R v Caress  EWCA Crim 218,  MHLO 27
"In the circumstances, there is no reason to believe that the diagnosis at the time of sentence was wrong or that sentence [a restricted hospital order] was passed on a wrong factual basis. If, as appears to be the case, the diagnosis has now changed that is a matter that should be dealt with by the Mental Health Tribunal, rather than by late appeal against sentence."
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 2014 are available here: MHLR 2014.
Whether a hospital and restriction order should be set aside in light of further medical evidence - R v Kelly Marie Caress –  MHLR 129
Points Arising: Doubt as to whether a restricted patient in fact had a particular mental disorder that was part of the diagnosis at the time of sentence was for the Tribunal; evidence based on a contemporaneous examination was of more value.
Facts and Outcome: KMC was sentenced to hospital and restriction orders (ss37/41 Mental Health Act 1983), the diagnosis being schizophrenia and a personality disorder; the Tribunal had upheld detention on various occasions, but when one psychiatrist instructed in Tribunal proceedings formed the view that she did not have schizophrenia and had not at the time of the offence (and questioned whether her personality disorder would have justified making the orders), she sought to appeal. Leave was refused as there was agreement as to the existence of a personality disorder, the sentence was not shown to be wrong when it was imposed, and any change was for the Tribunal. Those who supported the view that KMC did not have schizophrenia had not examined her at the time of the sentencing hearing.
Neutral Citation Number:  EWCA Crim 218 No: 201203107/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 14 February 2013 B e f o r e: LORD JUSTICE LEVESON MR JUSTICE EDER THE RECORDER OF NOTTINGHAM (His Honour Judge Stokes QC) (Sitting as a Judge of the Court of Appeal Criminal Division) R E G I N A v KELLY MARIE CARESS Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) Non‑Counsel Application J U D G M E N T (As Approved) Crown copyright©
1. THE RECORDER OF NOTTINGHAM: This is a renewed application for leave to appeal against sentence, for an extension of time in which to do so of approximately four and a half years and for a representation order following refusal by the single judge.
2. The applicant, who is now 23 years of age, pleaded guilty at Sheffield Crown Court on 29 October 2007 to an offence of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861. She had originally been charged with wounding with intent. On 12 December 2007 she was sentenced by His Honour Judge Moore to a hospital order under section 37 of the Mental Health Act 1983 with a restriction order under section 41 of the same Act. The applicant is subject to those restrictions indefinitely.
3. At the time of sentence the judge had before him reports from two consultant psychiatrists both of whom were satisfied that the applicant was suffering from paranoid schizophrenia and a dissocial personality disorders. One of those doctors gave evidence before the sentencing judge and he made the order that we have described.
4. The applicant is presently detained at Calverton Hill Mental Health Unit in Nottingham, and over the years to which she has been subject to this order she has had more than one responsible clinician. She has also made, as she was perfectly entitled to do, a number of applications to a Mental Health Review Tribunal who would have power to direct her release if satisfied that she no longer presented with symptoms or a condition which required her detention in hospital.
5. As part and parcel of those applications she had the benefit of an independent psychiatric report. That independent psychiatrist is Dr Connell‑Jones who has prepared three reports in relation to this applicant: the first in September 2008, for the purpose of an appearance before a mental health tribunal; the second on 28 January 2011 and the more recent one on 22 February 2012 when she appeared before the First Tier Tribunal.
6. In 2008 Dr Connell‑Jones from a single interview with the applicant formed the view that he could find no evidence of positive or negative symptoms of schizophrenia. Having interviewed her, he said the form of thought was rational and coherent. He concluded that at that time the applicant was not suffering from schizophrenia.
7. In 2011 when he saw her again he was of the view that there was still no evidence of paranoid schizophrenia and he recommend that she should be transferred to a different medium secure hospital.
8. In his report of 22 February of last year he said that even if she had paranoid schizophrenia when she was imprisoned pending her transfer to a hospital:
"... she does not have it... now and that she would not have met the criteria for hospital detention for personality disorder at the time of the index offence."
9. We should point out that all the doctors who have had any contact with the applicant over recent years remain of the view that she suffers from a serious personality disorder.
In refusing leave the single judge said this:
"Neither Dr Connell‑Jones nor Dr Abdelmawla [who is now responsible for her care] had the opportunity of observing the applicant at the time she was sentenced or for some time thereafter. Dr Connell‑Jones had one interview with her in August 2008 and Dr Abdelmawla did not assume responsibility for her care until September 2010. By contrast, Dr Zaman was responsible for her care immediately before and after she was sentenced and Dr Jamil was involved in her care for a period of at least two years during which time he would have had an opportunity to observe her and to talk to the staff who were caring for her on a day to day basis.
In the circumstances, there is no reason to believe that the diagnosis at the time of sentence was wrong or that sentence was passed on a wrong factual basis. If, as appears to be the case, the diagnosis has now changed that is a matter that should be dealt with by the Mental Health Tribunal, rather than by late appeal against sentence."
application is refused.
10. With those sentiments this court entirely agrees. In our judgment, this application is misconceived. The applicant's condition remains serious whether or not she suffers now from paranoid schizophrenia and the appropriate tribunal to deal with her future is not this court, which we emphasise is a court of appeal not a court of review, but the Mental Health Review Tribunal. This
Possible Bailii link (not there when checked last night, but might have appeared since)