IN THE UPPER TRIBUNAL	Appeal No. HM/1533/2010  
ADMINISTRATIVE APPEALS CHAMBER

Before:  Lord Justice Carnwath SPT
              HH Judge Phillip Sycamore CP (FTT(HESC))
              Upper Tribunal Judge Rowland

For the Appellant:	Mr Robert Kellar of counsel, instructed by the Treasury Solicitor.

For the First Respondent:	Mr Simon Burrows of counsel, instructed by O’Donnells Solicitors of Preston

The Second Respondent was not represented.

Decision:  	The appeal is dismissed and the decision of the First-tier Tribunal dated 24th April 2009 is upheld.
We direct that, save for the frontsheet (which identifies the Respondents by their full names), this decision may be made public.

REASONS FOR DECISION

LORD JUSTICE CARNWATH and JUDGE SYCAMORE
The facts
1.	The First Respondent (“RB”), who is now 75 years of age, is detained in a hospital managed by the Second Respondent (“the Trust”). He suffers from a mental illness in the form of a persistent delusional disorder, which has caused him to be a life-long paedophile attracted to boys aged between approximately 9 and 13 years and strongly misogynistic. His detention arises under a hospital order and restriction order made on 30 June 1999, following his conviction for indecent assault of a boy under 16. It was made under sections 37 and 41 respectively of the Mental Health Act 1983 (“the 1983 Act”). 
2.	For some time those caring for RB have supported a conditional discharge to enable him to move to a registered care home, provided that he does not have unrestricted access to the community, and RB has been willing to consent to conditions designed to satisfy this proviso. On this basis RB applied in 2007 to a mental health review tribunal for conditional discharge, indicating that he would agree to a condition that he be accompanied at all times by staff when taking any leave of absence from the care home. However on 10 July 2007 the tribunal refused the application. It concluded that a conditional discharge with such a condition attached would be unlawful because the condition would represent a deprivation of liberty. 
3.	In the following year, RB made another application which came before the First-tier Tribunal at a hearing on 27 February 2009. The hearing was adjourned to give the Secretary of State an opportunity to comment on information about the care home and so that the manager of the care home could attend the next hearing.
4.	On 24 April 2009 the adjourned hearing took place before a differently constituted panel. RB was represented by Mr Burrows.  The Trust was not legally represented. Its responsible clinician (Dr John McKenna) gave evidence supporting the proposal. His report dated 13 December 2008 stated that “the current supervision and treatment arrangements could be effectively replicated in the less physically secure and residential-scale setting of [the care home].” He also said that the care home, which had experience in accommodating offenders, had close links with the police and probation service through multi-agency public protection arrangements and that the placement offered to RB was to be overseen through such arrangements.  The Secretary of State was also not represented. He had submitted written statements opposing conditional discharge, not only because of concern whether the necessary conditions would be a deprivation of liberty, but also because RB “would represent a serious risk of offending if he were discharged into the community.” 
5.	After hearing from, among others, the manager of the care home, the First-tier Tribunal decided on 24 April 2009 that RB should be discharged subject to conditions. However it deferred discharge until it could be satisfied that the necessary arrangements had been made. For that purpose it decided to reconvene no later than 10 July 2009.  The conditions specified by the First-tier Tribunal were –
“[1] That he resides at [the care home]
 [2] That he abides by the rules of that institution
 [3] That he does not leave the grounds of [the care home] except when supervised
 [4] That he accepts his prescribed medication
 [5] That he engages with social supervision
 [6] That he engages with medical supervision”.
6.	The First-tier Tribunal gave detailed reasons for its decision. It concluded that security needs would be well met at the care home. In its view the conditions restricted RB’s liberty but did not deprive him of liberty for the purposes of article 5 of the European Convention on Human Rights. Alternatively if they would otherwise have constituted a deprivation of liberty then RB’s –
“valid and meaningful consent to a move to [the care home] (a move which would manifestly be in his best interests) would prevent the deprivation of [RB’s] liberty from being a breach of Article 5 of his Convention rights.”
7.	The Secretary of State applied to the First-tier Tribunal for permission to appeal on a point of law to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). His application came before Regional Tribunal Judge Wright for consideration on the papers. In a decision dated 29 May 2009, Judge Wright reviewed the decision of 24 April 2009 under section 9 of the 2007 Act, set it aside and directed that the application be re-determined by a freshly-constituted panel of the First-tier Tribunal.  On 30 July 2009, he refused to set aside his review decision.  Following an application to the Upper Tribunal for judicial review, Judge Wright’s July decision was quashed, his May decision was set aside and permission to appeal against the original First-tier Tribunal decision was granted (R.(RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC); [2010] AACR  41). It is that appeal which now comes before us for decision.
Conditional discharges – the legislation 
8.	Section 73 of the 1983 Act provides –
“73.–(1)  Where an application to a Mental Health Review 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 such a tribunal, the tribunal shall direct the absolute discharge of the patient if –
    (a)	the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and
    (b)	the tribunal are 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.”
Subsection (7) makes provision for deferring conditional discharges.
9.	The matters mentioned in section 72(1)(b)(i), (ii) and (iia) are –
   “(i) 	that he is then suffering from mental illness or 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”.
The issue
10.	For present purposes it would seem possible to refine the somewhat tortuous statutory language of section 73 into two relevant questions for the tribunal:
    (i) 	Is the patient currently suffering from mental illness or 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? 
    (ii)	If not, is it appropriate for the patient to remain liable to be recalled to hospital for further treatment?
