G, R (on the application of) v Mental Health Review Tribunal

Factual and Procedural Background

The Plaintiff, currently aged 67, committed serious offences in 1966 and was found unfit to plead in early 1967, resulting in his admission to Broadmoor Hospital under the Criminal Procedure (Insanity) Act 1964. He has been treated under hospital and restriction orders without time limitation pursuant to the Mental Health Act 1983. Diagnosed with paranoid schizophrenia, the Plaintiff’s condition improved to the extent that a Mental Health Review Tribunal (MHRT) in July 2003 decided on a conditional discharge subject to specific conditions, including residence at a designated hostel and acceptance of medical and social supervision.

Subsequent to the July 2003 decision, the intended hostel declined to accommodate the Plaintiff, and no alternative placement was found despite multiple tribunal reconsiderations in late 2003 and early 2004. The tribunal indicated it would have to revoke the conditional discharge due to the failure to satisfy the imposed conditions, treating the original discharge decision as provisional. The Plaintiff’s past includes prior conditional discharge and recalls due to violent incidents, but his recent mental state has been stable under treatment at Thornford Park Hospital, a private psychiatric facility.

The Defendants maintained that the Plaintiff remains suitable for conditional discharge if appropriate supervised accommodation is secured, emphasizing the necessity of medical and nursing support to prevent relapse and manage risks. However, the Defendants argued that imposing residence conditions that replicate his current hospital restrictions would amount to a deprivation of liberty and thus be unlawful.

The case involves interpreting statutory provisions governing MHRT powers, conditions of discharge, and the distinction between lawful deprivation of liberty and permissible restrictions under domestic and European human rights law.

Legal Issues Presented

1. Whether the condition requiring the Plaintiff to reside at Thornford Park Hospital under supervision constitutes a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights (ECHR).
2. Whether a Mental Health Review Tribunal can impose conditions on a restricted patient’s conditional discharge that effectively maintain detention.
3. The proper legal test for distinguishing between deprivation of liberty and mere restrictions on liberty of movement in the context of conditional discharge of restricted patients.
4. Whether consent by the patient to continued residence under restrictive conditions can transform a deprivation of liberty into lawful voluntary care.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff’s attorney contended that the condition requiring residence at Thornford Park Hospital is a restriction on liberty, not a deprivation of liberty, and thus lawful.
• Reliance was placed on the Court of Appeal decision in R (Secretary of State for the Home Department) v MHRT ("PH case"), which held that residence under supervision with nursing care and security does not inevitably amount to detention.
• The Plaintiff argued that the purpose of the restrictions—primarily for his benefit and protection—supports the view that there is no deprivation of liberty, invoking the principles from H.M. v Switzerland and Nielsen v Denmark.
• An alternative submission was that even if a deprivation of liberty exists, the Plaintiff consents to it and should be regarded as a voluntary patient under section 131(1) of the Mental Health Act 1983.

Defendants' Arguments

• The Defendants maintained that imposing a condition requiring residence at Thornford Park Hospital under the current regime would amount to a significant deprivation of liberty, effectively continuing detention without lawful authority.
• They argued that a tribunal has no power to impose conditions that maintain detention, as this would be ultra vires.
• They accepted the evidence of the Responsible Medical Officer (RMO) that the regime at Thornford Park involves substantial restrictions on freedom of movement, comparable to current detention conditions.
• The Defendants rejected the submission that consent could convert deprivation of liberty into lawful voluntary care, emphasizing that conditional discharge does not remove liability to be detained.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the statutory framework governing restricted patients and conditional discharge under the Mental Health Act 1983, focusing on Sections 72 and 73. It acknowledged that a tribunal can impose conditions on conditional discharge but cannot impose conditions that effectively maintain detention, as this would exceed its jurisdiction.

The court analysed the facts of the Plaintiff’s situation, including his stable mental state, the nature of the regime at Thornford Park Hospital, and the absence of alternative hostel accommodation. It noted that the conditions proposed would impose significant restrictions on the Plaintiff’s freedom of movement, effectively mirroring his current detained status.

Applying the principles from European Court of Human Rights jurisprudence, particularly the distinction between deprivation and restriction of liberty as a matter of degree or intensity, the court concluded that the conditions would amount to a deprivation of liberty within Article 5 of the ECHR. It rejected the Plaintiff’s argument that the restrictions were merely for his benefit and that consent could convert the status to voluntary care, finding that consent does not confer jurisdiction to impose deprivation of liberty.

The court acknowledged the borderline nature of some cases but found this was not one of them. It emphasized that the purpose of restrictions, while relevant, does not override the factual assessment of deprivation. The court also underscored that conditional discharge does not terminate liability to detention, and the Plaintiff remains subject to recall.

Consequently, the court held that imposing the residence condition at Thornford Park Hospital would be unlawful as it would constitute continued detention under the guise of conditional discharge.

Holding and Implications

The court’s final decision is to DISMISS the Plaintiff’s claim.

The direct effect is that the Plaintiff cannot be conditionally discharged on the condition of residence at Thornford Park Hospital under the current regime, as this would amount to unlawful deprivation of liberty. The decision affirms that tribunals cannot impose conditions effectively amounting to continued detention. The court expressed hope that efforts to find appropriate hostel accommodation will continue, but no new legal precedent was established beyond the application of existing principles to the facts of this case.