DECISION

1.	This appeal is allowed.
2.	I remit MM’s application to the FTT on the bases that:
a.	 it should apply my decision in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] UKUT [2015] UKUT 0376 (AAC) (the KC case) in determining its jurisdiction, and 
b.	it should apply my conclusions in this decision (see in particular paragraphs 64 to 68 hereof). 

REASONS

Introduction

1.	This appeal raises the point 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 deprivation of the patient’s liberty.

2.	It is therefore a follow up to my decision in Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] UKUT [2015] UKUT 0376 (AAC) which related to a restricted patient who lacked the relevant capacity to consent to the conditions of his conditional discharge, his care package and any deprivation of his liberty that would arise from their implementation.  However I set out views on the position of a restricted patient with the relevant capacity at paragraphs 124 to 139 where I said:
A restricted patient who has the capacity to consent to the protective conditions that if implemented would result in his deprivation of liberty
124.	In the RB case the Upper Tribunal expressed the following views at paragraphs 60 to 62 of their decision:
i.	The tribunal raised a separate point that RB’s “valid and meaningful consent to a move to [the care home] (a move which would manifestly be in his interests) would prevent the deprivation of his liberty amounting to a breach of Article 5.  It relied on comments in Stork, para 73 that:
“ -- A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question -- ”
ii.	 We cannot accept this line of reasoning. (As already noted, a similar line of argument was rejected by Collins J in G [2004] EWHC 2193) --------- 
iii.	By contrast, in the present case it cannot be suggested that RB consented to his initial psychiatric detention.  He has at all material times been detained by virtue of an order imposed by the Court under the Mental Health Act 1983.  He has never been offered the option of absolute discharge nor is there any prospect of such an offer being made in the foreseeable future.  The only alternative presented to RB is to agree to a condition of his detention within his present regime or to agree the alternative regime contemplated in the Tribunal's order.  This very limited choice cannot be equated to a free and unfettered consent to psychiatric detention order the conditions proposed by the Tribunal.  A person's consent to alternative conditions of his detention regime is not the same as his consent to the existence of the regime itself.
125	These views and my comments on them are obiter. 
126	I disagree with the reasoning that founds those views and so also with the reasoning in the G case (R(G) v Mental Health Review Tribunal in particular at paragraph 23).  In my view, that line of reasoning is flawed because:
i)	it places incorrect reliance on a continuation of a liability to be detained, the lack of consent to the original detention, the lack of an offer of an absolute discharge, the lack of any such offer being made in the foreseeable future and the point that the situation of a voluntary patient under s. 131 of the MHA is different because it only applies when there is no order or direction rendering the patient liable to be detained under the MHA, 
ii)	it is at odds with the nature of a conditional discharge under s. 73 of the MHA (see paragraphs 83 to 88 above – this reference is incorrect and it should be to 85 to 91),  
iii)	importantly, and in any event, it fails to recognise that the risk of recall, and so the liability to be detained in the same compulsory way as existed before a conditional discharge, does not mean that the nature and effect of a deprivation of liberty that will arise on a conditional discharge based on different considerations and powers does not give rise to a choice particularly when, as in the case of RB and here, the change would manifestly (a) be to a different regime of care, support and control, and (b) be in the best interests of the relevant patient, 
iv)	RB could have applied for an absolute discharge even though his prospects of getting it would have been low, and accordingly 
v)	it proceeds on the mistaken premise that all detentions and deprivations of liberty within or related to a regime should be treated as being the same and so fails to recognise that (a) just as with a move to being a voluntary patient the offer of a conditional discharge gives rise to a real choice between alternatives including ones between more and less restrictive options and ones that in many cases will have a marked impact on the living conditions and the short, medium and long term best interests of the patient, and (b) the consent would not have been to the continued existence of the pre-existing regime of care, support and control.   
127	The Secretary of State argued that the situation is analogous to that of a prisoner being transferred from high to low security or to hospital and such a prisoner cannot be said to consent to the underlying detention.  I do not agree because there the source of the underlying detention remains the same and in any event I see no reason why, if it was necessary to found a lawful move, the prisoner could not give informed and valid consent to the implementation of the changes to the manner in which he was to be detained.
128	Further, if this approach and conclusion of the Upper Tribunal in the RB case is right it creates difficulties in the way of the Court of Protection making the relevant choice on behalf of a patient who lacks capacity (which was an integral part of the Secretary of State’s jurisdictional solution to the problems created by the RB case).   This is because the underlying theme of the MCA is that it enables things to be done on behalf of the patient that he could do himself if he had capacity and, as I have explained, the best interests jurisdiction of the Court of Protection is exercised by making choices between available options.  To my mind correctly no-one suggested that the Court of Protection could not make the equivalent choice for KC that the Upper Tribunal concluded RB could not give a valid consent to.
129	Further, the conclusion of the Upper Tribunal in the RB case founds the surprising and arguably discriminatory result that a restricted patient over whom the Court of Protection has no jurisdiction, or who is not covered by the DOLS because he has the relevant capacity, is in a worse position than a patient who lacks that capacity.  In my view, the point made by the Secretary of State that the powers of the FTT are the same for both types of patient is not an answer to this problem.  This is because it is the result that matters and the relevant issue is not directed to the powers of the FTT but to whether consent to conditions can be given by or on behalf of the patient.    
