P (on the application of) v Mental Health Review Tribunal for the East Midlands and North East Region

At the permission stage, the court held that it was plainly arguable that a mental health review tribunal had applied the statutory burden of proof incorrectly when reviewing continued detention. Under Mental Health Act 1983, the definition of psychopathic disorder requires a causal connection between a persistent disorder or disability of mind and abnormally aggressive or seriously irresponsible conduct. It does not necessarily require the patient to be displaying that conduct at the time of review. The court also considered that successful treatment suppressing symptoms does not necessarily amount to a cure. Permission to appeal was granted on both the construction of psychopathic disorder and the Article 5 burden-of-proof issue.

The applicant was a restricted patient detained under sections 37 and 41 of the Mental Health Act 1983. The Mental Health Review Tribunal determined that he should remain liable to detention, finding continuing psychopathic disorder and a continuing need for hospital treatment. Stanley Burnton J dismissed the applicant’s judicial-review claim on 26 October 2001. The applicant renewed his application for permission to appeal. The issues were whether the tribunal had misconstrued section 1(2), and whether its reasoning reflected the burden of proof required by Article 5 of the Convention when applying sections 72 and 73.

1. Permission granted. The application was a renewed application for permission to appeal, and was allowed.

2. On the construction of psychopathic disorder under section 1(2) of the Mental Health Act 1983, the court considered that Stanley Burnton J was most likely right to treat the statutory requirement as causal rather than temporal. The definition does not necessarily require current abnormal aggression or serious irresponsibility. A persistent disorder or disability of mind may satisfy the definition where, without effective treatment or in different circumstances, it would result in such conduct. Treatment suppressing symptoms is not necessarily a cure. The court nevertheless allowed the applicant to argue the point before the full court because of its importance and because it had not, so far as known, previously been determined.

3. On the Article 5 issue, the court relied on H v The MHRT (transcript, 28 March 2001), in which this court had held that the burden must rest on the state when a tribunal considers whether discharge must be ordered under sections 72 or 73. The tribunal’s reasons appeared to proceed on the footing that the burden remained on the patient, particularly in requiring him to establish that specified risks had been satisfactorily explored and tested. That made the ground plainly arguable and justified permission to appeal.

4. The court determined permission only. It did not finally decide either substantive issue.

• Court of Appeal (Civil Division): Permission to appeal was granted on renewal from the decision of Stanley Burnton J dated 26 October 2001.
• Queen’s Bench Division: Stanley Burnton J had dismissed the application for judicial review of the tribunal’s decision.
• Mental Health Review Tribunal: On 18 July 2000, the tribunal determined that the applicant should remain liable to detention.