Judge: Sir James Munby P, Gloster LJ V-P, Sir Ernest Ryder, SP
Citation:  EWCA Civ 194
This long-awaited decision considers the fall-out of Cheshire West in relation to conditional discharges (‘MM’) and community treatment orders (‘PJ’) under the Mental Health Act 1983. The appeals proceeded on the basis that both MM and PJ had capacity to consent to the care arrangements in the community that gave rise to their confinement. The principal issues concerned the jurisdiction of the tribunal and the effect of consent in the context of article 5 ECHR.
(a) Necessary implication
In relation to the conditional discharge of MHA s.37/41 restricted patients, the Court of Appeal held that neither the Secretary of State nor the tribunal has a power to deprive liberty outside hospital. Such a power “would have to be prescribed by law and it is not” (para 17). Nor was it necessary to imply such a power. To do so would create a power that was “unconstrained, without criteria, time limits or analogous protections”, with inferior review rights in the community when compared with those in hospital, which would be discriminatory (para 20).
The position was very different for those on Community Treatment Orders. The court was prepared to hold by necessary implication that a responsible clinician (but not the tribunal) has “a power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme” (para 51). The court went on to observe:
52. There are limits to what can be provided for in a CTO, for example, it would be wrong in principle for the responsible clinician to make a CTO which has the effect of increasing the levels of restriction to which a patient is subject beyond those applicable in hospital detention. Deprivation of liberty under a CTO is intended to be a lesser restriction on freedom of movement than detention for treatment in hospital.
64 … there is a distinction to be drawn between deprivation of liberty consequent upon compulsory detention in hospital for treatment and a lesser restriction on a patient’s freedom of movement that nevertheless amounts to an objective deprivation of liberty. The latter circumstance is a statutory alternative to compulsory detention for a clear purpose as long as the patient is not exposed to a greater restriction than would be the case if s/he were to be compulsorily detained in hospital.
(b) Relevance of consent for those with capacity
To be “valid and effective”, “consent would have to be unequivocal, voluntary and untainted by constraint” (para 9), with the freedom to change one’s mind (para 25). In relation to the role of consent with regard to article 5 ECHR:
27. Further, both domestic and Convention jurisprudence strongly doubt the hypothesis that valid consent can prevent a compulsory confinement from being a deprivation of liberty…
28 … Where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty: De Wilde and Ors v Belgium (1979-80) 1 EHRR 373 at  and .
29 … The most common condition that might be a deprivation of liberty is continuous supervision including the lack of availability of any unescorted leave. Even if the question of consent were to be hypothetically relevant, the patient cannot consent in any irrevocable way. He cannot be taken to have waived or have had his right to withdraw his consent removed. There is no scope for consent in a case such as this.
30. Accordingly, whether a capacitated patient can consent to a deprivation of liberty is not a decisive issue. A purported consent, even if valid, could arguably go no further than to provide for the subjective element of the article 5 test, it cannot create in the FtT / MHRTW a jurisdiction it does not possess to impose a condition that is an objective deprivation of liberty. Article 5 ECHR does not provide any free standing jurisdiction in a tribunal to impose conditions that have the effect of authorising a deprivation of liberty. A purported consent would also be ineffective in fact. It cannot be an irrevocable consent and it could not act to bind the patient or waive his right to withdraw or rely on, inter alia, articles 5 and 6 ECHR at any time thereafter. A deprivation of liberty is an imposition by the state so that examples of enforceable agreements in other contexts are not analogous.
Accordingly, if a tribunal is satisfied that a restricted patient is validly consenting to community supervision, and that will protect the patient and the public, then “it is open to the tribunal to grant an absolute discharge or a conditional discharge on conditions that do not involve an objective deprivation of liberty. The tribunal is well used to identifying cases where there will or will not be compliance with a necessary regime of treatment.” (para 31).
(c) Restricted patients lacking capacity to consent
The Court of Appeal accepted that where a restricted patient lacks capacity to consent to their community confinement, the Mental Capacity Act 2005 can be invoked to authorise it:
35. The power of deferment to permit arrangements to be made for discharge could be used in an appropriate case to invoke the separate jurisdiction of the CoP to authorise a deprivation of liberty if the patient is incapacitated. That might provide free standing deprivation of liberty safeguards in certain factual circumstances but does not provide a basis for a condition of conditional discharge under section 73 that is outside the jurisdiction of the tribunal.
