UK: Mental Health Review Tribunals: a Miscellany of Recent Decisions

Last Updated: 1 February 2006
Article by Andrew Parsons

Originally published January 2006

Standard of Proof

The question of the correct standard of proof to be applied by the MHRT has been considered in previous cases. This has now been addressed definitively by the Court of Appeal1.

The patient challenged the burden of proof adopted by the MHRT. On the hearing of his judicial review the Judge held that the correct standard of proof was the ordinary civil standard of proof, namely the balance of probabilities. He also found that issues under Sections 72 and 73 of the 1983 Act as to the appropriateness and necessity of continuing detention or the appropriateness of the patient remaining liable to be recalled were not susceptible to a defined standard of proof. Rather, they involved a process of judgement, evaluation and assessment.

The Judge’s conclusions were considered by the Court of Appeal who held that the civil standard of proof was the correct one. English law recognised only two standards of proof, the civil standard (the balance of probabilities) or the criminal standard of proof (beyond reasonable doubt). There was no intermediate standard, nor could the civil standard be broken down into various subcategories. However, the civil standard did have flexibility in that the more serious the allegation, the stronger the evidence required to prove an allegation on the balance of probabilities.

The Court did not accept the Judge’s comments regarding whether certain matters under Sections 72 and 73 were capable of proof, as the Court felt it was axiomatic that cogent evidence would, in practice, be required in order to satisfy the Tribunal, and on the balance of probabilities the evidence needed to demonstrate a continuing need for detention would need to be cogent. However, the Tribunal had to apply the balance of probabilities as the standard of proof to all issues that it had to determine.

Approach to Section 72 criteria

Under Section 72 the MHRT has to ask itself if:

a) The patient is suffering from an illness etc. (as defined in the Act) of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for treatment

b) That it is necessary for the health or safety of the patient or the protection of others that he should receive treatment.

The Court has considered whether these requirements are cumulative and has confirmed that they are1. The Court of Appeal confirmed that the Tribunal is obliged to discharge a patient if the detaining authority fails to satisfy it as to either of the criteria set out in Section 72.

Tribunal Hearings where Order for Supervised Discharge made

The Court has recently considered2 whether a Tribunal hearing has to proceed if an Order for Supervised Discharge is made before the Tribunal hearing takes place.

The facts

The patient was detained under Section 3 and applied under Section 66 to the Tribunal to challenge his detention. This was listed for hearing on 23rd February, but his RMO made an application for supervised discharge pursuant to Section 25A, and that was accepted on 22nd February. The claimant asked the Tribunal to proceed with the hearing, but this was cancelled by the Tribunal on the basis that the Tribunal would have no power to deal with it now that the supervision application had been accepted. The Tribunal rejected the submission that the patient’s new status could be reviewed under Section 66(1)(ga).

Court Decision

An application to the Tribunal to review detention was different to an application to review supervised discharge under Section 66(1)(ga). The consequences of detention and supervised discharge were substantially different. Supervised discharged should not engage Article 5 of the European Convention on Human Rights.

In view of Parliament’s decision under Section 66(2) to restrict the applications that may be made by a patient to the Tribunal under Section 66(1) within specified periods of time, the Court held that Parliament had clearly intended that the applications were to be treated differently.

In the circumstances the Court held that the Tribunal had been correct not to proceed with the hearing of the application to review the detention under Section 3 following the acceptance of the application for supervised discharge.

Discharge by the MHRT : Monitoring the provision of aftercare under Section 117

To what extent are the responsible aftercare bodies required to monitor the provision of aftercare?

The patient was detained under Sections 37 and 41. The MHRT ordered his discharge subject to a condition that suitable hostel accommodation be identified and that his discharge be deferred until all conditions had been satisfied.

The responsible aftercare bodies were notified late of the Tribunal’s decision, and although a possible hostel placement was identified there were issues as to how this should be funded. The Tribunal was ultimately able to confirm the conditions were met, but this funding issue led to a delay in discharge, which was challenged by the patient. He contended that the Section 117 authorities were not entitled to delay discharge to consider funding.

The issue arose as to whether Section 117 required the responsible authorities to monitor the progress of a detained patient with a view to the expeditious provision of future aftercare services.

The Court rejected this suggestion3. It held that the duty under Section 117 applies only to a person who ceased to be detained and had left hospital. Section 117 did not require the relevant authorities to monitor the condition of patients subject to a provisional decision of the Tribunal for conditional discharge.

The Court therefore held that the Section 117 authorities were under no duty to monitor the patient’s progress or the result of the Tribunal hearing, and were under no duty to take steps in consequence of the MHRT decision until they had been informed of it. It was unrealistic, thereafter, to expect the Section 117 authorities to act without exploring the funding issues. Furthermore, on the facts, given the need to satisfy other conditions prior to the patient’s discharge, the delays in making the arrangements had not led to a delay in his discharge.

Footnotes

1 R (on the application of AN) v Mental Health Review Tribunal (Northern Region) [2005] EWCA CIV1605

2 R (SR) v MHRT [2005] EWHC 2923

3 R (B) v Camden LBC [2005] EWHC 1366

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions