No Conditional Discharge for patient requiring escort

Following the Upper Tribunal’s decision in SS for Justice v RB [2010 UKUT 454 (AAC) to uphold a conditional discharge granted to RB on the grounds that it was satisfied that a care home was an appropriate place for him to be accommodated subject to conditions, the Secretary of State brought its appeal to the Court of Appeal.

In his submissions the Secretary of State set out that in making its decision the UT had created a new class of detained patients for which there was no statutory authority. These would be patients who had previously been detained in hospital but who no longer satisfy the statutory detention criteria because it is no longer appropriate for them to receive medical treatment in a hospital but who, in his submission, may nevertheless be deprived of their liberty in a setting other than a hospital. Although these would be conditionally discharged patients who would have a right of appeal after the first twelve months from the date of the conditional discharge and in any subsequent two year period, the rights would be different from other detained patients who would be able to appeal within initially six months and subsequently twelve months, and to whom other statutory protections would not apply. By way of example the Secretary of State referred to the RC’s power to grant leave subject to the consent of the SS. Accordingly, the SS argues that a form of detention not authorised bystatute, not subject to defined criteria for its implementation and subject to inferior procedural protections would not satisfy the requirements of Article 5.

In seeking to uphold the UT’s decision, RB relied on the words of Carnwath LJ in the UT’s decision when he said:

The tribunal’s concern should be simply to decide what is necessary for the well-being and protection of the patient, and the protection of the public and to satisfy themselves that the patient is willing to comply with the conditions and to that extent consents to them. We see no reason why Parliament should have wished them to concern themselves with the fine distinctions which may arise under the Strasbourg case-law on detention. The PH decision itself show how narrow the dividing line may be, and indeed that the issue may not be capable of final decision at that stage. It is surprising that a matter going to the jurisdiction of the tribunal to make an order should depend, not solely on the terms of the conditions, but on how they are implemented.

RB contended that the task for the tribunal in the case of a discharge to a community placement such as a care home is to focus on the interests of the patient and the public and to balance those issues when making a decision on the conditions to attach. Accordingly it was denied that the restrictions that amount to a deprivation of liberty are arbitrary as they are based on a a procedure according to the law, and that they can be subject to review and may be challenged in a court. As such, it was argued that the legal framework is compliant with Article 5.

Decision

Lady Justice Arden produced a very detailed decision which concluded that a tribunal cannot rely on the patient’s best interests as grounds for ordering a conditional discharge on terms that involve a deprivation of liberty, particularly if the detention would not be for the purpose of any treatment. Instead she considered that the tribunal may be able to provide a non- statutory recommendation for a transfer in an appropriate case in order for the Secretary of State to exercise his powers of transfer. With reference to the Upper Tribunal’s concerns that the First Tier tribunal may have difficulty making factual enquiries to determine whether the terms of a conditional discharge involved a deprivation of liberty, it was concluded that it is only necessary to determine whether the deprivation of liberty will be the inevitable result of the conditional discharge so that the First Tier need not fully explore every possible outcome.

As a result the appeal of the Secretary of State was allowed and the First Tier Tribunal decision was set aside and substituted by a direction that the patient shall not be discharged from detention in hospital.

At paragraph 66 of the judgment, it was stated that the Judge was reassured by the Secretary of State’s power to transfer as providing a safeguard but it should be noted that this is only to a hospital (or a registered care home). If, as in this case, the patient wanted to go somewhere that was neither a hospital nor a registered establishment, the Secretary of State cannot transfer. This was something that we, as RB’s legal representatives, together with his treating team, did consider but could not achieve it for that reason. This is a brief summary of the case and the Court of Appeal’s decision which is very lengthy and detailed. A further review of the case, its outcome and implications will follow.