Conditional Discharge and Deprivation of Liberty – A change for the better
The wrongs of RB corrected (almost)
During 2015, new case law has fundamentally changed the way in which restricted patients are discharged from hospital into the community. Prior to this new case law, the position was that First Tier Tribunals (Mental Health) were unable to direct a conditional discharge of a restricted patient on conditions that when implemented would result in a deprivation of liberty. (RB v Secretary of State for Justice  UKUT 454 (AAC)).
However there have been two cases this year which has changed the status quo. The first is the case of Secretary of State for Justice v KC and Calderstones Partnership NHS Foundation Trust  UKUT 376 (AAC) (The KC Case) in which Mr Justice Charles decided that Tribunals can discharge patients on conditions that give rise to a deprivation of liberty, provided those conditions have been authorised by DOLS or by a Welfare Order under the Mental Capacity Act 2005.
The impact of this case was that for those patients who lack capacity to make decisions about their accommodation and treatment in the community, they could now be conditionally discharged with the appropriate provision of the Mental Capacity Act authorising their deprivation of liberty. However the position for patients who do have capacity to make such decisions was unclear.
Mr Justice Charles made non-binding obiter comments in the KC case that patients with capacity could give valid and real consent to conditions amounting to a deprivation of liberty after consultation with their lawyers. However he identified that there were practical problems arising from the ability of patients to withdraw their consent once it has been given. If a patient suddenly decided to withdraw his consent to the conditions depriving him of his liberty, then this would make any subsequent deprivation of the patient’s liberty unlawful and so those providing care and support in the community may not be willing to take the risk that the patient may withdraw his consent.
Mr Justice Charles suggested that a way of getting around this problem was for the consent of the patient to be given for a set period of time or until the expiry of a reasonable period of notice but made no further comments on this issue in the KC case.
Then came the case of MM v WL Clinic  UKUT 644 (AAC), which was heard on 23 November 2015 which was again decided by Mr Justice Charles. This case was concerned with the specific issue of whether a capacitous patient can give valid consent to conditions of a conditional discharge that objectively amounted to a deprivation of liberty.
Mr Justice Charles decided that a capacitous patient can give valid and effective consent to conditions of a conditional discharge that amount to a deprivation of liberty on the grounds mentioned in paragraph 64 of the judgment which state that:
“ i) a capacitous restricted patient (like the Court of Protection or a DOLS decision maker in respect of a restricted patient who lacks the relevant capacity) has a real choice founded on the advantages and disadvantages and so the merits of the proposed placement assessed through the eyes of the restricted patient to consent to such conditions and that
ii) any such condition is most unlikely to be driven by a threat that he might be recalled to hospital.
This is because he is not being presented with a choice between two alternatives that can be imposed on him and the driver for his consent would be a move from hospital to a placement outside hospital which he has concluded is in his best interests because, for example, in his view that would be a step towards his absolute discharge into the community.”
Mr Justice Charles stated in paragraph 66 of the judgment that before a Tribunal directs a conditional discharge, it should consider whether,
“i) the consent is freely given and so is based on a real choice founded on an exercise of the patient’s liberty to make his own choices and so his autonomy, and
ii) the situation on the ground that it will create satisfies the test for a conditional discharge set by s. 73 of the Mental Health Act 1983”
When Mr Justice Charles talks about the “situation on the ground that is created” he is referring to the practicalities of the conditional discharge being able to run effectively given that the patient is able to withdraw his consent at any time. In this case, no arguments were put forward as to how the patient’s right to withdraw his consent would be dealt with.
In my opinion, I would suggest that a legal document could be drafted on behalf of the patient to say that he consents to the conditions of the conditional discharge and the care plan at the community placement and that the patient would give 72 hours’ notice of his intention to withdraw his consent to such conditions, if he wished to do so.
I consider that if the patient gave 72 hours’ notice of his intention to withdraw his consent, then this would give adequate time for the patient’s care team to decide whether or not the patient needs to be recalled to hospital and so the conditional discharge could operate effectively.
It would be interesting to see how solicitors advise their clients around the right to withdraw their consent and the effective running of a conditional discharge in future cases. It would also be interesting to see if the Secretary of State decides to appeal this case.
Watch this space.
Peter Edwards Law