England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand London WC2 Tuesday 16th April 2002

1. LORD JUSTICE PILL: This is an appeal from a judgment of Stanley Burnton J, given on 27th October 2001 in which he refused an application for judicial review made by P ("the appellant") to quash a decision of the Mental Health Review Tribunal for the East Midlands and North East Region ("the Tribunal"), given on 18th July 2000. The Tribunal had declined to exercise its power under section 73 of the Mental Health Act 1983 ("the 1983 Act") to discharge P, who was a restricted patient subject to a restriction order within the meaning of the section.
2. The appellant had been admitted to Rampton Hospital in December 1992, pursuant to sections 37 and 41 of the 1983 Act following a conviction for manslaughter. On 21st May 1992, the appellant had killed a young man whom he had met in a public house. The description of the offence which was before the Tribunal provided that: "During the attack the victim was kicked, beaten, dragged along the floor, hit with bricks and a rope was tied around his neck. When the victim moaned he pretended to vomit and cover the noise to a passerby. P dropped a breeze block onto his head to kill him. He placed the body in a wheelbarrow and pushed it along the street."
3. The offence of murder was reduced to manslaughter on the ground of diminished responsibility. For the purposes of section 37, the diagnosis was of psychopathic disorder.
4. In a very detailed medical report, dated 30th October 2000, Dr K Page, consultant forensic psychiatrist, described P's background history which had included criminal offences and psychiatric treatment prior to the index offence. Dr Page described in considerable detail the circumstances in which the offence had been committed and P's progress at Rampton Hospital, following admission under sections 37 and 41. Dr Page described the treatment he had received and the progress he had made. Dr Page's opinions and recommendations were as follows:

"[P] suffers from a personality disorder with antisocial and paranoid traits. Personality traits include impulsivity, limited ability to trust, interpersonal relationship difficulties, low self-esteem, aggression and tendency to blame others. He requires detention in hospital for treatment of his psychopathic disorder in the interests of his own health and for the protection of others.

He has continued to make good progress, with improved insight, coping skills and motivation for treatment. He has addressed risk areas including anger management, alcohol misuse, problem solving skills and low self esteem. He continues to address areas including trust and interpersonal relationships, childhood experiences, index offence, sexuality and relapse prevention.

He has shown some reluctance to acknowledge areas which require further exploration, including previous preoccupation with murder and weapons, sexuality and understanding of the index offence and offending behaviour. His current account of the index offence is inconsistent with earlier information from other sources including witness statements. He minimises some relevant risk areas and areas of future potential concern. He requires continued psychological treatment and assessment and monitoring of risk areas. It is the view of the clinical team that further treatment and management could take place in medium secure conditions."

5. Dr Page gave oral evidence to the Tribunal and referred to the opinions of two other psychiatrists who agreed with her approach.
6. The decision of the Tribunal, as was the practice at the material time, was recorded in a completed "Decision Form S 73". They recorded their decision that "the patient shall not be discharged from liability to be detained" and answered in the negative two questions set out on the form:

"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?"

7. On the negative answers, the third question printed on the form did not arise.
8. The Tribunal set out their reasons which, insofar as is relevant, were as follows:

"On behalf of the applicant Mr Mylan has urged us to find that he no longer suffers from psychopathic disorder within the definition of section 1 of the Mental Health Act 1983.

We have heard evidence from the applicant, his father, step-mother and from his RMO Dr Page. Having heard that evidence we are satisfied that at the time of the index offence the applicant was suffering from pychopathic disorder - indeed this is not in dispute. We are not satisfied that he was at that time suffering from mental illness. We also accept that [P] has made very substantial progress since he was admitted to Rampton and in particular has made great strides in controlling his aggressive conduct. Nonetheless we find that he still exhibits symptoms of psychopathic disorder, namely a limited ability to trust, interpersonal relationship difficulties, impulsivity, aggression and a tendency to blame others. As a result of his present symptoms combined with his conduct at the time of the index offence and subsequently we do find that he continues to suffer from psychopathic disorder within the meaning of the Act.