130	The choices presented to the Court of Protection and a patient with the relevant capacity can be limited or wide and easy or difficult.  For example, they may have to make choices between whether to have unpleasant and risky surgery for a medical condition or not to have surgery knowing the underlying condition may lead to death.  However the existence of only unpleasant choices does not prevent the individual patient having the right to choose or the Court of Protection from choosing on his behalf.  
131	Having said that limitations on, or the existence of influence in respect of, the choice are relevant factors as is shown for example by Freeman v Home Office (No 2) [1984] QB 524.  That case, at the appeal stage, turned on the issue whether a vulnerable prisoner could give valid consent for drugs to be administered to him when he had initially refused to provide consent.  The trial Judge found for the Home Office on the facts but acknowledged that a person’s consent must be voluntary.  His approach, endorsed by Lord Donaldson at 557, was as follows:
The right approach, in my judgment, is to say that where, in a prison setting, a doctor has power to influence a prisoner's situation and prospects a court must be alive to the risk that what may appear, on the face of it, to be a real consent is not in fact so.
132	So, in my view, the FTT (and other decision makers) need to be alive to the possibility that an expression of consent may not be “real”, but if real consent is given to the relevant protective conditions there will be no deprivation of liberty under or in breach of Article 5. Given that many patients are legally represented before the FTT by panel solicitors , if a represented patient gives consent after discussing the matter with his lawyers then the FTT can usually be reassured that the consent is real.
133	Finally, the right to give or refuse consent to something is an expression of the autonomy of the individual and thus the state has a duty to respect that expression of autonomy under Article 8 ECHR.   That right applies equally to a detained mental health patient who has capacity as it applies to any other person, particularly in the context of a possible discharge.  So it is at least arguable that a conclusion that a mental health patient does not have the right to give consent to abide by a set of conditions is not compatible with Article 8(2) ECHR.  
The problems arising from the ability to withdraw consent.
134	This practical problem arises in the case of a voluntary patient where it is alleviated by the provisions of s. 5 of the MHA.   But the underlying practical assessments of whether there will be continuous voluntary compliance are similar in the cases of a voluntary patient and a conditionally discharged patient. 
135	A particular problem in respect of a deprivation of liberty (e.g. restraint or a restriction on leaving a place) is that, on the analysis of Holman J in R (SH) v Mental Health Review Tribunal [2007] EWHC 884 (Admin), which concerned medical treatment, the relevant consent is subject to a condition that it can be withdrawn at any time and so as and when it is the person exercising the restraint or restriction could not rely on the earlier consent as a defence to a claim that he or she acted in breach of Article 5.  At paragraph 35  of his judgment Holman J said:
The law with regard to consent to treatment is clear and I have already quoted extensively from In re T. An adult of full capacity has an absolute right to choose whether to consent to medical treatment. That applies to every aspect of treatment and every occasion of treatment. Thus in this case, on each occasion that SH attends, or should attend, for his fortnightly depot injection he has an absolute right to choose whether to consent to it or not. The treating doctor or nurse must, on each occasion, satisfy himself that the apparent consent is a real consent and that the independence of the patient's decision or his will has not been overborne (see the language of Lord Donaldson in In re T). As Freeman makes clear, that is in every case and on every occasion a question of fact for the doctor and, in the event of legal challenge, the court. That is the law and Parliament has not derogated from it save by such express provisions as section 58. The tribunal must be presumed to know the law and, in my view, condition 1 is intended to be, and should be, read as subject to the general law.
136	I am not convinced by that analysis and result.  But unless and until it is challenged and tested it places a considerable obstacle in the way of a patient with capacity being able to benefit from steps designed to enable him or her to return to the community and which are in his or her best interests.  This is because those providing the care and support in the community may not be prepared to take the risk that the patient will not withdraw his or her consent to the terms and conditions of the placement.
137	It seems to me that it may be appropriate to revisit the SH case on the basis that 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 for a set period of time or until the expiry of a reasonable notice. 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.  And, if that is so, it is arguable, in the context of s. 73 of the MHA,  that a patient can agree to comply with the statutory duty it imposes (just as he or she could give an undertaking to a court) up to the expiry of a notice withdrawing his consent or further order of the FTT.  Those providing the care and support could then look to the continuing statutory duty or consent to provide a defence to any claim against them.
138	I acknowledge that that direction of travel may also provide a starting point for an argument that contrary to the ratio of the RB case, the statement cited in paragraph 109(2) above and indications contained in the eligibility provisions in the MCA, that the MHA does provide a statutory basis for the process prescribed by law that is required by Article 5.   
139	These are points for another day.
3.	In PJ v A Local Health Authority and Others [2015]  UKUT 0480 (AAC)  I concluded that it would not be appropriate to convert those obiter conclusions in the KC  case to ratio stating that there was little doubt that an appeal would be made in which if they were followed they would be ratio.  This is such an appeal.

