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Supreme Court say there is no power to impose conditions in a Community Treatment Order which effectively deprives liberty

In a judgment handed down on 17 December 2018 in Welsh Ministers v PJ, the Supreme Court (SC) has held that there is no power to impose conditions in a Community Treatment Order (CTO) which have the effect of depriving a patient of his/her liberty.


PJ was in his forties, had mild to borderline learning disability and fell within the autistic spectrum. PJ also demonstrated abnormally aggressive and seriously irresponsible behaviour, involving violent and sexual offending. In 2011, PJ was discharged from hospital under a CTO and placed in a care home. In addition to the usual mandatory conditions, three bespoke conditions were attached to the CTO under section 17B(2) of the Mental Health Act (MHA) 1983, namely to reside at the care home following residence rules, to abide by a joint section 117 care plan and to follow community access risk management plans concerning staff supervision levels.

Amongst other matters, it was accepted that PJ’s whereabouts were monitored at all times within the home. He was escorted by staff on all community outings, all unescorted leave had to be agreed by the RC and social supervisor (which would cease if risk factors increased), an absconding protocol which provided for restraint techniques was in place and alcohol use was limited.

PJ’s case came before the Mental Health Review Tribunal (MHRT) in May 2014, where he argued that his CTO arrangements amounted to an unlawful deprivation of his liberty under Article 5 of the European Convention on Human Rights (ECHR – which provides the right to liberty and security) and that he should therefore be discharged from it. The MHRT held that PJ was not under “continuous supervision and control” as per the decision in Cheshire West and was therefore not deprived of his liberty. The MHRT further held that even if there was a deprivation of liberty (which they did not accept) the requirement for a CTO must take precedence over any human rights issues.

The case subsequently came before the Court of Appeal, which held that the MHA permitted an RC to restrict a patient’s freedom of movement to such an extent that it amounted to a deprivation of liberty.

The case was thereafter appealed to the SC.

Decision of the SC

The SC held that the MHA does not give the RC power to impose conditions which have the concrete effect of depriving a community patient of his liberty.

In reaching the above decision, the SC had regard to the fact that the conditions in issue in PJ’s case were of the “non-mandatory” type, the MHA Code of Practice clearly provides that conditions must not deprive patients of their liberty and that the “acid test” for a deprivation of liberty was, as per Cheshire West, whether the patient was under continuous supervision and control and not free to leave. The SC was also mindful of past decisions of the European Court of Human Rights whereby courts are to look at the concrete situation of the person concerned and ask the simple question, has he/she in fact been deprived of his/her liberty?

What this means for you

The decision of the SC reinforces the legal test applicable to a deprivation of liberty and the fact that RCs do not have the power to impose conditions in CTOs which in effect deprive patients of their liberty.

The SC gave useful guidance to RCs around CTOs, including that the focus should always be on the concrete situation created by any conditions and the fact that the purpose of the deprivation is to enhance rather than curtail a patient’s freedom does not affect this assessment.

In addition, the SC judgment provides a useful reminder of the statutory provisions governing this area, namely the duty under the MHA for hospital managers to ensure that community patients understand the applicable legislative provisions, which should be communicated both orally and in writing. Furthermore, pursuant to the MHA Code of Practice, patients should be informed, in a way that they can understand, as to the effect of the CTO, including the conditions they are required to keep and the circumstances in which an RC may recall them to hospital. Finally, this information should be copied to the patient’s nearest relative, unless the patient requests otherwise.

A copy of the SC’s judgment and press briefing can be accessed by clicking here.

For further guidance on the effects that this judgment will have for you and your Trust, please do not hesitate to get in touch with me, Jeff Keeble or a member of the Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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