The Incompatible Burden of Proof at Mental Health Review Tribunals

by Anselm Eldergill*

R v Mental Health Review Tribunal, on the application of H [2001] EWCA Civ 415 Court of Appeal (28th March 2001). Lord Phillips MR, Kennedy and Dyson LJJ

Introduction

H was detained in a high security hospital in pursuance of hospital and restriction orders made under sections 37 and 41 of the Mental Health Act 1983.

On 29 March 2000, a mental health review tribunal reviewed his detention and decided not to discharge him. The written reasons for the decision stated that H was still experiencing auditory hallucinations and that, if discharged, he would not continue to take his medication. The tribunal were ‘clear that this patient needs to be detained in hospital for treatment for his own health and safety.’

On 15 September 2000, Crane J dismissed H’s application for judicial review. In doing so, he refused to declare that the statutory test in section 73(1) of the 1983 Act was incompatible with Article 5 of the European Convention on Human Rights. This refusal to make such a declaration was the only issue pursued before the Court of Appeal.

Footnotes:
*Solicitor, Author of ‘Mental Health Review Tribunals – Law and Practice.’ (Sweet and Maxwell; 1997).

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