MM could be safely managed in the community under a conditional discharge provided that a care plan with a suitable care package was in place. It was common ground that any care plan would involve an objective deprivation of his liberty having regard to the principles explained by the Supreme Court in Cheshire West and Cheshire Council v P [2014] AC 896.
It is MM's case that any deprivation of liberty would be lawful if he consented to it and that although any care plan would include terms that would necessarily deprive him of his liberty, that should not prevent a FtT imposing a general condition that MM must comply with his care plan that is, a condition that does not of itself deprive MM of his liberty even though the terms of the care plan would. That would of course be no more than a stylistic circumvention of any jurisdictional limitation on a FtT, something that the FtT in its judgment overtly recognised and declined to permit. They reminded themselves that the jurisdiction of the FtT to impose conditions that deprived a patient of his liberty had been considered and rejected by this court in RB v Secretary of State for Justice [2012] 1 WLR 2043.
The Upper Tribunal [UT] allowed MM's appeal from the FtT and remitted the matter to the FtT for a new determination. In so doing, the President of the Administrative Appeals Chamber of the UT, Charles J, followed his earlier decision in Secretary of State for Justice v KC & Anor [2015] UKUT 0376 (AAC) and held that an FtT has 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 Secretary of State appeals to this court and submits that it is not lawful for a FtT to direct the conditional discharge of a patient detained under part III of the MHA where:
a. the conditions imposed would necessarily involve a deprivation of liberty;
b. the patient has capacity; and
c. the patient purports to consent to the conditions.
On the facts it is arguable whether MM could give valid and effective consent, that is, his consent would have to be unequivocal, voluntary and untainted by constraint. He has Hobson's choice in the circumstance in which he finds himself and he has changed his mind more than once. The FtT made a finding of fact that his consent was neither true and unfettered nor was it 'genuine, properly considered and reliable'. Given the way the appeal is framed by the Secretary of State, it has not been necessary for us to re-determine whether MM's purported consent was valid and effective; it is sufficient to consider the hypothetical possibility of valid consent and its effect.
The question in this appeal turns on the construction of the relevant statutory provisions. The following issues were canvassed in submissions:
a. The powers of the tribunal;
b. The effect of consent.
Section 37 MHA empowers the Crown Court and the Magistrates Court on conviction of an offence punishable with imprisonment to authorise that a person be admitted and detained in a hospital (a 'hospital order'). Section 41 MHA empowers the court, where it has made a hospital order and where it considers it necessary for the protection of the public, to make a 'restriction order'.
The Secretary of State has powers conferred upon her by the statutory scheme. She may direct that the restriction order shall cease to have effect if she is satisfied that it is no longer required for the protection of the public from serious harm (section 42(1)), she may discharge the patient from hospital either absolutely or subject to conditions (section 42(2)) and while a restriction order remains in force she may recall a patient to hospital who has been conditionally discharged (section 42(3)). If the Secretary of State directs the absolute discharge of a patient, the patient ceases to be liable to be detained and the restriction order ceases to have effect so that there can be no recall (section 42(2)).
The FtT has a power set out in section 72 MHA to discharge a patient who is liable to be detained in hospital and who is not a restricted patient where one or more of the qualifying conditions for detention are no longer satisfied, that is, where it is no longer satisfied that (i) he is suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or (ii) it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment; or (iii) appropriate medical treatment is available for him.
The power in the FtT to discharge restricted patients is set out in section 73 MHA. It is exercisable where one or more of the qualifying conditions in section 72 are no longer satisfied and the tribunal is also satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. In addition the tribunal has the power to direct a conditional discharge where one or more of the qualifying conditions are no longer satisfied but the tribunal is not satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital (section 73(2)). The tribunal may defer a conditional discharge to abide the event of necessary arrangements being made to the tribunal's satisfaction (section 73(7)).
Section 37 MHA provides the authority to detain a patient in hospital and 'hospital' is a defined term. Section 41 MHA provides for a restricted regime for the discharge of patients subject to section 37 orders. Save where a patient is absolutely discharged from detention in hospital, only the Secretary of State can lift the restrictions imposed by section 41.
The authority to detain in hospital remains when a conditional discharge is ordered. The liability to detention is reflected in the Secretary of State's power of recall and the section 75 power of 'ancillary' detention and the section 136 holding provision. In our judgment, none of that is sufficient to give rise to a necessary implication of an umbrella power that authorises any deprivation of liberty outside detention in hospital. On the contrary, there is a critical distinction to be drawn between detention in hospital, liability to detention in hospital where a patient is subject to conditional discharge and any other objective deprivation of liberty. There is nothing in the terms of sections 37, 41 and 42 MHA which provides a power in either the Secretary of State or a tribunal to detain or otherwise deprive a patient of his liberty outside a hospital.
The construction of the statutory provisions which provide the powers of the FtT was considered in RB. In...
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