52. This is the most difficult issue. No person could fail to have sympathy with the decision of the Upper Tribunal in the circumstances of this case. The proposed conditional discharge would no doubt be more beneficial to RB than his continued detention in hospital. There is also the point made by Bean J in IT v Secretary of State for the Home Department [2008] MHLR 290 about this being a ‘curious area of human rights jurisprudence’: see para 33 above. The Secretary of State is in the unusual position of seeking to argue against a conditional discharge on the terms sought on the basis of human rights jurisprudence when (a) those terms would produce a more humane result and (b) RB is content with those terms.

53. At the end of the day, however, I accept the submission of Mr Chamberlain that the original order made against RB authorised, and authorised only, detention in a hospital: see section 37 and section 41(3)(a) of the 1983 Act set out above. That conclusion seems to me to be the starting point. The consequence of that conclusion is that Mr Burrows is driven to rely for the authority to deprive RB of his liberty on the wording of section 73(2), which is wholly silent on that important point. The right to liberty of the person is a fundamental right. It has been so regarded since at least the time of the well-known provisions of clause 39 of Magna Carta, which in due course found its reflection in article 9 of the Universal Declaration of Human Rights and article 5 of the Convention. A person cannot have his right to liberty taken away unless that is the clear effect of a statute: see per Lord Hoffmann in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 131:

‘Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.’

54. It is not enough that the patient is given a right to apply to the court under section 73 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: see HL v United Kingdom 40 EHRR 761 quoted in para 11 above. In this case, section 73(2) would not assist him because the only operative provision would be paragraph (b) of that subsection. The effect of this provision would be, for instance, that a patient who did not need to be detained in hospital for the purposes of any treatment, could be conditionally discharged on terms that involved a deprivation of liberty simply on the basis that the tribunal was not satisfied that it was not appropriate that he should not be liable to be recalled to hospital for further treatment. That provision simply does not address the reasons why in any particular case there is a need for him also to be deprived of his liberty.

55. The aim of the Strasbourg jurisprudence is, of course, to protect the individual against arbitrary action by the state. But that statement demonstrates important limitations on the jurisprudence. There is no Convention right to a particular type of treatment or care in detention. I would, therefore, dispute the conclusion of Bean J on that basis. If his comment (see para 33 above) were carried to its logical conclusion, Strasbourg jurisprudence would require the United Kingdom to provide a particular form of care for a person in RB’s decision. The thrust of that jurisprudence is, however, the provision of certain procedural guarantees as a bulwark against arbitrary detention by the state.

56. As I have already pointed out, in fact the relevant jurisprudence of the Strasbourg court on this point is moulded by the doctrine of subsidiarity. It has been left to the United Kingdom Parliament to decide what is the right place for a person in the position of RB to be detained. That means that, if there is dissatisfaction with the statutory scheme, that is a matter to be taken up in Parliament unless RB can succeed under the next issue. Although a conclusion adverse to that of the Upper Tribunal is less liberal towards the individual, that result (again, unless RB succeeds under the next issue) is in law simply a function of human rights protection based on a international human rights instrument which adopts a principle of subsidiarity.

57. The points made by Mr Chamberlain underline this point because they show that Parliament could not have intended to create, as he puts it, a new species of detention that is potentially more detrimental to personal liberty than detention under the 1983 Act. This is because the 1983 Act does not specify the circumstances in which a tribunal can order a conditional discharge on terms that there is a deprivation of liberty. Moreover, section 73 appears, on its face, to be wide enough, on the Upper Tribunal’s interpretation, to authorise detention for the purposes of containment rather than treatment, which is contrary to the policy of the 1983 Act: see para 24 above.