If the answer to both questions is no, then there must be an absolute discharge. If the answer to (i) is no, and the answer to (ii) is yes, then the appropriate direction is a conditional discharge.
11.	At first sight, that formulation appears to suggest a relatively simple answer to the present case. On the findings of the tribunal, RB can be properly looked after with adequate controls outside a hospital environment. It is therefore not appropriate at the present time for him to be liable to be detained in a hospital for treatment (question (i)). On the other hand, there needs to be provision for him to be recalled to hospital if anything goes wrong with that arrangement (question (ii)). Accordingly, the answer to (i) is no, and the answer to (ii) is yes. It would seem to follow that the correct order is a conditional discharge.
12.	This simple approach was not part of RB’s case when the matter first came before the Upper Tribunal on the judicial review application, but was suggested as a possible line of argument in the Upper Tribunal’s judicial review decision (para 47). It has since been adopted by Mr Burrows in his submissions. 
13.	For the Secretary of State, Mr Kellar submits that this approach is not open to us in the light of a line of authorities by which we are bound. The effect of those authorities, it is said, is that the tribunal is not entitled to direct “conditional discharge” if the effect of the conditions is that the patient remains under “detention”, in the sense that he remains deprived of his liberty within the meaning of Article 5 of the European Convention on Human Rights. That, it is submitted, is the effect of the conditions proposed by the tribunal in this case, and they were wrong to think otherwise. The only power to authorise a move to such a regime, whether in a hospital or elsewhere, lies with the Secretary of State, subject to judicial review, but not appeal to the tribunal.  
14.	Those submissions in turn give rise to four questions:
1)	What is the true effect of the authorities?
2)	Are they distinguishable?
3)	If not, should they be treated as binding on the Upper Tribunal?
4)	On the facts, was the tribunal entitled to find that the conditions did not result in a deprivation of liberty? 
Background
15.	Before considering those issues, it may be helpful to say a little about the background of the present statutory scheme. Until the1983, Act tribunals had only an advisory role in relation to restricted patients. Although a patient was entitled to have his case referred to a tribunal, the role of the tribunal was limited to providing advice to the Secretary of State. The ultimate decision as to whether or not to discharge rested with the Secretary of State.
16.	Section 73 of the Act provides for the circumstances in which a tribunal must direct the absolute or conditional discharge of a patient. Its introduction was as a direct consequence of Strasbourg jurisprudence. A decision of the European Court of Human Rights (X v United Kingdom (1981) 4 E.H.R.R 181) held that compulsorily detained patients were entitled to periodic review of their detention by a court with power to direct, rather than simply to recommend, discharge.
17.	Section 42 empowers the Secretary of State to direct the absolute or conditional discharge of a restricted patient. Unlike the Tribunal, which is required to apply specific statutory criteria in considering the position of restricted patients, the Secretary of State is not bound by any statutory criteria when exercising his powers in relation to restricted patients.
18.	The only statutory powers available to a tribunal in relation to restricted patients are to direct either absolute discharge or conditional discharge. It is not unusual for a tribunal to make non-statutory recommendations, for example in relation to leave of absence or transfer to another hospital, often at a lower level of security, but it is for the Secretary of State to decide whether to act upon those recommendations. It should be noted that it is unlawful for the tribunal to adjourn solely for the purpose of the exercise of this non-statutory advisory role (R.(Secretary of State for the Home Department v Mental Health Review Tribunal [2000] MHLR 209)
19.	The Tribunal may defer conditional discharge (section 73(7)) thus making a provisional decision to direct a conditional discharge on specified conditions. This will require the Tribunal to reconvene on a fixed date to monitor progress when it can direct discharge without a further hearing if the arrangements have been made; defer again; vary or amend the proposed conditions or order no discharge. The Tribunal may also adjourn to investigate the possibility of imposing conditions but it is unlawful to adjourn to monitor the patient’s progress in the hope that a projected course of treatment will eventually permit it to discharge the patient (R. v Nottingham MHRT ex p Secretary of State for the Home Department, The Times March 25 1987).    
The PH principle
20.	R.(Secretary of State for the Home Department) v Mental Health Review Tribunal [2002] EWCA Civ 1868; [2003] MHLR 202 is the case principally relied on by Mr Kellar for what we shall call “the PH principle”. The tribunal had decided to direct a conditional discharge of the patient, PH, subject to suitable accommodation being identified. On judicial review, the Secretary of State argued that there could be no “discharge” in law without release from detention, and the tribunal should have held that the effect of the conditions was that PH remained detained. The Court of Appeal proceeded on the basis that the premise was correct, but declined to reverse the tribunal’s conclusion of fact.  Keene LJ, with whom the other members of the Court agreed, said at [24] –
“I cannot accept that conditions 3 and 4 inevitably mean that this man would be in a regime so restrictive that he would be deprived of his liberty.” 
21.	The same legal approach was adopted in three cases at first instance. In R.(G) v Mental Health Review Tribunal [2004] EWHC 2193 (Admin); [2004] MHLR 265, a tribunal had directed a deferred conditional discharge with a condition that the patient reside at a named hostel.  In the event, it was not possible for him to live at that hostel and no other could be found before the end of the deferment, so that the patient would have to continue to live in a rehabilitation flat within the grounds of the secure hospital, subject to the same regime as already applied to him.  Collins J held that the practical effect of the restrictions imposed on G while living in the rehabilitation flat would be such that he would remain detained, and that therefore there could be no conditional discharge. He also held that the patient’s consent to the continuing deprivation of liberty made no difference.
