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 Stanley Burnton)

		Royal Courts of Justice Strand London WC2 Wednesday, 30th January 2002

Wednesday, 30th January 2002

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against a decision of Stanley Burnton J given on 26th October 2001. The learned judge dismissed the applicant's claim for judicial review of the decision of the Mental Health Review Tribunal for the East Midlands and North-east Region which had on 18th July 2000 determined that the applicant should not be discharged from liability to be detained. In order to confront the issues, I can do no better than cite paragraphs 2-9 of the learned judge's judgment.

"2.The patient in question is a restricted patient, there having been an order made on 30th November 1992 under section 37 of the Mental Health Act 1983 together with an order under section 41 of the Act restricting discharge without limit of time. The order was made as a result of his commission of what is referred to in the papers as the index offence, an extremely violent and horrible homicide. The patient P, who remains detained, has, as the medical evidence before the Tribunal shows, significantly improved so far as his conduct is concerned over the past few years. Indeed, it is clear there has been no overt acts of either aggression or irresponsible conduct for some years, certainly since 1995.

3.In 1996 it was possible to transfer him from the most secure building in Rampton Hospital, where he is, to villa accommodation. The view of the clinical team who were concerned with him (as expressed in the report of Dr Page of 30th October 2000 which was before the Tribunal) was that further treatment and management of him could take place in medium secure conditions.

4.The decision of the Tribunal is a document three pages long. On page 2 are the Tribunal's answers to three questions which are derived from and reflect section 72 of the Act. The first question is:

`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?'

5.The Tribunal answered that question negatively. 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?'

6.Again, that question was answered negatively. The last question was inapplicable in the circumstances, that question being:

`Is the Tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment?'

7.The reasons of the Tribunal were set out in section 8 of the decision. It is unnecessary for me to refer to them in detail. Ultimately, the Tribunal found that he continues to suffer from psychopathic disorder and that he continues to require treatment in hospital for his own health and the protection of others.

8.The questions posed on the second page of the form, on which the Tribunal's decision was recorded, and indeed their reasons, reflect the fact that section 72 imposes an onus on the patient to establish the conditions for his discharge. It has now been held that the statutory provision placing that onus on him is not compliant with the requirements of Article 5 of the European Convention on Human Rights.

9.I am told by counsel that there are before Parliament provisions which will have the effect of reversing the onus of proof so as to bring the provisions of section 72 in line with the requirements of Article 5. Article 5 of course requires that a patient who is detained on the grounds of his mental disorder should have access to a court in order for his detention to be reviewed. The Convention requires that no person shall be deprived of his liberty without powerful cause. His detention must be necessary and proportionate to the need perceived for his detention, whether it be a danger to himself, a necessity for treatment, or a danger to other persons. I bear the provisions of Article 5 in mind when I come to consider the question of law that is put before me."

2. There seem to have been two arguments below, though I think they were somewhat rolled together. The first was to the effect that the statutory test for psychopathic disorder was not met on the facts of the case. This is how the judge explained it:

"10.The ground on which it is sought to set aside the decision of the Tribunal is that they misapplied and misunderstood the definition of psychopathic disorder contained in section 1 of the 1983 Act. P was detained originally and his detention was continued on the ground that he suffers from a psychopathic disorder within the meaning of the act.

11.Psychopathic disorder is defined in section 1(2) as follows:

`"psychopathic disorder" means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned;'

12.It can be seen that the definition has two elements. The first is a requirement that there should be either a persistent disorder or disability of mind, and the second is that that disorder or disability should be one `which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.'

13.There was before the Tribunal no evidence that P had in the recent past committed any abnormally aggressive conduct. There was no evidence before the Tribunal that he had in the recent past or was currently engaging in seriously irresponsible conduct.

14.The submission that is made on behalf of P is that the definition of psychopathic disorder involves a current commission by the patient of either abnormally aggressive conduct or seriously irresponsible conduct. The commission of abnormally aggressive or seriously irresponsible conduct in the past cannot therefore justify a finding that the patient currently suffers from a psychopathic disorder within the meaning of the Act. Therefore, in the circumstances of the case of P, he was not, when he went before the Tribunal, then suffering, and indeed had not for some time past suffered from a psychopathic disorder within the meaning of the Act. It follows, if that definition be construed as is contended for on behalf of P, that the Tribunal was bound to discharge him. The Tribunal applied an incorrect definition of psychopathic disorder. They erred in law and their decision must be set aside on the ground of that legal error."

