Discharge conditions cannot amount to deprivation of liberty

20/12/11

The Court of Appeal today held that tribunals have no power under the Mental Health Act 1983 to direct the discharge of a restricted patient on conditions amounting to a deprivation of liberty within art. 5 ECHR. The Court allowed an appeal by the Secretary of State for Justice against a ruling of the Upper Tribunal presided over by Lord Justice Carnwath. Lady Justice Arden, speaking for a unanimous Court, noted that this was an unusual case in which the Secretary of State was praying in aid patients' convention rights to liberty to prevent them from being discharged from hospital. But that is what the scheme of the 1983 Act required. Any other result would authorise a species of detention that was not expressly provided for by statute and so would not satisfy the art. 5 requirement that the conditions for detention must be foreseeably prescribed by law.

The judgment is here.