R v London South and South West Region Mental Health Review Tribunal, ex parte Moyle
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 1999 |
| Date | 21 December 1999 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference:Administrative Court ; CO/1977/99
Latham J
Appearances: R Gordon QC and P Bowen (instructed by Scott-Moncrief, Harbour and Sinclair) for M; N Pleming QC and N Lieven (instructed by the Treasury Solicitor) for the Tribunal
Whether a Tribunal erred by declining to consider whether a patient met the criteria for admission to hospital.
In 1990, M attacked his wife; in July 1991, he admitted unlawful wounding and was made the subject of a hospital order under s. 37 Mental Health Act 1983 with a restriction order under s. 41 of the Act. He was admitted to Broadmoor Hospital. By May 1998, his mental illness was controlled by drugs and he was free of symptoms; he was transferred to a less secure hospital. He applied to a Mental Health Review Tribunal in June 1998. The psychiatric evidence was that his condition would not lead to him being detained if he was in the community, but that he would relapse if he did not take his medication and pose a danger to himself or others.
It was submitted to the Tribunal that, as the criteria for admission and discharge mirror each other, he should be discharged as it was agreed that he did not meet the criteria to be detained. The Tribunal did not agree with M's contention as to the law and concluded that as they did not accept his assurances that he would continue to comply with medication in the community, they were not satisfied that his mental illness was not of a nature which made it appropriate for him to be liable to be detained, nor that he would not be a danger to himself or others were he to be discharged.
M challenged the Tribunal decision on the grounds that it erred in law and was irrational. It was argued that the Tribunal was a reviewing body and so, in light of the evidence that M did not meet the criteria for detention, it was bound to discharge; and that it had failed to direct itself that the admission and discharge criteria mirrored each other.
1. On 21 November 1990, the applicant savagely attacked his wife who sustained serious injuries. He was arrested, charged, and remanded in custody to Lewes Prison. There his mental condition deteriorated to the extent that he was transferred to Broadmoor Hospital. On 1 July 1991, he pleaded guilty to an offence of unlawful wounding, and was made subject to a hospital order with restrictions unlimited in time pursuant to the provisions of ss. 37 and 41 of the Mental Health Act 1983("the Act"). The diagnosis was schizophrenia, so that he was originally admitted to Broadmoor as a person suffering from mental illness. For a time, this was amended to re-categorise him as a person suffering from mental illness and a psychopathic disorder. But from 1995 until today, he has been categorised simply as schizophrenic.
2. By 12 May 1998, his illness was fully controlled by drugs so that he was free of symptoms. He was transferred to the Shaftesbury Clinic. On 23 June 1998 he applied to the Mental Health Review Tribunal ("the Tribunal") for his discharge from liability to be detained. The medical evidence before the Tribunal at the hearing, to which I will return in more detail later, raised an acute and topical legal and social problem. The psychiatrists considered that his condition was such as would not make it appropriate for him to be liable to be detained, were he in the community. However, they considered that were he to stop taking the medication, he would quickly relapse, and that after any relapse, it would be more difficult to produce satisfactory control of his symptoms with drugs. They were all agreed that were he to relapse he would pose a danger to himself and to others. Nonetheless it was submitted on his behalf that the relevant statutory provisions, properly construed, required his discharge, on the basis that the admission and discharge criteria should mirror each other, so that if it would not be appropriate for him to be admitted, were he in the community in his present condition, then he must be discharged. The Tribunal did not agree, and concluded that having heard the applicant's evidence, they were not prepared to accept his assurances that he would continue to comply with medication in the community, and that therefore they could not be satisfied that his mental illness was not of a nature which made it appropriate for him to be liable to be detained in a hospital for medical treatment, nor that he would not be a danger to himself or others were he to be discharged .
3. The applicant challenges that decision on the grounds that it is unlawful in that the Tribunal misdirected itself as to the law to be applied to an application for discharge, and irrational, in that the medical evidence was only capable of supporting the conclusion that he should be discharged. In order for these submissions to be understood, it is necessary to set out the relevant terms of the Act, to consider the speeches of the House of Lords in Reid v Secretary of State for Scotland [1999] 2 WLR 28, and to look in more detail at the evidence which was before the Tribunal.
4. The relevant provisions of the Act are as follows:
"3. Admission for Treatment
(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application made in accordance with this section.
(2) An application for admission for treatment may be made in respect of a patient on the grounds that:
(a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) in the case of psychopathic order or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section
37. Powers of Courts To Order Hospital Admission or Guardianship:
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned at subs(2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
(2) The conditions referred to in subs(1) above are that:
(a) the Court is satisfied, on the written or oral evidence of 2 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"
5. Section 41 empowers the higher courts to restrict discharge from hospital so that, in effect, such a patient cannot be released unless either the Secretary of State directs that a restriction order is no longer required for the protection of the public from serious harm under s. 42, in which event, pursuant to s. 42(5) the patient is deemed to be absolutely discharged the moment the restriction comes to an end, or by application to a Tribunal under s. 73 of the Act. This section provides:
"(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 satisfied:
(a) as to the matters mentioned in para (b)(i) or (ii) of s. 72(1) above; and
(b) 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 subs(1) above the Tribunal are satisfied as to the matters referred to in para (a) of that subsection but not as to the matter referred to in para (b) of that subsection the Tribunal shall direct the conditional discharge of the patient"
6. The relevant parts of s. 72(1) provide:
"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 if they are satisfied:
(i) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or...
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