R (DJ) v Mental Health Review Tribunal; R (on the application of N) v Mental Health Review Tribunal (Northern Region)

JurisdictionEngland & Wales
Judgment Date11 April 2005
Neutral Citation[2005] EWHC 587 (Admin)
Date11 April 2005
CourtQueen's Bench Division (Administrative Court)
Neutral Citation:

[2005] EWHC 587

Court and Reference: Administrative Court; CO/4009/2004, CO/5468/2004

Judge:

Munby J

R (DJ)
and
Mental Health Review Tribunal
R (AN)
and
Mental Health Review Tribunal

Appearances: P Bowen (instructed by Campbell Law) for DJ and (instructed by Bindman & Partners) for AN; A McCullough (instructed by the Treasury Solicitor) for the Tribunals; T Ward (instructed by the Treasury Solicitor) for the Home Secretary; K Markus (instructed by Mind Legal Department) for Mind.

Issue:

The standard of proof and approach to be applied by a Tribunal

Facts:

In January 1984, AN killed a woman and 2 children. He was initially found unfit to plead and admitted in March 1985 to a high secure hospital under s. 5 Criminal Procedure (Insanity) Act 1964; he became fit to stand trial and was convicted in November 1987 on 3 counts of manslaughter on the ground of diminished responsibility and further detained in high secure hospital conditions under ss. 37/41Mental Health Act 1983 (a hospital order with a restriction order that was without limit of time).

A Mental Health Review Tribunal considered his case over 5 days in July and August 2004 and on 14 August 2004 declined to order his discharge, finding that the criteria for detention were met. As to the standard of proof to be applied in relation to conflicting expert opinions and diagnoses applicable to AN, the Tribunal indicated that it applied the "balance of probabilities" standard, though noting that important issues of fact adverse to the patient required a standard akin to the criminal standard.

DJ was detained under s. 37 of the 1983 Act on 21 November 1996 and had been detained since. A Tribunal which met on 18 June 2004 upheld his further detention, noting that the hospital had proved the need for detention on the balance of probabilities by the evidence of the Responsible Medical Officer that the statutory criteria were met, since there was no evidence to the contrary.

Both AN and DJ challenged the respective Tribunal decisions on the basis that a "balance of probabilities" standard was inadequate, and that the proper standard of proof was either the criminal standard or a "clear and convincing evidence" standard. The Tribunal and the Home Secretary argued that the appropriate standard of proof was the ordinary civil standard, and the Home Secretary argued that this should apply also to findings of fact (and so the Tribunal in AN was in error in applying a higher standard in relation to this).

Judgment

1. These are 2 applications for judicial review, one (CO/4009/2004) by DJ and the other (CO/5468/2004) by AN. Both raise essentially the same points of law and they have conveniently been heard together. Permission was given in the first case by Richards J on 22 September 2004 and in the second case by Stanley Burnton J on 26 November 2004.

The parties

2. In each case the defendant is the Mental Health Review Tribunal. In AN's case there are also 3 interested parties: the relevant Mental Health NHS Trust, the Secretary of State for the Home Department (who has a statutory responsibility for all patients who are, like AN, subject to a restriction order under s. 41 of the Mental Health Act 1983) and MIND (The National Association for Mental Health).

3. AN and DJ were both represented by Mr Paul Bowen. The Tribunal in each case was represented by Mr Angus McCullough. The Secretary of State was represented by Mr Tim Ward and MIND by Ms Kate Markus. Broadly speaking, Mr Bowen and Ms Markus made common cause, as, on the other side, did Mr McCullough and Mr Ward. The Mental Health NHS Trust has filed an acknowledgment of service and detailed grounds for contesting AN's claim but has otherwise played no part in the proceedings.

The facts

4. Given that the only points raised are matters of law I can take the facts very shortly. It is convenient to summarise the facts of AN's case first.

The facts - AN

5. In January 1984 AN carried out the particularly unpleasant and frenzied killings of a mother and her 2 children. He was found unfit to plead and admitted in March 1985 to what is now Ashworth Hospital following a direction made under s. 5 of the Criminal Procedure (Insanity) Act 1964. Having subsequently been found fit to plead he was convicted at the Central Criminal Court in November 1987 on 3 counts of manslaughter on the ground of diminished responsibility. He was made the subject of a hospital order under s. 37 and a restriction order under s. 41 of the Mental Health Act 1983.He has remained in Ashworth Hospital ever since. Applications to the Tribunal for his discharge were refused in 1987 (twice), 1989, 1993, 1997, 1999 and 2001. He made a further application under s. 70 of the Act in 2004. The Tribunal convened on 27 July 2004 and heard a considerable body of evidence over 5 days. On 14 August 2004 the Tribunal decided that AN should not be discharged.

