Judgment - Hutchison Reid v. Secretary of State for Scotland and Another  continued

(back to preceding text)
 

The grounds set out in section 17(1) were analysed by the Lord Ordinary, who said that he had been greatly assisted by the analysis of the equivalent provisions in the Mental Health Act 1983 by Kennedy L.J. in Regina v. Canons Park Mental Health Review Tribunal, Ex parte A at pp. 82 et seq. In that passage Kennedy L.J. referred to the various tests which appear in section 17(1) of the Act of 1984 as "the appropriateness test", "the treatability test" and "the safety test." I too regard this as a helpful analysis. But I respectfully disagree with both Kennedy L.J. and with the Lord Ordinary as to the conclusion which they draw from it as to the relationship between "appropriateness" and "treatability." The Lord Ordinary explained his position in the following passage (1997 S.L.T. 555, 559E-F):

      "It is worth noticing that a doctor need only confront this question ['the treatability test'] in cases where he has already decided that the patient is suffering from 'mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital.' So this additional test is not part of the test as to the appropriateness for the patient of medical treatment in hospital."

It seems to me that, in the case of the person in whose case the "treatability" test requires to be satisfied, the question as to whether the "appropriateness" test is satisfied cannot be addressed unless and until the treatment which one is talking about has been identified. The "treatability" test refers to "such treatment", as also does the "safety" test. The effect of the "treatability" test, where it applies, is to define the treatment which needs to be considered in order to see whether all three tests can be met. It is only if the "treatability" test is satisfied that it will be necessary to consider whether it is appropriate that that treatment should be received by the person in a hospital and, if so, whether it is necessary for his health or safety or for the protection of other persons that he should receive such treatment. No good purpose would be served by considering the "appropriateness" test first in those cases which must pass the "treatability" test. The analysis, while helpful, tends to obscure the fact that in those cases these two tests are in practice not capable of being separated. As Lord Macfadyen put it in the Second Division (1998 S.L.T. 162, 172I), the "treatability" test is incorporated in the "appropriateness" test. The medical practitioner must ask himself first, what is the mental disorder from which the person is suffering? The next question, if it is of a kind which must pass the "treatability" test, is whether that test is satisfied. Only then can it be determined whether the treatment which would have that effect makes it appropriate for him to receive it in a hospital.

For these reasons I would hold, in agreement with the learned judges of the Second Division on this point, that the sheriff must, in an appeal under section 64(1), treat condition (a) in that subsection as having been satisfied if, where the mental disorder from which the patient suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, he is satisfied that medical treatment in a hospital is not likely to alleviate or prevent a deterioration of his condition.

As for Regina v. Canons Park Mental Health Review Tribunal, Ex parte A, I would not wish to go so far in this case as to say that it was wrongly decided. The applicant in that case had been admitted to hospital under section 3 of the Mental Health Act 1983. She had not been made the subject of a hospital order under Part III of the Act, and no order had been made under section 41 restricting her discharge. So the court was concerned with the provisions for discharge in section 72, not with those in section 73 which apply where the patient is subject to a restriction order. This may seem to be a distinction without a difference, as the matters about which the Tribunal must be satisfied in section 73 are the same as those mentioned in section 72(1)(b)--leaving aside the additional matter as to whether or not it is appropriate that the patient should remain liable to be recalled to hospital for further treatment. But there are significant differences in the structure and language of the legislation which is set out in the two Acts. I think that it is sufficient for the purposes of this case to say that we should decline to follow the Canons Park case when construing the words used in section 64(1) of the Mental Health (Scotland) Act 1984.

But there remains the question what is meant by "medical treatment" in this context. The expression is defined in section 125, which says that it "includes nursing, and also includes care and training under medical supervision." The definition is a wide one, which is sufficient to include all manner of treatment the purpose of which may extend from cure to containment. But in the case of those mental disorders to which the "treatability" test applies, its purpose is satisfied only if such treatment is likely to alleviate or prevent a deterioration of the person's condition. How is this test to be applied to those very difficult cases where the medical practitioner would not now have said there were grounds for admission to and detention in a hospital but the patient is nevertheless liable to be detained in a hospital and is in fact being detained there because that status has already been conferred upon him by the making of a hospital order?