3. Mr Gledhill contrasted the definition of "psychopathic disorder" in section 1(2) with that of "mental impairment", which instead of the phrase "results in abnormally aggressive or seriously irresponsible conduct" is "associated with abnormally aggressive or serious irresponsible conduct".
4. The learned judge rejected Mr Gledhill's submissions at paragraphs 21-26:

"21.I turn, therefore, to the definition of psychopathic disorder. It would follow from the submission of the claimant that a person who for some time had been suffering from a persistent disorder or disability of mind which would, if untreated, result in abnormally aggressive or seriously irresponsible conduct, could not be detained under the Acts on the ground of his psychopathic disorder even if the undisputed position were that if that patient were discharged tomorrow into the community, by reason of the lack of medication or treatment, or the different circumstances, the different environment in which he would be involved in the community, he would be at a high risk of committing abnormal aggression or some seriously irresponsible conduct. Such a person would not be suffering from a psychopathic disorder within the meaning of the Act.

22.I find that conclusion so unreasonable that it could not have been intended by Parliament. Nor do I consider that the unreasonableness and unlikeliness of any such interpretation having been intended by parliament to be mitigated by the concession that it is sufficient if there has been some incipient aggressive or irresponsible behaviour which has not developed as a result of some intervention within the hospital.

23.I say that for this reason. The contention of the claimant is that the words `which results in' mean effectively which `currently results in' abnormally aggressive or seriously irresponsible conduct. There has to be current abnormal aggression or serious irresponsibility in other words. Yet, it seems to me, that incipient aggression or incipient irresponsibility, that is to say conduct which is not itself abnormally aggressive or seriously irresponsible which could develop into such, would not, on Mr Gledhill's submission, satisfy the definition.

24.It seems to me that it should make no difference whether the lack of abnormal aggression or seriously irresponsible conduct is total in the sense that there has not been any act capable of leading to those, or whether there has been an act capable or even likely to lead to them. An act likely to lead to them is still not of itself abnormally aggressive or seriously irresponsible conduct. Moreover, one must bear in mind that the reason for conduct of a patient not being abnormally aggressive or seriously irresponsible may be medication, which may be completely successful.

25.It would be curious in the extreme if successful medication, in the sense that it prevented a person suffering from persistent disorder or disability of mind, from exhibiting abnormal aggression or being involved in seriously irresponsible conduct but which would cease to have effect if withdrawn, would result in that person not suffering from a psychopathic disorder. Treatment which suppresses the symptoms of a disorder or disability is not the same thing as a cure. In the hypothetical situation, which I am addressing at the moment, the medication, if withdrawn, would result in a resumption of that abnormal aggression or seriously irresponsible conduct.

26.So far as the contrast with the definition of mental impairment is concerned it seems to me that Miss Morris is correct in her submission that the phrase `is associated with' denotes an association which may not be the result of causation. The requirement within the definition of psychopathic disorder is a causative requirement rather than a temporal requirement. That is not to say that someone who is suffering from a persistent disorder or disability of mind, who has at some time in the past committed abnormally aggressive or seriously irresponsible conduct, but whose present illness is not such as to be capable of that aggression or conduct, can be said to be suffering from psychopathic disorder now."

5. Mr Gledhill seeks to renew his argument before me to the effect that, given the difference of wording between the definition of "mental impairment" and "psychopathic disorder", the judge should have held that "psychopathic disorder" imports a current display of the kind of conduct referred to in the statute. I consider that the judge was most likely right upon this issue. It has not, so far as Mr Gledhill is aware, arisen for determination before. Since, as I shall explain in a moment, I propose to give permission on Mr Gledhill's other point, and seeing the importance of this aspect of the case, I will not shut him out from arguing this point also before the full court.
6. Turning to the second point in the case, that concerns Article 5 of the European Convention on Human Rights. I may deal with this speedily. In H v The MHRT (transcript 28th March 2001), this court, presided over by the Master of the Rolls, held that Article 5 required the burden of proof to rest on the state when a mental health review tribunal was considering whether it must order discharge under section 72 or 73 of the Mental Health Act. The statute as drawn placed the burden of proving the relevant matters on the patient.
7. The typed reasons of the Mental Health Review Tribunal in the present case are before me. In part the Tribunal makes positive findings as if the burden were on the state rather than the patient. For example, they say:

"...we are satisfied that at the time of the index offence the applicant was suffering from psychopathic disorder...."

although, as they indicate, that was not actually disputed. However, turning to the up-to-date position, they say this:

"...we are not satisfied that if exposed to the sort of pressures that he was exposed to at the time of the index offence he would not react in the way he then did.

In order to be satisfied of that we would need to know that he has explored to the satisfaction of his care team the areas of risk which Dr Page lists in the final paragraph of her report of 30th October 2000 and that he had been tested out with unescorted leaves in the community. We therefore find that he continues to require treatment in hospital for his own health and the protection of others."

8. It seems to me plainly arguable that in that passage, which is important for their determination, they are proceeding on the footing that the burden rests on the patient. Accordingly, upon that aspect of the case, Mr Gledhill is entitled to permission, which I grant.
Order: Application allowed.