Mr Singh, on behalf of the Tribunal, submits that the words have a plain meaning compared with the use of the words ‘severe degree’ in section 5. They govern not merely the admission of patients but their continued detention and, although there is no authority in support of either contention, he submits that there are two pieces of evidence (if that is the right way to describe them) which assist the court. The first is that part of the report of a Committee of Inquiry presided over by Sir Lewis-Blom Cooper, than whom no one has greater experience in this field. I need not set out the facts giving rise to that inquiry. It is called ‘The Falling Shadow’. Chapter 18 at page 161 says this:

‘We have indicated above our view that, even when asymptomatic, he could be said, both in a clinical and a legal sense, to be ‘suffering from mental illness’. As to the ‘nature or degree’ of that illness, we see no inherent difficulty in applying this concept to a condition which is asymptomatic at the time of assessment, provided there is adequate material from past history to guide the clinician. Just because an illness is asymptomatic when assessed, does not mean that it cannot have gradations of severity, or in the statutory language gradations of ‘nature or degree’. The issue concerns the features of the underlying condition, and in the example before us there was extensive history from which to assess the severity of that condition when unmodified by drugs. The wording of the phase is deliberately disjunctive. We are aware, however, that psychiatrists sometimes interpret the phrase conjunctively but it may be sufficient to consider the nature of the mental disorder without waiting for the development of ‘degree’ in its severity.’

It is submitted in this case by Mr Rabinder Singh that the word ‘then’ in the section is of very great importance. The other material before me upon which he relies is in a book called ‘Mental Health Review Tribunals, Law and Practice’ by Mr Anselm Eldergill. He is a solicitor. He has been a Mental Health Act Commissioner and he is on the Mental Health Review Tribunal Panel of Solicitors. In his book, at page 213, he sets out his views about the matter. They are arguments which Mr Rabinder Singh adopts as part of his argument before me and I therefore set them out in full detail:

‘Where there is evidence of mental disorder, the use of compulsory powers requires that it is of a ‘nature or degree’ which either makes in-patient treatment appropriate or warrants the patient’s detention for assessment or reception into guardianship (‘the diagnostic question’). Practitioners and tribunals commonly confine their consideration of a patient’s mental state to the degree of mental disorder present, seemingly interpreting the words ‘nature’ and ‘degree’ as essentially interchangeable. Accordingly, a patient is considered not to be detainable if his condition has responded to medication and is no longer acute. This approach takes no real account of the nature of the particular disorder and mistakenly quotes its ‘degree’ with its ‘severity’. As such, there is a failure to give due weight to the chronicity of the disorder and the prognosis.’

Then under ‘Degree’ he says this:

‘The word ‘degree’ focuses attention on the extent to which the person’s mental disorder is currently active. If a patient is acutely ill, his condition characterised by obvious and gross abnormalities in his mental state, the degree of mental disorder present will generally be of a level which satisfies the first ground of application. It is noteworthy that the emergency power to detain a patient for six hours under section 5(4) is exercised by a nurse only if it appears to him that the patient is suffering from mental disorder ‘to such a degree that it is necessary for his health or safety or for the protection of others or for him to be immediately restrained from leaving the hospital.’The criteria do not refer to the nature of the patient’s disorder. This reflects the fact that the purpose of the power is immediate restraint and reinforces the view that the word ‘degree’ is directed towards the present exacerbations and manifestations of a patient’s disorder, rather its nature as revealed by its long-term consequences.‘Nature’Many mental disorders wax and wane because they are cyclical in nature, because the patient enjoys periods of remission–for example, during periods of low stress–or because they are intermittently alleviated by a course of treatment. A particular patient may have a long history of readmissions indicative of a severe, chronic condition which is resistant to treatment or a record of poor compliance with informal treatment following previous discharges. Although the degree of disorder may be quite low at any given time, either in absolute terms or relative to his known optimum level of functioning, the serious nature of the disorder is revealed by its historical course. Likewise, with illnesses of recent onset, the prognosis associated with the diagnosis may point strongly towards the probability of a serious, further deterioration of the patient’s condition in the near future. In both instances, it may be the nature of the disorder rather than its degree which brings the patient within the first of the grounds for making an application.’

Then he goes on in the next paragraph:

‘… it is not necessary as a matter of law to wait until the condition becomes acute before compelling the patient to receive the treatment which will prevent the otherwise inevitable further decline.Mental Health Review TribunalsWithin the context of section 3 tribunal proceedings, a patient may have responded to treatment and be in remission by the time the hearing takes place. As such, and given the importance which attaches to a citizen’s liberty in English law, the degree of mental disorder which remains may be insufficient to warrant a continuance of his liability to detention. The tribunal is not, however, obliged to discharge unless it is also satisfied that the nature of the patient’s disorder, evidenced by his medical history or the outcome usually associated with such conditions, also makes liability to detention inappropriate. Similarily, where the degree of disorder apparently at the time of the hearing is quite low but the patient’s recent mental state has been subject to marked fluctuations, the nature of disorder may mean that the tribunal cannot be satisfied that the first of the grounds for discharge is made out.’

I turn back then to the Tribunal’s findings. The evidence about the Applicant’s condition, at the time the Tribunal had to consider it, was static. He made excellent progress. He was in a stable condition and it is quite clear that the illness was not of a degree which of itself made it appropriate for him to be liable to be detained. The reason for that was because he has a chronic condition which was static. However, the nature of the condition was that it might cease to be static so that the interpretation that nature is in some way unchanging in one view may be right, but the effect of the condition is that because of its very nature it may not remain static. It seems to me that if the facts upon which the Tribunal rely have shown that it may not be static, that goes to the nature of the condition. The degree in the instant case, in relation to his condition, was not relevant because it was static and stable.

In my judgment there is a reason for the distinction, of which this case is perhaps a good example. If one had simply to look at the degree it would have been right for the discharge to take place, but the nature of the condition was such that it was clear that he should not be discharged. It may well be that in a great number of cases that nature and degree involve much the same questions–I hesitate to give examples–and it may be that Tribunals will be wise, if they have any doubts about it, to include them both.

However, that in my judgment in the instant case is not a ground for setting aside this Tribunal’s decision which seems to me, on the material before it, to have properly applied the law. While at first sight Mr Bowen’s argument has immense attraction, I think on analysis that it is, in the result, flawed and I pay tribute to the reasons set out by Mr Eldergill in his book which seems to me sufficiently to set out the various problems which can arise in the interpretation and the conclusion to which he has come.