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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 697
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE STANLEY BURNTON)
Tuesday 16th April 2002
B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE CLARKE
|THE QUEEN ON THE APPLICATION OF P||(Claimant)|
|- v -|
|MENTAL HEALTH REVIEW TRIBUNAL FOR THE EAST MIDLANDS AND NORTH EAST REGIONS||(Defendant)|
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HG
Telephone No: 020 7421 4040 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MISS J RICHARDS (instructed by TREASURY SOLS) appeared on behalf of the Defendants
MISS F MORRIS appeared on behalf of the Interested Party
Crown Copyright ©
"[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."
"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?"
"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."
"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."
"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."
"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."
"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."
"(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."
"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."
"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."
"'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."