The Supreme Court will next week consider whether a statutory power to impose conditions amounting to a deprivation of liberty can ever lawfully be "implied".
Also at issue in Welsh Ministers v PJ UKSC 2018/0037 is:
- whether the framework for Community Treatment Orders provides practical and effective protection for patients’ rights under the European Convention on Human (ECHR) Rights;
- what is the scope of a tribunal’s power to take into account ECHR rights.
The background to the case is that the appellant, PJ, is a man with a mild learning disability, an autistic spectrum disorder and significant behavioural impairment. He has capacity to make decisions about restriction of his liberty.
PJ was detained in a hospital between 1999 and 2007 following a conviction for actual bodily harm and threats to kill, and was detained again in 2009. He has spent almost all of his adult life detained in hospital.
PJ was made the subject of a Community Treatment Order made by his responsible clinician in September 2011. The order discharged him from hospital into the care of a residential specialist facility.
It had the effect of significantly restricting his liberty by providing for near continuous supervision and very limited unescorted leave from his residential placement.
The reasoning of the responsible clinician was that PJ required treatment for his safety and the protection of others. PJ applied for discharge of the order.
The Court of Appeal ruled on the case in The Secretary of State for Justice v MM  EWCA Civ 194.
The case will be heard in the Supreme Court on 22 October by a five-justice panel comprising Lady Hale, Lord Kerr, Lord Wilson, Lady Black and Lord Lloyd-Jones.