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Detention in the community?

18 February 19

Human rights briefing: an English appeal to the Supreme Court has highlighted a difficulty in the law regarding community management of mental health offenders, which is likely to require legislation

by David Blair

In Secretary of State for Justice v MM [2018] UKSC 60 (28 November 2018), the Supreme Court was faced with a difficult issue in considering the human rights of mentally disordered patients subject to a restriction order in terms of the Mental Health Act 1983. The court’s decision, which may be correct in terms of the legal principles, has thrown into light a lacuna in the law regarding mentally disordered offenders for which statutory intervention may be the only solution.

Conditional discharge and liberty

MM was convicted of arson on 27 April 2011. As he had been diagnosed with mild learning difficulties, autistic spectrum disorder and pathological fire setting, he was made subject to a hospital order under s 37 of the 1983 Act, with a restriction order under s 41. In May 2015, he applied for a conditional discharge of his restriction order. Expert evidence was adduced that he could be safely managed in the community but that the necessary care plan would involve a very high level of restriction, including a requirement not to leave his home without supervision.

It was common ground that the Secretary of State for Justice has a power to order conditional discharge from a restriction order and that the 1983 Act provided no further detail as to what conditions could be put in place. It was also common ground that the restrictions which had been suggested were of a level as to amount to a breach of MM’s ECHR article 5 right to liberty; and that MM was able and willing to consent to such restrictions in order to allow discharge.

The Secretary of State maintained that he had no power to impose a conditional discharge order where the conditions amounted to a breach of article 5.

The court’s decision

Lady Hale, providing the majority judgment, held that the Secretary of State was not able to put in place conditions which amounted to a breach of article 5. Three main reasons were given:

  1. The principle of legality requires clear provisions if a statute is to interfere with a fundamental right, such as the right to liberty. The 1983 Act gave no explicit authority to impose conditions which interfered with this right and, without such explicit consent by Parliament, it would be wrong for the courts to allow this interference.
  2. MM’s consent was likely to be motivated by a desire to leave hospital and could be withdrawn at a later date. It was not clear in terms of the statutory scheme what the consequences of revoking consent to the conditions would be.
  3. The entire scheme of the 1983 Act demonstrated that there was no parliamentary anticipation that a patient would remain “detained” following discharge from hospital.

A case for statutory reform?

Lady Hale’s judgment accepts that there is some irony in the Secretary of State relying on article 5 of the ECHR to justify keeping MM under a more restrictive regime. Indeed, this is a theme developed in Lord Hughes’s dissenting judgment, where he notes that discharge into the community while under restrictive conditions should be seen as part of a process of rehabilitation similar to the gradual relaxation of security and restriction which is experienced in the hospital environment prior to discharge. On that basis, Lord Hughes took the view that a conditional discharge would not be an order depriving the patient of their liberty but one actually modifying an existing deprivation of liberty so as to be less onerous. On that basis, he considered the Secretary of State did have the necessary powers.

Lord Hughes’s opinion is an attractive approach to the practical difficulty of how to protect the public while providing care in the least restrictive way possible. Where it perhaps fails is in justifying how this should practically function within the existing statutory scheme which, as Lady Hale points out, does not really seem to accept detention outwith a hospital environment as a possibility.

It is an unfortunate situation that the current statutory regime prevents patients from being discharged into a less restrictive environment (but with restrictive conditions) as part of a gradual process of rehabilitation. Lord Hughes highlighted an additional difficulty that the English regime would allow a patient who lacks capacity to be cared for in the community subject to such restrictive conditions, creating an apparently unjustifiable difference in treatment between patients who do and those who do not have capacity. Unfortunately, with the failure of the 1983 Act to provide a robust system to regulate this situation, it appears that statutory reform is the only way to provide for this more sensible approach to rehabilitation.

While this case relates to the English regime, there are similarities with the Scottish law under the Mental Health (Care and Treatment) (Scotland) Act 2003. In particular, it is likely that the same approach to any infringement of article 5 would be taken, requiring those who care for mentally disordered patients (or patients lacking capacity more generally) to have a clear statutory authority for any form of detention. It is submitted that the courts will be critical of any suggestion of implied powers to detain a patient beyond the provisions of the relevant legislation.

David Blair, solicitor, Anderson Strathern LLP

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