England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Jackson)

		Royal Courts of Justice Strand London WC2 Monday, 5th November 2001

Monday, 5th November 2001

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against a decision of Jackson J given on 20th June 2001 when he refused the applicant permission to seek judicial review of a decision of The Mental Health Review Tribunal of 6th February 2001 to the effect that the applicant should be detained at hospital. I refused permission to appeal on the papers on 21st September 2001.
2. The facts are briefly as follows. The applicant is a person who has more than once been detained under the Mental Health Act 1983, section 2. On 24th January 2001 she was detained at her home and taken to St Ann's Hospital where she was further detained under section 2.
3. Section 2 provides so far as relevant:

"(1) A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application ... made in accordance with subsections (2) and (3) below.

(2) An application for admission for assessment may be made in respect of a patient on the grounds that-

(a)he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b)he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(3) An application for admission for assessment shall be founded on the written recommendation in the prescribed form of two registered medical practitioners..."

4. The period allowed by section 2(4) is a period not exceeding 28 days.
5. The applicant, having been detained, was able to instruct a solicitor promptly. The solicitor commissioned a report from an independent psychiatrist, Dr Coleman. His report was provided on 1st February 2001 and in due course was placed before the Tribunal. The doctor concluded that there were no grounds for detaining the applicant under section 2 and recommended her discharge. The report runs to several pages and is closely reasoned.
6. The applicant applied to the Tribunal to be discharged under section 72(1) of the 1983 Act, which provides so far as relevant as follows:

"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 disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by a medical treatment) for at least a limited period; or

(ii)that his detention as aforesaid is not justified in the interests of his own health or safety or with a view to the protection of other persons;

(b)the tribunal shall direct the discharge of a patient liable to be detained otherwise than 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; or

(ii)that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment...."

7. The Tribunal was swiftly convened. A hearing took place and its written decision was issued on 6th February 2001. As I have said, they refused to discharge the applicant. Here are the reasons given in full:

"Mrs J suffered from puerperal psychosis many years ago and in recent years has had admissions to Claybury and St Ann's Hospitals; she has had 6 admissions since 1993. On this occasion she was admitted 10 days after a fire at her house which happened in the early hours of 14/1/01.

Over the years, doctors and other professionals have elicited symptoms of psychosis. On admission to the ward on 24/1/01 she denied all symptomatology to the duty doctor. Her RMO could not elicit any symptoms on 1/2/01. An independent doctor (whose report we read and considered) could not elicit any symptoms on 31/1/01." [I interpolate: that, I apprehend, must be the report of Dr Coleman.] "However Mrs J has always staunchly denied any abnormal perceptions.

There was evidence from the husband, and nearest relative, of the patient that Mrs J had been behaving oddly, shouting and responding to the television, spitting, swearing and slamming doors and brandishing a knife. It was also reported that the CPN had visited the house on 5/2/01 and found signs in her kitchen saying `Tormentors' and `Oppressors', and significant fire damage.

Mrs J remained adamant that these behaviours had not occurred. She accepted no responsibility for the fire which may have been started by a candle, which she burnt as part of her religious beliefs. She said that on the night of the fire someone else had broken into her house. She repeated that she did not have a mental disorder and did not need treatment.

The tribunal heard evidence from her husband and found him to be a credible witness. The tribunal accepted his evidence that Mrs J had behaved as described and that this was attributable to her mental disorder. The RMO gave evidence that it was not necessarily surprising that the patient exhibited no objective evidence of symptoms on the ward, given her blanket denials and being away from her home environment she might not experience any symptoms so intensively. The tribunal accepted this evidence. Therefore the tribunal were not satisfied, on the balance of probabilities, that Mrs J was not suffering from a mental disorder of a nature to make treatment appropriate. The assessment of the mental disorder is continuing in relation to diagnosis, response to medication, social circumstances and the risk she may pose. The assessment can only be completed in hospital.

Detention is justified for her health. There are issues as to non-compliance with medication previously and we accept Mr J's evidence that Mrs J did not take her tablets in the community after previous admissions. Since the patient does not accept she could have a mental disorder, she does not accept any need for treatment and is unlikely to comply.

There are concerns about her safety and the protection of others. There has been a serious fire. We note that the day after the fire Mrs J locked herself in her room and was burning candles again, despite remonstrations from her husband."

