Related Sector: Health & Social Care

On 28 November 2018, the Supreme Court handed down the long-awaited judgment in the case of Secretary of State for Justice (Respondent) v MM (Appellant) [2018] UKSC 60.

Background

MM had been a detained patient under the Mental Health Act 1983 in hospital. He was discharged from hospital into the community under a conditional discharge. The patient had capacity to, and was prepared to, consent to a conditional discharge requiring that he lives at a particular place, which he would not be free to leave, and from which he would not be allowed out without an escort.

Outcome

The Supreme Court decided (by a majority of 4 to 1) that the Mental Health Act 1983 does not permit either the First Tier Tribunal or the Secretary of State to impose conditions amounting to a detention or a deprivation of liberty upon a conditionally discharged restricted patient.

The dissenting decision was that the tribunal has the power to impose such conditions, so long as the loss of liberty is not greater than that already authorised by the hospital and restriction orders, and that this power does not depend on the consent of the capacitous patient.

View the full judgment

Comment

This will have an impact on the forensic teams managing these types of patients. It will be impossible for any professional to discharge a patient from hospital into the community under a conditional discharge, with or without capacity to consent, if the conditions amount to a deprivation of liberty.

Although the PJ case around Community Treatment Orders was heard at the same time, we still await this decision. The PJ case will have the most impact on professionals in mainstream mental health teams as it will potentially apply to larger numbers of people than the MM case.

The dissenting view of the one judge in the Supreme Court may give us a steer on how they may deal with the PJ case, but let’s await the judgment...any day now!

As always, Bond Solon will be pleased to assist you and your workforce with the implementation of MCA and DoLS throughout your care planning process.

This article was first published on 29th November 2018.


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