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Lookup NU author(s): Dr Iain McKinnonORCiD
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In 2018, the decision of the UK Supreme Court in Secretary of State for Justice v. MM exposed a gap in mental health law in England and Wales. The Court held that it was impermissible for a tribunal or for the Justice Secretary to make a conditionally discharged restricted patient subject to conditions that deprived them of their liberty in the community. There were, however, already a number of such patients living under very restrictive conditions in care homes or supported living arrangements. This presentation offers a critical analysis of a proposal in the Draft Mental Health Bill 2022 to close this gap in the law by creating a new ‘supervised discharge’ power for tribunals and the Justice Secretary. As the presentation will show, this proposal does not provide an adequate response to the problems facing restricted patients who fall into this gap. Furthermore, the Draft Bill does not provide adequate safeguards against unlawful detention in the community in light of the UK’s obligations under Article 5 of the European Convention on Human Rights. Alternative solutions that would obviate the need to create a new power will be discussed in the presentation.
Author(s): O'Loughlin A, McKinnon I
Publication type: Conference Proceedings (inc. Abstract)
Publication status: Published
Conference Name: XXXVIIIth International Congress on Law and Mental Health
Year of Conference: 2024
Online publication date: 26/07/2024
Acceptance date: 23/10/2023
Publisher: International Academy of Law and Mental Health
URL: https://ialmh.org/