22.	R.(Secretary of State for the Home Department) v Mental Health Review Tribunal [2004] EWHC 2194 (Admin); [2004] MHLR 273 was heard by Collins J immediately after G and argued by the same counsel.  In this case, the tribunal directed a deferred conditional discharge of the patient, MP.  Two of the conditions were –
“(2)	The patient shall reside at accommodation with properly qualified round-the-clock staff experienced in working with violent sexual offenders and such that he is unable to leave it without an escort who is a member of the accommodation’s permanent staff.
(3)	The patient shall, when not in the accommodation, at all times be escorted by a member of the accommodation’s permanent staff.”
Collins J said that it was “quite impossible to argue that what is proposed could amount to anything less than a deprivation of liberty”.
23.	Finally, in IT v. SSHD [2008] EWHC 1707 (Admin), Bean J considered the effect of the Court of Appeal’s decision, and said:
“This is a curious area of human rights jurisprudence, in which the Secretary of State prays Article 5 of the ECHR in aid of an argument that a patient should be detained in hospital. The ratio of the PH case, in my view, is that the MHRT acts ultra vires if it imposes conditions which amount to a transfer from one state of detention to another. Restrictions on liberty of movement do not amount to deprivation of liberty; the distinction between the two is one of fact and degree; and among other matters the duration of the measures in question is relevant…”
On the facts of the case before him, he held that the transfer was not to conditions amounting to “detention under another name”.
Distinguishable?
24.	If Bean J’s statement of the ratio of PH is correct, then it would appear to apply to the present case. On that footing, the only issue would be whether the tribunal was entitled to find that the conditions proposed by it did not amount to deprivation of liberty. 
25.	In the Upper Tribunal’s judicial review decision, it was suggested that this line of authority might be distinguishable, on the basis that the cases were not in terms directed to the effect of a different regime outside a “hospital”.  It was said:
“It is relevant that, in PH’s case, condition (3) [that ‘PH reside at specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security’] would at the time that it was imposed almost certainly have had the effect that PH would have had to be accommodated in a registered mental nursing home falling within the extended definition of “hospital” as it was in force before 1 April 2002.  Arguably, therefore, that case says nothing about the power to impose conditions in respect of people who are not to be accommodated in a hospital.  G was certainly to be accommodated in a hospital.  MP’s case was argued, perhaps erroneously, on the basis that it was fundamentally indistinguishable from G, but the result may in any event be justifiable on the ground that no institution other than a hospital could properly have accommodated MP under the conditions imposed.” (para 47)
26.	In response, Mr Kellar has helpfully referred us in more detail to the judgment of Elias J at first instance in PH ([2002] EWHC 1128 (Admin)), which he says casts light upon the scope of the Court of Appeal’s judgment, in three respects:
1)	The case proceeded on the basis that the location to which PH was to be transferred would not necessarily be a “hospital” as defined.
2)	Elias J’s reasoning, not disturbed in the Court of Appeal, turned, not on “the interface” between sections 72(1)(b) and 73(2), but on the meaning of the word “discharge”, which he interpreted as meaning release from detention as understood in Convention jurisprudence.
3)	The court had in mind the authorities which established that the powers of the tribunal under section 72(3) to make recommendations as to leave of absence, or transfer to another hospital or into guardianship, had no application to restricted patients (R v Oxford MHRT, ex p Smith 25.1.95 (unreported), applied in MP v Secretary of State [2003] EWHC Civ 1782).
27.	The first point is correct, but the Court of Appeal did not need to decide the issue.  Elias J noted the definition of hospital in section 145, but observed that there was “no reason to suppose” that the institution to which PH would be discharged, if one could be found, “would be a hospital within the meaning of the legislation” (para 37). He referred to evidence from the Chair of the Tribunal that they did not envisage that PH would be sent to another hospital.  In the Court of Appeal, it appears that the Secretary of State did initially argue that any institution to which PH was moved would be likely to qualify as a hospital within the extended definition applied by section 79(6), but that the issue was not pursued because it became irrelevant when counsel abandoned a challenge to Elias J’s approach to the meaning of “discharge”, since there could then be an effective discharge even though the patient might be required “to reside in another institution which qualifies as a ‘hospital’” (see para 25).
28.	The third point also appears correct but not to advance the argument either way. The scope of the tribunal’s powers to recommend transfer between hospitals, or make other recommendations, under a provision relating to unrestricted patients, does not seem to us necessarily to limit the scope of its separate powers in respect of restricted patients. 
29.	The second point deserves closer examination. For this purpose it is necessary to look at the judgments in PH in some detail.
The judgments in PH
30.	The mental health review tribunal had decided that PH “no longer complied with the statutory requirements for detention in hospital”, but that he should be subject to recall, and that a conditional discharge was therefore appropriate. This was principally because, although normally “co-operative and sensible”, deterioration might lead him to seek to leave unescorted, which would lead to his inevitable recall to hospital (see judgment of Elias J at para 11). Conditions 3 and 4 were –
“(3) [PH] reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security;
(4)	[PH] shall not leave the accommodation without an escort.”
The making of the order was deferred pending the identification of suitable accommodation and the preparation of a detailed care plan, including arrangements for site security and 24 hour supervision. In the meantime, the Secretary of State applied for judicial review. 
31.	Elias J’s discussion of the facts of the case was preceded by a section headed “the law”. Having set out the statutory provisions, he noted six particular “features” of relevance to the issues. To do justice to the reasoning, it is necessary to set out his discussion of the fifth point in full:
“28 Fifth, on the face of it, one might have thought that section 72(1) envisages that the effect of a discharge is to discharge the patient from the liability to be detained. This is not, however, necessarily the case. It is plain from section 41(3)(a) that a patient who is only conditionally discharged pursuant to section 73 remains liable to be detained within the meaning of that provision. Accordingly, in the case of someone conditionally discharged, it seems clear that the discharge is from actual detention rather than the liability to be detained. The latter may continue even when the former does not. (Of course, someone absolutely discharged is discharged both from any actual detention and any liability to be detained).
