Welsh Ministers (Respondent) v PJ (Appellant)
|Cite as:|| UKSC 66|
|Hand-down Date:||December 17, 2018|
THE COURT ORDERED that no one shall publish or reveal the name or address of the Appellant who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of the Appellant or of any member of his family in connection with these proceedings.
Michaelmas Term  UKSC 66
On appeal from:  EWCA Civ 194
Welsh Ministers (Respondent) v PJ (Appellant) before
Lady Hale, President Lord Kerr Lord Wilson
Lady Black Lord Lloyd-Jones JUDGMENT GIVEN ON 17 December 2018 Heard on 22 October 2018 Appellant Respondent Jenni Richards QC
Richard Gordon QC Amy Street (Instructed by Blake Morgan LLP (Cardiff)) Peter Mant
Stephanie David (Instructed by GHP Legal (Wrexham))
Aswini Weereratne QC Sophy Miles Gemma Daly (Instructed by Mind) LADY HALE: (with whom Lord Kerr, Lord Wilson, Lady Black and Lord Lloyd-Jones agree)
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  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  EWCA Civ 194;  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:
"1. The patient is to make himself or herself available for examination under section 20A as required.
If it is proposed to give a certificate under Part 4A in the patient's case, the patient is to make himself or herself available for examination to enable the certificate to be given, as required."
Section 20A provides for the duration and renewal of CTOs - initially for six months, then a further six months, then for a year at a time. Before deciding to renew the CTO, the RC must examine the patient and decide whether the criteria for renewal exist (section 20A(4)). Part 4A deals with the medical treatment of patients on CTOs who have not been recalled to hospital. Certain treatments cannot be given, even if the patient consents to them, without a certificate having been given. The details need not concern us.
The CTO also imposed three bespoke conditions under section 17B(2) of the MHA:
"1. To reside at [the named care home with nursing] and adhere to rules of residence at [the care home].
To abide by joint 117 care plan drawn up by multidisciplinary team.
To abide by risk management plans for community access with regard to levels of staff supervision."
The reference to "joint 117 care plan" relates to section 117 of the MHA under which (in Wales) the Local Health Board and the local social services authority have a duty to provide after care services for, inter alia, patients subject to a CTO.
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 ensure that the patient receives medical treatment
- 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:
(i) his whereabouts were monitored at all times within the unit, with 15-minute observations;
(ii) there was a "time out" policy in operation;
(iii) he was escorted by staff on all community outings, including when attending college and meeting his girlfriend;
(iv) all unescorted leave had to be agreed by the RC and social supervisor;
(v) at the time of the tribunal hearing, he was allowed 30 minutes per week unescorted leave for banking; 30 minutes for shopping; 30 minutes on two other occasions 'as long as safe to do so'; and two to three nights with his mother every fortnight;
(vi) there was an absconding protocol allowing for restraint techniques to be used as a last resort;
(vii) his alcohol use was limited to four units per week and he was breathalysed to secure compliance; any alcohol reading after home leave or contact with his brother would result in immediate suspension of home leave;
(viii) unescorted leave would be stopped if risk factors increased.
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  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...
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