Judge: Kay, Arden and Moses LJJ
Citation:  EWCA Civ 1608
Summary: This case concerned a life-long 75-year-old paedophile who was attracted to boys, typically aged between 9 and 13 years old, which led to his conviction for indecent assault in 1999. An indefinite restricted hospital order followed, with a diagnosis of ‘persistent delusional disorder’, pursuant to sections 37 and 41 of the Mental Health Act 1983. For a number of years both RB and his care team, but not the Secretary of State, agreed that he could be cared for in a registered care home, provided he was escorted in the community.
At first instance the tribunal decided to discharge RB, subject to the following conditions:
On appeal, the Upper Tribunal concluded that ‘discharge’ simply meant ‘release from the state there mentioned, that is from “detention in a hospital for treatment”’. It held that the conditions amounted to a deprivation of liberty to which RB had not given valid and unfettered consent but, because the proposed detention related to a care home, it was lawful and in his best interests. The Secretary of State challenged this decision.
The Court of Appeal was therefore asked to consider whether there was any statutory authority to deprive him of his liberty once an order for his conditional discharge had been made. Focusing solely on the 1983 Act, the answer was an emphatic ‘no’. After emphasising the fundamental nature of the right to liberty, by reference to clause 39 of the Magna Carta, Article 9 of the Universal Declaration of Human Rights, and Article 5 of the ECHR, the Court concluded that Parliament had not intended to create a new species of detention post-discharge. Section 73 of the 1983 Act did not prescribe any continuing detention criteria; the rights of conditionally discharged patients were inferior to those of detained patients and threatened Article 14 ECHR; and the decision under challenge would have authorised detention for the purposes of containment rather than treatment which contradicted the policy of the MHA. As a result, RB could not be conditionally discharged to a care home in circumstances where he would be deprived of his liberty.
Comment: This decision illustrates how the deprivation of liberty concept can impact negatively upon MHA patients. The Court acknowledged the irony that, by embracing human rights arguments intended to safeguard patients from arbitrary detention, the ultimate result was less liberal towards the patient. If forensic patients cannot be conditionally discharged into care home detention (MHA s.73), civil patients may experience similar problems in seeking discharge from hospital detention into guardianship (MHA s.7) or supervised community treatment (MHA s.17A) if their circumstances engage Article 5.
It appears that RB had the mental capacity to consent to the conditions and so his detention could not have been authorised under Schedule A1 of the Mental Capacity Act 2005 (‘DOLS’). However, his consent was invalid because, in effect, he had no choice. The second irony, therefore, is that had he lacked capacity, he could presumably have been conditionally discharged from MHA-detention into MCA-detention as this provides distinct statutory authority to deprive liberty. In DN v Northumberland Tyne & Wear NHS Foundation Trust  UKUT 327 (AAC), for example, the Upper Tribunal envisaged that a patient detained for treatment under MHA s.3 would be discharged and detained in a care home under a DOLS authorisation (see our October/November 2011 newsletter for further details).
Another potentially significant aspect of the judgment relates to Article 14 ECHR. The Court held that the words “other status” would ‘cover a patient’s status when detained in an institution which is not a hospital following their conditional discharge’ (para ). It may well be, therefore, that in addition to ‘disability’ (see Glor v Switzerland (Application no. 13444/04, 30 April 2009)), being subject to a DOLS authorisation might similarly amount to a status protected against discrimination. The Secretary of State may then shoulder the burden of showing why, for example, there are differences between the substantive and procedural rights given to those detained under DOLS as compared with the MHA and vice versa.