Welsh Ministers v PJ

In 2007, the Mental Health Act 1983 (the MHA) was amended to introduce a new form of order, a community treatment order (a CTO). This was designed so that patients compulsorily detained in hospital for treatment might be released into the community by their responsible clinician (RC) but subject to conditions which would support their continuing to receive the treatment they needed. The simple question in this case is whether the RC can impose conditions in a CTO which amount to depriving the patient of his or her liberty, within the meaning of article 5 of the European Convention on Human Rights. The same question has arisen in the case of MM v Secretary of State for Justice [2018] UKSC 60, in relation to the conditions which may be imposed upon a restricted patient who is conditionally discharged from hospital either by a tribunal or by the Secretary of State for Justice. The two cases were heard and determined together in the Court of Appeal: M v Secretary of State for Justice, J v Welsh Ministers [2017] EWCA Civ 194; [2017] 1 WLR 4681. However, the statutory regime governing the conditional discharge of restricted patients is quite different from the statutory regime governing CTOs for non-restricted patients. Accordingly, we have heard the cases separately and are giving judgment separately, while of course seeking to adopt a consistent approach to the principles involved. Our conclusion, differing from the Court of Appeal, is that under neither regime is it permissible to impose conditions which amount to a deprivation of liberty.

The patient, PJ, is 47 years old. According to his RC when making the CTO in 2011, he “has mild to borderline learning disability … He has also been assessed recently as having difficulties which fall within the autistic spectrum. This has been accompanied by abnormally aggressive and seriously irresponsible behaviour consisting of violent and sexual offending.” That wording was no doubt chosen because a person with a learning disability cannot be compulsorily admitted to hospital for more than a short time or made the subject of a CTO “unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part” (MHA, section 1(2A), (2B)).

In 1999, PJ was convicted of assault occasioning actual bodily harm and threats to kill. The court imposed a hospital order under section 37 of the MHA (but not a restriction order). He was admitted to a medium secure unit and later discharged to a residential unit under a supervised discharge order (a predecessor to a CTO but to different effect). In 2007 that unit became a hospital, but PJ remained there voluntarily as an informal patient. In May 2009, he was compulsorily detained for treatment under the civil power in section 3 of the MHA.

On 30 September 2011, he was discharged from hospital under a CTO and placed in a care home. This was a specialist facility for up to ten men with moderate to borderline learning disability and a history of challenging or offending behaviour. The CTO imposed the two conditions to which all CTO patients are required to be subject under section 17B(3) of the MHA:

The CTO also imposed three bespoke conditions under section 17B(2) of the MHA:

The RC confirmed on the form that she considered these conditions to be necessary or appropriate for one or more of the following purposes (listed in section 17B(2)):

to prevent risk of harm to patient’s health or safety

to protect other persons.”

As required by section 17A of the MHA, an approved mental health professional (AMHP) agreed that the patient met the criteria for a CTO, that it was appropriate to make a CTO and that the conditions under section 17B(2) were necessary for one or more of the purposes specified.

It is common ground that the regime to which PJ was subject in the care home included:

According to the psychiatrist who prepared a report for a hearing before the Mental Health Review Tribunal for Wales (the MHRT) in 2014, PJ knew what “CTO” stood for. His understanding of its effect was that “in my language it means if you fuck up it’s goodbye everything”. His understanding of the conditions was that he had to listen to staff and stick to the rules. That psychiatrist, along with the RC and others, considered that he had the capacity to consent to the care plan and to the conditions in the CTO. The evidence before the tribunal was that he was happy to stay at the care home and understood that the CTO brought benefits because he needed clear boundaries, but that he would like more freedom to see his family and his girlfriend.

At the MHRT hearing in May 2014, the case put on behalf of PJ was that the arrangements under the CTO amounted to an unlawful deprivation of liberty and he should therefore be discharged from it. The Tribunal found that he had significant time when he was not supervised and there was a flexible and progressive plan in place to enable more time to be spent unsupervised. Accordingly, he was not under continuous supervision and control and thus not deprived of his liberty within the meaning of article 5, as interpreted by this court in Cheshire West and Chester Council v P [2014] AC 896. Even if he was, the need for a CTO must take precedence over any human rights issues. The MHRT upheld the CTO.

The Upper Tribunal heard the patient’s appeal in May 2015. The judge, Charles J, made an order joining the Welsh Ministers and the Secretary of State for Health as parties but they chose not to play any active part in the case. Indeed, they both applied for the joinder to be lifted, the Welsh Ministers stating that they had no particular legal or policy perspective on the appeal. Charles J declined to remove them as parties, so that they would be bound by the decision, and could receive the documents and consider what views to offer on the important issues raised.

