The Upper Tribunal have now determined that it is not necessary to examine the effect of any conditions attached to a conditional discharge where a patient is to be discharged from hospital. Further it has concluded that a patient’s consent to the conditions is irrelevant in considering whether any conditions amount to a deprivation of liberty.
We acted on behalf of a patient, RB, who was granted a conditional discharge by the Mental Health Tribunal, but against which the Secretary of State for Justice appealed on the basis that the conditions imposed amounted to a deprivation of liberty contrary to Article 5 of the European Convention on Human Rights. Previously decided cases determined that where the conditions amounted to a deprivation of liberty, rather than a restriction on the patient’s liberty, the conditional discharge could not be a valid one. In this case we sought to argue that the Tribunal were entitled to find that the conditions were such that they did not amount to a deprivation of the patient’s liberty and that even if they did, the fact that RB consented to those conditions and restrictions prevented the conditions amounting to a deprivation of liberty and any breach of his human rights.
In a decision handed down by the Upper Tribunal exercising their function to determine such appeals, three senior Judges including the Senior President of the Tribunal Service, Lord Justice Carnwath and the Health Education & Social Care Chamber President, Judge Sycamore, it was decided that the Secretary of State’s appeal should be dismissed and the original decision of the Tribunal upheld. Their reason for this was that where a Tribunal found that a care home, not being a hospital, was suitable accommodation for a patient this provided sufficient jurisdiction for a conditional discharge to be granted without further need to examine the conditions. It had been argued that the conditions to be imposed on RB would amount to a deprivation of liberty and the Tribunal rejected the need to examine the extent of the conditions given that RB was to be accommodated in a care home rather than a hospital.
In reaching this decision the Tribunal Judges found that they were not bound by the Court of Appeal decision in the case of PH (R (Secretary of State for the Home Department) v Mental Health Review Tribunal