Mr Mylan urges us to find that the symptoms listed above are no longer such that [P]'s mental disorder is of a nature or degree which warrants his detention in hospital. We do not agree. We agree with Dr Page that in considering his disorder we have to consider not only the present manifestations of his condition but also the past manifestation. In doing so, 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 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 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."

9. Great concern was then expressed by the Tribunal about the failure to move P to conditions of medium as distinct from high security and the Tribunal supported the care team's decision that P should be moved to conditions of medium security.
10. Section 1(2) of the 1983 Act provides:

"Psychopathic disorder means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned."

11. Section 37 of the 1983 Act empowers a court, among other things, to order hospital admission if the court is satisfied that an offender is suffering from a psychopathic disorder and that the disorder is of a nature which makes it appropriate for him to be detained in hospital for medical treatment. The Court must also be satisfied that such treatment is likely to alleviate or prevent a deterioration in his condition and must be of the opinion that the most suitable method of disposing of the case is by means of an order under section 37. Section 41 provides that, where a hospital order is made and it appears to the Court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the Court may further order that the offender shall be subject to the special restrictions set out in the section either without limit of time or during such period as may be specified in the order.
12. The section 41 order was to apply without limit of time. No complaint is made on the hearing of this case about the orders made in 1992.
13. When they heard the application, section 73 of the 1983 Act required the Tribunal to discharge the patient, only if they were satisfied that he was not suffering from psychopathic disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment or that it was not necessary for the health or safety of the patient or the protection of other persons that he should receive such treatment. It does not affect the outcome of the appeal in the present case, but it may be noted that, on the 4th April 2001, this Court, granted a declaration in the following form in H v MHRT (transcript 28 March 2001):

"Sections 72(1) and 73(1) of the Mental Health Act 1983 are incompatible with Articles 5(1) and 5(4) of the European Convention on Human Rights, in that, for the Mental Health Review Tribunal to be obliged to order a patient's discharge, the burden is placed upon the patient to prove that the criteria justifying his detention in hospital, for treatment no longer exists; and that Articles 5(1) and 5(4) require the Tribunal to be positively satisfied that all the criteria justifying patient's detention in hospital for treatment continue to exist before refusing a patient's discharge."

14. Following that declaration on incompatibility and by virtue of the Mental Health Act 1983 (Remedial Order) 2001, the test in the sections was amended so as to place the burden of proof on the detaining authority to justify the detention.
15. Mr Gledhill, for the appellant, accepts that on the law, as it then stood, the Tribunal adopted the correct test on the burden of proof. Of course, in any further applications to the Tribunal, the amended provision must be applied. Mr Gledhill does not take a point upon the burden of proof, as now held to have been inconsistent with the Convention, although he does take a linked point to which I will refer.
16. The central point made on behalf of the appellant, is that section 1(2) of the 1983 Act only covers situations in which the patient has an on-going and current disorder, which causes him, at the present time, actually to engage in abnormally aggressive or seriously irresponsible conduct. Current antisocial behaviour is required. There must be both a causal and a temporal link between conduct and the disorder. Since there have been no incidents for several years the Tribunal should, by virtue of that definition, have ordered a discharge, it is submitted.
17. The error of law identified by Mr Gledhill is in the Tribunal holding that there was a psychopathic disorder, without there being evidence of contemporaneous abnormally aggressive or seriously irresponsible conduct. The statutory language requires, he submits, such evidence, if continued detention is to be justified. By contemporaneous, Mr Gledhill said that he meant within a matter of months of the Tribunal's decision. He submits that the danger of arbitrary detention, because of expert evidence, must be limited by confining the scope of that evidence in the present context. A contemporaneous demonstration of abnormal aggression or seriously irresponsible conduct must be shown to justify continued detention.
18. Moreover the Tribunal erred, it is submitted, in assessing the evidence on the basis of a presumption that the disorder present at the time of sentence continued unless the contrary was established. It is submitted that the argument has greater force by reason of the Human Rights Act 1998. The court must ensure that the Tribunal approached its task with appropriate regard for the fundamental rights involved, in particular, the right to liberty under Article 5 of the Convention.
19. It was not open to the Tribunal to conclude that P was suffering from a psychopathic disorder, it is submitted, because the current symptoms they had in mind, limited ability to trust, interpersonal relationship difficulties, impulsivity, aggression and a tendency to blame others did not amount individually or together to abnormally aggressive or seriously irresponsible conduct.
20. Moreover, the existence following release of the pressures present at the time of the index offence cannot be assumed. Attention is drawn to the use in the statute of the expression, "results in", in relation to psychopathic disorder, whereas the broader expression "associated with" abnormally aggressive or seriously irresponsible conduct is used in relation to other forms of disorder. For example, it is stated in section 1(2) of the 1983 Act that "severe mental impairment" means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and"severely mentally impaired" shall be construed accordingly. It is also submitted that, in the absence of recent examples of relevant conduct, the test of necessity for the health or safety of P or the protection of other persons is not met.
21. The judge's conclusion was at paragraph 27:

