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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Secretary of State for Justice v MM [2017] EWCA Civ 194 (29 March 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/194.html Cite as: [2017] WLR(D) 235, [2017] 1 WLR 4681, [2017] EWCA Civ 194, [2017] WLR 4681 |
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ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
CHARLES J
HM/2133/2015 & HM/1518/2015
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE GLOSTER
Vice-President of the Court of Appeal (Civil Division)
and
THE SENIOR PRESIDENT OF TRIBUNALS
____________________
The Secretary of State for Justice | Appellant | |
- and - |
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MM |
Respondent |
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And Between: |
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Welsh Ministers |
Appellant |
|
PJ |
Respondent |
____________________
Mr Michael Paget and Ms Zoe Whittington (instructed by Bison Solicitors) for the Respondent MM
Mr Richard Gordon QC and Ms Amy Street (instructed by Blake Morgan LLP) for the Appellant Welsh Ministers
Mr Peter Mant (instructed by GHP Legal) for the Respondent PJ
Hearing dates: 8 and 9 June 2016
____________________
Crown Copyright ©
Sir James Munby, President, Lady Justice Gloster, Vice-President, and Sir Ernest Ryder, Senior President:
Introduction:
Part One – MM:
a. the conditions imposed would necessarily involve a deprivation of liberty;
b. the patient has capacity; and
c. the patient purports to consent to the conditions.
a. The powers of the tribunal;
b. The effect of consent.
"[27] … Sections 42 and 73 make no reference to detention otherwise than in a hospital, and this would indicate that Parliament did not contemplate that on discharge a patient should be detained in an institution which was not a hospital. Had it been intended that there should be detention in an institution other than a hospital (as defined), the proper inference from the statutory scheme and its background is that Parliament would have ensured that the Winterwerp conditions were satisfied in relation to that detention also.
[…]
[48]. In my judgment, the core issue is whether there is any statutory authority for a deprivation of liberty once an order for a conditional discharge has been made. The Strasbourg court has made it clear that such an important matter must be 'prescribed by law' (the fourth Winterwerp condition), and that includes a requirement that the grounds on which a person may be deprived of his liberty when an order for conditional discharge is to be made and the grounds on which he is entitled to be released from the conditions imposing a deprivation of liberty must be found in legislation. I shall call this "the 'prescribed by law' issue".
[…]
[53] At the end of the day, however, I accept the submission of Mr Chamberlain that the original order made against RB authorised, and authorised only, detention in a hospital: see section 37 and section 41(3)(a) of the 1983 Act set out above. That conclusion seems to me to be the starting point. The consequence of that conclusion is that Mr Burrows is driven to rely for the authority to deprive RB of his liberty on the wording of section 73(2), which is wholly silent on that important point. The right to liberty of the person is a fundamental right. It has been so regarded since at least the time of the well known provisions of clause 39 of Magna Carta, which in due course found its reflection in article 9 of the Universal Declaration of Human Rights and article 5 of the Convention. A person cannot have his right to liberty taken away unless that is the clear effect of a statute: see Lord Hoffman in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131:
'Fundamental rights cannot be overridden by general or ambiguous words. This is because it is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.'
[…]
[57]. The points made by Mr Chamberlain underline this point because they show that Parliament could not have intended to create, as he puts it, a new species of detention that is potentially more detrimental to personal liberty than the detention under the 1983 Act. This is because the 1983 Act does not specify the circumstances in which a tribunal can order a conditional discharge on terms that there is a deprivation of liberty. Moreover, section 73 appears, on its face, to be wide enough, on the Upper Tribunal's interpretation, to authorise detention for the purposes of containment rather than treatment, which is contrary to the policy of the 1983 Act: see para 24 above."
The effect of consent:
"I do not think that consent to continuing deprivation of liberty can confer jurisdiction on a tribunal. A deprivation remains since the consent cannot convert [it] into something else."
Part Two: PJ:
i) PJ was to reside at a care home with nursing and adhere to the rules of residence at the home.
ii) PJ was to abide by the section 117 MHA care plan drawn up by the multi-disciplinary team.
iii) PJ was to abide by the risk mitigation plan for community access which specified the nature and extent of the supervision of him.
"(1) The MHRT erred in law in their application of the majority decision of the Supreme Court in Cheshire West and Cheshire Council v P [2014] UKSC 19 and so in their approach to whether the implementation of the conditions of the Community Treatment Order did or did not, on an objective assessment, deprive PJ of his liberty.
(2) The MHRT erred in law in concluding in the alternative that if PJ was deprived of his liberty in breach of article 5 that the CTO framework must take precedence over any human rights issues."
i) The judge erred in law in determining that the UT had jurisdiction to revise conditions under a CTO and/or to adjourn proceedings for such conditions to be revised and/or to take into account article 5 ECHR when exercising its powers of discharge under section 72 MHA in respect of CTOs; and
ii) The judge erred in law in holding that the MHRTW erred in its approach to the question of whether PJ was deprived of his liberty.
i) The nature and extent of the power to make CTO conditions;
ii) Whether the statutory framework provides effective and practical safeguards;
iii) The powers of the tribunal; and
iv) What is a deprivation of liberty?
