Judge: Supreme Court (Lady Hale, President; Mance, Wilson, Hodge and Black SCJJ)
Citation:  UKSC 66
The Supreme Court has reversed the curious and controversial decision in PJ, in which the Court of Appeal had held that the MHA 1983 contained within it by necessary implication the power for the patient’s responsible clinician to set conditions on a community treatment order (‘CTO’) that amounted to a deprivation of liberty, so long as it was a lesser restriction on their freedom of movement than detention for treatment in hospital.
Until shortly before the hearing, the Welsh Ministers’ principal argument was that the Court of Appeal had been correct. Lady Hale, giving the unanimous judgment of the court, noted that:
[i]t would, to say the least, have been helpful to this court to have the views of the Secretary of State for Health, no doubt after consultation with the Secretary of State for Justice, on an issue which affects England as much as it affects Wales. It may, however, be possible to deduce the views of the Secretary of State from the Mental Health Act Code of Practice, which he is required to draw up and lay before Parliament under section 118 of the MHA. The current edition (revised 2015) states quite clearly that “The conditions must not deprive the patient of their liberty” (para 29.31)
Shortly before the hearing however, and to the visible surprise of the Supreme Court, the Welsh Ministers advanced an entirely an alternative and diametrically opposed argument. This was, in short, that because the conditions in a CTO cannot be enforced, they could not in law amount to a deprivation of liberty and it was therefore permissible to impose them.
Lady Hale had little truck with this argument:
As the case had always proceeded on the basis that PJ’s factual circumstances amounted to a deprivation of liberty, Lady Hale held that this was enough for the Supreme Court’s purposes to proceed on the basis that there was a deprivation of liberty on the ground. The question was therefore whether the RC had power, under the MHA, to impose conditions which have that effect.
The Welsh Ministers had a further argument as to why PJ’s circumstances should not be seen in law as a deprivation of liberty, namely that the ‘acid test’ from Cheshire West “should be modified for cases of this sort where the object is to enhance rather than further curtail the patient’s freedom.” They relied, in particular, upon the observations of the European Court in Austin v United Kingdom to the effect that “[i]n order to determine whether someone has been ‘deprived of his liberty’ within the meaning of article 5(1), the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance.”
However, Lady Hale somewhat tartly dismissed this contention:
Lady Hale therefore turned to the real issue, namely whether the power to impose conditions amounting to a deprivation of liberty could be read into the MHA by necessary implication. She considered that the approach of the Court of Appeal had been to put before the cart before the horse, taking the
assumed purpose of a CTO – the gradual reintegration of the patient into the community – and works back from that to imply powers into the MHA which are simply not there. We have to start from the simple proposition that to deprive a person of his liberty is to interfere with a fundamental right – the right to liberty of the person.
Applying very similar analysis that that undertaken in the MM case with which PJ had been linked at the Court of Appeal stage, and observing the pre-history of CTOs, Lady Hale found that:
In relation to the subsidiary question of the powers of the Mental Health Tribunal (or in PJ’s case, the Mental Health Tribunal for Wales) if it finds on the facts that the community patient is being deprived of their liberty, Lady Hale held that:
This decision is hardly surprising, especially in light of the MM decision from an almost identical panel. The last-minute change of tack by the Welsh Ministers was brave, but doomed – PJ’s circumstances (as described in paragraph 8) were factually not far off those in a medium secure unit, and to describe them as anything other than a deprivation of liberty would have been deeply problematic.
Unlike MM, this decision does not cause head-scratching in terms of its practical consequences, but rather represents the re-aligning of the law as interpreted by the courts with that set down in the ‘soft law’ of the Code of Practice (at least for England) and what has always been good practice for RCs. Following this decision and that of MM, and in light of Cheshire West, it is now absolutely clear that the spade of confinement must be called a spade, and powers to impose it must be express. It does, though, put added pressure on the government to think through with care precisely what level of coercion it thinks should occur in the community when it comes to respond to the recommendations of the MHA Review.
Another issue remains. The discretionary CTO conditions in PJ’s case expressly required compliance with his care plan, in which the deprivation of liberty was to be located. What if that condition was absent, but the concrete situation of the care plan amounted to a deprivation of liberty? Our view is that, as PJ had capacity, he should logically have been entitled to agree to or refuse those care arrangements. And if he lacked capacity to do so, the MCA could be used to authorise the deprivation of liberty.