The Secretary of State for Justice v MM: CA 29 Mar 2017

Power of FTT to deprive patient of liberty

Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
Held: The orders made by the UT were set aside. There is no ‘umbrella’ power that can be exercised by the tribunal to authorise a patient’s deprivation of liberty outside hospital. It is accordingly inappropriate for a tribunal to do so, whether by direct or indirect means (for example, by the use of declarations to provide for an asserted lacuna in the statutory scheme). There is no lacuna in the scheme. However practicable and effective it may be to provide for a tribunal to have such a power, for example to improve access to justice to a specialist and procedurally appropriate adjudication, Parliament has not provided for the same.

Sir James Munby, President, Lady Justice Gloster, Vice-President, and Sir Ernest Ryder, Senior President
[2017] EWCA Civ 194, [2017] WLR(D) 235, [2017] 1 WLR 4681
Bailii, WLRD
Mental Health Act 1983
England and Wales
CitedSecretary of State for Justice v KC and C Partnership NHS Foundation Trust UTAA 2-Jul-2015
Mental Health : All
The local authority had sought an order under the 2005 Act seeking a personal welfare order on the basis that it would be in KC’s best interests for him to move to a proposed placement (the Placement) on the terms of a care . .
CitedP (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Appeal fromMM v WL Clinic and Another UTAA 23-Nov-2015
Mental Health : All – whether for the purposes of Article 5 a restricted patient who has the capacity to do so can give a valid consent to the terms of a conditional discharge that, when it is implemented, will on an objective assessment create a . .
CitedSecretary of State for the Home Department, Regina (on the Application of) v Mental Health Review Tribunal Admn 20-May-2002
The Court considered the meaning of ‘discharge’ from a mental health hospital. Elias J held that it meant ‘discharge from detention in hospital’, so that there could be a discharge on condition of residence in another hospital: but he also held that . .

Cited by:
Appeal fromSecretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .
Appeal fromWelsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patient’s responsible clinician (may . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Health, Human Rights

Updated: 24 December 2021; Ref: scu.581298