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Cite as: [1998] EWHC 832 (Admin)

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BAILII Citation Number: [1998] EWHC Admin 832
Case No. CO/430/98

Royal Courts of Justice

London WC2
4th August 1998

B e f o r e :




(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited,
180 Fleet Street,
London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)


MR P BOWEN (instructed by Alexander Solicitors, London NW10 4NE) appeared on behalf of the Applicant.
MR R SINGH (instructed the Treasury Solicitor) appeared on behalf of the Respondent.



Crown Copyright ©

    MR JUSTICE POPPLEWELL: This is an application to judicially review the decision of the Mental Health Review Tribunal for the South Thames Region. The decision was given on 25th November 1997 and the Applicant makes this application, with leave of Hidden J given on 18th March 1998. The Tribunal refused to conditionally discharge the Applicant from liability to be detained in the hospital, he being under a Restriction Order pursuant to sections 37 and 41 of the Mental Health Act 1983.

    The powers of the Tribunal are governed by section 73 of the Mental Health Act 1983. Section 73 reads:

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

    Section 72(1)(b) reads as follows:

    "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, pychopathic 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;

    What we are concerned with in the instant case is what is meant by the phrase "nature or degree". The phrase "nature or degree" appears in other parts of the Act, namely in section 3, which is the admission for treatment, in section 7 and I think I am told sections 37 and 41. In section 5 the word "degree" is used but not in the disjunctive phrase that we are concerned with. It deals with somebody who is receiving treatment for mental disorder as an inpatient and:

    "... [if] it appears to a nurse of the prescribed class-

    (a) that the patient is suffering from mental disorder to such a degree that it is necessary for his health or safety or for the protection of others for him to be immediately restrained...

    ... the patient may be detained in the hospital for a period of six hours..."

    The facts giving rise to this application can be very shortly stated. The Applicant is a 27 year old man. He was detained in conditions of medium security on 2nd November 1994 following a conviction on 24th August 1994 for the manufacture of explosives. He is diagnosed as suffering from paranoid schizophrenia which is a mental illness under the Mental Health Act.

    In November 1996 Mr Smith absconded. He obtained paid employment. When he was readmitted his mental state was stable, despite not having received medication during that time. He has remained stable and complied with medication. At the time of the Tribunal hearing he was presenting with neither positive nor negative symptoms of schizophrenia.

    Evidence was called before the Tribunal, including Dr Ndegwa, who is an independent psychiatrist, Mr Stewart Sinclair, who was the Applicant's forensic social work team manager, and Dr Eastman who had not prepared a report but gave oral evidence, he being the Applicant's Responsible Medical Officer. Dr Ndegwa advised that a conditional discharge to a suitably supervised hospital in the community was appropriate, and Mr Sinclair said that:

    "if Mr Smith is still stable at the date of his hearing, and issues concerning his absconding are thought not to be related to mental illness, I believe it would then not be possible to justify continued in-patient treatment..."

    Dr Eastman gave evidence and said that in his opinion the Applicant was suffering from a mental disorder of a nature, but not of a degree, which warrants his detention in hospital.

    The Tribunal's decision was that they refused to discharge the Applicant conditionally, or otherwise, and the substance of their conclusions are these:

    (1) The Tribunal is satisfied on the evidence of Dr Eastman that the patient is now suffering from mental illness, namely paranoid schizophrenia, the symptoms of which are being well controlled by medication, and that this is now of a nature but not of a degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment, and that such treatment is necessary for his own health and safety and for the protection of other persons.

    (2) The patient has made excellent progress and is ready to be tested under conditions of lesser security. However, the tribunal accepts Dr Eastman's opinion that he is not yet well enough to be discharged in view of the nature of his illness, which includes the following facts: that when he becomes ill, he becomes extremely ill; that he relapses very rapidly when off medication (his absence after absconding was not for very long); that a characteristic of his illness is that he lacks insight; that, although he says that he will continue to accept medication, he has always stopped medication in the past, so that his continued compliance is questionable; that he has expressed doubts about his need for care and supervision in the future, although a graded reduction of supervision is considered essential; that his residual negative symptoms have been responding to rehabilitation rather than to medication, and he needs further rehabilitation to underpin the progress which has already been made; and that his impulsivity, as evidenced for example by his going absent without leave, is a matter of concern and may be a symptom of his illness.

