Monthly Archives: August 2018

Community Treatment Orders and Conditional Discharge in the Court of Appeal

Commentary written by professor Peter Bartlett

Sec State (Justice) v MM; Welsh Ministers v PJ, [2017] EWCA Civ 194

 This was the conjoined appeal of two cases, concerning ostensibly similar programmes regarding release from hospital of people with mental health problems who require continued care in the community.

 MM concerned conditional discharge under section 73.[1]  This mechanism affects people detained through the criminal provisions of the MHA (‘Part III patients’) who are subject to a ‘restriction order’ (s 41) – that is, they can only be released by the Secretary of State or, as in this case, a review tribunal.  A conditional discharge may be made when the tribunal considers that the criteria for ongoing psychiatric detention are no longer met, but where it considers that appropriate that should remain liable to be recalled for further treatment.  As the name suggests, the order allows conditions to be placed on discharge – typically determining where the individual will live, that he or she will comply with prescribed treatment, what medical supervision he or she will receive, that he or she will refrain from use of alcohol or drugs, and sometimes that he or she will not meet with former associates, or not go into particular geographic areas (eg., not near the home of a former victim, or not to go near schools, if the index offences involved children).

 The other appeal, PJ, concerned community treatment orders (CTOs) (s 17A-E).  These apply to detained people who can be released directly by their responsible clinicians, that is, people who are civilly detained or detained under Part III patients but not subject to restriction orders.  A CTO can be imposed by the clinical team when person requires ongoing psychiatric treatment, but such treatment does not require him or her to continue to be detained in hospital.  The CTO specifies conditions with which the individual must comply, with a view to ensuring that he or she receives the relevant medical treatment, or for the protection of the patient or broader society.  In practice, the conditions can look very similar to those under a conditional discharge.

 Neither of these outcomes removes the individual’s right to consent to treatment, but in both cases that becomes a largely illusory right:  the individual can be brought back to hospital in the event of non-compliance with the relevant conditions, and forcibly treated there (s 17E, 74(4) for CTOs; 42(3)-(4) for conditional discharge).  Indeed, the individual may be recalled to hospital, and the discharge/CTO revoked if circumstances warrant, even if he or she has been entirely compliant with the conditions (s17B(7), 42(3)).  A brief recall under the CTO to impose treatment is not subject to review, but full  revocation of the CTO/discharge can be challenged before a review tribunal (s 17G(5), 75(1)(a)).

 The appeals concern the availability of these programmes if the conditions constitute a ‘deprivation of liberty’ under Article 5 of the ECHR.  The issue arises out of HL v UK (2005) 40 EHRR 32, a case concerning an individual admitted to a psychiatric ward with fairly intensive supervision.  If he had made any attempt to leave, he would have been detained under the MHA; but he had a sufficiently profound disability that he was unable to make a decision whether or not to remain in hospital, and so that compulsion was never required. That said, his carers from his community placement were precluded from visiting out of a concern by hospital that if he saw them, he would want to go home with them. 

 The Strasbourg court held in HL that this was a deprivation of liberty triggering Article 5, requiring appropriate safeguards to be put in place, holding in part that ‘the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention’ [HL, para 90].  That creates the issue in the present appeals:  since neither set of statutory provisions expressly allows for conditions that deprive the individual of liberty, can they include conditions of that level of intensity?

 In the PJ appeal, the Court of Appeal decides that CTOs can be used in this way.  It holds that CTOs create a mechanism to provide an option for the individual less restrictive than hospitalization, while still meeting the needs of society:  by ‘necessary implication’ [para 51] the statute must have meant this to include full range of options less restrictive than hospitalization, whether or not they involved a deprivation of liberty.  Procedural safeguards were in place to satisfy Article 5, through tribunal challenges to revocations and, periodically, to the continuation of the CTO itself (s20A(3)). 

 If we are to have CTOs at all – an open question, since their efficacy is hotly disputed – this approach makes sense.  The requirement that the CTO be a less restrictive measure than hospitalization is welcome.  From a human rights perspective, it is disappointing that the Court does not further explore the difficulty that persons subject to CTOs can only challenge the continuation of the CTO as a whole, rather than the individual conditions to which they are subject.  Depending on how litigation flowing from X v Finland (application no. 34806/04, judgment of 19 November 2012) develops, this may prove a serious issue in the future; but overall, the approach to CTOs makes some sense.