4.	In the KC case I reached conclusions on the ratio of the decision of the Court of Appeal in the RB case (reported as Secretary of State for Justice v RB [2012] 1 MHLR 131 and B v Justice Secretary [2012] 1 WLR 2043 -  the decision of the Upper Tribunal in that case is reported at [2010] UKUT 454 (AAC)).  My conclusion rejected the argument advanced by the Secretary of State that the FTT had no power to make the FTT Decision because the RB case is binding authority to the effect that no FTT can direct a conditional discharge of a restricted patient on conditions that, if they are put into effect, would result in a deprivation of liberty of the patient outside hospital.  My conclusion was that the ratio of the RB case on the power conferred by s. 73 of the MHA :

i)	goes no wider than the proposition that the lawfulness requirements of Articles 5(1) and 5(4) relating to a deprivation of liberty resulting from conditions imposed on the conditional discharge of a restricted patient cannot be founded on the MHA alone, and so is that
 
ii)	the FTT cannot when directing a conditional discharge impose conditions that when they are implemented would be a deprivation of liberty in breach of Article 5 and so unlawful.
5.	I was told that the Secretary of State had not appealed my decision in the KC case on the jurisdiction of the FTT to direct a conditional discharge because he was content with the result so far as KC was concerned.   Nonetheless his argument on this appeal included  submissions: 
i)	under the heading ”the legal framework” that the KC case was inconsistent with paragraph 58 of the judgment of Arden LJ in the RB case, and 
ii)	under the heading “Discrimination and Article 8” that the KC case was wrongly decided and that the true ratio of the RB case was, as the Secretary of State had argued, that the FTT has no power to impose conditions on a conditional discharge that would when implemented give rise to a deprivation of liberty.
6.	I do not understand that stance because the result in the KC case was that the Secretary of State should invite the FTT to reconsider KC’s application applying my conclusion on its jurisdiction.  But it may be that the incident referred to in paragraph 25 of my decision in the KC case has rendered such a re-consideration unnecessary.  I did not pursue this at the hearing because I was told that the Secretary of State was not submitting to FTTs that my conclusion on the ratio of the RB case was wrong but was proceeding on the basis that at present my decision on that ratio was the law, although he might challenge it on an appeal in this case if I decided it against the Secretary of State.
7.	This leads to the unsatisfactory position for restricted patients that before FTTs the Secretary of State would be reserving or simply not advancing his argument on their jurisdiction and may be considering the exercise of his power to direct a conditional discharge on the basis that the KC case was wrongly decided.  Reserving or simply not advancing that issue before FTTs clearly causes problems and creates the possibility of time and money being wasted by patients, the tribunal, local authorities and the Court of Protection.

8.	In my view, as a matter of good administration, the Secretary of State should “put up or shut up” on this point and if he is going to challenge my decision on the ratio of the RB case, and so on his jurisdiction and that of the FTT when directing a conditional discharge, he should do so as soon as possible.  It would also be preferable if the issue came before the Court of Appeal in cases involving a patient with and a patient without the relevant capacity.  

9.	The two types of case should be considered together to ensure that any arguments that a distinction between the two classes of restricted patients is justified are properly before the court.
 
10.	Save in the context of the application of Article 8 and discrimination (and notwithstanding the written submission to the contrary under the heading “legal framework”) this appeal was argued on the bases that:

i)	my decision in the KC case on the ratio of the RB case was not being challenged, and

ii)	the central issue was whether my obiter views cited above in respect of a patient with capacity were correct.

11.	In any event, I have concluded that I should proceed on the basis that my conclusion in the KC case on the jurisdiction of the FTT is correct.  

The factual background in this case 

12.	MM is 32 years old. He has a diagnosis of mild learning disability, autistic spectrum disorder and pathological fire starting. He was convicted of arson on 27 April 2001. The court imposed a hospital order under section 37 with a restriction order under s. 41 of the Mental Health Act 1983 (the MHA). He was conditionally discharged in 2006 but his behaviour deteriorated and he was recalled to hospital in April 2007. The main areas of serious risk that he poses relate to fire starting and his relationships with females.

13.	His case came before the FTT on 18 May 2015. His responsible clinician and treating team opposed any discharge.   They considered that transfer to another low secure unit would be appropriate (but the detail of what was proposed as to this was not before the FTT). Two external experts considered that MM could safely be managed in the community under a conditional discharge provided that a suitable care package was in place.  

14.	MM’s counsel submitted that he was not in a position to invite the FTT to direct deferred conditional discharge as no comprehensive care plan had been formulated. However, it was accepted that any care plan would involve a deprivation of liberty.  Applying the objective Cheshire West approach it is clear that this would be the case.

