A question of deprivation of liberty

Secretary of State for Justice v MM [28.11.18]

Date published





The Supreme Court concluded that the Mental Health Act 1983 (MHA) does not permit the Secretary of State for Justice to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient.


MM had a mild learning disability and autistic spectrum disorder, whose behaviours included pathological fire starting. Following a conviction for arson, he was given a Hospital Order and a Restriction Order by the tribunal and was detained in hospital.

In 2006, he was conditionally discharged, but his behaviour deteriorated and in April 2007, he was recalled to hospital, where he has been ever since, as he was considered a serious risk, for fire setting and of behaving in a sexually inappropriate way to women.

MM made an application for a conditional discharge, which was heard in May 2015, which his clinician and treating team opposed. They did however, consider that he would benefit from some change of environment and a transfer to another low secure forensic unit. At that stage, no plan was made but it was envisaged that it would involve a level of restriction, supervision and monitoring, which would amount to a deprivation of liberty within the meaning of Article 5 of the European Court of Human Rights.

MM was prepared to consent to such a placement and it was agreed that he the capacity to do so. No such placement had been identified but the issue that the tribunal was invited to rule upon was whether, as a matter of principle, it would be lawful to discharge him on condition that he complied with a care plan which would amount to a deprivation of liberty. They decided that it had no such power.

MM appealed to the Upper Tribunal where it was decided that there was power to impose a condition of compliance with a care package, provided that the patient had capacity to consent to it and did consent.

On the Secretary of State’s appeal to the Court of Appeal, bound by the decision in B v Secretary of State for Justice, they upheld the first tribunals decision. MM was granted appeal.


The Supreme Court agreed with the first tribunal and the Court of Appeal and as such the appeal was dismissed.

They confirmed their reasoning as follows:

  • High principle - the power to deprive a person of his liberty is by definition an interference with his fundamental right to liberty of the person.
  • Practicality – the patients continued co-operation is crucial to the success of any rehabilitation plan and there were concerns should the co-operation cease. Further, it was believed that the patient’s willingness to comply was motivated more by his desire to get out of hospital than by a desire to stay in whatever community setting he is.
  • It is contrary to the whole scheme of the MHA, which provides for specific forms of detention.

Lord Hughes, gave the dissenting view that he would have permitted the appeal, on the basis that the MHA provides the power to provide an alternative to imprisonment in the case of an offender who is mentally disordered.


Whilst this judgment is welcomed, we do query whether it may now have muddied the waters for patients rehabilitating into the community, by effecting other conditions of conditional discharge.

Following this judgment it is arguable that to ask a patient to reside at a particular address whether private, sheltered or care home, could now be considered a deprivation of liberty. The argument being that if they left that address they could be recalled to hospital and so would have been under continuous care and control. An effect such as this could make the rehabilitation and treatment of patients more difficult.

We do consider however this has provided clarification as to which conditions can and cannot be added to conditional discharge.