Conditional discharge recall and s117 responsibility

Law and practice Mental Health Act
21

I am not sure that conditions of residence in most cases amounts to compulsion. It would be hard to make a case there is compulsion for those cd patients subjected to a DoLs, if the person who made the decision was free to do this.

We think it clear in principle and from the examples given by Lord Scarman that the circumstances in which a person will not be regarded as ordinarily resident in a place because the person’s presence there is involuntary are narrow and are limited to situations where the person is forcibly detained. Along with kidnapping and imprisonment, compulsory detention under the 1983 Act would fall into this category

22

In the Wiltshire case the patient actively wanted to live in area B, so fully agreed with the residence condition, and did not want to return to area A, but the Court of Appeal still decided that the residence condition meant it wasn’t voluntary. Also have a look at the extract from the article I quoted above.

23

Yes, saw the Wiltshire case, but not sure if it has lost some of it’s legal weight, if there is such a thing.

As for the residence condition, the Clinical and Social Supervisor can agree to a move and notify the MOJ of this. If the cd patient was to move, and the cd patient did not seek agreement, but continued to engage, was concordant with treatment, no change in risk, then what would be the consequence? Breaches in conditions do not automatically result in a recall, and as such I think it hard to make a case that all conditions of residence are involuntary and any breach would be met with a sanction.

In Wales we offer choice around accommodation even if we do not always follow The Care and Support (Choice of Accommodation) Wales Regulations 2015. If there is no element of choice, any placement would likely break down as a result of loss of trust and lack of co-production. In this context I am not sure Wiltshire would have the same bearing.

24

I guess it boils down to whether what was said by the Supreme Court about requiring to be “forcibly detained” was obiter or not.

If it is then we just have to accept the ratio in Wiltshire (that a residence condition means it’s not voluntary). Though probably it would be different in a supervised conditional discharge case.

25

I have worked with conditionally discharged patients for some 22 years. In that time, the types of residence has been variable.

Some owned their own homes, others in social housing, some in placements where care was provided, thus meeting accommodation plus threshold. All had a condition of residence, but their living arrangements were very different.

Those in fully funded placements, if we were denied entry, we could seek this from the provider. Those in supported living, where there is a form of tenancy, and they still exist, though they meet the criteria for accommodation plus, pay rent via housing allowance, they have a key and they have every right to deny entry. Those residing in their own homes also have the right to deny entry.

How would be apply voluntariness to each of those living situations? I don’t think they are the same. Now basing the degree of voluntariness on the concept of trespass might be useful in determining residence as this aligns with the Mental Health Act where we have a procedure to lawfully trespass in a space and against the person.

I have only worked with one person where there was a cd, and then a DoLs, as he did not have capacity to decide his place of discharge. The MM judgement worked well as the person did not object to the arrangements.

If we had not had the 2023 Supreme Court considering such a case, though this is concerned with Section 3, I would have thought any argument for voluntariness/consent would have been a stretch for this specific group, However, with 2023, why would you draw a line between an unrestricted and restricted patient?

I think MM put things in the right direction as when we were looking to support a discharge prior to MM there was an inherent unfairness. The MHRT could not discharge a person into circumstances that amounted to a deprivation, but this was common practice for unrestricted patients. I would be very disappointed if a different set of rules were applied to those under Section 41.

26

If what the Supreme Court said in Worcestershire is something that they needed to decide to reach the overall decision, then a person would have to be “forcibly detained” (e.g. kidnap, imprisonment, MHA detention) for residence to be involuntary. A condition of residence on a conditional discharge (or a CTO) wouldn’t be enough to make it involuntary. It would probably be different for a supervised conditional discharge as its deprivation of liberty is akin to forcible detention. (Incidentally, I think the Supreme Court probably wrongly jumped from “enforced presence…” in Shah to “forcibly detained”.)

On the other hand, if the Supreme Court’s comments were just by the by, and weren’t really necessary as part of their decision, then it seems that the binding authority on the point is still Wiltshire. In that case the conditionally discharged patient considered area B as his home, wanted to remain in area B, and had no wish to return to area A, but the Court of Appeal decided that this didn’t make his residence in area B voluntary: “He has to live there, because it is a condition of his discharge imposed by the Tribunal that he must do so.”

27

I personally think that passage is obiter.

I would just add, there is a presumption against implied repeal (see: Para 84 of Prudential Assurance Co v HMRC [2024] EWCA Civ 300).

The UKSC didn’t explicitly deal with this point and it doesn’t seem to be essential to the decision (the scenario has no relevance to the factual matrix in Worcestershire) so, on balance, I think Wiltshire is still good law.