15.	In those circumstances, the FTT was invited to determine, as a matter of principle, whether it would be lawful to grant discharge on the condition that MM must comply with the terms of his care plan.

16.	It was conceded on behalf of MM that the anticipated care plan would include terms which, if set out as conditions of discharge, would fall foul of the decision of the Court of Appeal in RB, but it was submitted that this should not prevent the imposition of a general condition that MM must comply with his care plan. It was also submitted that the deprivation of liberty could be validated by MM’s consent. 

17.	The points of principle were decided on the basis that, as was asserted on his behalf and was not disputed, MM had capacity to consent to the terms of a care package outside hospital and its consequence, namely that objectively it would deprive him of his liberty and so be in breach of Article 5 and unlawful unless it was rendered lawful by his consent.

18.	The FTT held that:

The central question for the tribunal to decide is whether it is lawful when making a conditional discharge to bypass the effect of RB by not including conditions which would amount to a deprivation of his liberty… The conclusion of the tribunal is that a deferred conditional discharge containing the single condition of compliance with the [care plan] would not be a lawful order of the tribunal… In the normal course of events a conditional discharge would set out each condition seriatim, and the only reason to consider the “single care plan” option is to circumvent the thrust of the decision in RB. It is not for this tribunal to approve a process which has been so roundly condemned by the Court of Appeal. Not only do we feel bound by the RB decision but on the facts of this case, as set out above, we conclude that [MM] requires the clarity of knowing the particular conditions that apply in his case. It may be that the tribunal’s decision does not sit comfortably with the practice being carried out when there is consent by all parties, but that is not a problem for this tribunal to resolve”.  

19.	As to the question of consent, the FTT adopted the obiter observations of the Upper Tribunal in the RB case cited above in the extract from my decision in the KC case (although it attributed them to the Court of Appeal) that consent to alternative conditions of detention is not the same as consent to the existence of the regime itself and, in any event, held that:

Given the history of [MM] his propensity for changing his mind, the tribunal is satisfied that, even if it were capable of validating the deprivation of liberty factor, he has not given a true unfettered consent- he clearly wishes to be out of hospital and is not consenting for the purpose of his treatment. Thus, although the tribunal feels bound by the RB observations, we find as a fact in [MM’s] case that any consent he gave would not be a genuine, properly considered and reliable consent.

The decision of the FTT and the grounds of appeal

20.	The FTT decided the point of principle against MM on two bases.

21.	First, it rejected the argument that the RB case did not preclude the FTT from directing a conditional discharge on the basis that the condition was drafted in general terms.  In doing so, the FTT effectively accepted that the ratio of the RB case accorded with the argument of the Secretary of State that I rejected in the KC case.
22.	Secondly, on the issue whether a capacitous patient can give valid and effective consent to conditions of discharge which, objectively, involve a deprivation of liberty, the FTT adopted the obiter view of the Upper Tribunal in the RB case.
 
23.	The FTT could not have considered the ratio of my decision in the KC  case on the jurisdiction issue, or my obiter comments on the consent issue.

24.	It is interesting to note the practice referred to by the FTT.  This practice indicates that the impact of the Secretary of State’s jurisdictional argument on the ratio of the RB case is sometimes avoided when a capacitous restricted patient gives consent to an agreed placement outside hospital.   Counsel for MM told me that this practice means that it is when, as here, there is disagreement that the RB jurisdictional point is raised.  Any such practice or approach to a jurisdictional argument is plainly unsatisfactory.

25.	It is clear from the ratio of my decision in the KC case that in my view the FTT erred in law in its application of the RB case.  It is also clear that the “consent point” is not reached if that conclusion in the KC case is wrong and the Secretary of State’s argument on the jurisdiction of the FTT that I rejected in the KC case is right.

26.	So, a stepping stone to success for MM is that applying the KC case the FTT has jurisdiction to direct the conditional discharge he seeks.  As I have already mentioned I am proceeding on the basis that my decision in the KC case on the jurisdiction of the FTT is right.
 
27.	So, as I am against the Secretary of State on the consent point, I remit this to the FTT on the basis that it should apply the KC case in determining its jurisdiction.  This means that both the jurisdictional and the consent points are part of the ratio of this decision. 

The finding of fact made by the FTT

28.	The Secretary of State argued that this meant that MM had not given unfettered consent to the proposed (but undefined) care package and that the FTT had found as a matter of fact that the reason for this was that the consent he gave was fettered by the threat of continued detention.  I reject that argument.

29.	First, the FTT does not give that reason for its conclusion.  Second, on the common ground before the FTT that MM had the relevant capacity, it is not easy to see why it reached the conclusion that any consent he gave would not be genuine etc..  Third, it seems that the FTT may have based this conclusion on his changeability but that does not mean that he could not give a valid and effective consent in law; rather it goes to whether the test set by s. 73(1)(a) is satisfied.  Fourthly, this finding is at least in part based on the approach taken in the RB case to consent and if that is wrong it taints the finding and that error in law cannot be avoided by asserting that the same answer is reached by a finding of fact.

