R (N) v Mental Health Review Tribunal (Northern Region) and Others

JurisdictionEngland & Wales
Judgment Date21 December 2005
Neutral Citation[2005] EWCA Civ 1605
Docket NumberCase No: C1/2005/0862
Date21 December 2005
CourtCourt of Appeal (Civil Division)
Between:
The Queen (On The Application of An)
Appellant
and
The Mental Health Review Tribunal (Northern Region)
Respondent
and
(1) The Secretary of State for The Home Department
(2) Mersey Care Mental Health Nhs Trust
(3) Mind (The National Association for Mental Health)
Interested Parties

[2005] EWCA Civ 1605

[2005] EWHC 587 (Admin)

Before:

The Master of The Rolls

(The Rt Hon Sir Anthony Clarke)

Lord Justice Rix and

Lord Justice Richards

Case No: C1/2005/0862

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT

Mr Justice Munby

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Paul Bowen (instructed by Bindmans) for the Appellant

Mr Angus McCullough (instructed by The Treasury Solicitor) for the Respondent

Mr Tim Ward (instructed by The Treasury Solicitor) for Secretary of State

The second and third interested parties did not appear on the appeal

1

This is the judgment of the court. The appellant, AN, is detained at Ashworth Hospital pursuant to a hospital order under section 37 the Mental Health Act 1983 ("the Act") . He is also subject to a restriction order under section 41. On 14 August 2004 the Mental Health Review Tribunal decided not to direct his discharge under section 73. AN brought judicial review proceedings to challenge that decision, contending that the tribunal had erred in its approach to the standard of proof. The challenge was dismissed by Munby J in a lengthy judgment handed down on 11 April 2005. Permission to appeal to this court was granted on the basis that Munby J's judgment was likely to be applied by tribunals hearing applications around the country and there were compelling reasons why the court should consider whether that judgment was correct.

2

There were in fact two applications for judicial review before Munby J. The other application was brought by an applicant called DJ, who was also detained under section 37 but who was not the subject of a restriction order under section 41. In his case, because there was no restriction order, the decision not to direct discharge was made under section 72 rather than section 73. Munby J dismissed that application too, for materially identical reasons. DJ had been discharged from hospital prior to the hearing before Munby J and does not pursue an appeal. It is necessary, however, to consider the position under section 72 as well as section 73, since the two sections are closely related and the relevant principles are common to both.

The statutory framework

3

Before the Crown Court or a magistrates' court can make a hospital order under section 37(1) of the Act, the conditions in section 37(2) must be satisfied. By section 37(2) :

"The conditions referred to in subsection (1) above are that -

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either –

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or

(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."

4

A restriction order under section 41 imposes special restrictions upon a patient's release. The circumstances in which such an order can be made are set out in section 41(1) :

"Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as 'a restriction order'."

5

Applications for discharge are made to the tribunal. An application by a patient subject to a hospital order but not subject to a restriction order is made under section 66. An application by a patient who is also subject to a restriction order is made under section 70. The relevant powers and duties of the tribunal are set out in sections 72 and 73 respectively.

6

Section 72 provides, so far as material:

"(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and –

(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied –

(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of 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 …."

7

Section 73 provides, so far as material:

"(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) or (ii) 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."

8

Under both section 72 and section 73 the tribunal must direct discharge if it is not satisfied as to the specified matters. Thus the burden is on the detaining authority to satisfy the tribunal as to those matters. Prior to November 2001 there was a burden on the patient to establish that at least one of the criteria for his continued detention was not satisfied, and thus to disprove the lawfulness of his detention. In R (H) v. London North and London East Region Mental Health Review Tribunal [2001] EWCA Civ 415, [2002] QB 1, the Court of Appeal held that such provisions were contrary to article 5 of the European Convention on Human Rights and granted a declaration of incompatibility under section 4 of the Human Rights Act 1998. Sections 72 and 73 in their present form embody the legislative changes that were made in response to that ruling.

The tribunal's consideration of AN's case

9

The background to AN's case was summarised as follows in para 5 of Munby J's judgment:

"In January 1984 AN carried out the particularly unpleasant and frenzied killings of a mother and her two children. He was found unfit to plead and admitted in March 1985 to what is now Ashworth Hospital following a direction made under section 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 three counts of manslaughter on the ground of diminished responsibility. He was made the subject of a hospital order under section 37 and a restriction order under section 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 section 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."

10

The evidence placed before the tribunal included that of Dr Mulligan, who was AN's responsible medical offer and a consultant forensic psychiatrist; Dr McInerney, a consultant forensic psychiatrist instructed by the Home Office; and Dr Ireland, a chartered forensic psychologist employed by Ashworth. All three supported the view that the criteria for detention continued to be met. Evidence in support of AN's application for discharge was given by three independent consultant forensic psychiatrists: Dr Williams, Dr Lomax and Professor Sashidharan.

11

For the purposes of its decision under section 73, and in the light of the evidence before it, the tribunal had to determine the following issues:

(1) Was AN suffering from a "psychopathic disorder" within the meaning of the Act? Such a disorder is defined in section 1(2) as "a persistent disorder or disability of mind … which results in abnormally aggressive or seriously irresponsible conduct on the part of the person...

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