 The appeal in MM regarding conditional discharges is profoundly unconvincing by comparison.  It notes that there is nothing in the statutory scheme that would allow the tribunal or the Sec State to detain someone outside hospital (as there is none for CTOs), but it does not explore an interpretation based on ‘necessary implication’.  Instead, it states fairly baldly that since the statute does not provide the tribunal with a power under s 41 to deprive of liberty (unsurprisingly, since the wording of the section significantly antedates the relevant Strasbourg jurisprudence), that is an end to the matter:  the power claimed for the tribunal would otherwise be ‘unconstrained, without criteria, time limits or analogous protections’ [20].  It had been alleged that MM was consenting to the arrangements; but the court doubted that a person in a psychiatric hospital could meaningfully consent in these circumstances, and relying on HL held that rights to liberty could not in any event be given up in this fashion.  Conditional discharges therefore could not include provisions that would deprive an individual of liberty.

 The form of this argument is bizarre.  MM was successful at the Upper Tier Tribunal in getting his conditional release.  Essentially, the Sec State is therefore pleading MM’s Article 5 rights to overturn a case that MM won and the Secretary of State lost, consigning MM to a more restrictive régime in the name of his right to liberty.  The fact that his apparently competent consent is rendered immaterial is the final insult.  The relevant part of the HL decision applies to people who are ‘legally incapable of consenting to, or disagreeing with, the proposed action’ [HL at 90].  MM was apparently neither of these.  It is his Article 5 rights that are at issue; it is highly questionable how this decision can be seen to progress or uphold those rights.

 The Court’s reading of the statutory framework is not convincing.  The obvious intent of the conditional discharge provisions is to allow a phased move from the intensity of inpatient services to freedom in the community, presumably as a joined up process.  It is not credible to say that the legislature intended to insert a chasm in that, so that people are required to go much closer to ‘cold turkey’ when they leave (sometimes very controlling) hospital settings.  Such an approach would be setting people up to fail, and particularly if failure may mean the repetition of some of the rather serious crimes that got the individuals onto restriction orders in the first place, it is difficult to imagine that this was the intent of the legislature.

 The Court is certainly right that the safeguards surrounding conditional discharge should be strengthened.  For example, if the conditions imply a deprivation of liberty, the fact that two years may pass between challenges to the conditions will constitute an ECHR violation: Herczegfalvy v Austria (1992) 50 EHRR 437 at para 77.  The response to that must be to insist on human rights compliant safeguards, however, rather than hospitalization, since the hospitalization creates new and different ECHR violations.  It is now clear that detention under Article 5 must be the least restrictive option that meets the individual and social interest:  Tupa v Czech Republic Application no. 39822/07, judgment of 26 August 2011, para 48.  Insofar as the deprivations of liberty under conditional discharges are less restrictive than compulsory hospitalizations, it is difficult to see that this requirement will be met.

 Lurking in the background of MM is the question of what constitutes a deprivation of liberty.  The Court adopts Cheshire West and Cheshire County Council v P [2014] AC 896 on this point, and that case in turn adopts a test of whether the individual is ‘under continuous supervision and control’, and ‘not free to leave’ (Cheshire West para 49).  Cheshire West is a case in the post-HL jurisprudence, and in that context makes good sense:  when the individual’s actions are controlled for example by a guardian, and there is no formal order or other legal control directed to the individual’s control by the State, this jurisprudence determines when Article 5 be understood to engage.