The power to make CTO conditions:
"It is accepted that the statute does not contain any express words that abrogate the taxpayer's common law right to rely upon legal professional privilege. The question therefore becomes whether there is a necessary implication to that effect. A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation."
The safeguards:
The powers of the tribunal:
"Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, "go with the grain of the legislation". Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation."
Deprivation of liberty:
Schedule:
17A Community treatment orders
(1)The responsible clinician may by order in writing discharge a detained patient from hospital subject to his being liable to recall in accordance with section 17E below.
(2)A detained patient is a patient who is liable to be detained in a hospital in pursuance of an application for admission for treatment.
(3)An order under subsection (1) above is referred to in this Act as a "community treatment order".
(4)The responsible clinician may not make a community treatment order unless—
(a)in his opinion, the relevant criteria are met; and
(b)an approved mental health professional states in writing—
(i)that he agrees with that opinion; and
(ii)that it is appropriate to make the order.
(5)The relevant criteria are—
(a)the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment;
(b)it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;
(c)subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital;
(d)it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital; and
(e)appropriate medical treatment is available for him.
(6)In determining whether the criterion in subsection (5)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).
17B Conditions
(1)A community treatment order shall specify conditions to which the patient is to be subject while the order remains in force.
(2)But, subject to subsection (3) below, the order may specify conditions only if the responsible clinician, with the agreement of the approved mental health professional mentioned in section 17A(4)(b) above, thinks them necessary or appropriate for one or more of the following purposes—
(a)ensuring that the patient receives medical treatment;
(b)preventing risk of harm to the patient's health or safety;
(c)protecting other persons.
(3)The order shall specify—
(a)a condition that the patient make himself available for examination under section 20A below; and
(b)a condition that, if it is proposed to give a certificate under Part 4A of this Act in his case, he make himself available for examination so as to enable the certificate to be given.
(4)The responsible clinician may from time to time by order in writing vary the conditions specified in a community treatment order.
(5)He may also suspend any conditions specified in a community treatment order.
(6)If a community patient fails to comply with a condition specified in the community treatment order by virtue of subsection (2) above, that fact may be taken into account for the purposes of exercising the power of recall under section 17E(1) below.
(7)But nothing in this section restricts the exercise of that power to cases where there is such a failure.]
17C Duration of community treatment order
A community treatment order shall remain in force until-
(a)the period mentioned in section 20A(1) below (as extended under any provision of this Act) expires, but this is subject to sections 21 and 22 below;
(b)the patient is discharged in pursuance of an order under section 23 below or a direction under section 72 below;
(c)the application for admission for treatment in respect of the patient otherwise ceases to have effect; or
(d)the order is revoked under section 17F below,
whichever occurs first.
17D Effect of community treatment order
(1)The application for admission for treatment in respect of a patient shall not cease to have effect by virtue of his becoming a community patient.
(2)But while he remains a community patient—
(a)the authority of the managers to detain him under section 6(2) above in pursuance of that application shall be suspended; and
(b)reference (however expressed) in this or any other Act, or in any subordinate legislation (within the meaning of the Interpretation Act 1978), to patients liable to be detained, or detained, under this Act shall not include him.
(3)And section 20 below shall not apply to him while he remains a community patient.
(4)Accordingly, authority for his detention shall not expire during any period in which that authority is suspended by virtue of subsection (2)(a) above.]
17E Power to recall to hospital
(1)The responsible clinician may recall a community patient to hospital if in his opinion—
(a)the patient requires medical treatment in hospital for his mental disorder; and
(b)there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose.
(2)The responsible clinician may also recall a community patient to hospital if the patient fails to comply with a condition specified under section 17B(3) above.
(3)The hospital to which a patient is recalled need not be the responsible hospital.
(4)Nothing in this section prevents a patient from being recalled to a hospital even though he is already in the hospital at the time when the power of recall is exercised; references to recalling him shall be construed accordingly.
(5)The power of recall under subsections (1) and (2) above shall be exercisable by notice in writing to the patient.
(6)A notice under this section recalling a patient to hospital shall be sufficient authority for the managers of that hospital to detain the patient there in accordance with the provisions of this Act.]
72 Powers of tribunals.
(1)Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and—
(b)the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—
(i)that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii)that it is necessary for the health ofr safety of the patient or for the protection of other persons that he should receive such treatment; or
(c)the tribunal shall direct the discharge of a community patient if it is not satisfied—
(i)that he is then suffering from mental disorder or from mental disorder]of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii)that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
(iii)that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or
(iv)that appropriate medical treatment is available for him; or
(v) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.
(1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).]
(2) [. . .]
(3)A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may—
(a)with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
(b)further consider his case in the event of any such recommendation not being complied with.
(3A) Subsection (1) above does not require a tribunal to direct the discharge of a patient just because it thinks it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal—
(a)may recommend that the responsible clinician consider whether to make a community treatment order; and
(b)may (but need not) further consider the patient's case if the responsible clinician does not make an order.
(4)Where application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if it is satisfied—
(a)that he is not then suffering from mental disorder; or
(b)that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.