The most relevant provisions of the MHA

30.	I set these out in the KC case (at paragraphs 26 to 32) and repeat them here.
31.	Section 37 provides that:
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

…
(2) The conditions referred to in subsection (1) above are that—
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either— 
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.
32.	Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public to do so, the court may further order that the offender be subject to a restriction order under s. 41. It provides:
(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section . . ; and an order under this section shall be known as “a restriction order”. 
(2) --
(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows— 
(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below; 
 (aa) none of the provisions of Part II of this Act relating to community treatment orders and community patients] shall apply;
(b) no application shall be made to [the appropriate tribunal] in respect of a patient under section 66 or 69(1) below; 
(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely— 
(i) power to grant leave of absence to the patient under section 17 above; 
(ii) power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection 3 of that section; and 
(iii) power to order the discharge of the patient under section 23 above; 
and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible clinician; and 
(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time; 
and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule. 
(4) A hospital order shall not cease to have effect under section 40(5) above if a restriction order in respect of the patient is in force at the material time. 
(5) Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect. 
(6) While a person is subject to a restriction order the responsible clinician shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require. 
33.	As appears therefrom: 
i)	special restrictions applicable to a patient in respect of whom a restriction order is in force are set out in section 41(3), and 
ii)	     the Secretary of State is given an important continuing role directed to promoting the protection of the public.  
34.	Under s. 42 the Secretary of State is granted powers over restricted patients.  That section provides:
(1) If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient shall cease to be subject to the special restrictions set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly. 
(2) At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly. 
(3) The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant. 
(4) Where a patient is recalled as mentioned in subsection (3) above— 
(a) if the hospital specified in the warrant is not the hospital from which the patient was conditionally discharged, the hospital order and the restriction order shall have effect as if the hospital specified in the warrant were substituted for the hospital specified in the hospital order; 
(b) in any case, the patient shall be treated for the purposes of section 18 above as if he had absented himself without leave from the hospital specified in the warrant. 
(5) If a restriction order in respect of a patient ceases to have effect after the patient has been conditionally discharged under this section, the patient shall, unless previously recalled under subsection (3) above, be deemed to be absolutely discharged on the date when the order ceases to have effect, and shall cease to be liable to be detained by virtue of the relevant hospital order accordingly. 
(6) The Secretary of State may, if satisfied that the attendance at any place in Great Britain of a patient who is subject to a restriction order is desirable in the interests of justice or for the purposes of any public inquiry, direct him to be taken to that place; and where a patient is directed under this subsection to be taken to any place he shall, unless the Secretary of State otherwise directs, be kept in custody while being so taken, while at that place and while being taken back to the hospital in which he is liable to be detained.
These powers, and so the role of the Secretary of State, are again directed to the need for continuing protection of the public and include the power, by warrant, to discharge a patient absolutely or subject to conditions (s. 42(2)) and the power to recall a patient who has been conditionally discharged (s. 42(3)). 
35.	The FTT’s general power of discharge is set out in s. 72 which provides that:
(1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and—
…
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied— 
(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or 
(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or
(iia) that appropriate medical treatment is available for him.
36.	The powers of the FTT in respect of restricted patients are set out in s. 73 which states:
(1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if— 
(a) the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and
(b) the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. 

(2) Where in the case of any such patient as is mentioned in subsection (1) above—
(a) paragraph (a) of that subsection applies; but
(b) paragraph (b) of that subsection does not apply,
the tribunal shall direct the conditional discharge of the patient.

(3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(4) Where a patient is conditionally discharged under this section—
(a) he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and
(b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.

(5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above.

(6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.

(7) A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given. 

(8) This section is without prejudice to section 42 above.
37.	Section 75 makes provision for applications by a restricted patient to the FTT to vary or discharge any condition on a conditional discharge or for a direction that the restriction order should cease to have effect.  As is pointed out in paragraph 28 of the judgment of Arden LJ in the RB case the time limits for such applications (2 years) is longer than that for the right of review of a restricted patient who is detained in a hospital which is one year.  Arden LJ there described that as an inferior right of review.  
38.	The Secretary of State submits that it is significant that, under section 41(3)(a), the patient remains liable to be detained by virtue of the relevant hospital order until absolutely discharged. 

Further comments on the MHA

39.	I made a number of these under the headings “Conditions under ss. 42 and 73 of the MHA”, “Enforceability of the statutory duty created by s. 73(4) of the MHA and thus the conditions” and “A comparison between a conditionally discharged patient  who is not deprived of his liberty in the community and a person who needs social care and is placed by a local or other public authority in pursuance of its duties and powers” at paragraphs 47 to 57 of my decision in the KC case.  

40.	I adopt them without repeating them here. 

The arguments

41.	The Appellant argued that:

i)	my obiter conclusion in the KC case that, for the purposes of Article 5, he could give a valid consent to a discharge on terms that he was to comply with conditions that when implemented would objectively create a deprivation of his liberty was correct, and so that

ii)	such consent would have the result that so long as it continued he would not be deprived of his liberty in breach of Article 5 and the implementation of those conditions by those caring for him and others would be lawful and the least restrictive available alternative.

