Right to liberty in the context of mental illness

The Secretary of State for Justice v RB & Anor [2011] EWCA Civ 1608 (20 December 2011)


In this case the UK Court of Appeal considered whether the power to detain a convicted mental health patient continued to apply when the patient was "conditionally discharged" from detainment in hospital to another institution. The Court concluded that it constituted an unlawful continued deprivation of his liberty because of the wording of the Mental Health Act 1983. The decision is important because it upholds the fundamental nature of right to liberty, emphasises the high threshold for its deprivation, and maintains compatibility between the MHA and the European Convention on Human Rights.


RB is a 75 year old whose persistent delusional disorder has resulted in detention in a mental hospital. He is a "restricted patient" under the Act and his indefinite detention is in place until he is discharged by the Secretary of State for Justice or the First Tier Tribunal. However, medical experts believed he could be conditionally discharged and cared for in an institution with less security. He would, however, still be deprived of his liberty.

Sections 42 and 73 of the Act, which deal with discharge of restricted patients, only mention detention in hospital, signifying that Parliament had not considered a scenario where discharge would lead to detention in another class of institution.

European Convention on Human Rights

Article 5 of the Convention confers the right to liberty and security. It states that no one shall be deprived of liberty except in certain circumstances including when a person is of unsound mind. It also states that those deprived of their liberty shall be entitled to take proceedings by which the lawfulness of their detention shall be decided speedily by a court. If the detention is found not to be lawful, then they must be released.

The right to liberty and security requires extensive procedural guarantees as a "practical safeguard against arbitrary conduct by any arm of the state". Therefore, to deny discharge, four conditions mandated by the European Court of Human Rights must be met:

  • There must be reliable medical evidence that the patient is suffering from a mental disorder;
  • the mental disorder must be of a kind or degree warranting compulsory confinement;
  • the mental condition must persist throughout the period of confinement; and
  • the criteria for detention must be "prescribed by law", that is to say, be set out in legislation, so that the patient knows what they are and can bring effective proceedings to challenge this detention.

For current purposes, the final condition is the most important.


The Secretary argued that the Upper Tribunal’s decision was incorrect because it approved a class of detention different from that prescribed by the Act (detention in hospital). Accordingly, allowing other meanings would result in the Act not satisfying the fourth condition.

Counsel for RB argued that the four conditions were in place to avoid an arbitrary deprivation of liberty and that detention in this case did not amount to that. The fourth condition would be met, as a judge or tribunal, prescribed by law, must approve a conditional discharge.


Lady Justice Arden, with whom the rest of the Court agreed, allowed the appeal. The fundamental issue was "whether there [was] any statutory authority for a deprivation of liberty once an order for conditional discharge had been made" (the "prescribed by law" issue). She accepted that RB's restriction order only allowed detainment in hospital. The right to liberty, being fundamental, could only be removed if expressly stated in statute (R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115) and detention in an institution other than a hospital did not meet that safeguard requirement because of the wording of the Act.

This conclusion was reached to maintain compliance with article 5(4), which sanctions that anyone detained or deprived of their liberty must have the right to test the legality of their detention in court.

The European Court of Human Rights mandates that the fundamental nature of the right to liberty requires an assessment of lawfulness to be accessible at reasonable periods through a suitable judicial procedure. Whilst mental illness may necessitate limiting or adjusting the way the right is implemented, it is clear that "it cannot justify impairing the very essence of the right".

Consequently, upholding this human rights obligation required clarity under the statute as to the basis of detention. Lady Justice Arden therefore determined that:

"it is not enough that the patient is given a right to apply to the court...if he does not know the legal basis on which he could lawfully be subjected to an order for conditional discharge to an institution other than a hospital on terms that he continued to be deprived of his liberty".

The Act being silent on that issue under s 73(2), the Court concluded that:

“a tribunal cannot rely on the patient’s best interests as a ground for ordering conditional discharge on terms that involve a deprivation of liberty”.

Relevance to the Charter of Human Rights & Responsibilities Act 2006 (Vic)

The Mental Health Act 1986 (Vic) must be interpreted compatibly with the Victorian Charter. In particular, s 21(3) maintains that "a person must not be deprived of his or her liberty except on grounds, and in accordance with procedure, established by law". Whether a similar factual scenario would meet the same conclusion in Victoria is unclear because the Act refers to "approved mental health services" throughout the Act, rather than limiting the terminology to "hospital". It is therefore conceivable that a transfer under s 39 would be compatible with the Victorian Charter, so long as it was to another approved mental health service.

However, the words of Gleeson CJ in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 should be kept in mind:"[C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose". For that reason, there must be clear authorisation by law of the deprivation of liberty to ensure transparency of the democratic process and it would be up to a court to determine whether "approved mental health services" is sufficiently specific to meet this requirement.

A copy of the decision can be found at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1608.html

Bianca Parussolo is a Summer Clerk at DLA Piper Australia