Rights of the conditionally discharged patient

 

12th January 2012

Secretary of State for Justice v. RB [2011] EWCA Civ. 1608 (Maurice Kay, Arden and Moses, LJJ). This was a long running case in which Simon Burrows acted for an elderly man who had been detained for any years in a secure psychiatric Hospital under a Mental Health Act section, with restrictions on his discharge. Initially, the First Tier Tribunal granted him a conditional discharge with considerable restrictions attached. That was then set-aside by the Regional Judge on the grounds that the decision was plainly wrong. The patient then sought judicial review of the Regional Judge’s decision, which was granted by the Upper Tribunal (presided over by Lord Justice Carnwath, Senior President of Tribunals). Then, on the substantive appeal the Upper Tribunal rejected the Ministry of Justice’s appeal. The MOJ then appealed to the Court of Appeal. The Court of Appeal has decided that restricted patients could not lawfully be discharged from hospital under conditions that amount to deprivation of liberty. The previous decision of the Upper Tribunal had allowed such a move provided it was not to another hospital. The UT’s position created a new and anomalous type of detention that could not have been envisaged by Parliament when it passed the Mental Health Act as it would provide less adequate safeguards for those so detained compared with other detained patients, which in turn would be discriminatory. The judgment of Lady Justice Arden is a tour de force which considers the application of Article 5 and Article 14 (prohibition on discrimination) to the MHA. This case has wide implications not only for those detained subject to restriction orders but also those subject to guardianship since, on Arden, L.J.’s analysis, the absence of a clear intention for a section of the MHA to enable deprivation of liberty precludes such a powerarising under the section.

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