Mental Health Act: Nature or Degree of Mental Disorder

The Mental Health Act attaches great significance to the “nature or degree” of mental illness.  Any psychiatrist who has ever appeared before the First Tier Tribunal will be well aware of the importance of these terms in the Tribunal’s decision making.

In broad terms, ‘nature’ is the course of a disorder and the consequences of it while ‘degree’ is the presentation at that point in time.

The Explanatory Notes for the Mental Health Act 2007 note that “Case law has established that “nature” refers to the particular mental disorder from which the patient is suffering, its chronicity, its prognosis, and the patient’s previous response to receiving treatment for disorder. “Degree” refers to the current manifestation of the patient’s disorder (R v Mental Health Review Tribunal for the South Thames Region ex p. Smith [1999] C.O.D. 148).”

When undertaking assessments under the Mental Health Act in the community, in some cases the patient appears to be symptom free and there is little evidence of ‘degree’.  However, in some cases it is necessary to rely on the ‘nature’ of the disorder, particularly where there is an established diagnosis and where there would be risk to the patient or others if they were not treated.  Commenting on this very issue, Lady Justice Hale, said, “There are of course mental illnesses which come and go, but where there is a chronic condition, where there is evidence that it will soon deteriorate if medication is not taken, I find it impossible to accept that that is not a mental illness of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment if the evidence is that, without being detained in hospital, the [...]

Fitness to Plead: The Pritchard Criteria

It is interesting that the question of the accused being unfit is dealt with using the 1836 criteria of R v. Pritchard. In Pritchard, the accused was deaf, unable to speak and was charged with bestiality.

In Pritchard the jury were directed that in order to be sane the accused must be, “Of sufficient intellect to comprehend the course of proceedings in the trial so as to make a proper defence, to know that he may challenge  any of you to whom he may object and to comprehend the details of the evidence.”

Expert witnesses who are instructed to examine the accused regarding fitness to plead must therefore address these criteria. The accused should have the ability to plead to the indictment, understand the course of the proceedings, to instruct a lawyer, to challenge a juror and to understand the evidence.

In John M(2003) the criteria were further expounded. The jury were directed that it was sufficient for the defence to persuade the jury on the balance of probabilities that any one of the following things was beyond the defendant’s capability: (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of proceedings; and (6) giving evidence in his own defence.

The criticism is that the Pritchard criteria set too high a threshold for a finding of unfitness to plead. The concern remains that there are significant numbers of mentally ill defendants who undergo trial and may be doing so unfairly.

7 Tips for Finding the Right Psychiatric Expert

In R v Turner (1975) 60 Cr. App. R. 80, Lawton LJ stated: “…the fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; there is a danger that they think it does…Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.”

The psychiatric expert witness is a witness who provides to the court a statement of opinion on any admissible matter calling for expertise by the witness and is qualified to give such an opinion; “An expert’s opinion is admissible to furnish the court with the scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.” (R v Turner [1975] 1 All ER 70)

When instructing a psychiatric expert, it may be helpful to consider the following 7 tips:

1. Do you need an expert?

If a bench or jury is going to be able to decide upon the case by listening to or viewing the evidence and bringing to bear their own senses, knowledge and experience, then no expert is needed.

In my experience, it can be useful to have an initial conversation with the instructing professional to establish whether expert psychiatric evidence is likely to assist the Court. Of course, if it is unlikely to be helpful, valuable time and money can be saved.

2. When is an [...]