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Religious beliefs vs mental disorder in mental health tribunals (DL-H v West London Mental Health Trust and another)

13 November 2017

This article was first published on Lexis®PSL Local Goverenment on 31 October 2017.



Local Government analysis: The recent case, DL-H v West London Mental Health Trust and another, provides helpful clarification on the issue of religious beliefs versus mental disorder, which is a common issue that mental health tribunals engage with, according to Rebecca Fitzpatrick, partner at Browne Jacobson.

Original news

DL-H v West London Mental Health Trust and another [2017] UKUT 387 (MC)

What is the background to this case?

The case, DL-H v West London Mental Health Trust and another [2017] UKUT 387 (MC), concerned a patient subject to section 37-41 of the Mental Health Act 1983 (MeHA 1983) following convictions for burglary and arson in 2006. The patient had diagnoses of schizophrenia and personality disorder, with a psychiatric history dating back to 2003 and criminal convictions dating back to 1982. The case concerned an appeal on a point of law of a decision made by the
First-tier Tribunal (Mental Health) not to discharge the patient from liability to detention.

What is the significance of this case? Why is it important for practitioners?

The case pivoted on three main issues-the amount of detail about the evidence before the tribunal included in the decision, the weight that the views of religious experts should carry when the patient is arguing that it's not a mental disorder he's displaying, but religious beliefs, and whether a tribunal is permitted to reject the diagnosis offered and substitute an alternative.

How much detail does the tribunal have to include about the evidence before it in its decision, to ensure the reasons are adequate?

The Upper Tribunal (UT) concluded that a tribunal's reasons must be adequate, but adequacy is tested in the context of the whole of the evidence before the panel-not just the evidence that is referred to in the decision. The UT is entitled to have regard to the whole of the evidence before the tribunal when considering whether the First-tier Tribunal's (FTT) decision involved the making of an error of law.

However, it is essentially up to each court to decide how much detail to include in its decisions. Some courts may seek to be very detailed, while others will simply provide an overview. Provided the reasoning is clear and evidentially based, there is no requirement for all the evidence before a tribunal to be summarised in the decision.

Where a patient is arguing they are not manifesting signs of a mental disorder but rather religious beliefs, how much weight should the views of religious experts carry and could the UT go behind the FTT's assessment of the evidence?

In this case, the patient argued that he was not manifesting signs of a mental disorder, but rather that he had strongly held religious beliefs. The FTT heard evidence from the former and current hospital chaplains that in their view the patient's beliefs were in the range of those considered to be normal in the Pentecostal church, although the current chaplain did say that he struggled with the patient's belief that he was John the Baptist. The medical evidence, meanwhile, asserted that while the patient had strong religious beliefs, it wasn't accepted that his ideas and behaviour were solely attributable to them.

In the decision, the FTT stated that they had found clear evidence of positive symptoms of mental disorder, which were independent of any religious belief, such as:

  • expressions of paranoia
  • the patient's belief that drinking alcohol would bring him closer to God
  • the patient's beliefs about seeking out his former girlfriend regardless of her views

On this basis, the FTT accepted the medical evidence that the patient was exhibiting delusional beliefs.

The UT held that it is not the UT's role to undertake an assessment of the evidence or of the substantive findings of fact that had been made by the FTT. Rather, the issue for the UT to consider was whether the FTT's assessment was rational and whether the findings were so perverse that no reasonable tribunal acting judicially could have made them.

Judge Jacobs commented that the boundary between mental illness and religious beliefs is a fine one, therefore it is right that evidence from both sides of the divide should be considered. There is no explicit rule that in order to decide on questions of religion a tribunal can only hear from a religious expert.

In the present case, the FTT had considered the evidence as a whole and had followed a rational approach to assessing that evidence. The assessments and findings were not perverse and there had been no error of law.

Is the tribunal permitted to reject the diagnosis offered and substitute an alternative diagnosis regarding the patient's mental disorder?

The medical evidence in this case was that the patient's dominant diagnosis in terms of mental disorder was emotionally unstable (impulsive type) personality disorder. The FTT came to the conclusion that the patient suffered from dissocial personality disorder. This was challenged by the patient as being outside the tribunal's powers.