6. The Tribunal expressed itself as satisfied (a) that AN was suffering from a relevant form of disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment, (b) that it was necessary for the health or safety of AN or for the protection of other persons that he should receive such treatment and (c) that it was appropriate for AN to remain liable to be recalled to hospital for further treatment - in other words the Tribunal was satisfied as to each of the matters referred to in s. 73(1) of the Act. The Tribunal also expressed itself satisfied that there was a "serious risk of relapse should he not receive further treatment in hospital" and that it was therefore necessary for the protection of other persons that AN should receive further treatment in hospital.

7. Paragraph 1 of the Tribunal's reasons reads as follows:

"We firstly considered interesting submissions on the standard of proof to be applied to our deliberations and concluded that in relation to an assessment of conflicting expert opinions and diagnoses a balance of probabilities is the realistic standard. However we consider that in accordance with our normal practise [sic] whenever it is necessary to resolve important issues of fact upon which important consequence [sic] flow a much higher standard, akin to the criminal standard, is both fair and reasonable. This has been our approach throughout our consideration of the evidence in this Application."

It is that direction which has given rise to the present proceedings.

8. In his application for judicial review issued on 5 November 2004 AN seeks to challenge the decision of the Tribunal, essentially on the ground that the Tribunal erred in applying the bare 'balance of probabilities' standard when determining whether it was satisfied that the criteria for detention under s. 73 were made out. AN's case, which had been foreshadowed in submissions made to the Tribunal on his behalf by Mr Bowen, is that the standard of proof which the detaining authority has to meet if seeking to prove the criteria for detention is higher than the ordinary civil standard: either the criminal standard of proof 'beyond reasonable doubt' or, alternatively, the 'clear and convincing evidence' standard applied by the Supreme Court of the USA in Addington v Texas (1979) 441 US 418.

9. The Tribunal and the Secretary of State assert that the appropriate standard of proof is the ordinary civil standard. The Secretary of State submits that the Tribunal accordingly erred in that part of its direction which referred to "a much higher standard, akin to the criminal standard" as being appropriate when resolving "important issues of fact upon which important consequences flow".

The facts - DJ

10. DJ has been detained under s. 37 of the Act since 21 November 1996. He is not subject to a restriction order under s. 41. He made an application to the Tribunal for his discharge under s. 66 of the Act. The Tribunal convened on 18 June 2004 and on the same day decided that DJ should not be discharged.

11. The Tribunal expressed itself as satisfied (a) that DJ was suffering from a relevant form of disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment and (b) that it was necessary for the health or safety of DJ or for the protection of other persons that he should receive such treatment - in other words the Tribunal was satisfied as to each of the matters referred to in ss. 72(1)(b)(i) and (ii) of the Act. The Tribunal also considered that it was not appropriate to discharge DJ under its discretionary powers. The Tribunal expressed the view that his return to the community would need to be carefully managed.

12. The crucial paragraph of the Tribunal's reasons reads as follows:

"There was no expert medical evidence called on behalf of [DJ] but in the Independent Social Circumstances Report put in on his behalf Mr Mennear suggested that at the time of his examination he was by no means certain that the statutory criteria were met. Bearing in mind that the burden of proof lay on the Detaining Authority and that it needed to demonstrate a right to detain on the balance of probabilities, the Tribunal accepted the evidence of Dr Ferris that the statutory criteria were met since there was no evidence to contradict this."

It is that direction which has given rise to the present proceedings.

13. In his application for judicial review issued on 18 August 2004 DJ seeks to challenge the decision of the Tribunal, essentially on the same grounds as those put forward by AN, namely that the Tribunal erred in applying the bare 'balance of probabilities' standard when determining whether it was satisfied that the criteria for detention under s. 72 were made out.

14. DJ in fact is no longer detained: he was discharged from hospital by the hospital managers on 19 October 2004.

MIND's evidence

15. MIND needs no introduction. It is a highly regarded charity with much...

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