J, R (on the application of) v Mental Health Review Tribunal (North London & East Region)

A Mental Health Review Tribunal must give adequate reasons when deciding between materially conflicting medical opinions. Where expert evidence is central, it is arguable that the tribunal must indicate why it preferred one opinion to another. A tribunal’s refusal to discharge under section 72 of the Mental Health Act 1983 does not necessarily involve an unlawful reverse burden of proof, particularly where the tribunal makes positive findings supporting continued detention. The compatibility of sections 72 and 73 with Article 5 does not mean that every refusal of discharge gives rise to a successful claim for judicial review.

The applicant had been detained for assessment under section 2 of the Mental Health Act 1983. A Mental Health Review Tribunal refused to discharge her after accepting evidence from her husband and responsible medical officer, despite an independent psychiatrist’s report recommending discharge.

She applied for judicial review, alleging inadequate reasons, an unlawful reverse burden of proof contrary to Article 5 of the Convention, and failure to exercise the discretion conferred by section 72(1). Harrison J and Jackson J refused permission, treating the claim as potentially academic after her release and considering that the tribunal had made positive findings. The renewed application concerned whether permission should be granted.

1. Permission granted. The matter was returned to the Administrative Court for a substantive judicial review hearing.
2. The tribunal’s reasons were arguably inadequate. Its treatment of the independent psychiatrist’s detailed report was confined to recording that the doctor had been unable to elicit symptoms. Given the central importance of the medical evidence, it was arguable that the tribunal should indicate why it preferred the evidence supporting detention to the contrary expert opinion.
3. The responsible medical officer’s evidence might provide a sufficient explanation for the absence of symptoms in the hospital environment, but that issue required substantive consideration. The court therefore granted permission on the reasons ground.
4. In H v Mental Health Review Tribunal (North and East London), the Court of Appeal had held that sections 72 and 73 of the Mental Health Act 1983 were incompatible with Articles 5(1) and 5(4) to the extent that they did not require discharge unless continued detention could be justified. That reasoning was accepted, for the purposes of the permission application, as potentially affecting section 72(1)(a) as well as section 72(1)(b).
5. That conclusion did not establish that every refusal of discharge under section 72(1)(a) violated Article 5 or entitled the patient to judicial review. The reverse-burden and failure-to-exercise-discretion arguments, standing alone, would not have justified permission, but could be argued at the substantive hearing once permission was granted on the reasons ground.

• Court of Appeal (Civil Division): On 5 November 2001, the renewed application for permission to appeal was allowed and the matter was returned to the Administrative Court for substantive judicial review.
• Queen’s Bench Division, Jackson J: Permission to seek judicial review was refused on 20 June 2001.
• Queen’s Bench Division, Harrison J: Permission was initially refused on the papers on 22 March 2001, partly because the claim appeared academic.
• Mental Health Review Tribunal: The applicant’s application for discharge under section 72 was refused on 6 February 2001.