29 In this connection, I should refer to the decision of Mann J in Secretary of State v MHRT for Mersey RHA [1986] 1 WLR 1170. In that case the tribunal were satisfied that a patient should be discharged, but it made an order for his conditional discharge from hospital and deferred the order for arrangements to be made for his admission to another hospital so that he could be rehabilitated for his eventual discharge into the community. Mann J held that in the circumstances there was no effective discharge in law. He said this (at page 1178):
‘The word 'discharge', as employed in sections 72 to 75 of the Act of 1983, means, and in my judgment can only mean, release from hospital. The release may be absolute or it may be conditional. It will be conditional in the case of a restricted patient where the tribunal is not satisfied as to the matter in section 73(1)(b), but is satisfied as to the matters in section 72(1)(b)(i) or (ii). A condition requiring that a patient, who is conditionally discharged, should remain in hospital is, in my judgment, inconsistent with the duty to discharge albeit conditionally. Section 73(4)(a), with its reference to 'recall', strongly supports the inconsistency of such a condition with the concept of discharge. The condition imposed on the discharge of Mr Gordon was therefore, in my judgment, not lawful.’ 
30 I confess that I am not convinced by the reasoning in this case, with great respect to the learned judge. In my view, the fallacy is to treat release from discharge as meaning release from hospital. It seems to me that it means release from detention in hospital or sometimes, as I have indicated, from liability to be detained. Release from hospital is neither a sufficient nor a necessary condition for constituting the discharge. If there is such a release but it is to another institution where the patient is detained in the sense that he is deprived of his liberty, then that would not, in my judgment, constitute a proper and lawful discharge. By the same token, in my judgment, if the patient is discharged from detention in a hospital such that he is no longer deprived of his liberty, then there is still an effective discharge notwithstanding that the conditions are such that he is required to reside in another hospital pending further consideration of his absolute discharge. The central issue, it seems to me, is whether or not the conditions constitute a continuing detention. If they do not, it is irrelevant where the patient resides thereafter. Indeed, if it were thought by the tribunal that the only appropriate institution to which a conditional discharge could properly be made was another hospital, it would seem to me to infringe Article 5 of the Convention to refuse that discharge simply because the only available alternative institution was another hospital. Of course, the nature of the conditions imposed requiring discharge to that other hospital may well be such that they do not in fact constitute a release from the deprivation of liberty, but that will be because of the overall effect of the conditions, not because the discharge is from one hospital to another.” (emphasis added)
32.	The emphasised words make clear how he saw the “central issue”: not whether or not the patient was to reside in a “hospital” as defined, but “whether or not the conditions constitute a continuing detention”. This was based on two propositions:
1)	That if the conditions amount to “detention”, there can be no lawful discharge, even to an institution which does not qualify as a hospital (what we have termed “the PH principle”); 
2)	Conversely (differing from Mann J in the 1986 case), that a restricted patient may be lawfully “discharged” even if he continues to reside in a hospital, provided the conditions do not amount to “detention”.
33.	It is helpful also to see how these two propositions were dealt with on the facts of the particular case. He first summarised the main issue, as having two elements:
“The central issue here, as the parties accept, is what is embraced within the concept of detention. A secondary matter… is whether there can be a discharge if the effect of the decision is to transfer the patient from one hospital to another.” (para 36)
The latter point was dismissed, both because (as he had held) it was irrelevant in law, but also because there was no reason to assume that the institution identified would be a “hospital” (para 38). 
34.	On the “central issue”, having discussed the ECHR and domestic authorities on deprivation of liberty, he concluded:
“What I have to decide in this case at this stage is whether the conditions imposed will inevitably result in a deprivation of liberty within the meaning of the Convention jurisprudence. If so, then it is common ground that the Tribunal has not effected a proper discharge. I put the matter this way because, as [counsel for the tribunal and PH] accept, it may be that when more detailed security proposals are identified in the care plan, the position would then change. The combination of factors at that stage may lead to a different conclusion than one that could properly be reached now. But given the situation as it is at present, in my judgment, the conditions imposed do not constitute a deprivation of liberty….” (para 48, emphasis added)
35.	In the Court of Appeal, the “secondary” proposition was specifically endorsed. Commenting on Elias J’s treatment of the 1986 case, and following his “compelling” reasoning in paragraph 30, Keene LJ said: 
“If a patient is discharged from detention, that is still an effective discharge, even though he may be required to reside in another institution which qualifies as a "hospital". So long as he is not detained there, the Tribunal has lawfully discharged him.” (para 25)
36.	The Court’s treatment of the first proposition was less clear-cut. Again it is important to note the relatively narrow scope of the argument, as identified by Keene LJ:
“A number of grounds were advanced before Elias J. by way of challenge to the Tribunal's decision, but only one is now relied on by the Secretary of State in this appeal. His contention is that the conditions imposed by the Tribunal, in particular conditions 3 and 4, are so restrictive as to deprive this patient of his liberty, with the result that he would continue to be detained, albeit in a situation of lower security. The Tribunal only has the power to discharge a patient from detention and to impose conditions upon discharge. It has no power to direct the transfer of a patient from one detaining institution to another, and therefore in the present case the Tribunal has acted ultra vires.” (para 9) 
37.	There was no further discussion of the proposition in the last sentence. The remainder of the judgment, as we read it, proceeded on the basis that the proposition in the latter sentence was not in dispute. The appeal failed on the facts. Keene LJ concluded:
“I cannot accept that conditions 3 and 4 inevitably mean that this man would be in a regime so restrictive that he would be deprived of his liberty. Condition 3 is sufficiently broadly phrased as to allow for measures which would fall short of such a deprivation, and both it (where it deals with security) and condition 4 have as their purpose the protection of P.H. himself and would therefore be in his interests. I should add that there is some evidence to indicate that, in at least one care home, the staffing arrangements would be such as to enable P.H. to go out with an escort whenever he chose to do so. On this principal issue, therefore, I conclude that the conditions would not involve his transfer from one state of detention to another state of detention. They are therefore not ultra vires.” (para 24) 
38.	Four material points emerge from this review of the judgments in PH:
1)	First, the “PH principle”, that there could be no “discharge” while the patient remained deprived of liberty, does not appear to have been subject to argument at either level.
