R. (on the application of H) v Mental Health Review Tribunal, North & East London Region: The Case of the Detained Schizophrenic -

R. (on the application of H) v Mental Health Review Tribunal, North & East London Region

[2001] EWCA Civ 415

Court of Appeal (Civil Division)

28 March 2001

Brief Summary:

The appellant argued that his right to liberty under Article 5 was violated by the Mental Health Review Tribunal, who denied his request for discharge.  He argued that the standard used by the Tribunal under the Mental Health Act 1983 -  that he was no longer suffering from a mental illness that made it appropriate for him to be detained and that he was no longer a danger to the public - impermissibly placed the burden of proof on him to prove that he was eligible for discharge.  The Court of Appeal agreed with the appellant and issued a declaration of incompatibility.

The Facts:

The appellant, a schizophrenic, was convicted of manslaughter in 1988 and was ordered to be detained in Broadmoor Hospital subject to special restrictions pursuant to the Mental Health Act 1983 (“the Act”).  Two psychiatrists testified at the appellant's hearing that his illness was being managed by medication and that he could be moved to a medium-security facility with no danger to the public.  However, the appellant's request for discharge was denied by the Mental Health Review Tribunal and and his judicial case was dismissed.  He appealed to the Court of Appeals.

It is notable that the Secretary of State intervened in the case and requested, should the court find the Act incompatible with the ECHR, that the court issue a declaration of incompatibility rather than use Section 3 of the HRA to interpret the Act.

Human Rights Argument:

The appellant argued that his right to liberty under Article 5 of the ECHR had been violated.  He argued that the Mental Health Review Tribunal acts as “a court” when it determines whether to discharge a patient and, therefore, Article 5 applied to his hearing.  He then argued that section 73 of the Act requires that the patient prove that (1) he is not suffering from a mental illness or psychopathic disorder which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; and (2) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment.  The appellant argued that this standard effectively places the burden of proof on him, which violates his right to liberty under Article 5.

The Holding:

The court issued a declaration of compatibility.  The court held that  it was contrary to Articles 5(1) and (4) of the ECHR to detain a patient compulsorily unless it could be reliably shown that the patient was suffering from a mental disorder sufficiently serious to warrant detention.   The current standard impermissibly placed the burden of proof on the patient to prove that he was not suffering from a mental illness and he was not a danger to the public.  The court also noted that a proper burden of proof would not necessarily require that a patient be discharged just because he was on medication and no longer a threat.  If there is a risk that the patient, when not being given his medication in a controlled environment, might relapse and again be a danger to the public, that patient could remain detained through a showing that the interests of the public outweighed the interests of the patient.

Villain?

The appellant did commit manslaughter but did so due to mental illness.  He was also seeking to be moved to a less restricted facility and not necessarily to be released into the public.  Not an easy call but I think he's not a villain.