View source for PJ v A Local Health Board (2015) UKUT 480 (AAC)

{{Case
|Date=2015/09/04
|NCN=[2015] UKUT 480 (AAC)
|MHLR=[2016] MHLR 178
|Other citations=[2015] MHLO 63
|Court=Upper Tribunal (Administrative Appeals Chamber)
|Judges=Charles
|Parties=PJ, A Local Health Board, Welsh Ministers, Secretary of State for Health
|Judicial history=MM case:
*[[SSJ v MM (2018) UKSC 60]]
*[[SSJ v MM; Welsh Ministers v PJ (2017) EWCA Civ 194]] (joint judgment)
*[[MM v WL Clinic (2016) UKUT 37 (AAC)]] (permission to appeal refused)
*[[MM v WL Clinic (2015) UKUT 644 (AAC)]]

PJ case:
*[[Welsh Ministers v PJ (2018) UKSC 66]]
*[[SSJ v MM; Welsh Ministers v PJ (2017) EWCA Civ 194]] (joint judgment)
*[[PJ v A Local Health Board (2015) UKUT 480 (AAC)]]
|Sentence=CTO DOL condition
|Summary=The MHRT for Wales had rejected PJ's argument that his CTO should be discharged because its conditions unlawfully deprived him of his liberty. He appealed to the Upper Tribunal. (1) In deciding that PJ was not deprived of his liberty, the MHRT had erred in law in its application of the Cheshire West decision. (2) The MHRT also erred in law in concluding that the CTO framework must take precedence over any human rights issues. The tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 or any Convention right. If an issue remains to be decided on whether a breach exists or could be avoided (by authorisation or consent, or changing conditions), then generally the tribunal should adjourn to give an opportunity to make lawful the implementation of conditions. But if the treatment could not be provided without breach of Convention rights then the tribunal (whether by the statutory criteria or under its discretion) should discharge the CTO. (3) Guidance to tribunals was given under the following (paraphrased) headings: (a) whether implementation of the conditions will objectively amount to a deprivation of liberty; (b) whether the patient has capacity to consent; (c) if the patient has capacity, whether consent avoids a breach of Article 5; (d) if the patient lacks capacity, whether the objective deprivation of liberty can be authorised under the MCA; (e) if the patient lacks capacity, whether s64D can be relied upon to avoid an Article 5 breach; (f) how the conclusions on the above should help decide whether to adjourn, or discharge or uphold the CTO. (Caution: see Court of Appeal decision.)
|Detail==="UT cases" summary document==
This document (see link below) is issued to tribunal judges as guidance and states:

{{{!}} class="wikitable"
{{!}}-
{{!}}PJ v A Local Health Board & Otrs [2015] UKUT 0480 (AAC)


If the panel learns of CTO conditions amounting to a deprivation of liberty to which the patient does not consent, it cannot ignore or disregard the breach of Article 5 ECHR. The DCP suggests highlighting the difficulty, but then proceeding to apply the statutory criteria.

{{!}}A CTO condition required the patient to live in a care home where he was under continuous supervision and control, and was not free to leave. The condition therefore led to a deprivation of liberty, to which the patient (who had capacity) had not given consent. The U.T. held that the tribunal should not have ignored or disregarded the breach of Article 5 ECHR, even though the tribunal did not impose the CTO conditions and had no legal jurisdiction over them.


''Note: the question then arises as to what a tribunal should do if it is not to effectively sanction an unlawful deprivation of liberty. It is respectfully submitted that the tribunal should specifically and clearly highlight the apparent deprivation of liberty in its decision so that those responsible can take urgent steps to change the condition(s), obtain MCA authorisation, or recall the patient to hospital. The panel should then move on to consider the applicable statutory criteria. If satisfied as to the need for a CTO in principle, it should not discharge the CTO under discretionary powers as this could place the patient and public at serious risk.''
{{!}}}

This appears to rephrase the position found to be unlawful by the Upper Tribunal. The Upper Tribunal's approach would generally involve adjournment, and possibly discharge. [Update: see the Court of Appeal's decision.]
|External links=*{{pagesummary|Upper Tribunal case summary document (January 2016)}}

*Listing news: "Lord Justice Moor-Bick has directed that <nowiki>[</nowiki>[[MM v WL Clinic (2016) UKUT 37 (AAC)|C3/2016/0561 Re MM]]<nowiki>]</nowiki> be expedited into the court list and be heard with [[PJ v A Local Health Board (2015) UKUT 480 (AAC)|C3/2015/4104 Re: PJ]] with a combined time estimate of 2 days.  It has now been imposed into the list floating over the 8th and 9th June 2016." (Email from Civil Appeals Office, 17/3/16)
|Subject=Upper Tribunal decisions,CTO cases
|Judgment=(2015) UKUT 480 (AAC).pdf
|News=No
|RSS pubdate=2021/02/16 08:50:01 PM
}}