I regard this as a practical question which will need to be resolved in each case on the evidence. But it is worth drawing attention to two points which arise out of the evidence which was before the sheriff when he was considering the respondent's application. The first is that in her report of 7 June 1994 Dr. M.A.E. Smith expressed the opinion that the respondent was not suffering from a mental disorder which was susceptible to treatment. Yet she said that unconditional discharge was not an option in his case. In her view there were sufficient grounds to support an appeal for the respondent to be given a conditional discharge. Several of the other psychiatrists who gave evidence were of the view that, while this had been in the past unsuccessful, further attempts should be made to give him a rehabilitation programme with a view to his eventual discharge from the State Hospital. The second is that a conditional discharge may only be directed under section 64(2) where the sheriff is not satisfied under section 64(1)(c) that it is not appropriate for the patient to remain liable to be recalled to a hospital "for further treatment". In those cases where the "treatability" test applies, the word "treatment" in section 64(1)(c) must mean treatment which is likely to alleviate or to prevent a deterioration of the condition from which the person is suffering. These points raise important issues on which I should like to add these observations in the hope that they may assist practitioners.

It is hard to reconcile an opinion that medical treatment in a hospital is not, and never will be, likely to alleviate the condition or to prevent it from deteriorating with the view the sheriff should be invited to order a conditional discharge. The mental disorders from which patients who have been made the subject of a restriction order under Part VI of the Act are suffering will vary from case to case. The acute dilemma which underlies Dr. Smith's opinion arises in the case of those conditions where the "treatability" test must be satisfied to justify the patient's detention in a hospital and a restriction order is in force because of the need to protect the public from serious harm. If the sheriff is satisfied that medical treatment in a hospital is not likely to alleviate or prevent a deterioration of the patient's condition, he must direct the patient's absolute discharge. He cannot direct a conditional discharge, because the only purpose of a conditional discharge is to enable the patient to be recalled to hospital for "further treatment" - that is to say, in the case of those conditions to which it applies, treatment which satisfies the "treatability" test. In other words, a conditional discharge is not an option in these cases. If the "treatability" test cannot be satisfied, the only option is an absolute discharge.

I appreciate that views differ among psychiatrists as to whether the kind of mental disorder from which the respondent is suffering is susceptible to medical treatment of any kind. These differences of view were amply demonstrated by the written reports which were before the sheriff in this case. There was general agreement that medical treatment was not likely to alleviate the condition, and the respondent has not been receiving any medication or other psychiatric treatment which is designed to achieve that result. Where views differed was in regard to the question whether the fact that his behaviour was being controlled while he remained in the hospital could be attributed to medical treatment which he received there, or whether it was due simply to the fact that he was being confined in secure conditions which prevented the symptoms of his condition from being manifested. It was agreed that his detention in the hospital was preventing a deterioration of his condition because his abnormally aggressive or seriously irresponsible behaviour was being controlled or at least being modified. So one of the two purposes to which the "treatability" test is directed was being satisfied. But was this as a result of "medical treatment" which he was receiving there or was it due simply to the fact that he was being detained in the hospital?

The expression "medical treatment" is, as I have said, given a wide meaning by section 125(1) of the Act. It includes nursing, and it also includes care and training under medical supervision. The width of the expression is not diminished where it requires to be examined in the context of the "treatability" test. Medication or other psychiatric treatment which is designed to alleviate or to prevent a deterioration of the mental disorder plainly falls within the scope of the expression. But I think that its scope is wide enough to include other things which are done for either of those two purposes under medical supervision in the State Hospital. It is also wide enough to include treatment which alleviates or prevents a deterioration of the symptoms of the mental disorder, not the disorder itself which gives rise to them. Dr. Thomas White, who is the respondent's responsible medical officer, said in his report that there was evidence that the respondent's anger management improves when he is in the structured setting of the State Hospital in a supervised environment. The environment is one which is set up and supervised by the medical officers of the hospital. While the question is one of fact for the sheriff to decide on the facts of each case, I consider that it will be open to him in such circumstances to find that the "treatability" test is satisfied.