42.	No proposed care package was before me and the Appellant did not advance argument that to avoid problems that arise in connection with the possibility that he might withdraw consent he could and would give a consent in terms that restricted the manner or timing of its withdrawal (and so the point raised in paragraph 137 of my decision in the KC case).

43	The Secretary of State effectively repeated with some additional points the arguments he had advanced in the KC case to the effect that a restricted patient with the relevant capacity to do so could not, for the purposes of Article 5, give a valid and effective consent to conditions of discharge imposed by the FTT (or the Secretary of State) that when implemented would objectively create a deprivation of his liberty.

44	As a basis for arguing that there was not an effective difference in treatment between a restricted patient who has and one who does not have the relevant capacity, the Secretary of State did not: 

i)	repeat his argument and approach in the KC case (that is close to the argument rejected by the FTT in this case) that the limitation on the jurisdiction of the FTT to impose conditions means that the ability of the Court of Protection (or a DOLS decision maker) to authorise a deprivation of liberty of a conditionally discharged restricted patient arose, and only arose, if the relevant conditions that created an objectively assessed deprivation of liberty were excluded from the conditions imposed under the MHA and only included in the care package, and on that basis assert that 

ii)	a restricted patient with the relevant capacity could consent to such conditions if they were only included in the care package.

Rather, as it seems to me it had to be on the basis that I applied the KC decision on jurisdiction, the Secretary of State’s argument was simply that a restricted patient cannot give a valid and effective consent to conditions governing or relating to his discharge to, and so his residence at, a placement outside a hospital that, when implemented, will create on an objective assessment a deprivation of his liberty.
 
45	However, in respect of the argument that there is a difference in treatment of restricted patients to whom the Mental Capacity Act 2005 applies and those to whom it does not, it was submitted by the Secretary of State that capacitous restricted patients could be and were put in effectively the same position as restricted patients who could be lawfully placed outside a hospital in reliance on an authorisation give pursuant to the Mental Capacity Act 2005 by changes to their placement in a hospital or hospitals and the grant of section 17 leave.

46	No such hospital placement for the Appellant was advanced before or identified to me.  If and when it is, it is likely that it will trigger the question whether it or a placement outside hospital advanced by the Appellant and relying on his consent should be chosen by the MCA decision maker exercising the necessity test in s. 72 of the MHA that is incorporated and applied by s. 73 of the MHA.  This may give rise to the consideration of issues relating to restrictions on the withdrawal of that consent.

47	The argument was therefore confined to the issue whether a restricted patient with the relevant capacity could by giving a valid and effective consent to conditions of his discharge that on implementation will create, on an objective assessment, a deprivation liberty:

i)	forego his Article 5 right not to be deprived of his liberty and so the benefit of that Convention right, and

ii)	create a lawful alternative for the MHA decision maker. 

48	The possibility that someone can do this is recognised by the ECtHR in, for example Storck v Germany (2005) 43 EHRR 96 at paragraphs 74 and 77.

Discussion and conclusions

The ability of a restricted patient to give a valid and effective consent

49	In my view, at the core of the argument is a consideration of the limits placed on the freedom of choice or autonomy of a restricted patient with the relevant capacity.  

50	After I heard this case the decision of the Divisional Court in R(LF) v HM Senior Coroner for Inner London South & Another [2015] EWHC 2990 (Admin) (the LF  case) was handed down.  In my judgment in the LF case at paragraphs 137 to 139  I commented that: 

137.	The mischief addressed in Cheshire West, and the cases referred to in it, is identified by Gross LJ at [70].  As he points out, the justification in such cases for the diversion of resources, cost and bureaucracy inevitably involved in the various applications, authorisations or administrative decisions, is, as explained in Cheshire West (at [1]), “…a recognition that human rights are for everyone, including the most disabled members of our community…”.  
138.	That recognition reflects the point that the rights given by Article 5 (and Article 8) are directed to freedom (including freedom of choice and so autonomous self determination) and that such autonomy is an aspect of the essence of both the Article 5 right to liberty and security of person and the procedural safeguards required to promote it under consideration in Cheshire West.  
139.	The point that the essence of Article 5 includes the promotion and safeguarding of a person’s autonomy is reflected by, and finds its natural home in, the subjective element of the determination of whether there has been an Article 5 deprivation of liberty and the frequent references in the cases that a person must not be deprived of his liberty in an arbitrary manner.

51	In argument in this case the Secretary of State referred me to De Wilde and Others v Belgium (1979-80) 1EHHR 373, in particular at paragraphs 64  and 65, and to two other applications to the ECtHR (Osypenko v Ukraine (Application No: 4634/04 at paragraph 48 and 49 and LL v Bulgaria (Application No: 44082/98 at paragraph 870) to support the proposition that the crucial issue is whether the individual has a free choice to leave, which it was submitted goes not just to the objective element of a deprivation of liberty but also to the validity of any consent.