    3. The tribunal prefers the evidence of Dr Eastman to that of Dr Ndegwa since Dr Eastman's team is more familiar with the patient."

    It is Mr Bowen's submission, very well presented and extremely well researched, if I may say so, that this Tribunal's decision is flawed for two reasons: firstly, that they have made an error of law in that this is not a question of nature but one of degree and that they have wholly failed to apply their mind to that point; secondly, that they have failed to give adequate reasons.

    The Applicant is due to appear before a further Tribunal in about a fortnight's time. It may be thought, therefore, that the argument before me, which is of immense academic interest, is academic in the extreme. However, it has been urged upon me that there has been no decision as to whether nature or degree are conjunctive or disjunctive and that it would be very helpful to the Tribunals if I were to give an indication so that not only this Tribunal, when it reconsiders the matter, but other Tribunals will have some assistance. I do regard it as somewhat of an academic exercise, but since the parties have taken a lot of trouble and presented very reasoned arguments I will express my view for what it is worth, in the hope that it may be of some assistance hereafter. I have some doubts as to the extent of the assistance because it seems to me that in very many cases the nature and degree will be inevitably bound up so that it matters not whether it is dealt with under nature or degree, and it may well be that in the instant case that applies.

    However, I will deal with the arguments that have been put forward. It is Mr Bowen's argument that they should be read conjunctively, that nature is an unchanging condition which is diagnosed and a determination is arrived at as to whether the diagnosis fits in within the context of the Mental Health Act. That is an unchanging condition. Whether degree is related to fluctuation, that is to say it qualifies the nature of the mental illness, otherwise, says Mr Bowen, if someone is suffering from a pychopathic disorder, that is diagnosed and that is the nature, it will inevitably mean whatever the degree that they will be detained in hospital without being discharged. Therefore, in order to look at the nature of the illness and to decide whether the nature is sufficient to require continued detention, the degree to which the patient is then suffering is relevant. You cannot consider nature without considering degree. To that end he drew my attention to a number of interpretations. Nature is defined in the Oxford English dictionary as:

    "The essential qualities or properties of a thing; the inherent and inseparable combination of properties essentially pertaining to anything and giving it its fundamental character."

    Degree is the:

    "Relative condition or state of being; manner, way, wise, relation, respect."

    Thus, says Mr Bowen, when one looks at the Tribunal's decision, having set out their view of Dr Eastman regarding the nature of his illness, they then set out that "the nature... includes the following facts..." and that, says Mr Bowen, is not the nature, that is the degree compared with, for instance, other people. That is to say: does he relapse when he is taken off medicine? That is not the nature of the illness, that is the degree and effect of the illness. Thus he says that although it would be very unusual to read the words conjunctively as opposed to disjunctively, when the words are repeated in a number of cases that is the only way to make sense of it. Although in very many cases no doubt nature and degree are to be treated together, unless the Tribunal apply their minds to the distinctive parts they have failed in their duty, and although in the instant case it may make no particular difference, it is a matter where the Tribunal must themselves apply the phrase in the way which Mr Bowen contends for.

    Mr Singh, on behalf of the Tribunal, submits that the words have a plain meaning compared with the use of the words "severe degree" in section 5. They govern not merely the admission of patients but their continued detention and, although there is no authority in support of either contention, he submits that there are two pieces of evidence (if that is the right way to describe them) which assist the Court. The first is that part of the report of a Committee of Inquiry presided over by Sir Lewis-Blom Cooper, than whom no one has greater experience in this field. I need not set out the facts giving rise to that inquiry. It is called "The Falling Shadow". Chapter 18 at page 161 says this:

    "We have indicated above our view that, even when asymptomatic, he could be said, both in a clinical and a legal sense, to be 'suffering from mental illness'. As to the 'nature or degree' of that illness, we see no inherent difficulty in applying this concept to a condition which is asymptomatic at the time of assessment, provided there is adequate material from past history to guide the clinician. Just because an illness is asymptomatic when assessed, does not mean that it cannot have gradations of severity, or in the statutory language gradations of 'nature or degree'. The issue concerns the features of the underlying condition, and in the example before us there was extensive history from which to assess the severity of that condition when unmodified by drugs. The wording of the phase is deliberately disjunctive. We are aware, however, that psychiatrists sometimes interpret the phrase conjunctively but it may be sufficient to consider the nature of the mental disorder without waiting for the development of 'degree' in its severity."

