N, R (on the application of) v Mental Health Review Tribunal & Anor [2007] EWHC 1524 (Admin)

Case No CO/3579/2006

[2007] EWHC 1524 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 22 March 2007

Strand

London WC2

B E F O R E:

MR JUSTICE CALVERT SMITH

Between

THE QUEEN ON THE APPLICATION OF NClaimant

-v-

Between

MENTAL HEALTH REVIEW TRIBUNALDefendant

SECRETARY OF STATE FOR THE HOME DEPARTMENTInterested Party

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr Hugh Southey (instructed by Campbell Law) appeared for claimant

Mr T Ward (instructed by Treasury Solicitor) appeared for defendant

Mr Martin Chamberlain (instructed by Treasury Solicitor) appeared for Interested Party

J U D G M E N T

[1]MR JUSTICE CALVERT SMITH: This is an application by the claimant for judicial review of a decision of the Mental Health Review Tribunal of 1 March 2006 and for an order to quash that decision. In short, the claimant submits that the tribunal misdirected itself in concluding that the claimant was suffering from a psychopathic disorder and was therefore lawfully detained under Section 49 of the Mental Health Act 1983. Further, the claimant submits that the tribunal should have adjourned the hearing on 1 March in order to hear oral evidence, in particular of an expert Dr Reeves instructed on behalf of the claimant.

[2]Having heard the submissions of counsel for the claimant, the defendant and the Secretary of State for the Home Department as interested party, I have come to the clear conclusion that this is not a case in which judicial review should be granted. I am satisfied that none of the criticisms of the tribunal's reasons or of the directions which underpin those reasons are sufficient to justify quashing its decision. I am also satisfied that the decision not to grant an adjournment was well within the principles in the case of X and Rule 16 of the Mental Health Tribunal Rules 1983, and [it] led to no injustice.

[3]The claimant is now 40 years old. He was first convicted aged 21 of offences of buggery of a boy between the ages of 11 and 15 some years earlier. Thereafter he has regularly been convicted of similar offences and, on his own admission, over the years has committed numerous other offences of a similar description so that he fully justifies the title of a persistent paedophile.

[4]In June 2001 a sex offender order was issued against him. Since then he has been convicted on three occasions of breaches of that order, most recently in March 1904 [2004] when he committed two breaches and was eventually sentenced in July 2004 to 4 years' imprisonment. In November 2004 he was transferred to Rampton Hospital under Section 47 of the Mental Health Act with a direction that he be not released under Section 49. In April 2005 there was a meeting at which the professionals involved in his care at Rampton and others, including the solicitor for the claimant, met to discuss the position. The decision was maintained.

[5]The claimant appealed to the tribunal. On 1 March 2006 the tribunal heard evidence and came to a decision which was to maintain the order under the Mental Health Act.

[6]The legal framework surrounding the procedures in this case is agreed. Sections 72 to 74 of the Mental Health Act 1983, taken together and as applied to this case, mean that when a tribunal considers a case of a person of this type [who is] subject to a direction under Section 49, the tribunal shall notify the Secretary of State that a patient is entitled to discharge if it is not satisfied that the patient is suffering from mental illness, psychopathic disorder or other forms of mental impairment, which makes it appropriate for him to be liable to be detained in a hospital for medical treatment.

[7]The key phrase for the purposes of this case has been "psychopathic disorder". That is defined in Section 1 (2) of the Act as - "(2) ..... a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned." Section 1 (3) reads:

"(3) Nothing in sub-section (2) above shall be construed as implying that a person may be dealt with under this Act as suffering from mental disorder, or from any form of mental disorder described in this section, by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs."

The tribunal considering the case of this claimant had to focus on those definitions, in particular the question of whether Section 1 (3) operated to take the claimant out of the definition of "psychopathic disorder" in Section 1 (2).

[8]Mr Southey, who has represented the claimant, accepted in the course of his submissions that if, as he submits, the tribunal had properly directed itself and had expressed its findings better it could reasonably have come to the conclusion that this claimant did indeed fall within that definition. His complaint is that there are clear signs of misdirection and poor reasoning.

