Commentary written by professor Peter Bartlett
Sec State (Justice) v MM; Welsh Ministers v PJ,  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. 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’ . 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  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  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.
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.