In his substantive decision, Charles J held that the MHRT had erred in their approach to whether or not PJ was deprived of his liberty: they had concentrated on the level of supervision, divorcing it from whether he was free to leave or to refuse to abide by the conditions. Charles J declined to decide whether or not PJ in fact had been deprived of his liberty, although he found it hard to see how further analysis would lead to the conclusion that he was not. He also held that the MHRT had been wrong to conclude that the CTO framework took precedence over the human rights issues: if PJ had been unlawfully deprived of his liberty the Tribunal could not allow the situation to continue. But he declined to remit the case to the MHRT because by that time PJ was no longer subject to a CTO.

Implicit in the conclusions reached by Charles J is that whether a person is in fact deprived of his liberty has to be judged by the concrete situation of the person on the ground rather than by the enforceability of his regime; and that it would not be lawful to impose conditions in a CTO which had the practical effect of depriving the patient of his liberty. The Welsh Ministers (but not the Secretary of State) appealed to the Court of Appeal. No-one sought to argue in that court that it had been open to the MHRT to hold that the conditions in the CTO did not amount to a deprivation of liberty. But the Court of Appeal concluded that by necessary implication the MHA permitted an RC to restrict the freedom of movement of the patient to such an extent that it amounted to a deprivation of liberty. The Court of Appeal also held that the MHRT had no power to discharge the CTO even if its terms meant that the patient was unlawfully deprived of his liberty.

The patient now appeals to this court. Once again, the Secretary of State has played no part in the proceedings. The relevant Secretary of State would be the Secretary of State for Health, whereas the relevant Secretary of State in the case of MM is the Secretary of State for Justice. In the MM case, the Secretary of State has argued, successfully, that there is no power to impose conditions upon a conditionally discharged restricted patient which have the effect of depriving him of his liberty. In this case, the Welsh Ministers’ principal argument until shortly before the hearing in this court was that such conditions could be imposed in a CTO. It would, to say the least, have been helpful to this court to have the views of the Secretary of State for Health, no doubt after consultation with the Secretary of State for Justice, on an issue which affects England as much as it affects Wales. It may, however, be possible to deduce the views of the Secretary of State from the Mental Health Act Code of Practice, which he is required to draw up and lay before Parliament under section 118 of the MHA. The current edition (revised 2015) states quite clearly that “The conditions must not deprive the patient of their liberty” (para 29.31).

However, shortly before the hearing, Mr Richard Gordon QC, on behalf of the Welsh Ministers, put forward an alternative and diametrically opposed argument. This was, in short, that because the conditions in a CTO cannot be enforced, they cannot amount to a deprivation of liberty and it is therefore permissible to impose them.

The statutory regime governing the imposition and effect of a CTO is principally contained in sections 17A to 17F of the MHA, which are annexed to this judgment. The following features are particularly noteworthy:

In effect, the Welsh Ministers now argue that the conditions imposed upon PJ cannot deprive him of his liberty because they cannot be enforced. There is no power to detain him, there is no power to impose medical treatment (widely defined) without his consent, there is no sanction for failing to comply with the care plan, other than the limited power of recall, and there is no power to recapture him if he absconds or otherwise goes missing from the care home. Hence, they argue, it is lawful to impose these conditions, because they do not amount to a deprivation of liberty.

The Welsh Ministers are entirely correct in what they say about the legal effect of a CTO. But it does not follow that the patient has not in fact been deprived of his liberty as a result of the conditions to which he is subject. The European Court of Human Rights has said time and time again that the protection of the rights contained in the European Convention must be practical and effective. When it comes to deprivation of liberty, they and we must look at the concrete situation of the person concerned: has he in fact been deprived of his liberty? Otherwise, all kinds of unlawful detention might go unremedied, on the basis that there was no power to do it. That is the antithesis of what the protection of personal liberty by the ancient writ of habeas corpus, and now also by article 5 of the Convention, is all about.

Since the judgment in the Upper Tribunal, this case has proceeded on the basis that the factual circumstances in which PJ found himself under the CTO conditions did amount to a deprivation of liberty. Charles J found that the MHRT had applied the wrong test, but neither made the determination for himself nor sent the case back for the MHRT to do so. But it is enough for our purposes to proceed on the basis that there was a deprivation of liberty on the ground. The question is whether the RC has power, under the MHA, to impose conditions which have that effect.

