Supreme Court rules on CTOs, conditions and deprivations of liberty

There is no power for a responsible clinician to impose conditions in a community treatment order (CTO) which have the effect of depriving a patient of his liberty, the Supreme Court has ruled.

CTOs were introduced into the Mental Health Act by amendment in 2007, as a new form of order which permitted patients to be released into the community subject to conditions which would support their continuing treatment. The statutory regime is set out in ss17A to 17F.

The conditions in a CTO are imposed by a patient’s responsible clinician without judicial input.

In Welsh Ministers v PJ [2018] UKSC 66 September 2011 the appellant, PJ, was discharged from hospital subject to a CTO, which required him to reside in a care home subject to close supervision, from which his absences were either escorted or subject to strict limits as to time, purpose and place.

Before the Mental Health Review Tribunal (MHRT), PJ argued that the arrangements under the CTO amounted to an unlawful deprivation of his liberty and he should therefore be discharged from it.

The MHRT held that they did not but, even if they had, the need for a CTO took precedence over any human rights issues.

The Upper Tribunal held that this approach was wrong, but the Court of Appeal concluded that by necessary implication the MHA permitted such conditions in a CTO. It also held that the MHRT had no power to discharge the CTO even if its terms meant that the patient was unlawfully deprived of his liberty.

The Supreme Court unanimously allowed the appeal.

Lady Hale, with whom the other judges agreed, said none of the elaborate provisions in the MHA authorising the detention of patients and their recapture if they escape or go absent applied to a community patient.

There was no power to impose medical treatment on a community patient who had the capacity to consent to it and did not consent.

There were no sanctions for failing to comply with the conditions in a CTO, Lady Hale noted, but a patient might be recalled to hospital if he breached certain conditions, or if he required medical treatment and there would otherwise be a risk to his health or safety, or that of others.

The Welsh Ministers argued that as any conditions imposed in a CTO could not be enforced they could not therefore deprive a patient of his liberty.

Lady Hale said this was indeed the legal effect of a CTO, but it did not mean that a patient had not in fact been deprived of his liberty. The focus was always on his concrete situation created by the conditions. The fact that the purpose of the deprivation was to enhance rather than curtail the patient’s freedom did not affect this assessment.

It was common ground that there was no express power in s17B(2) to impose conditions which have the effect of depriving a community patient of his liberty.

Lady Hale said it was a fundamental principle of statutory construction that a power expressed in general words should not be construed to interfere with fundamental rights such as the right to liberty of the person.

The test for a necessary implication was a strict one and there was no reason to suppose that Parliament would have included such a power in the MHA had it been thought of, the Supreme Court President said.

A strong indication to the contrary was the fact that CTO conditions cannot compel a patient to take his medication; and the lack of detailed rules which the MHA would have provided had detention in a place outside hospital been contemplated, Lady Hale said.

She added that if the MHRT found on the facts that a community patient was being deprived of his liberty, it had no power to revoke or vary the conditions. The question therefore arose as to whether it should exercise its only power under the MHA to discharge the patient, or whether the patient must challenge his unlawful detention in an action for judicial review.

The Supreme Court President said that problem was more theoretical than real for two reasons.

First, although the MHRT had no jurisdiction over the conditions of treatment and detention in hospital, these could be relevant as to whether the statutory criteria for detention were made out; and the patient’s actual situation might well be relevant to whether the criteria for the CTO were made out.

If, however, the patient needed to challenge his unlawful detention under a CTO other than by his right to make periodic applications to the MHRT, his remedy was either habeas corpus or judicial review.

Second, a conscientious responsible clinician could be expected not to impose conditions which the Supreme Court’s judgment made clear were not permitted in a CTO, and this was reinforced by the duties to provide information to a patient and (usually) his nearest relative about the effect of a CTO.