R v Mental Health Review Tribunal for North East Thames Region, ex parte Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL |
| Judgment Date | 29 October 2001 |
| Neutral Citation | [2001] EWHC 849 (Admin) |
| Docket Number | NO: CO/4170/01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 October 2001 |
[2001] EWHC 849 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Pill and
Mr Justice Cresswell
NO: CO/4170/01
MR M GLEDHILL (instructed by Peter Edwards) appeared on behalf of the interested party G
MR M CHAMBERLAIN (instructed by Treasury Solicitors) appeared on behalf of the Respondent
MR C SHELDON (instructed by Treasury Solicitors) appeared on behalf of the Mental Health Review Tribunal
This is an application by the Secretary of State for the Home Department (the applicant) to quash a decision of a Mental Health Review Tribunal for the North West region, given on 11th October 2001. It raises questions upon the construction of sections 72 and 73 of the Mental Health Act 1983 (the 1983 Act) and the tribunal's powers.
The tribunal, His Honour Judge Clifton presiding, made an order under section 73 of the 1983 Act of absolute discharge from liability to be detained with respect to G. Following his conviction for an offence of manslaughter, in 1993, a hospital order had been made in relation to G under section 37 of the 1983 Act, together with a restriction order, without limit of time, under section 41.
Section 73 of the 1983 Act provides, in so far as is material:
“Where an application to a Mental Heath 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 paragraph (b)(i) or (ii) of section 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 subsection (1) above the tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that subsection the tribunal shall direct the conditional discharge of the patient.
(3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
(4) Where a patient is conditionally discharged under this section-
(a) he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and
(b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.
(5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above.”
Reference in that section is made to section 72(1)(b) (1)(i) which provides:
“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-
(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are satisfied-
….
(i) that he is not 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…”
Section 72(5) provides:
“Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and the tribunal do not direct that the patient be discharged [or, if he is (or is to be) subject to after-care under supervision, that he ceased to be subject (or not become so subject)] the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application, order or direction relating to him, direct that that application, order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate.”
The subsection thus raises the possibility of amending the hospital order by substituting one form of mental disorder, for example, a psychopathic disorder for another form, for example, mental illness.
Power to make the hospital order was conferred by section 37(1) of the 1983 Act section 37(7) requires that the order shall specify the form or forms of mental disorder from which the offender is found by the court to be suffering.
G was found to be suffering from mental illness.
Another form of mental disorder as defined in section 1(2) of the 1983 Act, which permits a hospital order to be made is psychopathic disorder. That form of mental disorder formed no part of the 1993 order.
Application for an absolute discharge was made to the tribunal on 11th October, on the ground that the agreed medical evidence was that G was no longer suffering from mental illness. That is not in dispute, but there was evidence before the tribunal that G did suffer from psychopathic disorder. On that subject, there was an issue between the medical witnesses. Those in the treatment team including Dr DD Hughes, locum consultant forensic psychiatrist, believing that he was suffering from a psychopathic disorder, whereas Dr S R Lomax, consultant forensic psychiatrist, expressed a contrary view in a report dated 3rd July 2001. Dr Hughes recommended that G should be reclassified as suffering from psychopathic disorder and detained because he presents a danger to others and to himself. The tribunal has, of course, its own medically qualified member, who is required to form an opinion of his own.
The form of the tribunal's decision was in part by way of completing a proforma. That part was followed by “reasons for the tribunal's decision”. It is not necessary, for the purpose of the legal issues which fall for decision, to set out the medical evidence in detail but it is necessary to set out the proforma, and the printed guidance in it as to its completion. That provides, paragraph 6:
“FINDINGS OF THE TRIBUNAL CONCERNING THE STATUTORY CRITERIA:
The Tribunal is obliged to direct the Absolute Discharge of the patient if the answer to any of the following questions (A) or (B) is ‘YES’, and the answer to question (C) is also ‘YES’.
The tribunal is obliged to direct the Conditional Discharge of the patient if the answer to either of the questions (A) or (B) below is ‘YES’, but the answer to question (C) is ‘NO’.”
The proforma also poses the question: if the patient is not discharged, does the tribunal reclassify? Questions A, B and C are as follows:
“A Is the Tribunal satisfied that the patient is not now 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 the patient to be liable to be detained in a hospital for medical treatment?
B Is the Tribunal satisfied that it is not necessary to the health or safety of the patient or for the protection of other persons that the patient should receive such treatment?
C Is the Tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.”
To the questions A, B and C the tribunal answered the first in the affirmative and stated that the second and third were not applicable. The reclassification question was deleted. The tribunal's reasoning was:
“The patient has been seen by Dr Lomax and we heard from him and read his report. Dr Lomax believes that [he] now suffers neither mental illness nor psychopathic disorder. The RMO agrees that he does not now suffer mental illness and has not for some years. That means that the detaining authority must prove to us that [G] is now suffering from psychopathic disorder in order to justify his detention.”
The reasons advanced by Dr Hughes to justify detention are then set out, and it is concluded:
“Bearing in mind where the burden of proof now lies, we are not satisfied that his personality problems and his resultant behaviour amount to psychopathic disorder as defined by s 1(2) of the… 1983 Act. Therefore we are obliged to discharge him under the terms of ss 72 and 73.”
The Secretary of State had made a written statement on 20th June 2001, for the consideration of the tribunal. Unfortunately, that was misleading, in that it stated, that he was “satisfied that [G] continues to suffer from mental illness”, which was contrary to the unanimous evidence of the medical witnesses.
In ordering an absolute discharge, the tribunal appears to have reasoned as follows:
a) they were satisfied that G was not suffering from mental illness. He has discharged the burden on him, as explained in Perkins v Bath District Health Authority [1989] 4 BMLR 145.
b) that being so, he was entitled to an absolute discharge unless the tribunal were satisfied, under section 72(5), the burden being on those seeking to establish it, that G was suffering from a form of mental disorder, psychopathic disorder, other than the form the mental illness specified in the application to the tribunal.
c) the burden of proof had thus shifted from G to those seeking to detain him.
d) that burden was not met and G was entitled to an absolute discharge.
It is rarely satisfactory when medical issues such as these are determined...
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