Mental health law briefing 256 – DoLS guidance / Conditional discharge
The Mental Health Caseworkers Section of HM Prison and Probation Service has recently produced guidance on ‘Discharge conditions that amount to a deprivation of liberty.’
This refers to the recommendation in the independent review of the MHA published on 6 December 2018 that:
‘The Government should legislate to give the Tribunal the power to discharge patients with conditions that restrict their freedom in the community, potentially with a new set of safeguards.’
Government leads are considering all recommendations in the MHA review’s final report. In the meantime the guidance seeks to provide an operational policy in respect of patients affected by the issue of discharge conditions that amount to a deprivation of liberty. The guidance includes the suggestion that there should be greater use of long-term s.17 (3) leave.
To understand why the Secretary of State has seen fit to set out its views and guidance it is necessary to have regard to the recent decision in the case of MM.
On 15 March 2018 the Supreme Court granted MM permission to appeal the order made by the Court of Appeal on 29 March 2017.
The Supreme Court recently dismissed the appeal and in a 4:1 judgement upheld the decision of the Court of Appeal that neither the Secretary of State nor the Mental Health Tribunal has the power to impose conditions on a discharge of a restricted patient which would amount to detention or to a deprivation of liberty even with the consent of a patient with capacity. Lady Hale found that two issues led inevitably to this result, the first one being legality and the other being the practical construction of the scheme of the Mental Health Act.
There was a dissenting judgment from Lord Hughes who was concerned that patients could remain in hospital indefinitely as a result of the majority decision.He opined that ‘the FTT does indeed have the power, if it considers it right in all the circumstances, to impose conditions upon the discharge of a restricted patient which, if considered out of the context of an existing court order for detention, would meet the Cheshire West test, at least so long as the loss of liberty involved is not greater than that already authorised by the hospital and restriction orders.’
The majority judgement clearly affects decisions to conditionally discharge capacitous restricted patients (i.e. those subject to criminal sections of the Mental Health Act such as ss.37/41) into the community, where conditions imposed amount to an objective DoL.
The guidance seeks to ensure that where appropriate, restricted patients can continue their rehabilitation in a community-based setting following the Supreme Court’s decision and is in accordance with the fundamental principle of the Code of Practice that patients should always be managed in the least restrictive setting possible.
For the significant number of patients already on conditional discharge, the following options will be considered: (a) variation of conditions; (b) recall, with or without instantaneous grant of escorted leave to the current placement; (c) absolute discharge; (d) referral to tribunal.
In a response to a Freedom of Information Act request in January 2019 the Ministry of Justice confirmed that there are 2712 conditionally discharged patients and of those they have identified 39 cases where the patient has a condition that states s/he cannot go into the community unless s/he is ‘escorted’ or ‘accompanied’ by staff.
The response goes on to say: ‘It is anticipated that the majority of the 39 conditions identified above that do not allow the patient to go into the community without an escort, or unless they are accompanied, will amount to confinement for Article 5 purposes (i.e. a deprivation of liberty, as described in the Cheshire West case). However, until each case is examined, in discussion with the responsible clinician, this cannot be known for certain.’
The recent case of AB considers deprivation of liberty post MM.
Of note is that the guidance specifically refers to the case of AB where the High Court used its inherent jurisdiction to make an order authorising the DoL that arose from the patient’s care plan.
The guidance confirms that ‘the Secretary of State does not consider that this is the correct approach. Where a patient continues to present such a risk to public protection, linked to his mental disorder, the Secretary of State considers that his treatment is best managed under the provisions of the MHA so that either the Secretary of State or the Tribunal can consider the public protection aspect of detention under the MHA. If further treatment and rehabilitation could be given in a community setting for such a patient, then a section 17(3) long term escorted leave approach would be more appropriate than to conditionally discharge with a care plan that required a DoLs authorisation under the inherent jurisdiction of the High Court.’
We are likely to see further challenges in this area until legislation clarifies the position.
 Secretary of State for Justice v MM  UKSC 60
 Re AB (Inherent Jurisdiction: Deprivation of Liberty)  EWHC 3103 (Fam)
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.