Nevertheless, the UT held that the finding of facts is a matter for the FTT and is part of its judicial function. As such, no tribunal is obliged to accept the expert evidence before it. However, there must be good reasons for it not to do so. Furthermore, a tribunal disagreeing with an expert's opinion may involve more than a mere rejection of the diagnosis and may involve the tribunal concluding a differential diagnosis. There is no prohibition on a tribunal substituting its own diagnosis for that of the experts whose evidence was presented before the tribunal. The tribunal must, however, have good reason for doing this and should allow the patient the opportunity to make submissions regarding the same.

How helpful is this judgment in clarifying the law in this area? Are there any remaining grey areas?

The judgment will come as a relief to tribunal judges as it confirms that not all the evidence has to be referred to in the written decision. In this case, for example, the hearing lasted for six days, so the amount of evidence was extensive.

It also helpfully re-confirms the existing position that the FTT is not required to rely on expert evidence it does not agree with, as long as the reasoning as to why this is the case is rational.

Furthermore, questions of religion versus mental disorder regularly crop up in mental health tribunals and it can be difficult at times to decipher where the religious belief stops and the delusional belief starts. This judgment clarifies that a tribunal can hear evidence from both clinicians and religious experts on this issue, but is not required to give preference to one over the other, and so has a wide discretion.

It also confirms that, provided a finding of mental disorder is concluded on behaviours that can be shown to be quite separate from religious behaviour, the conclusion is likely to be considered reasonable and so lawful following any appeal.

What are the practical implications of the judgment? What should practitioners be mindful of when advising in this area?

The main thing for practitioners to take from this judgment is that a tribunal has wide discretion in terms of what evidence it hears, and whether it chooses to accept that evidence/the views put forward. As long as it sets out a rational approach to the assessment of that evidence in its decision and provides cogent reasons for the rejection of any of the evidence, it is going to be difficult to overturn it.

In terms of religious beliefs, even if you are able to line up several religious experts to say that the religious beliefs being expressed are normal, a tribunal is entitled to reject that evidence and give preference to the clinical view. Again, this will only be lawful where the tribunal has set out a rational approach to how it assessed the evidence in its decision and why it rejected any of the evidence before it.

How does this case fit in with other developments in this area of the law? Do you have any predictions for future developments in this area?

It is interesting to compare the approach of the UT in the context of MeHA 1983 to that of the Court of Protection in the context of the Mental Capacity Act 2005 (MCA 2005). Mr Justice Jackson in Wye Valley NHS Trust VB [2015] EWCOP 60, for example, said 'I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his "fierce independence", and it is this that is now, as he sees it, under attack.'

Mr Justice Jackson went on to state that the wishes and feelings of a person with a long-standing mental illness are an inextricable part of that person: "It is more real and more respectful to recognise him for who he is: a person with his own intrinsic beliefs and values."

Interestingly, he also found that Mr B's religious delusions engaged Article 9 of the European Convention on Human Rights (the right to freedom of thought, conscience and religion) as they were extremely important to him.

Subsequently, Mr Justice Hayden in NHS Trust v QZ [2017] EWCOP 11 stated that: "Delusional beliefs should never be discounted merely because they are irrational. They are real to the individual concerned. The weight they are to be afforded will differ from case to case."

Arguably, these judgments may suggest a trend towards some 'fusion', or at least greater overlap, between the legislative regimes of MeHA 1983 and MCA 2005, if only in practice and not in statute.

The government recently announced proposals to consult on a new Mental Health Treatment Bill to replace MeHA 1983 following Theresa May's announcement in May 2017 that if elected, her government would replace the 'flawed' MeHA 1983 'in its entirety'. This followed on from concern about rising detention rates under the existing regime (a 47% increase over the past decade, and a 26% increase from 2012/13 to 2015/16), the injustice and stigma associated with mental health, and widespread concern regarding discrimination within the existing system. In this context it will be interesting to see how this develops.

Interview by Giverny Tattersfield.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor. This article was first published on Lexis®PSL Local Goverenment on 31 October 2017. A PDF copy can be downloaded here.


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