The following is an article written by John O’Donnell which appeared as the cover story in Solicitors Journal 14 February 2012 Vol 156 No 6.
The Court of Appeal has now confirmed in SSJ v RB (2011) EWCA Civ. 1608 that a patient detained under s37 Mental Health Act 1983 with restrictions under s41 cannot be discharged with conditions which amount to a deprivation of liberty. But are we any wiser on the fundamental question as to what constitutes a deprivation of liberty? Astonishingly, no one knows. Speaking on BBC Radio 4 (“The Report” 24.11.11) the head of the Court of Protection, Charles J, said that if 3 people were asked what is a deprivation of liberty, there would be 4 different answers. If the senior judge of the court designed to protect the liberty of those without mental capacity does not know the answer to this fundamental question, then it is hardly surprising that RB looks on our system of justice with incredulity.
RB is detained in a medium secure hospital under s.37/41 MHA 1983 for treatment of a delusional disorder causing paedophile tendencies. He is now 78 years old and wanted to go to a quiet community home with a nice garden. He loves walking and, because of the past life he led, is happy with the type of environment available. He came before the MHT (FTT) on 24 April 2009 who, having assessed him in evidence before them and aided by the RC’s evidence that he had capacity to consent, he was discharged on the recommendation of all the professionals. One of the conditions was that he not go out of the grounds without an escort, something which caused him not the remotest inconvenience or concern. The MHT concluded that the conditions were not so restrictive that they would amount to a deprivation of liberty and that, even if they were wrong on that, his valid, capacitous consent meant that there would be no deprivation of liberty (DoL).
The SoS did not want RB to be discharged at all so he appealed, arguing that the conditions amounted to a DoL so there would be no proper discharge. As a result the MHT decision was unlawful and he would have to stay detained in hospital. As Bean J said, dealing with a similar point in IT v SSHD