    It is submitted in this case by Mr Rabinder Singh that the word "then" in the section is of very great importance. The other material before me upon which he relies is in a book called "Mental Health Review Tribunals, Law and Practice" by Mr Anselm Eldergill. He is a solicitor. He has been a Mental Health Act Commissioner and he is on the Mental Health Review Tribunal Panel of Solicitors. In his book, at page 213, he sets out his views about the matter. They are arguments which Mr Rabinder Singh adopts as part of his argument before me and I therefore set them out in full detail:

    "Where there is evidence of mental disorder, the use of compulsory powers requires that it is of a 'nature or degree' which either makes in-patient treatment appropriate or warrants the patient's detention for assessment or reception into guardianship ('the diagnostic question'). Practitioners and tribunals commonly confine their consideration of a patient's mental state to the degree of mental disorder present, seemingly interpreting the words 'nature' and 'degree' as essentially interchangeable. Accordingly, a patient is considered not to be detainable if his condition has responded to medication and is no longer acute. This approach takes no real account of the nature of the particular disorder and mistakenly quotes its 'degree' with its 'severity'. As such, there is a failure to give due weight to the chronicity of the disorder and the prognosis."

    Then under "Degree" he says this:

    "The word 'degree' focuses attention on the extent to which the person's mental disorder is currently active. If a patient is acutely ill, his condition characterised by obvious and gross abnormalities in his mental state, the degree of mental disorder present will generally be of a level which satisfies the first ground of application. It is noteworthy that the emergency power to detain a patient for six hours under section 5(4) is exercised by a nurse only if it appears to him that the patient is suffering from mental disorder 'to such a degree that it is necessary for his health or safety or for the protection of others or for him to be immediately restrained from leaving the hospital.'The criteria do not refer to the nature of the patient's disorder. This reflects the fact that the purpose of the power is immediate restraint and reinforces the view that the word 'degree' is directed towards the present exacerbations and manifestations of a patient's disorder, rather its nature as revealed by its long-term consequences.


    Many mental disorders wax and wane because they are cyclical in nature, because the patient enjoys periods of remission - for example, during periods of low stress - or because they are intermittently alleviated by a course of treatment. A particular patient may have a long history of readmissions indicative of a severe, chronic condition which is resistant to treatment or a record of poor compliance with informal treatment following previous discharges. Although the degree of disorder may be quite low at any given time, either in absolute terms or relative to his known optimum level of functioning, the serious nature of the disorder is revealed by its historical course. Likewise, with illnesses of recent onset, the prognosis associated with the diagnosis may point strongly towards the probability of a serious, further deterioration of the patient's condition in the near future. In both instances, it may be the nature of the disorder rather than its degree which brings the patient within the first of the grounds for making an application."

    Then he goes on in the next paragraph:

    "... it is not necessary as a matter of law to wait until the condition becomes acute before compelling the patient to receive the treatment which will prevent the otherwise inevitable further decline.

    Mental Health Review Tribunals

    Within the context of section 3 tribunal proceedings, a patient may have responded to treatment and be in remission by the time the hearing takes place. As such, and given the importance which attaches to a citizen's liberty in English law, the degree of mental disorder which remains may be insufficient to warrant a continuance of his liability to detention. The tribunal is not, however, obliged to discharge unless it is also satisfied that the nature of the patient's disorder, evidenced by his medical history or the outcome usually associated with such conditions, also makes liability to detention inappropriate. Similarily, where the degree of disorder apparently at the time of the hearing is quite low but the patient's recent mental state has been subject to marked fluctuations, the nature of disorder may mean that the tribunal cannot be satisfied that the first of the grounds for discharge is made out."