 It is fair to ask whether the same test is appropriate when the individual is already squarely controlled by law relevant to Article 5, as here:  prior to discharge, MM was subject to formal detention under Part III of the Mental Health Act, and the conditional discharge is very much part of that overarching scheme.  For Article 5 purposes, can a staged release such is at issue here really be separated off from that original detention?  The overarching purposes of Article 5 is, after all, to ensure that state actions relevant to liberty do not occur in an arbitrary fashion: see, eg., Medvedyev v France (Application 3394/03, Judgment of 29 June 2010 (GC), para 73).  Conditional discharges are legal orders that set conditions which, if breached, can result in the individual being locked up and forcibly medicated.  Intuitively, the establishment of those conditions are precisely the sort of thing that require guarantees against arbitrariness.  Indeed, the overarching power of the Secretary of State to revoke the conditional discharge even if no conditions are breached places the individual in a position of vulnerability at the hands of the state which surely also should be subject to protections from arbitrariness, and therefore raise Article 5 issues.  This reading is entirely consistent with, for example, Ashingdane v UK (1985) 7 EHRR 528, for example, where a psychiatric patient was within the scope of Article 5 even though on an open ward and free to leave hospital as he pleased from Monday to Wednesday as long as he returned at night, and free to leave the hospital entirely from Thursday to Sunday – hardly the ‘continuous supervision and control’ of Cheshire West.  It is also consistent with the approach of the UK courts regarding control orders under the Prevention of Terrorism Act:  see Secretary of State (Home Department) v JJ [2007] UKHL 45.  If this is correct, it may well be the case that a considerable proportion of people – conceivably all – who would be considered for conditional release will be deprived of liberty within Article 5.  The Court of Appeal decision would have a very broad effect indeed. Again, it is difficult to imagine that this can have been the intent of Parliament.

 Both MM and PJ have been appealed to the Supreme Court.   Perhaps surprisingly, given the similarity of the issues and the joint decision of the Court of Appeal, they were not heard together:  MM was argued in July 2018, and PJ will be argued in October 2018.  


[1]All citations in this note are to the Mental Health At 1983, as amended.

Peter Bartlett is a Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law.

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The Elder Interview: Dr Neil Chadborn, Research Fellow, University of Nottingham

Integrating Care: Finding Commonality Between Organisations to Implement Best Practise


Neil Chadborn, Zvezdan Bozinovski Photography.

Neil Chadborn’s research focuses on inter-professional and inter-organisational aspects of integrated care for older people. He is currently involved in the PEACH project, to understand how a Quality Improvement Collaborative (QIC) can help organise healthcare services in care homes – and has an Alzheimer’s Society Knowledge Exchange Fellowship, exploring how services within a community can work together and with people living with dementia. We talked to him about the challenges of providing truly integrated care and why networks may provide a more inclusive way to enable people to access support according to their needs.

Why are the inter-professional and inter-organisational aspects a key research focus for you?

My background is in public health research, and that gives me a certain independence – doctors and nurses, for example, come at research from within a tradition of their profession, and this professional perspective shapes their analysis and interpretation. I aim to take the individual person’s perspective (along with that of the family or carers), to understand health issues.

As I am a ‘step away’ from the professions, I can explore how the different agencies interact to provide team-based care – and how this is shaped to the individual needs of a person.

I am constantly on the look-out for how professionals put into practice the notion of ‘person-centred care’. There is often a gap between the ambition of policies and how an individual person experiences this.                                                                                             

While members of the public may be participants in our research, we are also keen to invite people to have an input in the design of the research itself. This includes inviting them to the university to have meetings with us to discuss the research process, involving them in conducting the research itself, or even involve them in helping us to do the interviews rather than being interviewed themselves, or interpreting the data.

Spending time researching technical questions about organisations may lead to losing focus of the end goal of improving the care of people. The importance of this ‘patient and public involvement’ approach is that it avoids this academic bubble – by involving people from the outset, there is a real emphasis on doing research that will have a practical impact and will be relevant to today’s problems.

What does this independence bring to your research?

In PEACH study, the care homes research I am doing, I am looking at the problem of continuity of care – and it’s an excellent example of the benefit of independence as a researcher.

There is currently a national policy drive to improve healthcare in care homes, which has previously been of variable quality. One of the problems is that a person with complex needs may require input from several professionals; geriatrician, social worker, physiotherapist and GP.

We are investigating how best to coordinate the activities of these different professionals. While each professional could conduct research on this problem, they each bring their own perspective – the geriatrician may have a hospital perspective, the physiotherapist may not have expertise in medical conditions.

As a non-clinical researcher, I try to consider the perspective of the person and their experience of being cared for by several professionals. I aim to understand how to take the best from each of those professions, to coordinate around the needs of the individual.

But this has to work at the care home level too – you can put time and resources around one individual, but somehow you also have to make that work for the whole care home to make it practicable, so there’s another level of organisation and facilitation that is needed.

Is there still a silo mentality in health and social care that prevents real integrated care?