"In my judgment, the definition of psychopathic disorder requires that the disability of mind should be one which is either liable or capable of resulting in abnormally aggressive or seriously irresponsible conduct. It is then a matter for medical judgment, of the judgment of a Tribunal, whether, if those conditions are satisfied, it is necessary for the patient to be detained by reason of the nature or degree of his illness and in accordance with the statutory questions reflected in the pro forma decision of the Tribunal."

22. Reference has been made to the medico-legal literature upon the subject of psychopathic disorder, and the difficulty which has been experienced in defining and in diagnosing the condition.
23. The error in the appellant's approach to statutory definition, in my judgment, is in the belief that a disorder which is defined by reference to what results or may result from it cannot be present unless there is recent evidence of those results. It is submitted that the contemporaneous symptoms, do not amount to abnormally aggressive or seriously irresponsible conduct. That is not, however, the question which the medical evidence is required to address. The question is whether there is a psychopathic disorder as defined in the statute. The extent to which abnormally aggressive or seriously irresponsible conduct now occurs may throw light on whether there is a psychopathic disorder, but the disorder may still exist, even if there has been no such conduct for several years.
24. The conduct or absence of it may assist in deciding whether the disorder exists, but it may continue to exist without proof of such conduct in the recent or fairly recent past. The task of the Tribunal is to decide on the evidence, not what has resulted from the condition, but whether the condition exists at the material time.
25. Hospital treatment of the kind undergone by P may have no effect on a patient, but if it has a beneficial effect in terms of there having been a reduction or an elimination of the conduct defined in the section, there are two possible consequences. The first is to create a situation in which the patient is no longer suffering from psychopathic disorder. That, submits Mr Gledhill, is the only possibility. In my judgment there is a second, which is that the condition continues to exist but has not recently manifested itself in abnormally aggressive or seriously irresponsible behaviour. In considering whether the disorder continues to exist, the Tribunal must have regard to the likelihood of that behaviour, which is a feature of the disorder, occurring.
26. I have no difficulty in accepting that the Tribunal were entitled to decide that a disorder which admittedly existed in 1992, still existed in 2000, even though, because of successful management of the condition, no abnormally aggressive or seriously irresponsible conduct has occurred for several years.
27. I have no difficulty with the fact that the expression "associated with" is used in the case of other disorders as distinct from the expression "results in", in the definition now under consideration. Psychopathic disorder is defined by reference to a susceptibility to aggression and irresponsible behaviour in a way that is not the case with other conditions, in relation to which the expression "associated with" is appropriate.
28. As to Mr Gledhill's second point, I see no evidence that the Tribunal have wrongly made assumptions about the appellant's present condition. Mr Gledhill submits that they approach the evidence on the basis that, because P had once suffered from the disorder, he was still suffering from it. I do not accept that submission. The Tribunal considered the evidence before them, including evidence as to behaviour in recent years and concluded that the appellant was still suffering from a psychopathic disorder of a nature or degree which made continued detention appropriate.
29. The Tribunal's decision was sufficiently reasoned. They set out the current symptoms upon which, along with the medical history, they based their conclusion. The fact that the symptoms identified have not recently been accompanied by aggressive behaviour or irresponsible conduct does not invalidate the diagnoses of a disorder which is defined by reference to the results which may flow from it. The Tribunal also correctly addressed themselves to the question of nature or degree.
30. Whether it is possible to make a diagnosis of psychopathic disorder, without there ever having been conduct amounting to abnormal aggression or serious irresponsibility a point raised in the course of argument, does not require decision in this case. Indeed, it is extremely unlikely ever to arise in the present context. In my judgment, it was appropriate in this case, for reasons already given for the judge to use the expression "liable or capable of resulting" as he did in his judgment. The possibility or likelihood of further conduct within the meaning of the section is also plainly appropriate to the risk assessment which, as part of its responsibilities, the Tribunal is obliged to undertake.
31. For the reasons I have given, I would dismiss this appeal.
32. LORD JUSTICE CHADICK: The applicant is currently detained in a secure hospital pursuant to an order made in November 1992 under section 37(1) of the Mental Health Act 1983. He is subject, also, to a restricting order imposed by the Crown Court under section 41(1) of that Act. It follows that he is a restricted patient for the purposes of sections 72 and 73 of the Act- see section 79(1)).
33. Section 73(1) of the Act, in the form in which it was enacted and remained in force until 27th November 2001, required that:

"Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order... 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) [of the Act]; and

(b) that it is not appropriate for the patient to remain liable to be recalled to the hospital for further treatment."

34. Paragraphs (b)(i) and (ii) of section 72(1), again in the form in which they were originally enacted and remained in force until November 2001, required the Tribunal to be satisfied;

"(i) that the patient was 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 made it appropriate for him to be liable to be detained in a hospital for medical treatment; or

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

35. I should add, for completeness, that, following a declaration of incompatibility made under section 4 of the Human Rights Act 1998 by this Court in The Queen on the application of H v the Mental Health Review Tribunal, North and East London Region, neutral citation 2001 EWCA Civ 415, new provisions were substituted for the then existing provisions of sections 72(1) and 73(1) of the Mental Health Act 1983 by the Mental Health Act 1993 (Remedial) order 2001, SI 2001/ 37812. Those new provisions came into force on 26th November 2000. It is not suggested that those new provisions have any direct application to the question we have to decide on this appeal.
36. The applicant has made a number of applications to Mental Health Review Tribunals. The most recent application, so far as appears from papers before the Court, was made to the Tribunal for the East Midlands and Northeast Regions on 18th July 2000. The Tribunal reached the decision - which they promulgated on 1st February 2001 - that the applicant should not be discharged. The Tribunal reached that decision after giving a negative answer to the two questions posed by paragraphs (b)(i) and (ii) of section 72(1) of the 1983 Act (as those paragraphs then stood) in February 2001.
37. In those circumstances, the Tribunal did not need to address the question posed by paragraph (b) of section 73(1) of the Act.
38. In relation to the first of those answers - that the Tribunal was not satisfied that the applicant was not suffering from mental illness or psychopathic disorder of a nature or degree which made it appropriate for him to be detained in hospital for medical treatment - the Tribunal held (i): that they were not satisfied that the applicant was at any time suffering from mental illness; but (ii) that he was suffering from psychopathic disorder at the time of the offence which had led to his conviction and the orders made under sections 37 and 41 of the Act; and (iii) that he continued to suffer from psychopathic disorder.
39. In the reasons given under section 8 of their written decision the Tribunal said this:

"Nonetheless we find that he still exhibits symptoms of his psychopathic disorder namely a limited ability to trust, interpersonal relationship difficulties, impulsivity, aggression and a tendency to blame others. As a result of his present symptoms combined with his conduct at the time of the index offence and subsequently we do find that he continues to suffer from psychopathic disorder within the meaning of the Act."

40. In relation to the second of those answers - that the Tribunal was not satisfied that it was not necessary for the health or safety of the patient or for the protection of other persons that he should continue to receive treatment in a hospital - the Tribunal said this:

"We agree in considering his disorder, we have to consider not only the present manifestations of his condition but also the past manifestations. In doing so we are not satisfied that if he is exposed to the sorts of pressure he was exposed to at the time of the index offence, he would not react in the way he then did."