52	In my view the crucial issue is whether the individual has sufficient freedom of choice or a real choice to agree to or reject the relevant situation on the ground.

53	This appears from what I said in the different context of the LF  case at  paragraphs 123 to 126, which are as follows:

123.	Further, in the context of the subjective element of Article 5, and so the consideration of whether the consent of the relevant person means that his Article 5 right to liberty has not been infringed:
i)	the right to liberty is so important that the fact that the person has given himself up into detention does not of itself mean that he has consented to it (see HL  at [90] and Storck  at [75]), 
ii)	consent cannot be inferred in the case of a person who lacks the capacity to give it (see HL  at [90], and
iii)	the consent must be sufficiently free and unfettered (see, for example, De Wilde and Others v Belgium (1979-80) 1 EHRR 373 at [65],  I.I. v Bulgaria (Application No: 44082/98 at [87] and Secretary of State for Justice v RB [2010] UKUT 454 (AAC) at [62]).  
I have addressed the RB case on an obiter basis in Secretary of State for Justice v KC [2015] UKUT 0376 (AAC) at [124] to [132] and in my view, for the reasons given there, it is relevant to consider whether there was a real choice. 
124.	So in determining whether there is an Article 5 detention (and so the combination of its objective and subjective elements) the authorities show that factors relating to the circumstances in which a consent that is relied on to found the result that the person has foregone the Article 5 right to liberty, and so it is not engaged or infringed, are relevant and can lead to the conclusion that:
i)	there is  not an Article 5 detention, or
ii)	there is an Article 5 detention because in all the circumstances the concrete situation on the ground is mandatory as opposed to contractual or consensual (the language used in the De Wilde case).
125	But this approach to the subjective and objective elements does not mean that all Article 5 detentions are compulsory in the sense that an analysis of all the relevant circumstances shows that they are based (or are effectively based) on a unilateral and imposed decision of the person effecting the detention.  Rather, it confirms that:
i)	the existence or non-existence of an effective consent and, more generally how the concrete situation on the ground was created, are or can be relevant, and 
ii)	as with other factors that are relevant to whether there is a deprivation of liberty for the purposes of Article 5, and the fulfilment of  the requirements of Articles 5.1 and 5.4, the impact of these factors and so the circumstances relating to   compliance and/or an inability to give a consent is fact and circumstance sensitive (see Storck at [71]).
126	This approach in the authorities to determining whether there is breach of a person’s Article 5 rights reflects the list of the exceptions in Article 5.1 because they cover a range of situations some of which, as a matter of the ordinary use of language, will always lack any consensual element and so inevitably fall within the primary meaning of the word “compulsory” (e.g. the exception in 5.1(a)).  Whereas, others could be based on  a decision made by or on behalf of or to promote the best interests of the relevant person  (e.g. the exception in 5.1(e)).
54	The Secretary of State submitted that the consent must be sufficiently free and informed citing M v Ukraine [2012] ECHR 732 at paragraphs 75 to 79 and Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 113 E/G.  As appears from my citation from the LF case I agree and those two cases could be added at paragraph 123 (iii) thereof.

55	At the heart of the Secretary of State’s argument are the propositions that:

i)	a restricted patient is not free to leave and does not have a free choice to accept or refuse a conditional discharge because his detention remains founded on the original hospital order, and
ii)	agreement to a deprivation of liberty based not on the merits of the proposed placement but on a threat of compulsory confinement is not a valid consent.

56	The first proposition gives rise the questions: “Free to leave where?” and “Why is the person not free to leave that place?”  

57	The hospital order (and the restriction order) do not expressly authorise detention other than in a hospital.

58	I set out my conclusion on what constitutes a conditional discharge in paragraphs 91 and 92 of my decision in the KC case where I said:
91	In my view, if and when a conditional discharge is to circumstances in which the objective element of a deprivation of liberty would exist the “discharge” is from a situation in which the person is detained or deprived of their liberty under provisions of the MHA (and so usually in hospital) to one where he is so deprived of his liberty in different circumstances arising from the regime put in place on his conditional discharge and thus its conditions (and so usually not in a hospital).
92	So here the “discharge” is from KC’s detention in a hospital pursuant to ss. 37 and 41 of the MHA to a lawful or unlawful deprivation of liberty created by the conditions at the Placement which is not a hospital.

So in my view on a conditional discharge of a restricted patient the hospital order remains in the background so that on recall to hospital it founds the imposition or authorisation of a detention in a hospital.

59	It follows that I do not accept that a detention (deprivation of liberty) outside a hospital remains founded on the hospital order.  Indeed, if it was and so detention outside a hospital during a conditional discharge was so founded it would provide at least a starting point for an argument that the lawfulness of that deprivation of liberty outside hospital can be founded on the MHA.

