MM v WL Clinic & Anor

MM v WL Clinic & Anor

The application for permission to appeal is refused because the grounds advanced by the Secretary of State are not sufficiently arguable. The jurisdictional argument regarding the FTT's power to impose conditions resulting in deprivation of liberty does not have sufficient merit to warrant permission, and the consent issue is not sufficiently arguable unless it is also contended that the Court of Protection cannot authorise deprivation of liberty for those lacking capacity.

Parties
Appellant: MM; First Respondent: WL Clinic; Second Respondent: MHU
Jurisdiction
England and Wales
Judgment Date
21 January 2016
Procedural Posture
Appeal / Application for Permission to Appeal to Court of Appeal
Outcome
application for permission to appeal refused
Legal Topics
Conditional Discharge, Deprivation of Liberty, Capacity to Consent, Jurisdiction of Tribunal, Mental Health Act, Article 5 ECHR
Mental Health Law Human Rights Law Conditional Discharge Deprivation of Liberty Capacity to Consent Jurisdiction of Tribunal Mental Health Act Article 5 ECHR

Case Brief

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Parties

MM

Appellant

WL Clinic

First Respondent

MHU

Second Respondent

Procedural Posture

Appeal / Application for Permission to Appeal to Court of Appeal

Legal Issues

  1. 1 Whether the First-tier Tribunal (FTT) has power to impose conditions on a conditional discharge of a restricted patient that, when implemented, create an objective deprivation of liberty
  2. 2 Whether a patient with capacity can give valid consent to conditions amounting to deprivation of liberty under Article 5 ECHR
  3. 3 Whether the jurisdictional argument based on RB v Secretary of State for Justice applies beyond restricted patients to CTOs and guardianship

Ratio Decidendi

The application for permission to appeal is refused because the grounds advanced by the Secretary of State are not sufficiently arguable. The jurisdictional argument regarding the FTT's power to impose conditions resulting in deprivation of liberty does not have sufficient merit to warrant permission, and the consent issue is not sufficiently arguable unless it is also contended that the Court of Protection cannot authorise deprivation of liberty for those lacking capacity.

Court Disposition

application for permission to appeal refused

Orders

  • If the Secretary of State pursues and seeks expedition of his application for permission to appeal before the Court of Appeal, the decision remitting this case to the First-tier Tribunal is stayed pending the determination of that application.