The Secretary of State for Justice v MM

Factual and Procedural Background

This judgment addresses two appeals concerning the deprivation of liberty of mental health patients in different contexts. The first involves a patient detained by a criminal court seeking conditional discharge with conditions that may deprive liberty (referred to as MM). The second concerns a patient detained in a non-criminal context under a community treatment order (CTO) that restricts liberty (referred to as PJ). Both appeals were allowed.

MM, diagnosed with mild learning disability and autistic spectrum disorder, was convicted of arson and detained under hospital and restriction orders. After a conditional discharge and subsequent recall, MM sought conditional discharge again, which was initially refused by the First-tier Tribunal (FtT). The Upper Tribunal (UT) allowed MM’s appeal, holding that the FtT has jurisdiction to impose conditions involving deprivation of liberty if the patient consents, but the Secretary of State appealed.

PJ, also with capacity and diagnosed with mild learning disability and autism spectrum disorder, was detained under a CTO that imposed significant restrictions amounting to deprivation of liberty. PJ applied for discharge, which was refused by the Mental Health Review Tribunal for Wales (MHRTW), but the UT allowed the appeal and made declarations regarding the application of the Supreme Court’s decision in Cheshire West. The Welsh Ministers appealed the UT’s decision.

Legal Issues Presented

1. Whether the First-tier Tribunal (FtT) or Mental Health Review Tribunal for Wales (MHRTW) have jurisdiction to impose conditions on conditional discharge that amount to a deprivation of liberty.
2. Whether a capacitated patient can validly consent to conditions that deprive liberty and the legal effect of such consent.
3. The nature and extent of the powers of responsible clinicians to impose conditions under community treatment orders (CTOs) that may restrict liberty.
4. The scope of tribunal powers to review or vary conditions imposed under CTOs.
5. The interpretation of statutory provisions under the Mental Health Act 1983 (MHA) in relation to deprivation of liberty and conditional discharge.

Arguments of the Parties

Appellant's Arguments (Secretary of State and Welsh Ministers)

• The FtT does not have lawful authority to impose conditions on conditional discharge that necessarily involve deprivation of liberty, even if the patient consents and has capacity.
• Consent by the patient to deprivation of liberty cannot create or expand the tribunal’s jurisdiction to impose such conditions.
• There is no statutory power allowing tribunals to revise or scrutinise conditions imposed under CTOs; such challenges must be made by judicial review in higher courts.
• The statutory scheme provides effective and practical safeguards for patients under CTOs, and tribunals must not create extra-statutory conditions or checklists.
• The Upper Tribunal erred in making declarations about deprivation of liberty under CTOs without proper invocation of superior court powers.

Respondent's Arguments (MM and PJ)

• For MM, it was argued that deprivation of liberty would be lawful if consented to, and that the FtT should be able to impose conditions requiring compliance with a care plan even if it deprives liberty.
• For PJ, it was contended that the CTO conditions, although restrictive, did not amount to an unlawful deprivation of liberty, and the tribunal should consider human rights implications when exercising its powers.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the statutory framework of the Mental Health Act 1983 (MHA), focusing on the powers of the First-tier Tribunal (FtT), Mental Health Review Tribunal for Wales (MHRTW), responsible clinicians, and the Secretary of State. It distinguished between detention in hospital, liability to detention, and deprivation of liberty outside hospital.

For MM, the court reaffirmed the binding precedent in RB that there is no statutory authority for the FtT to impose conditions amounting to deprivation of liberty as part of conditional discharge. The right to liberty is fundamental and cannot be curtailed without clear statutory authority. The court rejected the argument that patient consent could create or expand tribunal jurisdiction to impose such conditions, noting that consent must be free, genuine, and irrevocable, which was not established. The court emphasized that deprivation of liberty must be prescribed by law and subject to appropriate safeguards, which the statutory scheme does not provide for conditions outside hospital.

Regarding PJ and the CTO scheme, the court recognized that the statutory framework authorizes responsible clinicians to impose conditions that may restrict liberty to a lesser degree than hospital detention, including objective deprivation of liberty, provided it is for specific purposes such as treatment and protection. The CTO scheme includes safeguards such as time limits, review rights, and the power of recall. However, tribunals do not have jurisdiction to review or vary CTO conditions; their power is limited to discharge if statutory criteria are not met. Challenges to CTO conditions must be pursued by judicial review in higher courts.

The court criticized the Upper Tribunal’s declarations in PJ’s case as an inappropriate exercise of powers not properly invoked and reiterated that there is no “umbrella” power for tribunals to authorize deprivation of liberty outside hospital. It emphasized the distinction between detention and lesser restrictions amounting to deprivation of liberty, and the need to interpret statutory provisions in light of fundamental rights and Convention jurisprudence without creating jurisdictional gaps or inconsistencies.

Ultimately, the court held that any deprivation of liberty imposed must be authorized by statute with clear criteria and safeguards, and that the current statutory scheme does not authorize tribunals to impose such conditions on conditional discharge but does permit responsible clinicians to impose such conditions under CTOs within a defined framework.

Holding and Implications

The court ALLOWED BOTH APPEALS.

It held that:

• The First-tier Tribunal and Mental Health Review Tribunal for Wales do not have jurisdiction to impose conditions on conditional discharge that amount to an objective deprivation of liberty. Such deprivation must be clearly authorized by statute, which it is not in the case of conditional discharge.
• Consent by a capacitated patient does not create or expand tribunal jurisdiction to impose deprivation of liberty conditions, nor can consent be irrevocable or waive fundamental rights.
• The community treatment order (CTO) scheme provides statutory authority for responsible clinicians to impose conditions that may amount to deprivation of liberty, subject to statutory safeguards and review mechanisms.
• Tribunals have no power to review or vary CTO conditions; challenges must be made by judicial review in higher courts.
• The Upper Tribunal erred in making declarations concerning deprivation of liberty under CTOs without proper invocation of superior court powers.

The direct effect is that patients conditionally discharged under Part III of the MHA cannot be subjected to conditions amounting to deprivation of liberty by tribunals, preserving the primacy of statutory authority and fundamental rights. The decision does not establish new precedent beyond reaffirming RB and clarifying the limits of tribunal powers under the MHA.