Today in Secretary of State for Justice (Respondent) v MM (Appellant)  UKSC 60 the Supreme Court decided that a First Tier Tribunal (FTT) does not have 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.
Baroness Hale (with whom Lady Black and Lords Kerr and Lloyd-Jones agree) explains that discharge conditions can not amount to an objective DOL for four reasons.
First, if the broad power under section 73 could impose such conditions it would breach the principle of legality (which requires express language when there is an interference with someone's fundamental rights) by 'detaining' a person in the community - § 31.
Secondly, because the patient could withdraw their consent to the conditions at any time it would be very difficult to police - § 32.
Thirdly, the Act as a whole envisages only two forms of detention; those are detention in hospital either under civil or criminal powers and the removal, under sections 135 and 136, to a place of safety by a police officer if the officer considers the patient to be a risk to themselves or others - §33.
Fourthly, a conditionally discharged patient can only seek a review of the conditions half as frequently as a hospital detained patient - §37.
The Supreme Court recognises the irony of its decision in that a patient who is medically ready for discharge will have to stay in a more restricted situation, i.e. a hospital, on the basis that it would breach their Article 5 rights to move them to a less restrictive, but still restricted, situation in the community - §24. The Supreme Court does not consider that this problem can be bypassed by relying on the patient's subjective consent to the DOL as, given the choices, that consent may not be real - §23.
Lord Hughes disagrees. A restricted patient has already been lawfully deprived of their liberty when a hospital order is made and they are transferred to hospital. Any discharge into the community will involve less restrictive conditions. Consequently, there will be no breach of the principle of legality as the interference with the patient's rights will be lessened not increased - §44. Likewise, practical difficulties do not arise here because the Secretary of State has powers of recall to hospital if a patient breaches the conditions of discharge - §47.
Lord Hughes notes that the majority's approach will mean 'that a patient who has made sufficient progress for his conditions of detention to be relaxed but not entirely removed, cannot be conditionally discharged to a less severe form of detention.' - §42.
Michael Paget comments "Unfortunately this judgment does not resolve all issues about the conditional discharge of restricted patients. MM has capacity; KC did not and in Secretary of State for Justice v KC and anor  UKUT 0376 (AAC) it was held that the Court of Protection could authorise a DOL for a conditionally discharged incapacitous patient. So KC could be released and MM cannot. As the Supreme Court did not overrule KC there is now a different treatment of capacitous and incapacitous patient which cannot be right and will, I suspect, incentivise patients to present as lacking capacity."
Michael Paget and Zoë Whittington, with David Lock QC and David Blundell, represented the appellant, MM instructed by Donald Tiong of Bison solicitors.