Mental health law briefing 257 – Community Treatment Orders and Deprivation of Liberty
The Supreme Court has recently (17 December 2018) reversed the decision in PJ, in which the Court of Appeal had held that the MHA contained within it, by implication, the power for the patient’s responsible clinician to set conditions on a community treatment order (CTO) that amounted to a deprivation of liberty if this involved a lesser restriction on their freedom of movement than detention for treatment in hospital.
A similar approach was taken to that followed in the MM case with which PJ had been linked at the Court of Appeal stage.
In a unanimous decision Lady Hale considered the statutory regime governing the imposition and effect of a CTO at ss 17A-F of the Mental Health Act and found several features noteworthy including that CTO conditions are imposed by the RC without judicial input and that the MHRT has no power to revoke or vary the conditions.
The importance of examining the situation in fact not just in law was emphasised and allowing the appeal, Lady Hale concluded ‘the MHA does not give the RC power to impose conditions which have the concrete effect of depriving a community patient of his liberty within the meaning of article 5.’
The use of restrictive care planning with CTOs is likely to lead to challenge in the future and RCs will need to think carefully about whether conditions amount to a deprivation of liberty.
 Welsh Ministers v PJ  UKSC 66
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