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Online forum | Latest topic on forum: Powers of Tribunal to discharge to lower security

Standard and burden of proof (MHT)

The Tribunal should apply the standard of proof on the balance of probabilities to all the issues it has to determine (R (AN) v MHRT [2005] EWCA Civ 1605M). The criminal standard of proof does not apply.

Until 2001 the Tribunal only had to discharge if satisfied that the detention criteria were not met. This effectively placed the onus of proof on the patient to satisfy the Tribunal that he should be released, and in doing so was held to be in breach of Article 5 (R (H) v MHRT North and East London Region [2001] EWCA Civ 415M). The wording of the statutory criteria was amended by the Mental Health Act 1983 (Remedial) Order 2001. Now the starting point is that the patient is entitled to discharge from detention unless the Tribunal is satisfied otherwise.

In AM v Partnerships in Care Ltd [2015] UKUT 659 (AAC)M, [2015] MHLO 106 the Upper Tribunal rejected the responsible authority’s argument that a tribunal can find risk (in relation to the discharge criteria) on the basis of unproven allegations and that therefore no findings of fact were required, and held that although the discharge criteria involve mixed questions of fact and judgment or evaluation, the judgment or evaluation of what is likely to occur must be based on fact.

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