[9]Mr Chamberlain, who represents the interested party, has asked the court to go beyond the simple examination of the decision against the factual background and the statutory definition and to issue some guidance as to the way in which the tribunals should approach these questions in future. In particular, he asked the court to do this because there seems to be some tension between decisions of courts and comments in the leading textbook on the topic.

[10]All parties agree that, on the one hand, tribunals must avoid a situation where simply being a paedophile or even a violent paedophile is sufficient for a diagnosis of psychopathic disorder and, on the other hand, to avoid a situation where if it can reasonably be said that all the symptoms which would otherwise justify a finding of psychopathic disorder can be traced back to or somehow connected with paedophilia or sexual deviancy that such a diagnosis can never be justified. As I say, none of the parties to this case have contended for either extreme.

[11]The question is where, between those two extremes, it is appropriate to draw the line and for tribunals to look for evidence upon which to base their findings. Two cases in particular were cited to me. The first was R v Mental Health Review Tribunal ex p Clatworthy

[1985] 3 All ER 699

. In this case the patient was asking for judicial review of an order of the tribunal not to discharge the applicant. The factual background to the case was somewhat different to that in this case, as will become apparent. In Clatworthy there was clear evidence from the medical practitioners that there was little or no evidence upon which to base a finding of mental disorder outside the diagnosis that he was a sexual deviant. After setting out the definitions to which I have already referred, Mr

Justice Mann said at page 701 J:

"It may be at once observed that the effect of sub-section (3) is apparently to prevent there being a condition of psychopathic disorder when the abnormally aggressive or seriously irresponsible conduct consequent on the persistent disorder or disability of mind is conduct which is a manifestation of sexual deviancy. It may also be observed that it can be contended that sexual deviancy does not mean tendency to deviation but means indulgence in deviation. That contention would achieve support from its context, the context being promiscuity or other immoral conduct and dependence on alcohol or drugs."

[12]In W v Secretary of State for Scotland 1999 SC 412, the Court of Session had a similar challenge upon which to rule. At page 414 the opinion reads:

"Before turning to consider the application of these provisions to the facts of this case it is appropriate to set forth the findings in fact which both parties accept are of material importance in relation to the main issue. They are: '(11) The appellant at present suffers from a mental disorder characterised by anti-social personality disorder manifested by egocentricity, lack of feeling for others and lack of remorse for past offences, a history of alcohol dependence, paedophilia and epilepsy.'"

A little later:

"'(16) the appellant is suffering from mental disorder, namely mental illness, which is a persistent disorder manifested only by abnormally aggressive and seriously irresponsible conduct ..... '"

At page 416 the opinion continues:

" ..... there is no room for doubt, from the wording of the provision in section 1 (3) itself, that if there is nothing established in relation to a person other than that he is sexually deviant in the sense of the sub-section, it is illegitimate to hold that he is suffering from 'mental disorder' for the purposes of the 1984 Act. Thus it is not, as we understand it, in dispute that if the sheriff were to be satisfied, upon the evidence, that the only reason why the doctors were describing the petitioner as 'suffering from mental disorder' was that he was a paedophile, and therefore sexually deviant, then there would be no basis whatsoever for holding that he was suffering from 'mental disorder' within the meaning of the Act."

At page 417 the opinion reads:

"The present case was, on the facts found, a case of the inextricable linking of the sexual deviancy and a true mental disorder. On this matter we agree with the Lord Ordinary and with the submission for the respondent. In our view, it is clear that there may be people disposed to, affected by and exhibiting sexual deviancy, and even engaging in sexually deviant conduct, who could in no sense be regarded as suffering from 'mental disorder' within the meaning of the Act. They could not be diagnosed as suffering from 'mental disorder' within the meaning of the 1984 Act solely by reason of their disposition and conduct. It is, however, clear that a person who is suffering from mental disorder, for example because he is a psychopath who persistently engages in abnormally aggressive and seriously irresponsible conduct, may manifest that conduct in the field of his deviancy, for example in relation to his sexual contacts with young children. Such a person would be treated as suffering from mental disorder by reason of his psychopathic condition manifested by such conduct and not 'only' by reason of the deviancy."

