‘The Supreme Court has handed down judgment in the case of MM. This was an appeal against the Court of Appeal’s decision in the Secretary of State for Justice v MM [2017] EWCA Civ 194 (29 March 2017).Both PJ and MM appealed to the Supreme Court but for administrative reasons MM’s appeal was heard first. MM’s appeal has been dismissed.MM was detained under sections 37/41 Mental Health Act (“MHA”) and sought a conditional discharge from hospital to conditions which would objectively give rise to a deprivation of his liberty, to which he had capacity to consent. Although no placement had been identified the First Tier Tribunal (Mental Health) (“the FtT”) was asked whether as a matter of principle it would be lawful to discharge him conditionally on such conditions. The FtT ruled that it could not. At the Upper Tribunal Charles J held that he could give a valid consent to this and as such Article 5 would not be engaged. (A similar issue was in play in Secretary of State v KC [2015] UKUT 0376 (AAC, where Charles J held that the FtT could impose conditions on a discharge that objectively deprived a patient of his or her liberty and that the Court of Protection and/or a decision maker could consent to).’

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Doughty Street Chambers, 28th November 2018

Source: insights.doughtystreet.co.uk