Supreme Court victory for North Wales lawyer in Deprivation of Liberty case

A leading North Wales law firm whose specialist lawyers have gained a reputation for upholding the rights of mental health patients across North Wales, Mid Wales, Shropshire and the North-West, has gained victory in a Deprivation of Liberty case brought in the Supreme Court.

Natalie Roberts, a partner with GHP Legal, had brought the case to the Supreme Court on behalf of PJ, a 47-year old mental health patient first detained under the Mental Health Act (MHA) in 1999.

In 2014 PJ had appealed a Mental Health Tribunal Review decision not to uphold his claim that conditions in a Community Treatment Order (CTO) unreasonably restricted his freedom of movement and should be removed. CTOs replaced supervised discharge orders but to different effect.

In December 2018 an appeal to the Supreme Court held that a patient detained under the Mental Health Act 1983 may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising in the case of PJ was whether a patient’s responsible clinician may impose conditions in a CTO which amount to the patient’s deprivation of liberty within the meaning of article 5 of the European Convention on Human Rights.

The Supreme Court unanimously allowed the appeal and Lady Hale (President) declared that there is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. Lady Hale’s declaration could pave the way for other patients to bring similar successful cases.

The court heard that PJ has a mild learning disability and difficulties falling within the autistic spectrum, accompanied by aggressive and irresponsible behaviour consisting of violent and sexual offending.

PJ was convicted in 1999 of assault occasioning actual bodily harm and threats to kill, and the court imposed a hospital order on him under s.37 of the MHA. He was discharged from a medium secure unit to a unit which later became a hospital where he remained voluntarily as an informal patient before, in May 2009, he was compulsorily detained for treatment under the civil power in s.3 MHA.

In September 2011 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, 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.

Speaking after the Supreme Court judgement Natalie Roberts said: “I am delighted with the judgement. It provides much needed clarity on the law. Figures published by the NHS indicate that there were nearly 5,000 new CTOs in England and Wales in 2016 alone. Therefore this judgement affects a large number of people.

“Over the past few years I have personally experienced individuals having been discharged from hospital on a community treatment order but having their liberty deprived by their responsible clinician. The judgement confirms that this is unlawful. If you or one of your relatives is in this situation then you should seek advice from a mental health law specialist to assist you.”

Article 21/01/2019