Secretary of State for Justice v MM [2018] UKSC 60

MM, a restricted patient detained under the Mental Health Act 1983 for arson, sought conditional discharge subject to community conditions amounting to a deprivation of liberty, to which he consented. The Supreme Court held, by majority, that neither the First-tier Tribunal nor the Secretary of State has power to impose such conditions.

Facts

MM, born in 1983, was convicted of arson in 2001 and made subject to a hospital order under section 37 of the Mental Health Act 1983 (MHA), together with a restriction order under section 41. He has a diagnosis of mild learning disabilities, autistic spectrum disorder, and pathological fire setting, and is considered to pose a serious risk of fire setting and sexually inappropriate behaviour towards women. Apart from a brief period of conditional discharge in 2006-2007, he has been detained in hospital ever since.

At a First-tier Tribunal (FtT) hearing in May 2015, two external experts considered MM could be safely managed in the community under conditional discharge with a suitable care plan. Such a plan would involve restriction, supervision and monitoring amounting to a deprivation of liberty within the meaning of article 5 ECHR, as explained in Cheshire West. Specifically, MM would be required to live at a particular place which he would not be free to leave, and would not be allowed out without an escort. MM, who had capacity to consent, was prepared to consent.

The FtT, applying B v Secretary of State for Justice [2011] EWCA Civ 1608, ruled it had no power to impose such conditions. The Upper Tribunal (Charles J) reversed this. The Court of Appeal restored the FtT’s decision, holding it was bound by B.

Issues

The central issue was whether the words “discharge … subject to conditions” in section 42(2) MHA (Secretary of State’s powers) and “conditional discharge” in section 73(2) MHA (FtT’s powers) can be construed as including the power to impose conditions which amount to a deprivation of liberty within the meaning of article 5 ECHR, where the patient has capacity and consents.

Arguments

For the appellant (MM)

Mr David Lock QC argued that the rehabilitative purpose of conditional discharge would be frustrated if patients could not transition to community settings even where these involve continuous supervision and control. He contended that nothing in the common law interpretation of section 73(2) or article 5 prevented imposition of such conditions where a capacitous patient consented. Relying on Storck v Germany (2005) 43 EHRR 6, he submitted there is no deprivation of liberty under article 5 if the patient validly consents. He further argued there was unjustified discrimination between capacitous patients (for whom no such power exists) and incapacitous patients (for whom the Court of Protection can authorise deprivation of liberty under the Mental Capacity Act 2005).

For the respondent (Secretary of State)

The Secretary of State argued that the MHA does not authorise the imposition of conditions amounting to detention or deprivation of liberty upon a conditionally discharged restricted patient, even with consent.

Judgment

The Supreme Court (Lady Hale, with Lord Kerr, Lady Black and Lord Lloyd-Jones agreeing; Lord Hughes dissenting) dismissed the appeal.

Statutory interpretation of “discharge”

Lady Hale held that “discharge” in sections 42(2) and 73(2) when referring to conditional discharge of restricted patients cannot mean discharge from liability to be detained, because the patient remains liable to be detained. It must therefore mean discharge from the hospital in which the patient is currently detained. However, this did not entail that any form of detention could be imposed as a condition.

The principle of legality

Lady Hale relied on Lord Hoffmann’s formulation in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115:

… the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

The general words of sections 42(2) and 73(2) could not be read as authorising a different form of detention from that provided for in the MHA, without prescribed criteria or procedural safeguards.

Practical considerations

The MHA confers no coercive powers over conditionally discharged patients. Breach of conditions is not a criminal offence, nor an automatic ground for recall. A recalled patient cannot be kept in hospital if the grounds for detention are not satisfied. The patient could withdraw consent at any time and demand release.

Scheme of the Act

The MHA provides in detail for specific forms of detention, with corresponding powers to convey patients to hospital and detain them there. There is no equivalent express power to convey a conditionally discharged patient to a place where he is required to live, or to detain him there. The Act’s provisions for retaking patients absent without leave do not apply unless and until the patient is recalled to hospital. If Parliament had contemplated that such a patient could be detained as a condition of discharge, equivalent provision would inevitably have been made. The longer intervals for tribunal applications by conditionally discharged patients (section 75(2)) further indicated Parliament did not contemplate they would be deprived of liberty.

Lord Hughes’ dissent

Lord Hughes would have allowed the appeal. He reasoned that the conditional discharge does not impose a fresh deprivation of liberty; rather, the existing deprivation authorised by the hospital and restriction orders is being modified, with a lesser deprivation substituted. The principle of legality was not engaged so long as the loss of liberty involved was not greater than that already authorised. He found the practical objections answerable: the Secretary of State retains the power of recall, which triggers the Act’s enforcement provisions. He considered the power did not depend on patient consent, although consent would be a highly relevant practical consideration.

Implications

The decision establishes that neither the First-tier Tribunal nor the Secretary of State for Justice has power under the Mental Health Act 1983 to impose conditions on the conditional discharge of a restricted patient which amount to a deprivation of liberty within the meaning of article 5 ECHR, even with the capacitous patient’s consent.

The judgment illustrates a strict application of the principle of legality: fundamental rights, including the right to liberty, cannot be curtailed by general statutory words. Where Parliament has provided detailed and specific machinery for various forms of detention, with corresponding powers of conveyance, retaking and procedural safeguards, the courts will not read into general words of “conditional discharge” a power to impose a different form of detention lacking such safeguards.

As Lady Hale and Lord Hughes both acknowledged, the outcome is paradoxical: the Secretary of State invoking article 5 to keep a patient detained in greater security, when a less restrictive community placement would suffice. Patients in MM’s position who have made progress sufficient for relaxation of detention but not its complete removal may, in practice, remain detained in hospital longer than would otherwise be necessary.

The decision left open whether the Court of Protection might authorise a future deprivation of liberty for an incapacitated restricted patient following conditional discharge, and whether the FtT could defer its decision for that purpose. The potential article 14 discrimination point as between capacitous and incapacitous patients was not resolved, as it would not have changed the outcome.

The judgment matters to mental health practitioners, tribunals, the Ministry of Justice, and restricted patients and their advisers. It clarifies the limits of the conditional discharge regime and indicates that any expansion of those powers would require legislative intervention.

Verdict: The appeal was dismissed (by a majority of 4-1, Lord Hughes dissenting). The Supreme Court held that the Mental Health Act 1983 does not permit either the First-tier Tribunal or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient, even where the patient has capacity and consents.

Source: Secretary of State for Justice v MM [2018] UKSC 60