If he fails on his new principal case, Mr Gordon argues that the “acid test” of a deprivation of liberty, decided by this court in Cheshire West, should be modified for cases of this sort where the object is to enhance rather than further curtail the patient’s freedom. He relies on cases such as Austin v United Kingdom (2012) 55 EHRR 14, where the European Court of Human Rights found that “kettling” demonstrators and passers-by for some hours was not a deprivation of liberty in all the circumstances of the case. As the court explained,

This is indeed the test which has been propounded by Strasbourg for many years, beginning with Guzzardi v Italy (1980) 3 EHRR 333. The jurisprudence was examined in detail in Cheshire West , where all members of the court agreed that the “acid test” of a deprivation of liberty was whether the person was under continuous supervision and control and not free to leave. The concrete circumstances of PJ in this case are much the same as those of P in the Cheshire West case, although PJ is not as seriously disabled as was P. And in both cases, the object of the care plan was to allow them as much freedom as possible, consistent with the need to protect their own health or safety or, at least in PJ’s case, that of others. But, as Lord Walker pointed out in the House of Lords in Austin v Comr of Police of the Metropolis [2009] AC 564, at para 43, “It is noteworthy that the listed factors, wide as they are, do not include purpose”. There is no reason to distinguish this case from Cheshire West and we are not - and could not be as a panel of five - asked to depart from it.

And in any event, we are not being asked, any more than was the Court of Appeal, to decide whether PJ was in fact deprived of his liberty by the regime imposed upon him. We are asked to consider whether the MHA gives the RC power to impose conditions which have that effect. It is to that question which I now turn.

It is common ground that there is no express power in section 17B(2) of the MHA to impose conditions which have the effect of depriving a community patient of his liberty. The Court of Appeal nevertheless held that there was such a power by necessary implication. The purpose of a CTO, they said, is the gradual integration of the patient into the community (para 50). There must therefore be, by necessary implication, “a power to provide for a lesser restriction of movement than detention in hospital which may nevertheless be an objective deprivation of liberty provided it is used for the specific purposes set out in the CTO scheme” (para 51). The only limit was that the conditions could not impose a greater restriction than those applicable to detention in hospital (para 52).

With the greatest of respect to the Court of Appeal, this approach puts the cart before the horse. It takes the assumed purpose of a CTO - the gradual reintegration of the patient into the community - and works back from that to imply powers into the MHA which are simply not there. We have to start from the simple proposition that to deprive a person of his liberty is to interfere with a fundamental right - the right to liberty of the person. It is a fundamental principle of statutory construction that a power contained in general words is not to be construed so as to interfere with fundamental rights. The best-known explanation for this principle is contained in Lord Hoffmann’s opinion in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, at p 131:

In any event, as the Court of Appeal recognised, the test for a necessary implication is a strict one. As Lord Hobhouse put it in R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563, para 45:

In fact, there is no reason to suppose that Parliament would have included such a power in the MHA had it been thought of. The purpose of a CTO is not necessarily or invariably “the gradual integration of the patient into the community”. The purpose is explained in the Mental Health Act Code of Practice, para 29.5, as follows:

Indeed, that is one of the strong indications from the other provisions in the MHA that CTO conditions cannot be used to deprive a person of his liberty. If he cannot be made to take his medication, how can Parliament have intended an even greater interference with his fundamental rights? Another indication comes from the very precise language used when detention is authorised under the MHA. If a patient is admitted to hospital for treatment under the civil power in section 3 of the Act, for example, section 6 provides that a duly completed application is authority for certain people to take the patient and convey him to the hospital within certain periods of time and, if he reaches there in time, for the hospital to detain him in accordance with the provisions of the Act. These include provision for the grant of leave of absence to the patient and for his recapture if he is absent without leave. As Sir Thomas Bingham MR explained in In re S-C (Mental Patient: Habeas Corpus) [1996] QB 599, p 603, because of the special problems presented by mental illness,

The provisions which do apply to a CTO make none of the sort of detailed rules which we would expect if a CTO were to authorise the detention of the patient in a community facility. If the MHA had contemplated detention - or deprivation of liberty - in a place outside hospital, one would have expected, for example, a definition of the types of setting in which a patient could be so placed and the regulatory regime attached to them. And one would have expected an express provision saying who was entitled to detain the patient and who was entitled to recapture him if he escaped or went absent without leave.

