Welsh Ministers v PJ [2018] UKSC 66

PJ, a patient with learning disability, was discharged from hospital under a community treatment order with conditions amounting to deprivation of liberty. The Supreme Court held the Mental Health Act 1983 does not authorise responsible clinicians to impose such conditions.

Facts

PJ, aged 47, had a mild to borderline learning disability and autistic spectrum difficulties associated with aggressive and seriously irresponsible behaviour, including violent and sexual offending. Following a 1999 conviction, he was detained under various provisions of the Mental Health Act 1983 (MHA). On 30 September 2011 he was discharged from hospital under a community treatment order (CTO) made under section 17A MHA and placed in a specialist care home.

The CTO imposed the two mandatory conditions under section 17B(3) and three bespoke conditions under section 17B(2), requiring him to reside at the named care home, abide by a joint section 117 care plan, and abide by risk management plans regarding community access. The regime included 15-minute observations, escorted community outings, restrictions on unescorted leave, an absconding protocol permitting restraint, alcohol limits enforced by breathalyser, and the ability to suspend leave if risk increased.

At a Mental Health Review Tribunal for Wales (MHRT) hearing in May 2014, PJ argued the arrangements amounted to unlawful deprivation of liberty. The MHRT upheld the CTO, finding he was not under continuous supervision and control and, in any event, that the CTO took precedence over human rights issues. The Upper Tribunal (Charles J) held the MHRT had applied the wrong test. The Court of Appeal held that the MHA, by necessary implication, permitted an RC to impose conditions amounting to a deprivation of liberty.

Issues

The principal issue was whether a responsible clinician (RC) has power under the MHA to impose conditions in a CTO under section 17B which amount to depriving the patient of liberty within the meaning of article 5 ECHR. A subsidiary issue concerned the powers of the MHRT where it finds a community patient is being deprived of liberty.

Arguments

The Welsh Ministers

Initially they argued that conditions amounting to deprivation of liberty could be imposed in a CTO. Shortly before the hearing, Mr Gordon QC advanced a diametrically opposite argument: that because conditions in a CTO cannot be enforced (no power to detain, no power to impose treatment without consent, no recapture power, only a limited recall power), they cannot amount to a deprivation of liberty, and it is therefore permissible to impose them. He argued alternatively that the Cheshire West acid test should be modified where the object of conditions was to enhance rather than curtail liberty. On the MHRT’s powers, he submitted that the tribunal was concerned only with discharge, and that judicial review was the proper remedy for unlawful detention.

The appellant patient

The patient argued that the CTO conditions amounted to an unlawful deprivation of liberty and that the MHRT should exercise its discretion under section 72(1) to discharge him, including because appropriate medical treatment could not be said to be available where the care plan amounted to unlawful detention.

Judgment

Lady Hale (with whom Lord Kerr, Lord Wilson, Lady Black and Lord Lloyd-Jones agreed) allowed the appeal.

Whether deprivation of liberty must be assessed factually

The Court accepted the Welsh Ministers’ description of the limited legal effect of a CTO but rejected the conclusion drawn from it. ECHR rights must be practical and effective; whether someone has been deprived of liberty must be judged by the concrete situation on the ground, not by the enforceability of the regime. Otherwise unlawful detention might go unremedied.

Cheshire West not to be modified

The acid test established in Cheshire West and Chester Council v P [2014] AC 896 — whether the person is under continuous supervision and control and not free to leave — applies. Purpose is not among the listed factors (citing Lord Walker in Austin). There was no reason to distinguish PJ’s case, and a panel of five could not depart from Cheshire West in any event.

No implied power to deprive of liberty

Section 17B(2) contains no express power to impose conditions amounting to deprivation of liberty. The Court of Appeal had erred by reasoning back from an assumed purpose of gradual reintegration to imply such a power. Applying the principle of legality articulated by Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 and Lord Reed in AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868, fundamental rights cannot be overridden by general or ambiguous words. The general words in section 17B(2) cannot authorise deprivation of liberty.

The test for necessary implication, as stated in R (Morgan Grenfell) v Special Comr of Income Tax [2003] 1 AC 563, is strict. There was no reason to suppose Parliament would have included such a power: a CTO patient cannot even be made to take medication without consent, and it is implausible Parliament intended a greater interference with liberty. Detention powers in the MHA are precisely prescribed (referencing Sir Thomas Bingham MR in In re S-C [1996] QB 599), with detailed rules for places of detention, recapture, and safeguards — all absent for CTO conditions.

Lady Hale concluded that the MHA does not give the RC power to impose conditions which have the concrete effect of depriving a community patient of liberty within article 5 ECHR. This conclusion was reached on common law principles of statutory construction, without resorting to section 3(1) of the Human Rights Act 1998, though it was doubtful whether the implied power found by the Court of Appeal would meet the Convention standard of legality.

Powers of the MHRT

The MHRT cannot vary or revoke conditions; its only power is to discharge. The problem is more theoretical than real: the patient’s actual situation may be relevant to whether the statutory criteria for the CTO are made out, and the tribunal can explain the true legal effect of a CTO. However, where unlawful detention exists, the proper remedies are habeas corpus or judicial review. Once it is clear that the RC has no power to impose conditions amounting to deprivation of liberty, conscientious RCs will not do so; section 132A and the Code of Practice reinforce this by requiring patients to be informed of the true effect of their CTO.

Implications

The decision establishes that a responsible clinician has no power under section 17B of the MHA to impose conditions in a CTO which, judged factually, amount to a deprivation of liberty under article 5 ECHR. The judgment reaffirms the principle of legality: fundamental rights, particularly liberty, cannot be curtailed by general or ambiguous statutory language, and necessary implication is a strict test.

For practitioners, the case clarifies that the regime applied to a community patient on the ground must be assessed against the Cheshire West acid test, and that the absence of enforcement powers does not mean conditions cannot factually deprive a person of liberty. RCs, hospital managers, AMHPs, MHRTs and patients’ advisers must ensure CTO conditions remain within lawful bounds. Where deprivation of liberty in fact exists, the appropriate routes of challenge are habeas corpus or judicial review rather than discharge by the tribunal, although the tribunal retains its general discretion to discharge and may explain the legal position.

The judgment is consistent with the parallel decision in MM v Secretary of State for Justice [2018] UKSC 60 concerning conditionally discharged restricted patients, although the statutory regimes differ. The Court was careful not to determine whether PJ had in fact been deprived of his liberty, confining itself to the question of statutory power. The decision does not address whether Parliament could lawfully provide for community deprivation of liberty by clearer language, nor does it disturb Cheshire West.

Verdict: Appeal allowed. The Supreme Court declared that there is no power under the Mental Health Act 1983 to impose conditions in a community treatment order which have the effect of depriving a patient of his liberty.

Source: Welsh Ministers v PJ [2018] UKSC 66