    I turn back then to the Tribunal's findings. The evidence about the Applicant's condition, at the time the Tribunal had to consider it, was static. He made excellent progress. He was in a stable condition and it is quite clear that the illness was not of a degree which of itself made it appropriate for him to be liable to be detained. The reason for that was because he has a chronic condition which was static. However, the nature of the condition was that it might cease to be static so that the interpretation that nature is in some way unchanging in one view may be right, but the effect of the condition is that because of its very nature it may not remain static. It seems to me that if the facts upon which the Tribunal rely have shown that it may not be static, that goes to the nature of the condition. The degree in the instant case, in relation to his condition, was not relevant because it was static and stable.

    In my judgment there is a reason for the distinction, of which this case is perhaps a good example. If one had simply to look at the degree it would have been right for the discharge to take place, but the nature of the condition was such that it was clear that he should not be discharged. It may well be that in a great number of cases that nature and degree involve much the same questions - I hesitate to give examples - and it may be that Tribunals will be wise, if they have any doubts about it, to include them both.

    However, that in my judgment in the instant case is not a ground for setting aside this Tribunal's decision which seems to me, on the material before it, to have properly applied the law. While at first sight Mr Bowen's argument has immense attraction, I think on analysis that it is, in the result, flawed and I pay tribute to the reasons set out by Mr Eldergill in his book which seems to me sufficiently to set out the various problems which can arise in the interpretation and the conclusion to which he has come.

    The second matter which Mr Bowen put forward was that there had been a lack of reasons. It is not necessary to set out the various authorities in which the Courts have laid down the text for giving reasons. Megaw J, as he then was, In re Poyser and Mills' Arbitration [1964] 2 QB said:

    "Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."

    In the instant case it is said that the Tribunal have not explained why alternatives were not considered, whether it would be inappropriate to discharge with a condition, or why it was not appropriate to grant an absolute discharge, and, says Mr Bowen, it is a good discipline to set out the reasons because it shows not merely that you have considered them, but that you have applied your mind to them.

    All these cases on reasons depend on the nature of the case and the language used by the Tribunal or body giving the reasons. The principles are there and it seems to me that the Tribunal has sufficiently set out the reasons, from the passage which I have read out, why they thought he ought not to be discharged. They could have said, 'We considered the conditional discharge but decided against it.' They simply said,'We considered that he should not be discharged.' That must involve rejecting the other alternatives. Secondly, it is said that they have to consider two separate questions: firstly, the diagnostic question and, secondly, the necessity question which is a matter of policy; that is to say is it safe to have let him out? Again it seems to me that in the reasoning, which is in their judgment, where they say this:

    "The Tribunal is satisfied on the evidence of

    Dr Eastman that the patient is now suffering from mental illness, namely paranoid schizophrenia, the symptoms of which are being well controlled by medication, and that this is now of a nature but not of a degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment, and that such treatment is necessary for his own health and safety and for the protection of other persons"

    it seems to me that that is the reasoning. They have set out the diagnosis. They have set out their conclusions on the matters necessary under the Act and, in my judgment, quite sufficient reasons are given.

    Finally, I would have to say that Mr Bowen raised the point, namely that the Respondents did not, in considering the appropriateness of the Applicant's continued detention, consider the possibility of conditionally discharging him on condition he remain in hospital as a voluntary patient. It was a point which had not been raised before Hidden J. It is not in his skeleton and it involved a question of considering a decision of Mann J, as he then was, in the light of current legislation. Objection was taken by the Respondent that they were not able to argue it and it seemed to me that if it was a matter of importance, as it plainly was, I should not give any meaning, absent a reasoned argument and without skeleton arguments. I therefore decline to allow Mr Bowen to amend his Form 86A. For all those reasons, this application is dismissed.

    MR SINGH: I am grateful for that. On the question of costs I understand the Applicant is on legal aid so I would ask for our costs, but on the usual terms that they be deferred sine die?


    MR BOWEN: Not to be enforced without leave of this Court.

    MR JUSTICE POPPLEWELL: I am not sure what the current Order is. Whatever it is I will order it. I read: "The determination of the Applicant's liability to pay such costs is postponed pending further application." That seems to be the current Order.

    MR BOWEN: I have two applications: firstly, in relation to costs I wonder whether I might have legal aid taxation?

    MR JUSTICE POPPLEWELL: You shall certainly.

    MR BOWEN: Also I seek my Lord's leave to appeal.

    MR JUSTICE POPPLEWELL: I shall not grant it. Thank you very much.

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