60	Further, in my view, an assertion that detention outside hospital is founded on the hospital order does not fit with either:

i)	my conclusion on the ratio of the RB case or the Secretary of State’s argument in the KC case on what that ratio is, namely that the MHA (including the power therein to make a hospital order) does not provide a statutory basis for imposing or authorising a detention or a deprivation of liberty in a placement outside a hospital, or 

ii)	the Secretary of State’s submission in the KC case, which I did not fully accept  (see paragraphs 90 to 92 of my decision in that case) that a conditional discharge is a discharge from detention under the MHA (which accords with his argument on the ratio of the RB  case).

61	So, in my view, in line with his second proposition the Secretary of State’s argument has to be founded on the power of recall to detention in a hospital that on such recall would be imposed and so authorised by the provisions of the MHA.  It is that power that gives rise to the prospect or threat relied on by the Secretary of State to found the conclusion that any choice by a capacitous patient to be detained outside hospital is not free or sufficiently free and so does not provide a valid consent to an objectively assessed deprivation of liberty outside a hospital. 

62	But, as pointed out in paragraph 52 of my decision in the KC case, that power of recall is not directly linked to a breach of a condition and as I said in paragraphs 53 and 54 of that decision:

53 	This links the power of recall to the underlying purposes of the MHA (i.e. treatment not detention or punishment).  However, in a number of cases breach of the conditions (and so the statutory duty) may well be powerful evidence of, for example, relapse and the need for a recall.  
54  	It is also the case that the existence of the power of recall is a powerful incentive for the patient to comply with conditions if he or she appreciates the risk that non-compliance will be likely to lead to a consideration of whether the power of recall should be exercised and so to its exercise.

63	The points made in paragraphs 56 to 62 above, show that conditions relating to a placement outside a hospital which when implemented will create on an objective assessment a deprivation of liberty:

i)	cannot be lawfully imposed on a restricted patient under the MHA, 

ii)	can be part of the terms and conditions of a conditional discharge that is, or which a restricted patient can reasonably conclude is, in his best interests because it is the least restrictive option and one that enables him to demonstrate that (a) it is no longer necessary for him to be in hospital or liable to recall to hospital to receive treatment for a mental disorder for the purposes set out in the MHA and so that (b) he should be given an absolute discharge, 

iii)	can promote the underlying purposes of the MHA and a conditional discharge (see paragraphs 85 to 89 of my decision in the KC case), and

iv)	can only be made a lawful option or alternative for a capacitous restricted patient if he gives a valid consent to it. 

64	The factors set out in the last paragraph show that:

i)	a capacitous restricted patient (like the Court of Protection or a DOLS decision maker in respect of a restricted patient who lacks the relevant capacity) has a real choice founded on the advantages and disadvantages and so the merits of the proposed placement assessed through the eyes of the restricted patient to consent to such conditions, and that 

ii)	any such decision is most unlikely to be driven by a threat that he might be recalled to hospital.  

This is because he is not being presented with a choice between two alternatives that can be imposed on him and the driver for his consent would be a move from hospital (albeit one that might end with an imposed recall) to a placement outside hospital which he has concluded is in his best interests because, for example, in his view that would be a step towards his absolute discharge into the community.

65	For the reasons given above and as set out in the KC case I adhere to the view I expressed obiter in the KC case that, for the purposes of Article 5, a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty.  And, in my view, by giving that consent the restricted patient will:

i)	forego his Article 5 right not to be deprived of his liberty and so the benefit of that Convention right, 

ii)	provide a lawful concrete situation on the ground, and so

iii)	provide an available alternative or option for the MHA decision maker.

66	In determining whether to direct a conditional discharge founded on the alternative created by such a consent the FTT will have to consider whether in all the circumstances:

i)	the consent is freely given and so is based on a real choice founded on an exercise of the patient’s liberty to make his own choices and so his autonomy, and

ii)	the situation on the ground that it will create satisfies the test for a conditional discharge set by s. 73 of the MCA.

67	That second question referred to in the last paragraph engages a comparison of the available options and their effects and so the issue I raised in paragraph 137 of my decision the KC case concerning the withdrawal of the consent.  As I have said this issue was not pursued in the arguments before me.  

68	It also raises questions relating to whether the alternative is sufficiently defined and the advantages and disadvantages of the rival alternatives (see by analogy KD v A Borough Council, the Department of Health & Others [2015] UKUT 0251 (AAC) in particular at paragraph 147 et seq).   

Article 8 and discrimination

69	On my approach and conclusion this does not arise.

70	Accordingly I do not need to address the arguments advanced on justification or the argument of the Secretary of State referred to in paragraph 45 above.  The point that the Upper Tribunal does not have jurisdiction to make a declaration of incompatibility provides another reason why I need not pursue the questions raised under this heading on the alternative basis that my conclusion on the ratio of the RB case is wrong.  This lack of jurisdiction of the Upper Tribunal is however a factor that the parties to any tribunal case or any appeal from such a case might want to consider.

Dated 23 November 2015

Signed on the original				Mr Justice Charles
							President of the UT(AAC)