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Further Cheshire West fall out: Supreme Court to decide about Mental Health Act patients

26.07.2018

Today the Supreme Court will be considering whether a First Tier Tribunal (FTT) has power to conditionally discharge a restricted patient with conditions that satisfy the objective element of a deprivation of liberty (DOL).

A restricted patient is detained in hospital following a criminal conviction. The Secretary of State for Justice monitors restricted patients. A FTT, on application and under s.73 Mental Health Act 1983, can discharge a restricted patient from hospital either absolutely or conditionally. There is no fetter in the section on the conditions a FTT can impose but is it lawful when those conditions amount to a deprivation of liberty?

The Court of Appeal held that a FTT does not have power to impose such conditions because that would breach the P's Article 5 rights and, as the P had a 'Hobson choice' – stay in hospital or enter a DOL elsewhere, no valid consent could be given. So P's own convention rights prevents P from being discharged.

The Supreme Court has ordered an expedited hearing. Since Cheshire West v P [2014] AC 896 far more situations will be held to be a DOL. The options for discharge of restricted patients are far more limited; restricted patients are staying in mental hospitals longer than is necessary.

The Supreme Court may well use this case to emphasise that no DOL arises if consent can be given; that Cheshire West only really applies to an incapacitous P. Judgment will be given in the autumn.

Michael Paget and Zoë Whittington represent the appellant instructed by Bison solicitors.