DJ, R (on the application of) v Mental Health Review Tribunal

The ordinary civil standard of proof applies where a Mental Health Review Tribunal must determine disputed questions of present or past fact. English law recognises no intermediate standard between the balance of probabilities and the criminal standard. The Tribunal’s evaluative and predictive questions, including whether detention or treatment is necessary and whether a patient should remain liable to recall, are not determined by a standard of proof. They require an overall assessment of the evidence, future risk and proportionality. Specific allegations of past conduct must be proved on the balance of probabilities if relied upon as facts. Hearsay is admissible, but its quality, provenance and absence of cross-examination must be carefully assessed. The applications for judicial review were dismissed.

Two conjoined applications for judicial review challenged decisions of Mental Health Review Tribunals concerning the discharge of detained patients under the Mental Health Act 1983. DJ was detained under a hospital order without a restriction order and applied under section 66. AN was subject to hospital and restriction orders and applied under section 70. The Tribunals applied the balance of probabilities to some matters, while AN’s Tribunal also referred to a higher standard akin to the criminal standard for important factual issues.

The central questions were whether the criminal standard, an intermediate standard, or the ordinary civil standard applied, and whether the statutory discharge criteria were matters of proof or evaluative judgment.

1. Applications dismissed. The Tribunal’s direction in DJ’s case was correct. The only misdirection in AN’s case, referring to a higher standard for important factual issues, was favourable to AN and did not justify quashing the decision.
2. The ordinary civil standard, namely proof on the balance of probabilities, applies to disputed factual questions arising under sections 72 and 73 of the Mental Health Act 1983. English law does not recognise an intermediate standard between that standard and proof beyond reasonable doubt. The seriousness of an allegation affects the inherent probabilities and the quality and weight of evidence required, not the legal standard itself. The principles in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and Secretary of State for the Home Department v Rehman [2001] UKHL 47 were applied.
3. The existence and nature or degree of a patient’s mental disorder are matters of present fact capable of proof. By contrast, whether detention or treatment is necessary, appropriate or proportionate, and whether a restricted patient should remain liable to recall, involve evaluation, judgment and prediction. Those questions do not involve a standard of proof.
4. The detaining authority bears the persuasive onus in relation to the matters under sections 72(1)(b)(i) and (ii), and under section 73 the patient bears the onus concerning the appropriateness of remaining liable to recall. An onus does not necessarily entail a standard of proof.
5. The Tribunal must adopt a global and cumulative approach. It must consider the whole body of material, attach appropriate weight to relevant facts, assess future risks and balance the patient’s interests against public safety. Continued detention must be a proportionate response to the risks involved.
6. Hearsay may be received under rule 14(2) of the Mental Health Review Tribunal Rules 1983. The Tribunal must nevertheless consider its quality, the dangers of repeated or uncorroborated hearsay, the absence of cross-examination and the reliability of contemporaneous records. Where a past incident is fundamental to the decision, fairness may require an opportunity to cross-examine the relevant witness.
7. Under section 72, failure to establish either statutory detention criterion requires discharge, although discharge remains discretionary where either criterion is established. Under section 73, failure to establish both section 72 criteria and failure by the patient to establish that recall is inappropriate leads to conditional discharge; where the patient establishes that recall is inappropriate, absolute discharge follows.

First-instance judicial review applications heard together. The judgment does not state any subsequent appellate history.