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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1705
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Jackson)
Monday, 5th November 2001
B e f o r e :
|IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW|
|- v -|
|THE MENTAL HEALTH REVIEW TRIBUNAL|
|(NORTH LONDON & EAST REGION)|
|EX PARTE J|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
The Respondent did not appear and was unrepresented.
Crown Copyright ©
Monday, 5th November 2001
"(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..."
"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...."
"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."
"... 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)."
"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."
"... 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."
"An independent doctor whose report we have read and considered could not elicit any symptoms on 31st January 2000."