The advantage of giving a wide meaning to the expression "medical treatment" in the context of the "treatability" test is that it would enable the sheriff to give patients who suffer from these types of mental disorder a conditional discharge. The sheriff would first have to be satisfied that one or other of the conditions referred to in paragraphs (a) and (b) of section 64(1) applied to the patient. This would not be because the "treatability" test did not apply, but because detention for medical treatment in a hospital was no longer appropriate or necessary. There are indications in the reports which were before the sheriff in this case that this might be achieved by means of a carefully designed rehabilitation programme, similar to that which is available for training for freedom in the case of prisoners in the penal system who are serving life sentences, with which the patient was willing to co-operate. The aim would be to reduce the level of control to a point where a conditional discharge would enable him to demonstrate his ability to cope with his symptoms after his release under supervision into the community, once the sheriff was satisfied that the arrangements which he considered to be necessary for that purpose had been made. The Secretary of State would have power to recall the patient to hospital for further treatment in the exercise of his discretion under section 68(3) at any time. In this way the important safeguards which the conditional discharge system provides in the case of patients who have been made the subject of a restriction order would remain available, so long as this was necessary to protect the public from the serious harm which might result if the patient were to commit offences after his release from the hospital.

For these reasons I too would allow this appeal and restore the interlocutor of the Lord Ordinary.

LORD CLYDE

My Lords,

This appeal raises two issues relating to the discharge into the community of persons who have been detained in hospital on account of mental disorder. The subject matter is of difficulty and importance, involving a reconciliation between the interests of the patient who seeks to live his life freed from the restraints of State control and the interests of the members of the public who may reasonably require the assurance that there is no threat to the peaceful enjoyment of their own lives through the release of someone who has been suffering some form of mental disorder. This tension cannot readily be resolved. Delicate and difficult decisions may be required in the assessing of the situation and the balancing of the different interests. But the regulation of it has been a matter for Parliament and it is with the proper construction of the provisions which Parliament has laid down that the first of the two questions falls to be determined in the present case

The present case concerns one who was ordered to be detained in Hospital by a criminal court. But the relevant statutory language is to be found both in the civil and the criminal context and the issue for decision extends to both kinds of case. Furthermore it was recognised by the parties before us that there was no substantial difference in effect between the provisions in the Scottish legislation and the corresponding provisions in the English Mental Health Act 1983, so that it is proper to take account of the view of the English courts on the matter.

The facts can be stated shortly. The respondent was convicted of culpable homicide in the High Court sitting in Glasgow on 8 September 1967. He was then 17 years of age. The Court in the light of certain evidence which was presented both orally and in written reports took the view that he was suffering from a mental disorder within the meaning of the Mental Health (Scotland) Act 1960, namely mental deficiency, and ordered his detention in the State Hospital at Carstairs under section 55 of that Act. The Court also made a restriction order under section 60 of that Act, restricting his discharge from hospital without limit of time. In 1985 he was moved to Sunnyside Hospital at Montrose. But in the following year he was convicted of an assault upon an 8 year old girl, sentenced to three months' imprisonment and, after his release from prison, recalled to the State Hospital. The Act of 1960 was repealed and replaced by the Mental Health (Scotland) Act 1984 and thereafter the respondent's detention has continued to be regulated by the provisions of the Act of 1984. The respondent is not mentally handicapped, nor does he now suffer from mental deficiency. But he does suffer from a mental disorder manifested only by abnormally aggressive and seriously irresponsible behaviour. He is said to have a psychopathic personality and I shall for convenience refer to him as a psychopath. Although the court in 1967 proceeded upon the ground of a mental deficiency it may be noticed that in one of the two medical reports then before the court the psychopathic diagnosis was already anticipated. In recent years he has made several unsuccessful appeals to the sheriff under section 63 of the 1984 Act for his discharge. The present appeal arises from a decision by the Second Division in an application for judicial review of a decision pronounced by the Sheriff on 19 July 1994 refusing his appeal for discharge. The Lord Ordinary refused his application for review. The Second Division allowed the respondent's reclaiming motion. The Secretary of State for Scotland has taken an appeal to this House.