2)	No doubt for this reason, the discussion of the principle in the judgment of Elias J was limited. The Court of Appeal simply proceeded on the basis that it was correct, without any discussion.
3)	On the facts, it was held that even conditions as restrictive as in that case (for example, “not [to] leave the accommodation without an escort”) did not inevitably result in a deprivation of liberty.
4)	A significant aspect of that conclusion was that they were imposed for the protection of the patient.  (Mr Kellar drew our attention to JE v DE [2006] EWHC 3459 (Fam) in which Munby J doubted the continuing validity of this approach, but it is not necessary for us to comment on that.)
Precedent
39.	There is no doubt that, when applying the law of England and Wales, the Upper Tribunal is bound by decisions of the Court of Appeal on issues of law in accordance with the ordinary rules of precedent. This follows from its status as a higher court, to which the statute provides a direct right of appeal. 
40.	On the other hand, for the reasons given below, it seems to us equally clear that, where the Upper Tribunal is exercising a jurisdiction formerly exercised by the High Court, it need not regard itself as formally bound by decisions of the High Court. Subject to one qualification, we think the position should be the same as where the High Court is dealing with decisions of co-ordinate jurisdiction:
“that he will follow the decision of another judge of first instance, unless he is convinced that that judgment is wrong, as a matter of judicial comity; but he is not bound to follow the decision of a judge of equal jurisdiction” (see e.g. Huddersfield Police Authority v. Watson [1947] K.B. 842, 848, per Lord Goddard C.J.)
41.	The one qualification that we would suggest to this formulation arises from the particular nature of the Upper Tribunal’s jurisdiction, in line with the statement of Lady Hale in AH (Sudan) v Secretary of State [2007] UKHL 49 para [30] (repeating comments she had made in the Court of Appeal in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279). She emphasised the highly specialised character of some legislation before the tribunals, and the need for the higher courts to respect their expertise.  Consistently with that approach, where such specialised issues arise before the Upper Tribunal, it may in a proper case feel less inhibited in revisiting issues decided even at High Court level, if there is good reason to do so.
42.	For the general approach, we gain support from the Court of Appeal’s decision in respect of the jurisdiction of the former Social Security Commissioners in Chief Supplementary Benefit Officer v. Leary [1985] 1 All ER 1061. Having recorded that it was “not in dispute” that judgments given by the High Court “under its supervisory jurisdiction” were binding on the Commissioners, Lawton LJ said:
“A distinction has to be drawn in decisions of the High Court exercising its supervisory jurisdiction which are, and always have been, binding on the Commissioners and the particular jurisdiction conferred on the High Court by the Act and the statutory instrument to which we have referred.  The supervisory jurisdiction of the High Court is wide and discretionary.  That given to the High Court between 1st January 1978 and 24th November 1980 was much narrower and was not discretionary.  The effect of the 1980 Order was to transfer the narrow jurisdiction from the High Court to the Commissioners, probably for reasons of convenience.  In these circumstances, it cannot, in our judgment, have been intended that when exercising this same jurisdiction the Commissioner should be bound by earlier decisions of the High Court.” (p 1064-5)
43.	The position seems to us even clearer in respect of the Upper Tribunal, which has been established by Parliament for the purpose of providing a specialist appeal jurisdiction on points of law, in many respects analogous to that of the High Court, and which is by statute made a “superior court of record” (section 3(5) of the 2007 Act). The Employment Appeal Tribunal,. which is also a “superior court of record” (Employment Tribunals Act 1996 s 20(3), has for many years (apparently without question) asserted a right to depart from High Court decisions, although treating them as “of great persuasive authority” (see Portec (UK) v Mogensen [1976] 3 All ER 565). 
44.	Mr Kellar relied on the general principle that “the decisions of higher courts are binding upon judges sitting in lower courts”, for which he referred us to Howard de Walden Estates v Aggio [2008] Ch 26. There it was held that decisions of the Chancery Division were binding on the county court, even in a statutory context in which they were exercising the same first-instance jurisdiction. However, as the headnote makes clear, that decision turned on the relationship between the two courts as “superior court and inferior court” (see per Arden LJ, para 90).  That in our view provides no assistance in a context in which Parliament has created a new “superior” jurisdiction. 
45.	Alternatively, Mr Kellar relied on the fact that the principle stated in Leary expressly excludes decisions of the High Court “in its supervisory capacity”, which he says covers the relevant decisions of the High Court applying the PH principle. However, we note that the exclusion in Leary was not part of the decision of the Court of Appeal, but appears to have rested on a concession by counsel, the basis of which is not clear from the report. In any event, the context is much changed. 
