Secretary of State for Justice v MM

Factual and Procedural Background

The Patient, diagnosed with mild learning disabilities, autistic spectrum disorder, and a history of pathological fire-setting, received a hospital order and a restriction order after convictions for arson in 2001. Except for a brief conditional discharge between 2006 and 2007, he has since been detained in hospital.

In May 2015 the Patient applied to the First-tier Tribunal (FtT) for conditional discharge into the community. Two external experts supported discharge subject to a highly restrictive care plan that would amount to a deprivation of liberty, while the clinical team opposed discharge. The FtT, following the Court of Appeal authority in B v Secretary of State for Justice, held that it lacked power to impose conditions amounting to a deprivation of liberty and therefore refused discharge.

The Patient appealed to the Upper Tribunal, which (per Judge Charles) allowed the appeal, holding that such conditions could be imposed if the Patient had capacity and consented. The Secretary of State appealed, and the Court of Appeal—considering itself bound by B—reversed the Upper Tribunal. The Patient then appealed to the Supreme Court.

Legal Issues Presented

1. Whether, under the Mental Health Act 1983 (MHA), the FtT or the Secretary of State may impose, as a condition of a restricted patient’s conditional discharge, requirements that amount to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights (ECHR).
2. Whether a capacitous patient’s consent to such conditions removes any Article 5 objection.

Arguments of the Parties

Patient’s Arguments

• Conditional discharge is intended to facilitate gradual reintegration; a highly restrictive community placement furthers that purpose and is less restrictive than continued hospital detention.
• Nothing in the text of sections 42(2) or 73(2) of the MHA, properly construed, forbids conditions that amount to deprivation of liberty.
• Where the Patient has capacity and consents, Article 5 is not infringed (Storck v Germany).
• Differential treatment between capacitous and incapacitated patients (for whom the Court of Protection could authorise deprivation of liberty) is discriminatory.

Secretary of State’s Arguments

• The statutory words “conditional discharge” cannot be read to authorise a new form of detention other than that expressly provided for in the MHA—namely, detention in hospital for treatment.
• Imposing deprivation-of-liberty conditions would offend the principle of legality because Parliament did not clearly authorise such an interference with liberty.
• The statutory scheme provides no powers to convey, detain, or retake a conditionally discharged patient in community accommodation, demonstrating that Parliament did not envisage such detention.
• Consent is insufficient because the Patient could withdraw it at any time, leaving the authorities without lawful powers to enforce the restrictions.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority opinion (per Judge Hale, joined by Judges Kerr, Black and Lloyd-Jones)

• Statutory interpretation: Sections 42(2) and 73(2) permit only discharge from the current hospital, not from the underlying “liability to be detained.” Nothing in the MHA expressly authorises a new form of detention outside a hospital.
• Principle of legality: Because deprivation of liberty is a fundamental right, Parliament must use clear words to authorise it (Simms). The generic phrase “subject to conditions” is insufficient.
• Scheme of the MHA: The Act meticulously provides powers to convey, detain, and retake patients for every authorised form of detention. It contains no equivalent powers in relation to community accommodation for conditionally discharged patients, signalling that Parliament did not envisage detention there.
• Enforcement gap: Breach of community conditions is not an offence; enforcement would depend on recall to hospital, yet recall itself requires satisfaction of statutory criteria. This practical weakness supports a narrow construction.
• Procedural safeguards: Conditionally discharged patients have less frequent tribunal access than hospital detainees, inconsistent with the premise that they may still be deprived of liberty.
• Consent: Even genuine consent can be withdrawn; absent statutory enforcement powers, detention could not lawfully continue. Therefore consent cannot validate such conditions.
• Accordingly, neither the FtT nor the Secretary of State may impose deprivation-of-liberty conditions on a conditional discharge. The Court of Appeal’s decision is upheld and the appeal is dismissed.

Dissenting opinion (Judge Hughes)

• Conditional discharge substitutes a lesser form of deprivation of liberty for the greater one already authorised; therefore no new interference arises.
• The FtT’s power to impose conditions necessarily extends to restrictive regimes so long as they are less severe than hospital detention.
• Existing recall provisions adequately address any later non-compliance; lack of additional enforcement mechanisms does not imply lack of power.
• The majority’s approach frustrates rehabilitation by forcing patients to remain in hospital when a safer, less restrictive alternative exists.

Holding and Implications

HOLDING: The appeal is DISMISSED.

By majority, the Supreme Court confirms that the Mental Health Act 1983 does not empower either the First-tier Tribunal or the Secretary of State to impose, as a condition of a restricted patient’s conditional discharge, any regime that in itself amounts to a deprivation of liberty. Such patients must therefore remain in hospital unless a community plan short of deprivation of liberty can protect the public. The decision leaves existing statutory mechanisms unchanged and sets a clear boundary on conditional-discharge conditions but creates no new doctrine beyond interpreting the MHA strictly according to the principle of legality.