The FTT were not invited to apply the conclusion reached in the KC case, as was requested. Charles J commented this leaves an unsatisfactory position for restricted patients that the Secretary of State would be reserving or simply not advancing and argument on their jurisdiction and may be considering the exercise of his power to direct a conditional discharge on the basis that the KC case was wrongly decided. This clearly causes problems and creates the possibility of time and money being wasted by patients, the tribunal, local authorities and the Court of Protection.
The appeal raises the point whether for the purposes of Article 5 ECtHR a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a deprivation of the patient's liberty.
The appeal was argued on the bases that:
- the decision in the KC case on the ratio of the RB case was not being challenged, and
- the central issue was whether the obiter views in respect of a patient with capacity were correct.
MM is 32 years old with diagnoses of mild learning disability, autistic spectrum disorder and pathological fire starting. On 27 April 2001 he was convicted of arson. A hospital order under section 37 of the Mental Health Act 1983 was imposed, with a restriction order under s.41 of the same act. After a short conditional discharge in 2006, MM was recalled to hospital in April 2007 following a deterioration in his behaviour. The main areas of serious risk that he poses relate to fire starting and his relationships with females.
On 18 May 2015 the FTT considered MM should be transferred to another low secure unit. However, two experts considered MM could be conditionally discharged and managed in the community with a suitable care package in place. Applying the Cheshire West criteria, it was clear any care plan would deprive MM of his liberty which would be in breach of Article 5, unless it was rendered lawful by MM's consent. It was held that any consent given would not be genuine, properly considered or reliable given the history of MM's propensity for changing his mind.
The FTT were not invited to apply the conclusion reached in the KC case, as was requested. Charles J commented this leaves an unsatisfactory position for restricted patients that the Secretary of State would be reserving or simply not advancing an argument on their jurisdiction and may be considering the exercise of his power to direct a conditional discharge on the basis that the KC case was wrongly decided. This clearly causes problems and creates the possibility of time and money being wasted by patients, the tribunal, local authorities and the Court of Protection.
The court considered, in particular, the cases of Secretary of State for Justice v RB  1 MHLR 131 and B v Justice Secretary  1 WLR 2043.
In RB Charles J concluded, as per the power conferred by s.73 of the MHA, that a deprivation of liberty resulting from conditions imposed on the conditional discharge of a restricted patient cannot be founded on the MHA alone. Therefore, the FTT cannot, when directing a conditional discharge, impose conditions that, when implemented, would be a deprivation of liberty in breach of Article 5 and so unlawful.
The court also considered s.37, ss.41-42, ss.72-73 and s.75 of the Mental Health Act 1983, which were reproduced in the judgment for ease of reference.
The appeal was allowed. The court remitted MM's application to the FTT on the bases that:
- it should apply the decision in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust  UKUT 0376 (AAC) (the KC case) in determining its jurisdiction; and
- it should apply the conclusion in the judgment (in particular paras. 64-68).
This case provides clarity and guidance in an area of law which followed a confusing progression through previous cases, which left many restricted patients without options when considering a potential discharge from hospital. This case may aid practitioner’s when considering a strict care plan.
The following guidance and questions can be drawn when dealing with a restricted client:
- Consider the client’s diagnosis and whether there is an alternative to hospital detention;
- Decide whether a capacity assessment is needed to establish whether the client has capacity to consent to a care package which may amount to a deprivation of liberty;
- If the client has capacity, will they consent to a restrictive care package?
- If the client has a propensity to change their mind, consider the effect if consent were given and was subsequently removed;
- Balance the advantages and disadvantages of the alternative options available to detention. Is detention in a hospitable less desirable than the alternatives?
Read the full text of the judgment on Bailii