[13]Mr Southey and Mr Ward, who appeared for the tribunal, were close to agreement that those authorities do represent the law albeit there are minor distinctions. Mr Chamberlain advanced the position that there is a serious tension between the two decisions such as to make it difficult for tribunals to decide how to approach these particular cases.

[14]Returning to the Clatworthy passage, in my judgment, if the word "solely" were to be inserted between "is" and "a" in the penultimate line at page 701 that statement would be an absolutely clear exposition of the effect of sub-section (3) of Section 1. It is also clear from the same passage that sexual deviancy within sub-section (3) is a reference not to a tendency but to indulgence in sexual deviancy. In the context of most of the cases that come before a tribunal, that will probably not matter a great deal.

[15]What are the questions therefore which a tribunal in a case such as this should ask itself? (1) Does this patient suffer from a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible behaviour? If the answer is yes, he suffers from a psychopathic disorder.

[16](2) Is that finding based solely upon the fact of sexual deviancy? Sexual deviancy means sexually deviant conduct and would include persistent offending under the provisions of Section 5 through to Section 19, for instance, of the Sexual Offences Act 2003, including the offence under Section 13 of meeting a child following grooming. If the answer to that question is yes, then he may not be detained under Section 49; if the answer is no, it is not based solely on that fact, then he may be, depending on the diagnosis of the medical practitioners as to the other symptoms that he displays.

[17]May the overall diagnosis be based, in part, upon behaviour exhibited at the time of committing such offences or indulging in such sexual deviancy? In my judgment, the answer must be yes. It would be wholly absurd to exclude completely from consideration one of the key elements of a person's make up in deciding whether overall he is suffering from a psychopathic disorder.

[18]With that in mind, I turn to the reasons themselves. The material before the tribunal which has been before me included a large number of detailed medical and psychological reports on the claimant dating back, at the time of the hearing, some six years to March 2000. Some of those reports simply did not deal with the issue which concerns us in this case, but also the tribunal in the end, in March 2006. Others expressed views supporting the diagnosis of psychological disorder and others against such a diagnosis.

[19]The two principal witnesses upon whom reliance was placed by the tribunal were the two most recent reporters. Claire Moore, in a composite report produced for the purposes of a meeting on 20 April 2005, after dealing with various symptoms that he has displayed on the ward, said:

"Mr [N's] observed, documented and reported behaviour would fulfil a number of criteria for diagnosis of personality disorder on a number of counts. Most notably the PCL-R indicates that he suffers from high levels of psychopathy and I would suggest that he fits the criteria for anti-social and borderline personality disorder with probable diagnoses of Histrionic and Dependant personality disorders."

She went on to define the various personality disorders. I should say that it has been conceded on all sides that personality disorders, either singular or usually in combination, can amount to psychopathic disorder within the definition in the Act.

[20]In the same report Miss Moore described the assessment which had led to the PCL-R finding. She highlighted certain particular features. The assessment, she said, indicates that the following items apply to a certain extent to Mr N:(1) poor behavioural control,

(2) promiscuous sexual behaviour,

(3) lack of realistic long term goals,

(4) criminal versatility,

(5) early behavioural problems,

(6) parasitic lifestyle,

(7) irresponsibility,

(8) need for stimulation/proneness to boredom. That gave apparently a score which placed Mr N between 25 and 29 within the UK threshold for psychopathy.

[21]The applicant's Responsible Medical Officer was Dr David Tombs. In his report, dated 30th March 2005, and prepared for the purposes of the same meeting, or at least at about the same time as that meeting, it stated:

"Although in the past Mr [N] appears to have been given a diagnosis of paedophilia and paedophilia alone, I believe there is strong evidence that he has a personality disorder sufficient for it to be described as psychopathic disorder as defined in the Mental Health Act of 1983. Although the full assessments are not currently available to me, I believe that the most likely diagnoses clinically are those of dependent and to a lesser extent anti-social and borderline personality disorders. Indeed I think it is likely that the combination of the dependent personality and anti-social personality structures are those which lead to his offending behaviour. Indeed I believe it is likely that his hopeless and passive presentation is often a smoke screen to his well practised offending behaviours and is replaced by aggression when he is challenged. ..... In my opinion Mr [N's] psychopathic personality disorder is of both nature and degree that requires continued detention for treatment, and indeed I feel that the structured environment although at times difficult for him, gives the best chance of not becoming emotionally unstable in a therapeutic programme."

