COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Crane
Strand, London, WC2A 2LL
Wednesday 28th March 2001
B e f o r e :
LORD JUSTICE KENNEDY
LORD JUSTICE DYSON
| THE QUEEN
On the Application of H
|- and -
|MENTAL HEALTH REVIEW TRIBUNAL, NORTH & EAST LONDON REGION
|SECRETARY OF STATE FOR HEALTH
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Jenni Richards (instructed by Treasury Solicitor for the Respondent)
Mr Rabinder Singh (instructed by the Secretary of State for Health as Intervenor)
Crown Copyright ©
LORD PHILLIPS MR :
This is the judgment of the Court.
The history of the proceedings
"Given [H's] recent improvement I think he may be able to be managed in a specialised hostel or hostel ward. I do not see him as being a danger to the general public. Those living in close proximity, if we take the index offence, are at risk if the living circumstances are inappropriate and/or the medication is inadequate."
"Given the above, the North London Forensic Service and Rehabilitation team at Broadmoor, advise that hostel accommodation providing the care this patient needs on initially leaving Broadmoor is not a realistic option and we should pursue the line of long term medium security. We have contacted the local authority to confirm the above view and they will do the appropriate assessment."
"The tribunal is of the opinion that this patient is (a) still exhibiting symptoms of his illness, namely the hearing of voices, (b) would not continue to take his medication… The tribunal are clear that this patient needs to be detained in hospital for treatment for his own health and safety."
"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 for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment."
i) the interrelationship of section 3 and section 72 and 73 of the Act.
ii) Article 5(1) and (4) of the Convention and the Strasbourg jurisprudence in relation to it.
The 1983 Act
"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 disorder 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."
"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…."
"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 should 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."
"Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…(e) the lawful detention of… persons of unsound mind…
…4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
The appellant's submissions
i) The function of a Mental Health Review Tribunal in a case such as the present is to enable a patient who has been compulsorily admitted to a hospital to challenge the legality of his detention.
ii) In performing that function, the tribunal acts as 'a court' in enabling the patient to exercise the right conferred on him by Article 5(4) of the Convention.
iii) The criteria that the tribunal has to consider on an application under section 73 are the same criteria that have to be satisfied before a patient can be admitted under section 3.
iv) On a natural reading of section 73 a tribunal is not required to discharge a patient unless satisfied that at least one of these criteria does not exist. This has the effect of placing the burden of proof on the patient. The patient has to prove that the criteria for admission are not satisfied, whereas he should be entitled to be discharged if it cannot be demonstrated that the criteria are satisfied.
v) This reversal of the burden of proof is incompatible with his rights under Article 5(1) and (4).
(i) To place the burden on a patient of proving that the conditions for detention are no longer met would be incompatible with Article 5(1) of the Convention, but
(ii) It is possible to read the words of section 72 of the Act in such a way that it does not impose the burden of proof on the patient, albeit that to do so involves straining the natural meaning of the section.
The function of a Mental Health Review Tribunal on an application under section 73
The criteria to be considered
"Burden of proof"
"…the decision is not one which is left to the discretion of the sheriff once he is satisfied on the particular criteria. If he is satisfied, he is obliged to grant a discharge. Secondly, the burden of establishing the particular propositions to the satisfaction of the sheriff will lie on the patient, although in practice it may well be that questions of the burden of proof will not often arise."
"If a tribunal is to make an order under s72(1)(a)(i), clearly they have to be satisfied, and should state that they are satisfied, that he is not then suffering from mental disorder. That is not the same thing as saying the tribunal is not satisfied that he is so suffering."
"In the Secretary of State's submission, were it necessary to do so in order to secure compatibility with Convention rights, it would be possible to read and give effect to section 72 of the MHA as imposing the burden of proof on the hospital authorities and not on the patient. This is for the following reasons:
(1) The section does not in terms address the question of the burden of proof. It is silent on the point. It certainly does not in terms impose the burden of proof on the patient.(2) The negative formulation used in section 72(1)(b) ("not then suffering…") can be read as simply reflecting the fact that the criteria for admission (in section 3 of the MHA) are no longer present. The negative formulation does not compel the conclusion that the burden of proof lies on the patient."
Are Sections 72 and 73 compatible with the Convention?
"Although the point about the burden of proof has not been directly decided by the European Court of Human Rights the Secretary of state accepts that to place the burden on a patient to prove that the conditions for detention are no longer met would be incompatible with Article 5(1) of the Convention. This is ultimately a matter for the Court but it appears to follow from cases such as Winterwerp v The Netherlands 2 EHRR 387, para. 39-40, and Johnson v United Kingdom (1999) 27 EHRR 296, para. 60. In those cases the European Court has held that both the initial deprivation of a mental patient's liberty and the continued detention of a patient can only be lawful under Article 5(1)(e) of the Convention if it can 'reliably be shown' that he or she suffers from a mental disorder sufficiently serious to warrant detention."
"In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."
Risk and uncertainty