It is convenient at this stage to set out the terms of the first four subsections of section 64 of the Act of 1984:

     "64(1) Where an appeal to the sheriff is made by a restricted patient who is subject to a restriction order, the sheriff shall direct the absolute discharge of the patient if he is satisfied -

      (a) that the patient is not, at the time of the hearing of the appeal, suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

      (b) that is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; and (in either case)

      (c) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

     "(2) Where in the case of any patient as is mentioned in subsection (1) of this section the sheriff is satisfied as to the matters referred to in paragraph (a) or (b) of that subsection but not as to the matters referred to in paragraph (c) of that subsection he shall direct the conditional discharge of the patient.

     "(3) Where a patient is absolutely discharged under subsection (1) of this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

     "(4) Where a patient is conditionally discharged under subsection (2) of this section -

      (a) he may be recalled by the Secretary of State under section 68(3) of this Act as if he had been conditionally discharged under subsection (2) of that section; and

      (b) he shall comply with such conditions (if any) as may be imposed at the time of discharge by the sheriff or at any subsequent time by the Secretary of State."

Three observations should be made at this stage on these provisions. Firstly, the decision is not one which is left to the discretion of the sheriff once he is satisfied on the particular criteria. If he is satisfied, he is obliged to grant a discharge. Secondly, the burden of establishing the particular propositions to the satisfaction of the Sheriff will lie on the patient, although in practice it may well be that questions of the burden of proof will not often arise. Thirdly, paragraphs (a) and (b) are stated in the alternative but paragraph (c) is stated as additional to either of them and relates to the question whether the discharge should be an absolute discharge or a conditional discharge. Thus if the Sheriff is satisfied that the provisions of that paragraph are met in addition to either (a) or (b) then he is required to grant an absolute discharge. If he is not satisfied of that but is satisfied so far as concerns either paragraph (a) or paragraph (b), then in terms of subsection (2) he is required to direct the conditional discharge of the patient. In the present case the respondent sought an absolute discharge, or, failing that, a conditional discharge. But for the resolution of the problem of construction this aspect of the case may be put on one side and attention can be directed to paragraphs (a) and (b).

If one puts aside paragraph (c), since it relates only to the question whether the discharge is to be absolute or controlled, it becomes evident that the question in the present case affects those who have come to be detained otherwise than through the criminal process, because the provisions set out in paragraphs (a) and (b) of section 64(1) appear also in practically identical terms in sections relating to the civil context. In section 22 where a patient has been admitted under Part V of the Act an officer known as the "responsible medical officer," whose identity is defined in section 59 of the Act, is required within a stated period after the patient's admission to obtain certain information and carry out certain consultations and then to order the discharge of the patient if he is satisfied on either of the same two matters as are set out in paragraphs (a) and (b) of section 64. The appearance of the same two criteria can again be found in section 33. That section deals with the discharge of patients and the two criteria appear twice in terms which are not materially different. In section 33(3) they appear as the two considerations on either of which the responsible medical officer or the Mental Welfare Commission are required to order a discharge. In section 33(4) where an appeal is made to the sheriff by a patient under sections 26, 30 or 34 of the Act, the sheriff is required to order a discharge if he is satisfied on either of the same two considerations.

It is in the context of section 64 that the present case has arisen. Section 64(1)(a) requires the sheriff to make an assessment of the nature and degree of any mental disorder from which the patient is suffering. He may not be suffering from any such disorder. But if he is it must not be such as in its nature or degree to make it appropriate for him to be liable to be detained in a hospital for medical treatment. It is at his stage that the argument turns to section 17 of the Act and it is appropriate to set out the relevant terms of that section.