[22]The summary from Dr Tombs presented to the meeting to which I have referred on 20 April 2005 stated this, among other things:

"In my view Mr [N] fulfils the criteria for several personality disorders and certainly meets the legal criteria of psychopathic disorder."

A little later:

"With regards to the functional link there does seem to be the beginnings of a functional link being outlined between personality structure and offending behaviour, but this will need to be teased out over the following months to be given with any certainty. A variety of disciplines gave examples to support their views as to Mr [N's] treatability. Overall it was felt by the clinical team that Nr [N] is treatable. This is a view that I supported. Mr [N] is therefore given a place on a treatment ward to undergo the treatment needs analysis."

[23]It was following that meeting and the presentation of those reports, among many others, that Dr Reeves was instructed by solicitors on behalf of the applicant. He reported on 3 September 2005. With considerable tact, Mr Southey has criticised this report. Indeed its contents form the basis, in part, for his second submission that the tribunal acted wrongly in not ordering an adjournment. However it is perfectly clear from the report that Dr Reeves had available all the material which was available to the meeting of April 2005, including the comprehensive report from which I have quoted. Dr Reeves expressed his view as follows:

"In my view there is not an adequate case to make out that he suffers from psychopathic disorder as defined within the Act, therefore he should be discharged from hospital and returned to prison."

Albeit it may be that it could have been more clearly expressed on occasions, it is perfectly clear that his reason for coming to that conclusion is that all the symptoms and signs which he found himself or derived from the reports stem from his paedophilia and therefore from his sexual deviancy such as to take him out of the Mental Health Act definition.

[24]In giving their decision the tribunal summarised the contents of the reports before it, including those to which I have referred. At paragraph 15 the report quotes Miss Moore:

"15 At the CPA Report p 25-27, Miss Moore discusses the evidence. She refers to: • sexual behaviour to children against their will, including use of violence to secure compliance. • manipulative conduct including lying, deceiving parents, use of drugs on one victim and feigned empathy to create opportunity for sexual compliance. • 'His offending behaviour demonstrates a callous lack of empathy and he states that hurting someone makes him feel happy as it enables him to feel in control and powerful.' • a history of pathological lying, including false assertions of the death of his mother and a partner. Miss Moore considers that 'Mr [N's] observed, documented and reported behaviour would fulfil a number of criteria for diagnosis of personality disorder on a number of counts.'"

[25]Having accurately summarised Dr Reeves' analysis, the tribunal then dealt with the legal argument and the question of whether the authority had shown that the applicant has a mental disorder:

"21 Mr Campbell conceded that Mr [N] has dysfunctional sexual desires and personality but argues that his behaviour in pursuit of his sexual desires is caused by his desires and that the symptoms cannot be relied on by reason of s 1 (3). That his problems outside of his sexual desires do not amount to personality disorder. That the only conduct argued as abnormally aggressive or seriously irresponsible has been within the context of his deviant sexual desires. 22 Mr Campbell rightly asserts: • (36) that 'the vast majority of sex offenders (including paedophiles) are dealt with by way of prison sentences ..... ' and that a paedophile who does not have a personality disorder - only his being 'irresistably drawn (to abuse children) by (his) own sexual desires' is excluded from being detainable by s 1 (3). • a paedophile who has 'actually committed paedophilic offences (and perhaps prolifically) is not detainable under the M[ental] H[ealth] A[ct] unless he also warrants a diagnosis of psychopathy. 23 The fallacy in Mr Campbell's careful argument is apparent in the questions at his paras 23 and 29. He seeks to exclude as a basis for diagnosis of psychopathy all 'abnormally aggressive or seriously irresponsible' behaviour 'in pursuit of his sexual tendencies'. He asserts 'What does 'by reason only' mean? If the only deviancy is of a sexual nature with no other classifiable mental disorder then clearly the criteria for detention are not met.'"

