Conditions can be imposed on patients subject to
conditional discharge under Sec.37/41 MHA, as well as those subject to Community
Treatment Orders under Sec.17A MHA. These can impose considerable limits on a
patient’s freedom, such as stating where the patient must live, and what they
can and can’t do. These conditions can include anything from stipulating
whether or how a patient can access the internet, to prohibitions on drinking
alcohol or taking illegal drugs.
Generally, patients do not object to these conditions, if
it means that they can be released from hospital, so there is little case law
relating to whether or not such requirements could breach an individual’s human
rights. However, a recent Upper Tribunal appeal did address this issue.
The Upper Tribunal considered an appeal from the 1st
Tier Mental Health Tribunal concerning a conditionally discharged patient (RP v Dudley and Walsall Mental Health Partnership NHS Trust and the Secretary ofState for Justice, [2016]UKUT 204 (AAC) (26 April 2016).
RP had a diagnosis of paranoid schizophrenia, and had
been made subject to hospital and restriction orders under Sec.37/41 following
convictions for offences of violence.
He was conditionally discharged in September 2011, and
had been living in the community since then. RP’s order and conditions were
reviewed by a 1st Tier Tribunal in February 2015, who decided the
conditions should continue.
The appeal was based on the contention that there had
been errors in law, the most significant being that the Tribunal had failed to
comply with the patient’s right under Article 8, and it was this aspect that
the Upper Tribunal had to consider.
Article 8 of the Human Rights Act is, of course, concerned
with the right to respect for private and family life.
Specifically, Article 8 states:
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
One of the conditions stated that “The patient shall
abstain from using illicit drugs and steroids. He is also to refrain from the
consumption of alcohol to excess.” It was the contention of the patient’s
solicitors that this breached his human rights.
The Upper Tribunal gave this due consideration, stating:
The Judge went on to state:
Most conditions that are imposed on conditional discharges
are capable of being operated oppressively, but in practice they are not. It is
understood when the conditions are imposed that they will be applied reasonably
and according to the circumstances at the time. Intervention may be light-handed
or heavy-handed as required. The application of Article 8 will be calibrated to
the needs of the patient and the public. The tribunal is more likely to be
concerned to ensure that the conditions are reasonable in principle.
Considering the condition relating to “excess alcohol
consumption”, the Judge concluded:
It is, as the solicitors say, inherently vague. But it is
reasonable for a tribunal to impose some kind of control over alcohol
consumption and the difficulties of precise definition are capable of causing
as many problems as they try to solve. What matters is how the conditions are
operated and Article 8 operates to protect the patient at that stage.
The decision therefore was that the conditions of the
discharge, even the contentious issue relating to drug and alcohol use, did not
breach the patient’s Article 8 Human Rights.