Section 17(1) provides:

     "17(1) A person may, in pursuance of an application for admission under section 18(1) of this Act, be admitted to a hospital and there detained on the grounds that -

     (a) he is suffering from mental disorder of a nature and degree which makes it appropriate for him to receive medical treatment in a hospital; and

      (i) in the case where the mental disorder from which he suffers is a persistent one manifested only be abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition; or

      (ii) in the case where the mental disorder from which he suffers is a mental handicap, the handicap comprises mental impairment (where such treatment is likely to alleviate or prevent a deterioration of his condition) or severe mental impairment; and

     (b) it is necessary for the health or safety of that person or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this Part of this Act."

The problem which arises in the present case is whether the ingredients set out in paragraphs (i) and (ii) in section 17(1)(a) do or do not require to be considered by the sheriff under section 64(1)(a). In the present case the respondent falls into the condition described in paragraph (i). It is only with that paragraph that the case is directly concerned, but the argument equally extends to paragraph (ii). The sheriff in the present case took the view that there was nothing in Part VI of the Act to require a discharge of a patient if his condition was not being alleviated. In the Outer House while the argument evidently fluctuated it appears to have been matter of agreement between the parties that the sheriff's approach was correct. Only in the Second Division was the issue made one of clear controversy. The view which the judges there took was that it was sufficient for a discharge that the sheriff was satisfied that the criterion regarding treatment in paragraph (i) was not met.

It is to be noticed that while section 17(1) refers to it being appropriate to receive medical treatment in a hospital, section 64(1)(a) refers to it being appropriate to be liable to be detained in a hospital for medical treatment. The distinction between these phrases is of significance. As was noticed in the Court below the phrase "liable to be detained" occurs on a number of occasions in Part V and Part VI of the Act. In my view it refers to the situation where the patient is lawfully obliged to enter hospital. That occurs upon the granting of the formal authorisation for the admission, such as the approval by the sheriff under section 21, where the application has been made to him in a civil context, or the order of a court in a criminal context, which gives the requisite authority for conveyance and admission to hospital by virtue of section 60 of the Act. The point is illustrated by section 17(2). That subsection secures that nothing in the Act is to be construed so as to prevent a patient from being admitted to hospital without any application, recommendation or order "rendering him liable to be detained under this Act" or from remaining in the hospital "if he has ceased to be so liable to be detained." The state of being "liable to be detained" appears to be the state which is reached where all the statutory provisions requisite for admission have been completed and the appropriate approval or order authorising the admission to hospital has been made. But what is important is that in order to have the status of one who is liable to be detained it will be necessary that all the terms of section 17(1) have been satisfied. The use of the words 'liable to be detained' cannot in my view be explained simply by reason of the fact that the applicant is currently detained. If that had been intended Parliament would have made the test in terms that it was not appropriate for him to continue to be detained. The express use of the phrase which has a clear meaning in the Act must in my view refer to the provisions of Section 17(1).

Thus it seems to me that in considering the matter of discharge the sheriff is led to section 17 in order to be determine whether or not it is appropriate for the patient to be liable to be detained. But section 64(1)(a) does not require him to look at all of the elements in section 17(1). The first part of section 17(1)(b) is expressly echoed in section 64(1)(b), so section 64(1)(a) cannot be read as including that same consideration. Section 64(1)(a) is looking essentially at the nature and the degree of the mental disorder; and once that aspect of the scope of it is noticed, then the grounds for the liability for detention can correspondingly be taken to be only such grounds as are relevant to such matters. Thus it is to section 17(1)(a) that the sheriff must look. The question then arises whether that does or does not include the two special cases contained in paragraphs (i) and (ii). Those two provisions seem to me to be qualifications on the generality of the opening provision in section 17(1). They deal respectively with particular kinds of mental disorder. They require the likelihood of a particular outcome of the treatment, or, in the case of mental impairment, a severity of that condition. In the case of the particular forms of mental disorder with which these two paragraphs are concerned the additional qualifications set out in them have to be met over and above the initial requirement that the patient is suffering from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment. The nature of the disorder in paragraph (i) and the nature or degree of the disorder in paragraph (ii) are essential considerations in deciding whether the patient satisfies the requirements of section 17(1). Thus they come to be part of the matter which the sheriff requires to consider under section 64(1)(a) in applying his mind to the question whether the patient is or is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment.

