Our Mental Health Team was thrilled to receive the Upper Tribunal decision, handed down on 15 July 2015, for our client KC (Secretary of State for Justice v KC and C Partnership NHS Foundation Trust  UKUT 0376 (AAC) in which it has been confirmed that;
(1) A conditional discharge from detention under the MHA 1983 may include conditions which will, on an objective assessment, amount to a deprivation of liberty, if that deprivation of liberty is authorised under the MCA 2005.
(2) (Obiter) The same conditions would be lawful for a patient with capacity who gives real consent since this would mean there is no breach of Article 5.
This was a test/guidance case which will hopefully provide mental health practitioners with the means to obtain a conditional discharge for restricted patients, something that was previously unavailable to them as a result of the decision in SSJ v RB ( EWCA Civ 1608).
Charles J summarised the approach to be taken at paragraph 141:
“2. The FTT has power to impose (and so direct a conditional discharge on) conditions that when implemented will, on an objective assessment, give rise to a deprivation of liberty that is lawful because it has been authorised by the Court of Protection under the MCA or pursuant to the DOLS contained in the MCA (the MCA authorisations) and so complies with Article 5.
3. The FTT should consider and generally should include in the protective conditions it imposes an ability to apply to it for a variation or discharge of them on the basis of a material change in circumstances (a) if a variation or discharge is refused by the Secretary of State or the FTT agrees to consider the application, and (b) if the FTT is invited to consider such an application by the Court of Protection (or a DOLS decision maker).
4. The MCA authorisations can only be given if the relevant restricted patient lacks capacity to consent to the relevant conditions and is not ineligible to be deprived of his or her liberty by the MCA. Provided that the terms and conditions that give rise to the deprivation of liberty do not conflict with conditions the FTT have decided are necessary and have identified the restricted patient will not be ineligible and such authorisations can be given under the MCA applying the tests it sets out.
5. Both of the MCA authorisations can be given to come into effect at a future date or on a future event but the MCA decision maker needs to know the conditions (including those that when implemented will objectively give rise to a deprivation of liberty) that the FTT considers necessary to satisfy the tests under the MHA, before the MCA decision maker can properly make the relevant MCA decision.
6. So, the FTT needs to identify what conditions it considers need to be in place as and when the direction for the conditional discharge of the restricted patient takes effect so that the MCA decision maker knows what they are when applying the MCA tests.
7. The FTT will need to be satisfied that the proposed placement on the relevant conditions (and so the relevant care plan) is sufficiently defined and an available option in practice and if it is not when it will be so available (see KD v A Borough Council, the Department of Health and Others  UKUT 0251 (AAC) at paragraph 68).
8. The parties will therefore need to provide the necessary evidence on this and any other factors that will need to be taken into account by the FTT
9. The FTT should apply the guidance given by Upper Tribunal Judge Jacobs in DC v Nottinghamshire Healthcare NHS Trust and the Secretary of State for Justice  UKUT 92 (AAC) on when the FTI should adjourn, make a decision under s. 73(7) of the MHA or a provisional decision in reliance on R(H) v SSHD  QB 320 and  2 AC 253).
10. The Court of Protection and the DOLS decision makers cannot override the conditions identified by the FTT and so can only choose between alternatives that include them”
Charles J further expressed (obiter) his views in respect of patients with capacity. In particular at paragraph 137;
“…a person with capacity can and often does agree (a) to act in a certain way and, (b) that others can act in a certain way towards him or her…Someone who has capacity can do this in respect of a variety of important rights and matters and thereby restrict his or her freedom of action and autonomy in respect of them. In my view it is arguable that this ability extends to fundamental human rights whose purpose is to protect and benefit the individual…”
Southerns firmly feel that this case provides a realistic avenue for patients with capacity to consent to conditions which previously would have been regarded as unlawful.