36.Accordingly, it cannot be said that it was Parliament’s intention to authorise detention outside hospital when a patient is conditionally discharged. If that conclusion presents practical difficulty then it is a matter for Parliament to consider.
This is a significant decision in many respects. The court sees the tribunal as performing a narrow role but has identified a more expansive role for responsible clinicians. The judgment means that (a) restricted patients with capacity cannot be lawfully discharged from hospital if the necessary care arrangements satisfy the Cheshire West acid test; and (b) responsible clinicians have an implied power to deprive liberty under community treatment orders. Both conclusions are likely to prove contentious.
Consent is a question of fact and there is no deprivation of liberty where a person with capacity consents to their confinement. Of course we must be careful to ensure that people do not lose the benefit of Article 5 safeguards for the single reason that they have given themselves up to be taken into detention. That is why the threat of detention must not be used to coerce. But an unpleasant choice remains a choice. The ward door may be locked. The nurses and doctors may have holding powers available under s.5 MHA 1983. But if a person with capacity is aware of these measures and nevertheless agrees to be there, then we would suggest that they cannot be said to be deprived of liberty. Indeed, the ECHR jurisprudence even recognises that a person who is said to lack capacity to consent according to domestic law may not be deprived of liberty if they tacitly agree to their confinement: Mihailovs v Latvia  ECHR 65, -.
If the person with capacity subsequently changes their mind and decides to leave, risk will need to be assessed and a decision taken as to whether to invoke the compulsory powers. The possibility of compulsion is there, whether the person is in a mental health hospital, on a conditional discharge, or on a community treatment order. In all three scenarios, the person can ultimately be detained in hospital if the corresponding criteria are met. It would therefore be peculiar if consent ‘works’ for voluntary patients but not for conditionally discharged patients.
It should also be noted that any patient admitted to any hospital is potentially liable to be held there under the powers contained in s.5 MHA 1983 – including any patient in a general hospital receiving physical healthcare. The spectre of compulsion therefore in principle looms large over such patients in circumstances where a different constitution of the Court of Appeal have very recently been at pains to exclude the routine operation of Article 5 ECHR.
In the circumstances, it may well be that the question of what constitutes “valid consent” to confinement will need to be examined further in due course, and it may also be that this will ultimately unlock the key to the Cheshire West conundrum. If the true meaning of deprivation of liberty is coercive confinement against the will of the individual concerned, then, by definition, no-one can ever consent to the same. Conversely, if we can sufficiently reliably identify that a person – MEG, say – is seeking to manifest their consent to arrangements which on their face amount to a confinement, should we really say that they are deprived of their liberty?
The Court of Appeal’s recognition that the separate jurisdiction of the Mental Capacity Act 2005 can be invoked to authorise the deprivation of liberty of restricted patients lacking capacity to consent is, however, welcome. On a practical level, the court notes that a judge authorised in a tribunal jurisdiction can, with the appropriate judicial ticket, also sit in the Court of Protection and vice versa “so that in an appropriate circumstance the judge might exercise both jurisdictions concurrently or separately on the facts of a particular case” (para 32).
In relation to CTOs, it is striking that so senior a court (including as it did the heads of the two judicial bodies charged with overseeing the Mental Capacity and Mental Health Acts) set its face so expressly against the conventional understanding of these instruments.
Parliament never intended for community treatment orders to be used to deprive liberty, and the Codes of Practice to both the MHA and DoLS reiterate this (no reference is made to the relevant paragraphs in either by the court). The purpose of CTOs is to reduce readmissions to hospital; not to detain people in the community. Further, if Parliament had intended for CTOs to be used in this way, some of Schedule 1A to the Mental Capacity Act 2005 would have been otiose. For it provides a legal procedure to authorise the deprivation of liberty of incapacitated patients on CTOs (as well, for that matter, as conditional discharges, guardianship, and s.17 leave). It also renders unnecessary the Law Commission’s consultation on the issue (Consultation paper, para 10.25) and at least part of its recommendations in its recent Mental Capacity and Deprivation of Liberty report (paras 13.26 and 13.27, predicated upon the long-standing understanding that the ‘community’ provisions of the MHA 1983 do not provide free-standing authority to authorise deprivation of liberty.