[26]The fallacy described by the tribunal there is set out later in the decision at paragraph 25:

"25 The Tribunal considers that it is incorrect to exclude consideration of abnormally aggressive behaviour or seriously irresponsible behaviour in pursuit of sexual deviancy. If the conduct of a paedophile, while he is pursuing his sexual gratification, is abnormally aggressive or seriously irresponsible then such behaviour can amount to psychopathy. In other words, diagnosis of psychopathy can be based on the way a paedophile conducts his sexual adventures. We are satisfied that the behaviours of Mr [N] summarised by Ms Moore clearly fit the definition. Also Mr [N's] serious lying, outside his sexual pursuits, to manipulate others cannot be discounted altogether by reason of his institutionalisation. 26 The Tribunal attaches weight to Mr [N's] acceptance that he has used force to achieve his desires; to his callous disregard, even in hindsight, for his victims; and the degree of his deviousness in contriving what he desires. During the hearing, Mr [N] described his continuing fantasies of using violence in achieving his desires, and his concerns that he might strangle someone to achieve his sexual desires. The Tribunal considers that these are indications of his seriously aggressive nature which exists as well as his sexual needs."

[27]Mr Southey's criticism is that the tribunal was wrong to allow itself to consider the way in which the applicant behaved while he was actually indulging his sexual deviancy or, in the alternative, that if the tribunal was not wrong to do so, its reasoning to the conclusion that the detention under the Mental Health Act remained justified was flawed.

[28]In my judgment, simply reading the passages from the judgment, as I have, makes it absolutely clear that the tribunal did not simply focus on the sexual deviancy but rightly, as I said, in view of the words of Section 1 (3), took into account that behaviour, but also took into account other symptoms which stood outside the actual sexual deviancy. Their decision was therefore perfectly justified.

[29]Before the tribunal sat, Mr Campbell, who represented the applicant, submitted that there should be an adjournment. Albeit of course the terms of his submission are not available, it does appear that the sole ground for that application was that Dr Reeves was not available in person. I read from paragraph 1 of the reasons:

"Mr Campbell stated that Dr Reeves would not be called to challenge the factual material and that he (Mr Campbell) did not effectively dispute anything of substance in the factual material. The reason for calling Dr Reeves was to describe process - causal connection - 'Personality Disorder' and sexual deviancy. Cause and effect - reliance on personality disorder causing sexual deviancy - wrong way round. If evidence of personality dysfunction it is symptomatic of the sexual deviancy. Quite hard to come up with serious sexual deviancy that is not seriously irresponsible. Need Dr Reeves to address clinical team's argument that sexual deviancy is part and parcel of manifestation of his psychopathy."

Mr Southey says that was a tactful way of saying to the tribunal that Mr Campbell did not think his own expert's report was sufficiently clear to enable him to make the argument which he did undoubtedly make and upon which the tribunal ruled.

[30]The tribunal having decided that it wanted to continue without Dr Reeves being called and without an adjournment, there was clearly further discussion as exemplified in paragraph 4 - - sorry I should refer to paragraph 3. It is also clear that in deciding the first issue about the adjournment that - "3 The Tribunal noted that Dr Reeves at his Report p[aragraph] 12 reviewing the PCR-L scores and the clinical opinions of ..... Claire Moore, does not take issue with [her] characterisation of Mr [N's] personality traits but argues that these 'flow' from his desire to satisfy his sexual needs and from his paedophilia." So the point was absolutely clearly made right at the outset. Paragraph 4:

"4 The Tribunal decided that: 1. It can proceed justly and fairly on the basis that the medical and factual evidence and issues are adequately set out in the written evidence and Mr Campbell's skeleton argument."

Later in the paragraph:

"4. Upon Mr Campbell's submission that if Dr Reeves is not to give oral evidence on the basis that the written evidence is sufficient, it is unnecessary and inappropriate that the clinical team should supplement their evidence orally, the Tribunal agreed that the clinical team should not be invited by the Tribunal to supplement their evidence; 5. Mr Campbell was told that he can question any member of the clinical team attending (which included Ms Moore) to elicit matters favourable to Mr [N] and/or helpful for the Tribunal; Mr Campbell preferred to question only Staff Nurse Evans who has been directly involved in the care of Mr [N] on the Ward since April 2005; 6. The Tribunal stated that it retained power to review the refusal to adjourn if anything emerged during the hearing that should result in granting an adjournment."