It is argued that if Parliament had intended these matters to be considered by the sheriff Parliament could have said so. But it seems to me that Parliament has said so in using the language which it has in section 64(1)(a). The express addition of the words "for hospital treatment" in the statutory formula contained in section 64(1)(a) seems to me significant. The propriety which is to be assessed is not just a propriety for detention, but a propriety for detention in hospital for medical treatment. The medical treatment for which the patient is to be detained may vary according to the nature and degree of his disorder. In the case of the psychopath the treatment must be such as is likely to alleviate or prevent a deterioration of his condition. On the other hand there could be mental illness outwith the scope of the psychopathic condition described in paragraph (i) or the mental handicap referred to in paragraph (ii) other than severe mental impairment, and in such a case the particular efficacy of the treatment would not be a determinative consideration for the purposes of a possible discharge.

Attention was drawn to the provisions of section 33 to support the argument that a distinction should be drawn between the satisfaction of the provisions in section 17(1) and the satisfaction of the provisions of section 64(1). As I have already mentioned subsections (3) and (4) of section 33 refer to the two matters which are set out in section 64(1). But contrasting language is used in subsection (6). There provision is made for the situation where the responsible medical officer does not consent to the taking effect of an order for discharge made by the managers of a hospital. In such an event he is to furnish the managers with a report "certifying that in his opinion the grounds set out in section 17(1) of this Act apply in relation to the patient." In section 34 there is provision for a like report in the case of an order for discharge made by a relative. The use of language directly referring to the grounds set out in section 17(1) in contrast even in the same section with the use of the formula comprising the two criteria set out in section 64 was founded upon to support the argument that the later section should not be construed as importing the grounds set out in section 17(1) except to the extent that the express terms of the provisions coincide. But in my view the context may sufficiently explain the difference in the formula used. Where the matter is one of the grounds for discharge the formula adopted in section 64 is used. On the other hand where the requirement is for a report by the responsible medical officer refusing consent to a proposed discharge the substance of the report can appropriately be framed under reference directly to the statutory provision for admission.

It is also useful to look at the history of the relevant provisions. As counsel for the appellant explained, the changes which were effected by the Mental Health (Amendment) (Scotland) Act 1983 and later embodied in the consolidating legislation of 1984 were prompted by two particular but distinct factors. One was the desire to improve the formulation of the conditions for admission to detention. That was done by section 8 of the Act of 1983, substituting a new section 23 in the Act of 1960. The substance of this was reproduced as section 17 in the consolidation of 1984. Quite distinct from that was the necessity to re-write the provisions for discharge following on the decision of the European Court of Human Rights in X v. United Kingdom [1981] 4 E.H.R.R. 188. What was required was access to a Court to determine matters of discharge, and that was done by section 21 of the Act of 1983 by provisions which came to form sections 63 to 67 of the Act of 1984. Counsel for the appellant argued that the separate origins and the distinct reasons for the formulation of what have become sections 17 and 64 point to the absence of any symmetry between them. But while the amendments were prompted by distinct considerations it does not follow that the amended sections were not intended to relate to each other in a coherent scheme. Indeed it seems to me significant that while in its original formulation in the Act of 1983 the conditions for admission were laid out under four distinct heads, when Parliament came to consolidate the legislation it turned heads (b) and (c) into the paragraphs (i) and (ii) which form part of section 17(1)(a). Thus something of a pattern was achieved in the relationship between heads (a) and (b) in section 64(1) and heads (a) and (b) in section 17.