The Court of Appeal’s approach also renders unnecessary the Department of Health’s consultation (Government Response to No Voice Unheard, No Right Ignored – A Consultation for People with Learning Disabilities, Autism and Mental Health Conditions (2015) Cm 9142, para 87), to which the Law Commission consultation and report made reference.
For the Court of Appeal to decide that this detention power can be necessarily implied is therefore a substantial step. But were they wrong to do so? The court rightly notes that there are safeguards for CTOs:
54. The CTO scheme is provided for in a statutory framework that is a procedure prescribed by law. The criteria for the imposition of conditions that may deprive a patient of his liberty are specified in sections 17A(4) to (5) and 17B(2) MHA. They are limited to the purposes of the legislation, for example, for medical treatment. They are time limited by section 17C and they are subject to regular rights of review by sections 20A and 66 which are equivalent to the rights enjoyed by a patient detained in hospital so that there is no incoherence or lack of equivalence in the safeguards provided by the scheme. The conditions in a CTO have to be in writing: see, for example sections 17A(1) and 17B(4). The responsible clinician has the power of recall (sections 17E(1) and (2)) and the powers of suspension and variation (sections 17B(4) and (5)). Accordingly, in our judgment, the framework provides both practical and effective protection of a patient’s Convention rights.
Applying the Court of Appeal’s rationale in relation to tribunals and conditional discharges, one might have thought that such a power to detain on a CTO “has to be prescribed by law and it is not”. Crucially, of course, the safeguard of the AMHP is therefore at the outset of a CTO and at the end if the responsible clinician proposes to revoke it. But fundamentally the tribunal is not reviewing the legality of such community detention. The Court of Appeal incorrectly stated at para 55 of their judgment that “The power exercisable by the tribunal is to discharge the patient from detention not to ‘discharge the CTO’.” This error may have resulted from the incorrect version of s.72(c)(i) MHA 1983 which is appended to the judgment. It refers to one of the CTO criteria as being whether it is “appropriate for him to be liable to be detained in a hospital for medical treatment” when in fact the legislation actually requires the tribunal to consider whether it is “appropriate for him to receive medical treatment”.
Accordingly, and fundamentally, the tribunal is not performing an Article 5(4) ECHR reviewing function for CTOs. A patient could satisfy the statutory criteria for a CTO whilst being subject to an unnecessary deprivation of liberty. The tribunal could do nothing to rectify this: its powers are limited to discharging or not discharging the CTO and the Court of Appeal has narrowed the remit of the tribunal vis-à-vis article 5. Discretionary conditions cannot be enforced but the threat of recall looms large. And it seems the patient’s only recourse to challenging an unjustified deprivation of liberty in these circumstances would now be through judicial review. This may have left a gap in human rights protection.
Finally, using the logic of this decision, if a responsible clinician has by necessary implication a power to detain on a CTO, so too will they have a power to detain patients on leave under s.17 MHA 1983. This is for two reasons. First, the analogy between the hospital detention power and s.17 leave is tighter than it is for s.17A CTOs. Secondly, and unlike for CTOs, s.17(3) MHA 1983 contains an express power to grant leave into another’s custody. Again, if this is correct, it is difficult to see why Parliament would have included express provision for DOLS to be operated alongside s.17 leave in Schedule 1A to the MCA 2005. It is further difficult to see why it was considered necessary by Hayden J to emphasise in NHS Trust v FG the importance of having in place a standard authorisation when a patient is given s.17 leave from a psychiatric hospital to be deprived of their liberty in a general hospital for purposes of receiving physical healthcare. We note in this regard that NHS Trust v FG of course recently has been endorsed by a different constitution of the Court of Appeal in the Ferreira case as exemplifying precisely the sort of situation in which a deprivation of liberty can arise in the context of the delivery of physical healthcare.