The Queen on the application of P v Mental Health Review Tribunal for the East Midlands & North East Regions

A psychopathic disorder under section 1(2) of the Mental Health Act 1983 may continue despite the absence of recent abnormally aggressive or seriously irresponsible conduct. The disorder must be current, but its defining conduct need not be contemporaneous with the tribunal hearing.

Past conduct, present symptoms and the real risk of renewed conduct if hospital treatment ends may establish that the disorder persists. Successful treatment which suppresses the conduct does not necessarily cure the underlying disorder. A tribunal may therefore consider the patient's history and the likelihood of future manifestations when deciding whether continued detention for treatment remains appropriate.

P was detained as a restricted patient under sections 37 and 41 of the Mental Health Act 1983 following a manslaughter conviction and a diagnosis of psychopathic disorder. After substantial progress in hospital and several years without abnormally aggressive or seriously irresponsible conduct, the Mental Health Review Tribunal declined to discharge him. It found that current symptoms, his history and the risk of renewed violence showed that the disorder persisted and required further treatment.

Stanley Burnton J refused P's application for judicial review. P appealed, contending principally that section 1(2) required contemporaneous conduct of the statutory kind and that the tribunal had presumed the continuation of the original disorder. The central issue was whether a current psychopathic disorder can exist when its defining conduct has not manifested itself for several years.

1. Appeal dismissed unanimously. Pill LJ and Chadwick LJ each rejected the submission that psychopathic disorder under section 1(2) of the Mental Health Act 1983 requires contemporaneous abnormally aggressive or seriously irresponsible conduct. Clarke LJ agreed with Chadwick LJ's reasons.

2. The tribunal must decide whether a persistent disorder or disability of mind exists at the time of its decision. The extent of recent conduct may illuminate that question, but its absence does not prevent the disorder from continuing. Pill LJ held that the tribunal may consider past manifestations and the likelihood of the defining behaviour recurring.

3. Chadwick LJ held that it was sufficient that the disorder had caused the relevant conduct in the past and that there was a real risk that it would do so in the future if hospital treatment ceased. Construed with the treatment provisions of the Act, section 1(2) could not sensibly require discharge merely because treatment had successfully suppressed the conduct without curing the disorder. The statutory expression “results in” denotes a causative relationship. It does not require a current manifestation of the resulting conduct.

4. The tribunal had not presumed that a disorder established in 1992 continued in 2000. It evaluated the evidence, including current symptoms, recent behaviour, medical history and risk. Its reasons were sufficient, and it correctly considered whether the disorder's nature or degree made continued detention appropriate.

5. The court left open whether psychopathic disorder could ever be diagnosed without any history of abnormally aggressive or seriously irresponsible conduct. That question did not arise. The possibility or likelihood of future conduct was, however, relevant both to diagnosis and to the tribunal's risk assessment.

6. The earlier statutory burden of proof had been declared incompatible with article 5 of the Convention and subsequently amended. That change did not affect this appeal because P accepted that the tribunal had applied the law then in force and did not challenge its decision on that ground.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The tribunal was entitled to find that P continued to suffer from psychopathic disorder despite the absence of recent conduct of the statutory kind.

2. Administrative Court: Stanley Burnton J refused P's application for judicial review on 27 October 2001. No citation is stated in the judgment.

3. Mental Health Review Tribunal: The tribunal declined to discharge P under section 73 of the Mental Health Act 1983.