Let’s say you have been detained under a restricted hospital order for a few years after committing a serious criminal offence. The only way you can live anywhere except psychiatric hospital is a conditional discharge with a condition that you must never leave the accommodation without two escorts, for the protection of other people. In practice you know you have to be compliant with this, as you’ll be recalled back to hospital as soon as you try to leave (whether or not they are willing to enforce the condition physically to prevent you from leaving). So you agree to the escort condition and are happy to be leaving hospital.
Are you being confined? “The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question.” (AGNI para 53(i)). Well, you’ll probably be in some sort of mental health aftercare accommodation, with staff present 24 hours a day (ready to enforce the rules), nurses administering medication, probably other patients, doctors visiting etc. The escort condition will apply indefinitely, possibly for the rest of your life. The effect is that you know you must either remain in the accommodation, leaving only with escorts, or return to hospital detention. The manner of implementation probably includes what we discussed in the other topic (whether you’ll be physically restrained from leaving, or recalled within 10 minutes and subsequently picked up by the police) but the effect of either, from your own point of view, is similar. Look at the patient in Ashingdane v UK – he was keen to get out of Broadmoor and to Oakwood hospital, where he ended up with unlimited unescorted leave (just be in bed at night) and Thursday–Sunday weekend leave, but was still “deprived of his liberty” there. Some form of “coercion” is necessary (AGNI paras 146, 187) but I think consideration of the effects and manner of implementation demonstrates that there is coercion.
And what about “valid consent”? English cases have said that you’re not being presented with a real choice (RB) and that conditional discharge residence conditions aren’t voluntary for ordinary residence purposes (Wiltshire). I think those things are right. I think the fact that the conditional discharge is to protect the public and would potentially need to be enforced (to protect the public) if you no longer complied means the courts are likely to say there is no scope for valid consent, whether you have the relevant capacity in domestic law or not. It’s a step removed from prison and psychiatric hospital, but not that far, and “valid consent” doesn’t count for much there – you’re still going to be subject to the same regime. In practical terms, the condition needs to be identified as DOL or non-DOL at the outset: this affects subsequent reference and application periods, and there’s no clear way to change that designation just because you change your mind.
The answer when amending the MHA really should have been to focus on the thing to be achieved – detaining the patient outside hospital and only allowing him to leave when escorted, or only allowing him out with permission, or whatever the case may be – and providing for that sort of condition and its enforcement. Then whether it could be described as an Article 5 “deprivation of liberty” or not would only be relevant later if challenged, and the various new safeguards should show compliance with Article 5’s requirements. An example of doing it the right way is MHA detention (which provides for detention in hospital in an Article 5 compliant way, but isn’t affected by whether or not the patient provides Article 5 “valid consent”) and an example of doing it the wrong way is MCA detention (which provides for Article 5 “deprivation of liberty” in care homes and hospitals, and so is at the mercy of ill-defined concepts, including “valid consent”).