8. Judicial review papers were filed on the applicant's behalf on 15th February 2001. However, by force of the time limit imposed by section 2(4), she was released from detention on 21st February 2001. This circumstance led the respondent Tribunal to submit that the proposed judicial review would be academic; and that was one of the grounds on which Harrison J initially refused judicial review permission on the papers on 22nd March 2001.
9. The principal ground advanced to support the judicial review application was that the Tribunal had applied a reverse burden of proof, in breach of the requirements of Article 5 of the European Convention on Human Rights. Both Harrison J and Jackson J, before whom the application for permission was renewed on 20th June 2001, referred to an appeal before this court in a case by the name of H in which the issue, or, ultimately, the only live issue, was whether section 72 and section 73 of the Mental Health Act were incompatible with Article 5(1) and (4) of the Convention.
10. The case of H was decided between the decisions of Harrison J and Jackson J in this present case. The Master of the Rolls, giving the judgment of the court in H on 28th March 2001, held that the applicant's case for a declaration of incompatibility under the Human Rights Act was made out on the footing that

"... it is contrary to the Convention compulsorily to detain a patient unless it can be shown that the patient is suffering from a mental disorder that warrants detention. Inasmuch as Sections 72 and 73 do not require the tribunal to discharge a patient if this cannot be shown we have concluded that they are incompatible with both Article 5(1) and Article 5(4)."

11. I should indicate that section 73, which I have not set out, deals with the discharge of a patient who is a restricted patient admitted to hospital pursuant to court orders under sections 37 and 41 of the Act. Section 73 cross-refers to the matters set out in section 72(b)(i) and (ii). Section 73 differs from section 72 in that it contains no such general discretion to direct discharge, as is provided for in the opening words of section 72(1).
12. Refusing permission, Mr Justice Jackson said this:

"5.It seems to me that the issues raised in these proceedings are academic. The claimant is no longer detained in a mental hospital. There is therefore no current detention which is under challenge. Furthermore, the tribunal made positive findings which, when read in a fair and reasoned way, show that the tribunal decided this case, not by reference to the reverse burden of proof, but on the basis of positive findings. It is clear that the tribunal were satisfied that the claimant was suffering from a mental disorder which had those characteristics requiring admission and detention for assessment under section 2 of the Act.

6.Harrison J. refused permission to apply for judicial review by a written decision, after considering the papers, on 22nd March 2001. In that decision he stated that the issues in the case were, in his opinion, academic and that the reverse burden of proof issue would be dealt with by the Court of Appeal in the case of H v. MRHT North and East London Region. He decided that in those circumstances it would not be appropriate for permission to be granted.

7.The Court of Appeal have now dealt with the issues in H, and I have a copy of the Court of Appeal decision in that case before me. H concerned a restricted patient. The claimant in this case was not a restricted patient and, in the case of unrestricted patients, section 72(1) confers an element of discretion on tribunals which is not present in the case of restricted patients."

13. In H this court was concerned with section 72(1)(b) because that was what was incorporated by cross-reference in section 73. However, I would accept, at any rate for the purposes of this permission application, that the finding that section 72(1)(b) is incompatible with Article 5 of the Convention to the extent which this court indicated in H also affects section 72(1)(a), which is drawn in effect to the same pattern. But it will not necessarily follow that this applicant or any other patient whose discharge is refused by the Tribunal under section 72(1)(a) has a good claim under Article 5 of the Convention, or indeed that this applicant is entitled to relief by way of judicial review.
14. It has to be borne in mind that in H the court also said:

"... we believe that it is only rarely that the provisions of sections 72 and 73 constrain a Mental Health Review Tribunal to refuse an order of discharge where the continued detention of the patient infringes Article 5. Indeed, in our experience where a tribunal refuses an application for a discharge it usually gives reasons for doing so that involve a positive finding that the patient is suffering from a mental disorder that warrants his or her continued detention."

15. Mr Gledhill for the applicant has essentially three arguments. First that the Tribunal's decision is insufficiently reasoned. In particular he submits that there is no more than a passing reference to the extremely important report of Dr Coleman. The passing reference is in the second paragraph. I have read it and I repeat the sentence:

"An independent doctor whose report we have read and considered could not elicit any symptoms on 31st January 2000."

16. There is really nothing else at all. Mr Gledhill's submission is that, if the Tribunal had to judge between two competing and contradictory expert opinions, it is at least their duty to give an indication of the basis on which they prefer one to the other. This seems to me to be arguable. It may be that there will be a successful riposte based on the proposition that the Tribunal's acceptance of the RMO's evidence, to the effect that it was not surprising that the patient elicited no objective evidence of symptoms on the ward, constitutes a sufficiently reasoned approach to the difference between the two. However, given the centrality and the importance of the medical evidence, as I indicated in the course of Mr Gledhill's short submissions, it seems to me that he is entitled to permission on that point.
17. The other two points he takes are these. First he complains that, as in H so here, the tribunal applied a reverse burden of proof and that is contrary to the Convention. Third and last, he submits that the Tribunal did not enter upon the exercise of its discretion conferred in the opening words of section 2, which, as I have said, are not replicated in section 73. I indicated to Mr Gledhill that, if these matters stood alone, they would not be sufficient to persuade me that permission should be given. However, as I am giving permission in relation to the reasons ground, I do not think that it would be right to shut Mr Gledhill out from arguing those matters. It is not necessary, in the circumstances, that I should say any more about them.
18. For all these reasons permission is granted.
Order: Application allowed. I direct that the matter be returned to the Administrative Court for the hearing of a substantive judicial review between the parties.