41. In the present judicial review proceedings the applicant challenges the decision of the Mental Health Review Tribunal that he continues to suffer from a psychopathic disorder. It is said that, in reaching the conclusion which they did, for the reasons which they gave, the Tribunal fell into error in law; in that they failed to have proper regard to the statutory definition of psychopathic disorder. That definition is found in section 1(2) of the 1983 Act:

"'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."

42. The submission made to this Court, on behalf of the applicant, which finds expression in paragraph 21 of the skeleton argument prepared by counsel on the applicant's behalf, is this: that it is proper to confine the phrases "psychopathic disorder" and "results in abnormally aggressive conduct" to a situation where the patient has an on-going and current disorder, which causes him, at the present time, to engage in abnormally aggressive conduct.
43. Like my Lord, I would reject that submission. I accept, of course, that the Tribunal must address the question whether the patient suffers from a persistent disorder or disability of mind which is current at the time when the matter is before them. But I do not accept that that disorder of mind cannot fall within the statutory definition of psychopathic disorder unless that disorder causes him, at that time, to engage in abnormally aggressive or seriously irresponsible conduct.
44. It is enough, in my view, that the disorder of mind has done so in the past and that there is a real risk that, if treatment in hospital is discontinued, it will do so in the future. That that is the true meaning and effect of the statutory definition which is to my mind the proper conclusion when the definition is construed in the context of the other provisions of the Act. Section 37(1) of the Act requires that a hospital order under that section shall not be made unless the Court is satisfied that the conditions in subsection 37(2) exist. Those conditions include, at subsection (2)(a)(i), that 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.
45. It follows that the order cannot be made unless the psychopathic disorder is treatable. Further, that that treatment would be likely to alleviate or prevent a deterioration of the condition. The requirements of section 37(2)(a), of the Act are reflected in section 3 of the Act - admission for treatment without a hospital order - and, of course, in section 72(1)(b)(i) itself. It is clear, as it seems to me, that, in enacting the 1983 Act and, in particular, in enacting the statutory definition in section 1(2), Parliament must have had in mind that a patient, who had been admitted and detained in hospital, pursuant to sections 3 or 37, on the grounds of psychopathic disorder can be expected to be undergoing treatment which will alleviate or prevent deterioration of his condition. Further, Parliament must have had in mind that the effect of that treatment may well be to suppress the tendency to abnormally aggressive behaviour or seriously irresponsible conduct which had led to the diagnosis of psychopathic disorder (see, in particular, the observations of Lord Hope in Reid v the Secretary of State for Scotland [1999] 2 AC 512, at page 531, between letters B and E).
46. It is plain, therefore, that a person who has been diagnosed as suffering from psychopathic disorder and has been admitted to hospital on the basis of that diagnosis, is likely to be undergoing treatment which will be designed either to cure his tendency to abnormally aggressive or seriously irresponsible conduct or, at least, to suppress it by removing whatever outside influences may stimulate or give rise to a tendency to aggression or irresponsibility. It would be bizarre if Parliament had intended that treatment which was successful to the limited extent of suppressing abnormally aggressive or seriously irresponsible conduct should be discontinued simply because the conduct was being suppressed; notwithstanding that but the disorder of mind had not been cured. In those circumstances, it is cannot have been intended that psychopathic disorder should depend upon current symptoms of abnormal aggressive or seriously irresponsible conduct.
47. The contrast between the definition of psychopathic disorder and the definitions of severe mental impairment and mental impairment - in sections (2) of the Act - is a contrast between a disorder of mind which causes or has caused abnormally aggressive and seriously irresponsible conduct and a state of arrested or incomplete development, which is associated with, but not necessarily causative of, such conduct.
48. There is no justification, in my view, in giving to the phrase "persistent disorder which results in conduct" a meaning which requires a current manifestation of such conduct.
49. For those reasons, I would dismiss the appeal on the first of the grounds raised. I agree with my Lord on the second point, and have nothing to add on that point.
50. LORD JUSTICE CLARKE: I agree that the appeal should be dismissed for the reasons give by Chadwick LJ.