The return of the Conditional Discharge for those DoL
It may seem obvious that many patients when they are ready to be discharged from s.37/41 may well need considerable structure and support to successfully rehabilitate into the community. For some, this may well involve supported care that could amount to a deprivation of liberty. The frankly bizarre case of case of RB v Secretary of State for Justice  UKUT 454 (AAC) made it very difficult for a restricted patient to be conditionally discharged where the care amounted to a deprivation of liberty. However, Mr Justice Charles in the recent case of Secretary of State for Justice v KC and Calderstones Partnership NHS Foundation Trust  UKUT 0376 (AAC) (the KC case) has clarified the law in a clear and common sense way. In key comments the Judge said that the current legal position
“prevents the FTT (or the Secretary of State) from imposing or requiring conditions which when implemented would result in a deprivation of liberty that would be in breach of Article 5 and so be unlawful,
but crucially he added that it does not prevent
the FTT (or the Secretary of State) from imposing (and so directing a conditional discharge on) conditions that when implemented will, on an objective assessment, give rise to a deprivation of liberty that is lawful because it has been authorised by the Court of Protection under the MCA or pursuant to the DOLS contained in the MCA and so complies with Article 5.”
Therefore the KC case explains that Tribunals are able to grant conditional discharges that contain conditions which amount to a deprivation of liberty, provided that the deprivation of liberty is authorised by either DOLS, if the patient is living in a care home, or via a welfare order made by the Court of Protection if living in alternative supportive accommodation.
As a deprivation of liberty authorisation should be in place in advance of the deprivation (AJ v A Local Authority  EWCOP 5, Baker J. 11.02.15) it may be necessary for a tribunal to grant a deferred (provisional) conditional discharge to allow a managing authority to seek to have in place a standard authorisation before the patient is conditionally discharged.
Of course, the MCA can only be used to deprive a patient of their liberty where they lack capacity. In the case of capacitous patients, Mr Justice Charles made the following helpful obiter comments:
“So, in my view, the FTT (and other decision makers) need to be alive to the possibility that an expression of consent may not be “real”, but if real consent is given to the relevant protective conditions there will be no deprivation of liberty under or in breach of Article 5. Given that many patients are legally represented before the FTT by panel solicitors, if a represented patient gives consent after discussing the matter with his lawyers then the FTT can usually be reassured that the consent is real.
Finally, the right to give or refuse consent to something is an expression of the autonomy of the individual and thus the state has a duty to respect that expression of autonomy under Article 8 ECHR. That right applies equally to a detained mental health patient who has capacity as it applies to any other person, particularly in the context of a possible discharge. So it is at least arguable that a conclusion that a mental health patient does not have the right to give consent to abide by a set of conditions is not compatible with Article 8(2) ECHR.”
These comments suggest that a capacitous patient is able to give valid and “real” consent to conditions that objectively amount to a deprivation of liberty and so such conditions would not be in breach of Article 5 and therefore not unlawful. In other words, it would not amount to a deprivation of liberty.
It is my view that this case opens up the possibilities for conditional discharge of patients as many patients can only be discharged into a community placement with a robust care package in place which may amount to a deprivation of liberty.
Mr Justice Charles also stated that:
“The FTT should consider and generally should include in the protective conditions it imposes, an ability to apply to it for a variation or discharge of them on the basis of a material change in circumstances (a) if a variation or discharge is refused by the Secretary of State or the FTT agrees to consider the application, and (b) if the FTT is invited to consider such an application by the Court of Protection (or a DOLS decision maker).”
It is my view that this extra ability to apply to a FTT for the purpose of varying or discharging the conditions of a conditional discharge when there is a material change of circumstances, would ensure that such conditions are fairly and speedily reviewed by an independent body so that the patient would always be subject to the least restrictive conditions to allow him/her to live in the community.
Peter Edwards Law