On that last point it is not suggested before me that anything did occur during the hearing that should have caused the tribunal to change their mind.

[31]Dr Reeves' report, prepared at the instance of Mr Campbell, was dated many, many months earlier and could, of course, have been clarified or amended if it was thought to need such clarification. No doubt it was hoped that he would attend to give evidence, to give that clarification. Of course I bear in mind that this is not strictly an adversarial hearing albeit there are parties to it, and the tribunal needs to do everything it can to ensure that in cases as serious as these are it has all the relevant information.

[32]Having read Dr Reeves' report in full together with the other reports, and understood that the issue which has been before me was clearly before the tribunal from the moment the tribunal sat, I am quite satisfied that, within the powers of the tribunal to grant adjournments and its discretion to do so if it believes it to be necessary, the tribunal's decision cannot be said to be amenable to judicial review.

[33]MR SOUTHEY: First, when reading reports, your Lordship made a number of references to the claimant's name.

MR JUSTICE CALVERT SMITH: I tried to stop myself, but it is very difficult when one is reading.

[35]MR SOUTHEY: Both myself and Mr Ward edit sets of law reports and we are conscious of the subsequent difficulties.

[36]MR JUSTICE CALVERT SMITH: What I propose to do on that topic is to send out the transcript - when it has been to me and I have corrected spelling mistakes so far as I can - to the parties in case there are matters which I have missed. Would that cover that?

[37]MR SOUTHEY: I think that would, yes. Second, I do not have instructions on leave to appeal. In the circumstances I would ask for one of two things: either for us to have a 14-day opportunity to make submissions in writing should I get instructions or, alternatively, because I suspect by the outcome, for your Lordship formally to reject that application.

[38]MR JUSTICE CALVERT SMITH: I do not think this is a case in which, it seems to me, an appeal would be justified.

[39]MR SOUTHEY: I just need to preserve my client's position.

MR JUSTICE CALVERT SMITH: You have done that.

[41]MR SOUTHEY: The final thing from the claimant's point of view in terms of costs, given the claimant is legally aided, we would seek no order for costs save for legal aid assessment.

[42]MR JUSTICE CALVERT SMITH: Certainly so far as you are concerned, yes. Are there any other applications from anyone?

[43]MR CHAMBERLAIN: No applications. When your Lordship is looking at the transcript, I think when reading out part of the citation from the Scottish case you said that the reference to the 1984 Act might be a mistake.

[44]MR JUSTICE CALVERT SMITH: I saw suddenly 1984 and I thought hang on, I have been dealing with a 1983 Act up to now and I did not have time to - - - - -

[45]MR CHAMBERLAIN: It was a mistake; the reason is that the reference was to the Mental Health (Scotland) Act 1984 which was a different Act but in materially similar terms. There were a couple of occasions also - which no doubt when you read the judgment you will pick up - where you referred to pathological disorder rather than psychopathic disorder.

[46]MR JUSTICE CALVERT SMITH: I hope I spot those, but if I do not you will. Would you like a copy?

[47]MR CHAMBERLAIN: It would not be normal for us to see a draft of transcript of an oral judgment, but I do not see any particular reason in this case why it needs to be - - - - -

MR JUSTICE CALVERT SMITH: I think it might be helpful.

[49]MR SOUTHEY: I have been in a case where that has been done.

[50]MR JUSTICE CALVERT SMITH: The more off-the-cuff they have been, the more likely they are to contain silly mistakes like the ones you have just pointed out.

[51]MR SOUTHEY: At one stage you referred to the claimant having been convicted in 1900 or 1902 or something.

MR JUSTICE CALVERT SMITH: Did I really?

[53]MR SOUTHEY: It is perfectly obvious what you meant in context. It is more in this context, that it helps us to spot whether or not there are any inadvertent references to the name.

[54]MR JUSTICE CALVERT SMITH: Quite. I was just thinking that probably you could do the job for the two of you.

[55]MR SOUTHEY: Certainly. ---