I conclude, therefore, that the MHA does not give the RC power to impose conditions which have the concrete effect of depriving a community patient of his liberty within the meaning of article 5 of the European Convention. I reach that conclusion without hesitation and in the light of the general common law principles of statutory construction, without the need to turn further to the jurisprudence of the European Court of Human Rights or to resort to the obligation in section 3(1) of the Human Rights Act 1998 to read and give effect to legislation in a way which is compatible with the Convention rights. However, it is doubtful, to say the least, whether the European Court of Human Rights would regard the ill-defined and ill-regulated power implied into the MHA by the Court of Appeal as meeting the Convention standard of legality.

Having reached that conclusion, a subsidiary question arises as to the powers of the MHRT if it finds on the facts that a community patient is being deprived of his liberty. As already seen, the MHRT has no power to revoke or vary the conditions. Its only power is to discharge the patient, either immediately or at some future date. But the MHA gives the MHRT a general discretion to order discharge in any case, alongside a duty to do so if not satisfied that the statutory criteria for the CTO are made out. (Incidentally, the Schedule attached to the judgment of the Court of Appeal, setting out the relevant sections of the Act, does not state section 72(1)(c) accurately).

It is argued for the patient that if he is indeed being deprived of his liberty unlawfully under the CTO, the MHRT should exercise its power to discharge him, either under the general discretion conferred by section 72(1), or because the tribunal cannot be satisfied that “appropriate medical treatment is available” for the patient. If the care plan amounts to unlawful detention, the treatment cannot be appropriate. If the patient is discharged but the grounds exist for his admission to hospital, then that can be arranged by an application for admission to hospital under section 2 (for assessment), in an emergency if necessary under section 4, or under section 3 (for treatment) in the usual way. If they do not, then there is no power under the MHA to deprive him of his liberty and he should be released.

Mr Gordon, on the other hand, argues that the MHRT is concerned only with whether the patient should be discharged and not with the legality of the conditions. The appellant’s argument, he says, is a disguised way of conferring upon the tribunal a jurisdiction which it does not have. If the patient does need medical treatment which is available in hospital but cannot be given in the community, the proper course is for the RC to recall him to hospital, rather than for the tribunal to discharge him only to be “re-sectioned” immediately. If the patient is being illegally detained, the proper remedy is judicial review.

In my view, this problem is more theoretical than real. The MHRT has no jurisdiction over the conditions of treatment and detention in hospital, but these can be relevant to whether the statutory criteria for detention are made out, especially in borderline cases. The RC’s report to the tribunal must cover, inter alia, full details of the patient’s mental state, behaviour and treatment; and there will also be a nursing report and a social circumstances report (Tribunals Judiciary, Practice Direction, First-tier Tribunal Health Education and Social Care Chamber, Statements and Reports in Mental Health Cases, 2013). His treatment and care may well feature in the debate about whether he should be discharged. The tribunal may recommend that the RC consider a CTO and “further consider the case” if the recommendation is not complied with (section 72(3A)(a)). Similarly, the tribunal has no power to vary the care plan or the conditions imposed in a CTO, but the tribunal requires an up to date clinical report and social circumstances report, including details of any section 117 aftercare plan. The patient’s actual situation on the ground may well be relevant to whether the criteria for the CTO are made out. Furthermore, if the tribunal identifies a state of affairs amounting to an unlawful deprivation of liberty, it must be within its powers to explain to all concerned what the true legal effect of a CTO is. But the patient can only apply to the tribunal once during each period for which the CTO lasts (six months, six months, then once a year). If the reality is that he is being unlawfully detained, then the remedy is either habeas corpus or judicial review.

Furthermore, once it is made clear that the RC has no power to impose conditions which amount to a deprivation of liberty, any conscientious RC can be expected not to do so. This is reinforced by section 132A(1) of the MHA, under which it is the duty of the hospital managers to “take such steps as are practicable to ensure that a community patient understands … the effect of the provisions of this Act applying to community patients”. Those steps must include giving the information both orally and in writing. The Mental Health Act Code of Practice makes it quite clear that community patients must be informed - in a manner which they can understand - of the provisions of the Act under which they are subject to a CTO and the effect of those provisions and of the effect of the CTO, including the conditions which they are required to keep and the circumstances in which their RC may recall them to hospital (para 4.13). This information should be copied to the patient’s nearest relative, unless the patient requests otherwise (para 4.31). Patients should be told of this and there should be discussion with the patient as to what information they are happy to share and what they would like to be kept private (para 4.32).

The upshot is that patients and (usually) their nearest relatives, as well as the hospital and RCs, and the tribunal, should understand the true legal position under a CTO, as explained in this judgment.

I would therefore allow this appeal and declare that there is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty.