R (Moyle) v London South and South West Region MHRT [1999] MHLR 195

A Tribunal is not acting in an appellate or review jurisdiction, but exercising an original jurisdiction in which it forms an evaluative judgment as to whether the criteria for discharge are made out; as such, it may disagree with the evidence in front of it. When the illness is one that will relapse in the absence of medication, the appropriateness of liability to detention depends on an assessment of the probability of relapse in the near future. (At the time, the test for discharge placed the burden of proof on the patient and so the patient had to show that there was no probability of relapse to demonstrate that the nature of the illness did not justify detention; it was also held that the admission criteria had to be considered, but in the context of the burden of proof being reversed. Its conclusion that the admission criteria were not relevant meant that there was an error of law that led to the decision being quashed.) [MHLR.]

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 1999 are available here: MHLR 1999.

Original nature of Tribunal jurisdiction; nature of illness and probability of relapse; need to consider admission criteria - R v London South and South West Region MHRT ex p Moyle [1999] MHLR 195 Admin Ct

Points Arising: A Tribunal is not acting in an appellate or review jurisdiction, but exercising an original jurisdiction in which it forms an evaluative judgment as to whether the criteria for discharge are made out; as such, it may disagree with the evidence in front of it. When the illness is one that will relapse in the absence of medication, the appropriateness of liability to detention depends on an assessment of the probability of relapse in the near future. (At the time, the test for discharge placed the burden of proof on the patient and so the patient had to show that there was no probability of relapse to demonstrate that the nature of the illness did not justify detention; it was also held that the admission criteria had to be considered, but in the context of the burden of proof being reversed. Its conclusion that the admission criteria were not relevant meant that there was an error of law that led to the decision being quashed.)

Facts and outcome: M was a restricted patient whose illness was controlled by medication; the psychiatric evidence was that his condition would not lead to him being detained afresh, but that he would relapse if he did not take his medication and pose a danger to himself or others. The tribunal rejected a submission that the criteria for admission and discharge mirror each other in relation to mental illness, and that accordingly M should be discharged as he did not meet the former. (It also concluded that, as it did not accept M’s assurances that he would continue to comply with medication in the community, they were not satisfied that his mental illness was not of a nature which made it appropriate for him to be liable to be detained.) In judicial review proceedings, M argued that (i) as the tribunal was a reviewing body it was bound to discharge as the criteria for admission were not met; and (ii) it failed to direct itself that the admission and discharge criteria mirrored each other. The Court held that, although the tribunal has an original jurisdiction rather than a reviewing one and so may disagree with the evidence in front of it, it has to apply the same criteria as for admission (subject, at the time, to a reversed burden of proof). The decision was quashed as the tribunal had misdirected itself in law.

The criteria for admission into hospital under s3 of the Act require mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in a hospital (with the requirement of treatability in relation to psychopathic order or mental impairment) and it is necessary for the health or safety of the patient or the protection of other persons that the patient receive such treatment, and it cannot be provided unless the patient is detained; under s37, the nature or degree test is the same and the court must find it the most suitable disposal of the case. The Tribunal must order a discharge if the patient is not suffering from a mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained to receive medical treatment in a hospital; or if treatment is not necessary for the health or safety of the patient or the protection of other persons that the patient receive such treatment

The Tribunal’s decision as to the lawfulness of detention does not involve the exercise of a reviewing or appellate jurisdiction, but an original jurisdiction, with the Tribunal reaching its own conclusion as to whether or not the criteria for discharge are met. This involves the application of the same criteria in relation to admission, but the burden of proof is reversed for the purposes of consideration of discharge.

The original nature of the Tribunal’s jurisdiction means that it may disagree with the evidence in front of it: it is not bound by the opinions of those who give evidence. On the facts, the Tribunal determined, from its own assessment of the risk of M failing to comply with medication, that it could not be satisfied that his mental illness was not of a nature which made it appropriate for him to be liable to be detained in hospital for medical treatment, nor that it was not necessary for the health or safety of M or the protection of other persons that he should receive such treatment. As such, it differed from the psychiatrists who gave evidence as to the risk posed by M and the value judgment as to whether it was appropriate for him to be detained, which was its entitlement.

M’s illness being one which will relapse in the absence of medication, the appropriateness of him being liable to be detained depends on an assessment of the probability that he will relapse in the near future if he were in the community, in the context of the reversed burden of proof. If the Tribunal is not satisfied that there is no probability of relapse in the near future, it is unlikely to conclude in favour of release in light of the nature of the illness.

However, in reaching its judgment, the Tribunal had expressly directed itself that the criteria for admission and discharge do not mirror each other; as such, it had erred in law. In addition, it did not deal adequately with the question of whether or not it was necessary for the health or safety of M or the protection of other persons that he should receive hospital treatment; this is a separate question and the test of “necessity” is different from the test of “appropriateness”: the statute requires that both issues be resolved.

Consequently, the decision was quashed and the matter remitted to the Tribunal for re-consideration in the light of the ruling.

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