Yes and no. Words like ‘silo’ and ‘culture’ are easy to use as blame words, which doesn’t help us to progress or improve things. In a care home, there may be up to four or five different organisations involved in the care of one resident, and we can’t avoid that – we just have to make it work.

Technology is one way that we can help address this, for example – a significant problem is that each organisation has its own database and system.

In Nottinghamshire, there is an NHS organisation that is drawing together the different systems so that this data can be shared across all these different organisations. That is a way of bridging those silo boundaries and enabling team-based work to be efficient.

At what level does change have to happen when we look at developing more integrated, multi-disciplinary care?

We can think about three levels of change; policy, organisational processes and the care of an individual and it’s helpful to look at it in that way. Every practitioner across the board will agree with the aim of improving care for the individual – so that is a commonality.

“We know from implementation research that if you have a strict policy implemented nationwide, it often fails.”

Understanding the great variety within communities – whether that is ethnicity or gender, or geographical factors – implies that services should be developed according to these local factors. So that is a driving factor for these professionals and organisations to think, ‘how do we meet the needs of the individuals?’

So starting from that level of the individual we can then extend out to the care home –  to ask how do we meet the needs of everyone in this care home? Individual- to population-level focus is a way of trying to find commonality between professionals and organisations as a way of prioritising how different agencies work together.

In the PEACH study, we’re using an approach called “Quality Improvement Collaboratives”. Within a geographic area, we’ve got together the different organisations and professionals who work in care homes; the NHS managers, GP, care home manager, social worker, a geriatrician and not forgetting family members of residents.

They discuss how they can work better together – whether new processes or technologies are required. Within the study, we’ve then brought together four of these geographic areas into a “collaborative” so that they can share their best practice and key findings with similar groups in other areas.

While they work on these challenges, the additional benefit is that some of these silo boundaries automatically break down; so the meetings may be strategic, but the team-spirit that develops may filter out to the real-world practice in the care homes – ideally alongside ‘technical’ solutions.

It’s a bottom-up, organic approach and there is a real benefit to this – because we know from research that if you have a strict policy implemented nationwide it often fails because one particular idea either doesn’t fit a locality or different organisations have different priorities and can’t quite address the policy at that time. This is a flexible approach that addresses that local buy-in and allows for local priorities and challenges.

“By involving people from the outset, there is a real emphasis on doing research that will have a practical impact and be relevant to today’s problems.”

Complexity is the big challenge, and appreciating this is the first step to understanding where we can best focus resources. It’s also about recognising what is currently working.

Again a fundamental problem with trying to implement one strict policy is that it doesn’t recognise the strengths or benefits of what is already working well; it’s either trying to duplicate, replace or change those beneficial assets or relationships.

Are there any unique challenges when it comes to providing integrated dementia care?

I work at the Centre for Dementia within the University of Nottingham – and the work I have been doing recently with an Alzheimer’s Society Knowledge Exchange Fellowship is about trying to improve coordination of care to improve support for people living with dementia in the community (see blog article).

In The Netherlands, they are developing a network approach that brings together all the practitioners in the community to support those with dementia.

Together with a colleague in Nijmegen, Marjolein van der Marck, I’m looking at how all the different community services and resources (including charities as well as NHS and social care) can be part of a network of knowledge and support.

In turn, can general services for older people be adapted to be more inclusive of people with dementia? How might this approach be implemented more broadly in the UK?

In this country, this kind of network is more reliant on the third sector at the moment (charities and informal organisations). The Dementia Action Alliance, for example, is bringing together these kinds of support organisations and doing the work of building those networks to make connections more visible. If we ask “how can we make our community dementia-friendly?” I think local networks are the best approach.

The most significant challenge in care homes, as well as communities, is that people don’t have the information to access services or find out whether a service is right for them. A network could help people to find the services that are right for them – to meet their individual needs.

There’s a lot of talk in health and social care about pathways at the moment as maps to enable people to be able to access help and support and that is great. However, a ‘pathway’ will only be focused on one thing – you might be on the dementia pathway but if you also have diabetes, should you be on a diabetes pathway as well, or instead?

Where pathways might not deal well with the diversity of people’s needs or community, working to develop networks may, in the end, be a better and more inclusive way to enable people to access the right support according to their needs.

By Anna Melville James, feature writer for The Elder Magazine.  You can find the original article here.

For sources of information and support you may find this living with dementia guide helpful.

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