Supreme Court Judgment - DoL & Community Treatment Order

Related Sector: Health & Social Care

On Monday 17th December 2018 the Supreme Court handed down its judgment in the case of Welsh Ministers (Respondent) v PJ (Appellant). Below is a summary.

Background

The case involves 47 year old patient PJ who with mild learning disability, which falls within the autistic spectrum, was convicted of assault occasioning Actual Bodily Harm and threats to kill in 1999.

A court imposed a hospital order under Section 37 of the Mental Health Act 1983 and he was discharged from a medium-security unit to a unit, which later became a hospital, where he remained voluntary as an informal patient.

In May 2009 PJ was compulsorily detained in a hospital under the civil power under section 3 of the Mental Health Act.

In September 2011 he was discharged from hospital and made subject to a Community Treatment Order (CTO). The responsible clinician who discharged him added conditions to the CTO that required PJ to reside in a care home, to be subject to close supervision, and only allowed out under escort and subject to strict limits around time, purpose and place.

Issue

PJ believed that such conditions, imposed on him via the CTO, amounted to a deprivation of his liberty within the meaning of Article 5 of the European Court of Human Rights (ECHR).

1. First Tier Mental Health Tribunal Wales

PJ argued, before the First Tier Mental Health Tribunal Wales, that because his arrangements amounted to an unlawful deprivation of his liberty he should therefore be discharged from the order.  

The Tribunal held that the arrangements did not amount to a deprivation of his liberty. They also stated that even if they did fall within a deprivation of liberty, there was a need for the order and that took precedence over any human rights issues.

2. Upper Tribunal

PJ appealed the decision to the Upper Tribunal, in which they agreed that the approach was wrong, and that the condition did amount to a deprivation of liberty.

3. Court of Appeal

The Welsh ministers appealed the decision to the Court of Appeal in which the Court of Appeal accepted that the restrictions did indeed amount to a deprivation of liberty. Controversially, they concluded that by necessary implication, the Mental Health Act allowed such conditions to be imposed and relied upon to authorise a deprivation of liberty as long as the restrictions were less of a restriction than in hospital.

4. Supreme Court

Once again, the decision was challenged with PJ appealing to the Supreme Court, the final court of appeal in the UK.  

At the hearing the Welsh ministers raised a new argument. They accepted that there was no legal power to impose conditions amounting to a deprivation of liberty, and they used this to argue that this in fact meant that PJ was not being deprived of his liberty at all.

Outcome

The Supreme Court held that there is no power to impose conditions in a Community Treatment Order which have the effect of depriving somebody of their liberty.

Read the full judgment

This, however, does not mean that a patient has not in fact been deprived of their liberty because of such conditions being placed on their CTOs.

The purpose of a CTO is to release the patient into the community while they continue to receive the treatment they need, but not to detain them in another setting.  

The tribunal has no power to vary or revoke the conditions. This can only done by a Responsible Clinician, but arrangements under a Community Treatment Order may well be relevant as to whether the criteria for such an order are made out and so may be relevant to the Tribunal’s consideration of case.

What does this mean on the ground?

In light of this judgment, responsible clinicians legally cannot impose conditions on Community Treatment Orders which deprive the patient of their liberty within the meaning of Article 5 of the ECHR.

The Supreme Court unanimously allowed the appeal and declared there is no power to impose conditions in a community treatment order which have the effect of depriving patient of their liberty. This may have implications for professionals on the ground and ultimately many patients remaining in hospital, or potentially having to be recalled back into hospital if they are already in the community with conditions which amount to a deprivation of liberty under their community treatment order.

Sue Inker
Bond Solon Subject Matter Expert and Adult Social Care Trainer

This article was first published on Thursday 20th December 2018.