46.	To the extent that the Upper Tribunal itself may ultimately be held subject to the supervisory jurisdiction of the High Court (see, for the time-being, R (ex p Cart) v Upper Tribunal [2010] EWCA Civ 859, as respects England and Wales), no doubt the High Court decisions will be treated as binding. However, in this case we are concerned with judgments of the High Court supervising, not the Upper Tribunal or its equivalent, but an inferior jurisdiction, that of the former Mental Health Review Tribunal. The Upper Tribunal is for practical purposes the successor to that supervisory role. It is true that the route of challenge in those days was by judicial review, rather than by appeal, but that was the consequence of the very narrow rights of appeal then available. The much wider powers now available to the Upper Tribunal are for all practical purposes equivalent to those exercised by the High Court in judicial review.  In our view therefore there is no reason to accord such decisions special treatment merely because, for historical reasons, the procedural route was judicial review. 
47.	To conclude this section, it seems to us that we are not bound by the Court of Appeal decision in PH, because it did not purport to decide the relevant point. We are not formally bound by the successive decisions of the High Court, because we are exercising a jurisdiction of equivalent status for these purposes. On the other hand, we should of course be very cautious in questioning a proposition which has been accepted as correct by the Court of Appeal, and has been confirmed or applied by a series of High Court judges. For that reason, and on general principles, we should not depart from their approach unless satisfied that it is wrong. 
Should the PH principle be qualified?
48.	We come back to the merits of the PH principle. Our reasons for questioning it are two-fold. First, we find it difficult to extract it from the statutory language. Secondly, it creates unnecessary problems for the tribunal, which serve no purpose consistent with the objectives of the Act. 
49.	As to the first, the section is in mandatory terms, depending on the tribunal’s conclusions on two issues, one of which is defined by section 72(1)(b). That depends, on the appropriateness not simply of “detention”, but of detention “in a hospital for medical treatment”. If that is not appropriate, but the “recall” condition is satisfied, then he must be “discharged” subject to conditions. There seems no room for any further pre-requirement.
50.	The basis of Elias J’s reasoning, as we understand it, is that the word “discharge” itself necessarily connotes release from detention to a state of liberty; and that accordingly, while the patient remains deprived of his liberty, there can be no “proper and lawful discharge”. With respect, we do not think that the word “discharge”, in its ordinary sense, bears that interpretation. The dictionary definitions show that, depending on context, the word may mean “release from custody”, but may also connote release in the more general sense of “dismiss” or “send away”. Thus, in ordinary language, a patient may be “discharged” from hospital, without any connotation that he is being released from deprivation of liberty in the legal sense. In the context of section 72, it seems more natural to read the word “discharge” as meaning simply release from the state there mentioned, that is from “detention in a hospital for treatment.”
51.	Mr Kellar does not, as we understand it, dispute this view of the natural meaning of the words of section 73. However, he argues that such a result cannot have been intended by Parliament because it would be inconsistent with the general framework of the legislation, which, he submits, enables a tribunal to rule on whether a patient should be detained at all but gives the Secretary of State the sole responsibility for determining where, and under what conditions, a person is to be detained. Discharge from hospital may be effected by either the Secretary of State (under section 42) or a tribunal (under section 73).  Transfer from one hospital to another is a matter for administrative decision but, in the case of a restricted patient, can be effected only with the consent of the Secretary of State for Justice (see section 41(3)(c)(ii) and also Sch.1, Pt II, paras. 2 and 5).  The role of a tribunal in respect of transfers is limited to making recommendations (only on a non-statutory basis in relation to restricted patients, but also under section 72(3) in relation to other patients).  
52.	We do not accept that other provisions relating to the special role of the Secretary of State in respect of restricted patients are a reason for reading section 73 in other than its ordinary sense. If anything, we think that a “purposive” approach supports our view. We agree respectfully with Bean J that is “curious” to find the Secretary of State praying in aid Article 5 of the ECHR to deny the patient a conditional discharge. We note the similar comments of Dr McKenna, from his “perspective as a clinician”, as to the use of the “unusual lever”  of cases on human rights to restrict the liberty of a man who “has capacity and who consents (enthusiastically) to the proposed transfer” (bundle p A31). 
53.	The premise for exercise of the tribunal’s powers is that the patient has previously been lawfully detained (so that article 5 has been complied with); but that he does not now need to be detained in a hospital and that some other form of accommodation is appropriate, subject to the possibility of recall. The next step is to devise the conditions. At that stage, it is hard to see why the question whether the conditions would amount to detention for the purposes of article 5 should come into it. Even if they do amount to such detention, there will be no breach of Article 5 because the 1983 Act makes provision for the procedural safeguards guaranteed by Article 5.  The tribunal’s concern should be simply to decide what is necessary for the well-being and protection of the patient, and the protection of the public and to satisfy themselves that the patient is willing to comply with the conditions and to that extent consents to them. We see no reason why Parliament should have wished them to concern with themselves with the fine distinctions which may arise under the Strasbourg case-law on detention. The PH decision itself shows how narrow the dividing-line may be, and indeed that the issue may not be capable of final decision at that stage. It is surprising that a matter going to the jurisdiction of the tribunal to make an order should depend, not solely on the terms of the conditions, but on how they are implemented.
54.	In conclusion on this point, we do not think that we are bound by the Court of Appeal decision in PH or the High Court cases which followed it, to hold (contrary to our clear view as to the effect of section 73) that the validity of the conditions proposed by the First-tier Tribunal depended solely on whether or not they amounted to detention. A tribunal’s finding that a care home, not being a hospital, is an appropriate place for a patient’s accommodation, subject to conditions, is enough to give them jurisdiction (and indeed require them) to direct conditional discharge.
