Judge: UT (AAC) (Charles J)
Citation:  UKUT 0644 (AAC)
The patient was 32 years old with a diagnosis of mild learning disability, autistic spectrum disorder and pathological fire starting. Convicted of arson, the Crown Court imposed a restricted hospital order (MHA ss37/41). He sought a conditional discharge on the basis that his capacitous consent to a care regime in the community would render lawful what would otherwise be a deprivation of his liberty.
The crux of the appeal was whether the threat of recall to hospital from the community meant that the patient’s consent was not free and therefore invalid. Applying his analysis and obiter comments in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust  UKUT 0376 (AAC), Charles J held that:
“63. The points made in paragraphs 56 to 62 above, show that conditions relating to a placement outside a hospital which when implemented will create on an objective assessment a deprivation of liberty:
i) cannot be lawfully imposed on a restricted patient under the MHA,
ii) can be part of the terms and conditions of a conditional discharge that is, or which a restricted patient can reasonably conclude is, in his best interests because it is the least restrictive option and one that enables him to demonstrate that (a) it is no longer necessary for him to be in hospital or liable to recall to hospital to receive treatment for a mental disorder for the purposes set out in the MHA and so that (b) he should be given an absolute discharge,
iii) can promote the underlying purposes of the MHA and a conditional discharge (see paragraphs 85 to 89 of my decision in the KC case), and
iv) can only be made a lawful option or alternative for a capacitous restricted patient if he gives a valid consent to it.
64. The factors set out in the last paragraph show that:
i) a capacitous restricted patient (like the Court of Protection or a DOLS decision maker in respect of a restricted patient who lacks the relevant capacity) has a real choice founded on the advantages and disadvantages and so the merits of the proposed placement assessed through the eyes of the restricted patient to consent to such conditions, and that
ii) any such decision is most unlikely to be driven by a threat that he might be recalled to hospital.
This is because he is not being presented with a choice between two alternatives that can be imposed on him and the driver for his consent would be a move from hospital (albeit one that might end with an imposed recall) to a placement outside hospital which he has concluded is in his best interests because, for example, in his view that would be a step towards his absolute discharge into the community.”
Accordingly, the patient’s consent to the proposed conditional discharge arrangements meant that he would forego his Article 5 right and could lawfully be discharged.
The decision in KC enabled those lacking capacity to be lawfully discharged from hospital into a community deprivation of liberty. This eminently sensible decision enables those with capacity to similarly do so where they consent to the arrangements. Both decisions appear to settle the law, but where does this leave the Court of Appeal’s decision in Secretary of State for Justice v RB  1 MHLR 131? Doubts may linger unless and until that decision is put to bed by the appeal courts. As Charles J noted at paragraph 8, “… as a matter of good administration, the Secretary of State should “put up or shut up…” as regards his position relating to patients in this position (as to which see further, perhaps, the response to No Voice Unheard outlined in the Capacity outside the Court of Protection Newsletter).