55.	On the other hand, a qualified PH principle holds good.  A tribunal cannot conditionally discharge a person with conditions that amount to detention in a hospital for treatment.  That is not because the detention would be an assault on the patient’s human rights but because a finding that such conditions are necessary would be inconsistent with the premise upon which any conditional discharge under section 73 must be based which is that the tribunal is not satisfied as to the matters mentioned in section 72(b)(i), (ii) or (iia).
56.	In the present case, we do not understand the Secretary of State to suggest that the care home is, or would if RB were to move there become, a hospital within the relevant definition. As we have made clear, where the proposed alternative establishment is itself a hospital, then we accept that the tribunal may need to satisfy itself that what is proposed does not involve a deprivation of liberty. However, that does not arise in this case. 
Did the conditions involve deprivation of liberty?
57.	The conclusion in the previous section makes it unnecessary to decide whether the tribunal were entitled to conclude that there would be no deprivation of liberty. However, the Upper Tribunal having expressed some views on the issue in the judicial review decision, and we having heard detailed argument on it, we shall comment briefly. (The observations on this aspect in the earlier decision should be taken as having been superseded.) 
58.	The leading Strasbourg authority relating to mental patients is Ashingdane v. UK (1985) 7 EHRR 528 (affirmed in HL v. UK (2004) 40 EHRR 314). The issue was an alleged breach of article 5 arising from the refusal of transfer from Broadmoor Hospital to a more relaxed regime in a local hospital. It was held that there was no breach because even at the local hospital he would still have been deprived of his liberty under Article 5. It is of interest to note the description of the regime to which the Appellant was subject at the hospital:
“There is no surrounding wall and neither the main entrance nor the reception area is locked... With effect from December 1980, he was allowed freedom, unescorted, in the hospital grounds for two hours a day. In the summer of 1981, he was moved to an open ward. Since then, regular, unescorted leave to visit his family has become a feature of his life at Oakwood. As at November 1984, he was going home every weekend from Thursday till Sunday and was free to leave the hospital as he pleased on Monday to Wednesday, provided only that he returned to his ward at night.”
This was one of the authorities considered by the Court of Appeal in PH. As already noted, one of the main factors leading it to uphold the conditions in that case was that they were imposed for the protection of the patient rather than the public. 
59.	In the present case, the reasoning in PH does not apply, since the tribunal found in terms that the conditions were imposed for the protection of the public. In deciding that there was no detention, the tribunal noted that there would be a “substantial increase in community leave”, that at RB’s age (75) this would “adequately provide for his desire to access the community”, and that although accompanied he would usually be able to choose to travel. However, we note that the tribunal does not seem to have been referred to Ashingdane of the other Strasbourg cases except Stork v Germany 43 (2005) EHRR 96; or if it was it did not attempt to compare RB’s prospective situation with the regimes which have been held to amount to detention in those cases. Had it done so, we do not consider it could have reached the same conclusion, and for that reason, if it mattered, the decision would have had to be set aside. 
60.	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...”
61.	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). In Stork the Court found that the Appellant had for part of her stay in a psychiatric institution (from January to April 1981) come to the clinic voluntarily, at a time when she could be assumed to have had capacity and had stayed there voluntarily owing to her need for psychiatric treatment (see paragraphs 122 – 128). 
62.	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 continuation 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 or to 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 the regime itself.
Conclusion
63.	For these reasons, we consider that the appeal fails and the decision of the First-tier Tribunal should in principle be upheld. 
64.	We note however that since the date of the decision (April 2009) RB’s circumstances have changed. After the hearing before us, it was drawn to our attention that in April 2010 RB had been moved by direction of the Secretary of State from the “long term medium secure service” to a “newly built low secure ward”. This, and the arrangements made for RB, are described in a letter dated 8th October 2010 from a consultant psychiatrist at the hospital. The letter also refers to RB’s likely eligibility for a new “step-down service” due to open in November 2011.  
65.	We were surprised that this change had not drawn to our attention before the hearing. In a direction dated 14th October, we called for further skeleton arguments, dealing not only with the judgment of Elias J in PH, but also with the “practical issue” arising from that letter, and whether in the light of it a conditional discharge was still sought. The responses have not told us anything about RB’s view of the transfer, but we understand that he still seeks to uphold the original conditional discharge. Mr Kellar submits that it has been rendered “unnecessary by subsequent developments”. However, not having found any legal reason to upset the April 2009 decision, we do not think it is open to us to revisit that issue (see section 12 of the 2007 Act). 
66.	We note Judge Rowland's comments in his concurring judgment on the implications for the extended definition of "hospital". However since this raises issues which do not arise in this case, and have not been fully explored in argument, we prefer not to express a view at this stage. We trust that the Secretary of State will be able to assist the First-tier tribunal with appropriate submissions if and when these issues become relevant in a particular case.
Postscript - Participation of the Secretary of State in proceedings     
67.	In the judicial review decision of 28th May 2010 the Upper Tribunal observed (paragraph 14) that it was unfortunate that the Secretary of State was not represented in the proceedings then before us and we expressed the hope that in future cases raising issues of general significance before the Upper Tribunal we would be able to look for appropriate assistance from the relevant Government Department. We do not suggest that the Secretary of State should as matter of course be represented in all restricted patient cases. In particular, we recognise that in many such cases before the First-tier Tribunal the Secretary of State is not routinely represented and is generally content to rely on written representations made on his behalf. 
68.	We observe, nevertheless, that there are cases in which the First–tier Tribunal would be greatly assisted by such representation. This case is a good example. There was a clear difference of opinion between the Secretary of State and the responsible clinician. The only party who was legally represented was the patient. When we asked Mr. Kellar about this he readily conceded, on instructions, that the lack of representation for the Secretary of State before the First-tier Tribunal had been a mistake.
69.	We hope that in future careful consideration will be given to ensuring that the Secretary of State is represented before the First-tier Tribunal in appropriate cases. We do not seek to lay down any precise guidelines. However, in situations in which there is a clear difference of opinion between the Secretary of State and those responsible for the care of the patient, or where the case is particularly complex, sensitive, or high profile, careful consideration should be given to the need for representation.

JUDGE ROWLAND
70.	I agree that this appeal should be dismissed for the reasons given by Lord Justice Carnwath and Judge Sycamore.
71.	I wish merely to add a few words about the extended definition of “hospital”, applied by section 79(6) to section 72, because it seems to me that it limits the practical effect of our decision.  Although we have rejected Mr Kellar’s broad submission that the scheme of the legislation is that only the Secretary of State may authorise a patient’s move from one regime of detention to another, in my judgment the legislation does have the effect that only the Secretary of State may authorise a patient’s move from one regime of detention for treatment to another.  At the time of the First-tier Tribunal’s decision, this was achieved through a particularly complicated route that still applies in Wales, but there is now a simpler route in England.
72.	By virtue of section 34(2), the extended definition of hospital includes a “registered establishment”, which, at the material time, was defined by section 34(1) as –
“… an establishment –
    (a)	which would not, apart from subsection (2) below, be a hospital for the purposes of this Part; and
    (b)	in respect of which a person is registered under Part II of the Care Standards Act 2000 as an independent hospital in which treatment or nursing (or both) are provided for persons liable to be detained under this Act”.
Paragraph (b) cannot be read literally because a person obviously cannot be registered as a hospital.  What was plainly meant is that the establishment had to be one where the person carrying on the establishment was registered under Part II of the Care Standards Act 2000 (“the 2000 Act”) on the basis that the establishment was an independent hospital.
73.	The 2000 Act, the material provisions of which still apply in Wales, provides for the registration of persons carrying on various types of establishment, including both independent hospitals and care homes.  By virtue of section 2, an independent hospital includes any establishment, other than a health service hospital, “in which treatment or nursing (or both) are provided for persons liable to be detained under the Mental Health Act 1983”.  This language was echoed in section 34(1) of the 1983 Act.  By virtue of section 3(3) of the 2000 Act, a hospital cannot also be a care home.
74.	A person conditionally discharged under the 1983 Act remains “liable to be detained under the Mental Health Act 1983”, as Elias J held in PH (at para 28).  This is clear both from section 41(3)(a) to which Elias J referred and from section 73(6), which provides –
“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 restriction order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.”
75.	Therefore, any establishment where a conditionally discharged patient receives treatment or nursing will inevitably be an independent hospital under the 2000 Act if it is not a health service hospital – at least if the treatment or nursing is in connection with his mental disorder. It is unlawful to carry on an establishment without being appropriately registered (section 11(1) of the 2000 Act) and it would therefore be improper to discharge a person with a condition that he reside at an establishment where the proprietor was not appropriately registered.  Accordingly, if a care home wishes to offer accommodation to a patient on the basis that he will receive treatment there while subject to a conditional discharge, it will be incumbent on the proprietor first to apply for an amendment to his registration on the basis that the care home is to become a hospital so that the patient may be transferred to it.
76.	Much the same position is now reached rather more directly in England, where the material provisions of the 2000 Act have been replaced by Part 1 of the Health and Social Care Act 2008 (“the 2008 Act”).  Section 34(1) of the 1983 Act has been amended so that, in England, a “registered establishment” is an establishment which would not, apart from subsection (2), be a hospital but –
“… is a hospital as defined by section 275 of the National Health Service Act 2006 that is used for the carrying on of a regulated activity, within the meaning of Part I of the Health and Social Care Act 2008, which relates to the assessment or medical treatment of mental disorder and in respect of which a person is registered under Chapter 2 of that Part”.
“Medical treatment” under the 1983 Act appears to be a wider concept than “treatment or nursing” in the 2000 Act.  Section 275 of the 2006 Act defines “hospital” so that it includes “any institution for the reception and treatment of persons suffering from illness” and it defines “illness” so as to include “mental disorder within the meaning of the Mental Health Act 1983”.
77.	It seems to me that it must follow in both England and Wales that, if proposed conditions on a conditional discharge would amount to detention in an establishment where “medical treatment” (in England) or “treatment or nursing” (in Wales) for mental illness or mental disorder is to be provided, the tribunal will not be entitled to discharge the patient because a finding that the conditions are required will imply a finding that the patient is currently “suffering from mental illness or 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” and the qualified PH principle will apply.  In such circumstances, the patient can be moved to the establishment only by way of a transfer by the Secretary of State.
78.	The overall effect appears to be that, if it is necessary for a patient to be detained in an establishment for treatment that is to be provided in that establishment, it is for the Secretary of State to determine in which establishment the person should be detained.  However, if the patient can be adequately treated at a hospital on an out-patient basis and can safely be accommodated elsewhere in the community, the tribunal must discharge the patient, subject to conditions if the tribunal is of the view that he should be liable to be recalled.

Lord Justice Carnwath
Senior President of Tribunals

HH Judge Phillip Sycamore
President of the Health, Education and Social
Care Chamber of the First-tier Tribunal

Upper Tribunal Judge Rowland

20 December 2010