Of course the pattern is not precise. The latter part of section 17(1)(b) which states that the treatment cannot be provided unless the patient is detained, is not exactly mirrored in section 64. But in the case of one who is already in detention it can well be taken to be sufficiently covered by the consideration of the appropriateness of the liability to detention and the necessity for treatment. The necessity for detention is inevitably an element in considering that matter. The appearance of paragraph (c) in section 64(1) and the possibility of further treatment which a conditional discharge involves might be thought to sit uneasily with the making of an order for discharge of a psychopath on the ground that the requirements of treatment set out in paragraph (i) of section 17(1)(a) are no longer met. But it is not difficult to anticipate that cases could occur where the patient has reached a position of stability but where after release from hospital his condition may change and recall may become desirable. In the case of psychopathic patients, even if the provisions for discharge can be overcome, such a course may well require to be seriously considered.

The decision of the European Court of Human Rights in X v. United Kingdom [1981] 4 E.H.R.R. 188 was to the effect that there had been a breach of Article 5(4) of the Convention in light of the inadequacy of the proceedings then available to determine the lawfulness of the patient's detention. What the Court required was a review which, as the Court stated at pp. 209-210, para. 58 of the judgment, was:

     "wide enough to bear on those conditions which, according to the Convention, are essential for the 'lawful' detention of a person on the ground of unsoundness of mind, especially as the reasons capable of initially justifying such a detention may cease to exist. . . .This means that in the instant case Article 5(4) required an appropriate procedure allowing a court to examine whether the patient's disorder still persisted and whether the Home Secretary was entitled to think that a continuation of the compulsory confinement was necessary in the interests of public safety."

It was pointed out that the European Court did not specify the treatability of the patient as a condition to be examined by the court. But the court was concerned with the procedures rather than the grounds for discharge and it is not to be concluded from what the court said that in the present case the susceptibility of treatment may not be a proper criterion in determining discharge. As I have mentioned it was in light of this decision that Parliament introduced the mechanism of appeal to the sheriff. I find it hard to believe that the intention would have been to omit from the sheriff's consideration criteria which had been prescribed for the admission of the patient. Such a course would not have measured up to the scope of review which the European Court considered appropriate. Quite apart from that, it seems to me reasonable to expect that a court dealing with an application for discharge would consider the grounds which warrant detention and, where they were cumulative, be required to grant a discharge if any one of them was no longer sound. It was argued that matters of treatability were for the Responsible Medical Officer and not for the Court. Certainly one can see in section 33 the important and indeed controlling part which that officer may play in the matter of discharge. But consistently with the view taken by the European Court of Human Rights it would not be proper to leave the matter of paragraph (i) to the Officer and exclude it from the jurisdiction of the Court.

The approach taken by the European Court in X v. United Kingdom was followed by Sedley J., with whose judgement Mann J. agreed, in the Divisional Court in Reg. v. Canons Park Mental Health Review Tribunal, Ex parte A [1994] 1 All E.R. 481. In his dissenting judgment in the Court of Appeal Roch L.J. stressed the point that consistently with the decision of the European Court of Human Rights it cannot be accepted that Parliament intended that the tribunal was entitled to refuse a discharge where one of the three criteria laid down for admission was not satisfied. However the appeal court by a majority reversed the decision of the Divisional Court. The relevant provisions of the Mental Health Act 1983 are not in all respects the same as the corresponding terms of the Scottish Act, but the similarities are marked. The provisions in sections 73(1) along with section 72(1)(b)(i)and (ii) are similar to the provisions of section 64 of the Scottish Act. The essential issue which arose in relation to the English provisions in the Canons Park case is the same as that which has arisen in the present case. While the judges in the Second Division concentrated on the Scottish legislation on the basis of the differences in terminology between the two Acts both parties before us were at one in accepting that the English case could not be distinguished. Having taken the view which I have of the Scottish legislation I am not prepared to follow the view taken by the majority of the Court of Appeal in Canons Park. It does not seem to me that the view taken by the majority sufficiently meets the statutory reference to the disorder being "of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment." It is that phrase which, as I have already mentioned, seems to me to give a sufficient answer to the argument that if Parliament had intended to include "treatability" as a criterion for discharge it could have said so. I would add that while the labelling of the respective parts of section 17(1) which Kennedy L.J. proposed, involving a three-fold division of "appropriateness," "treatability" and "safety" as the tests to be applied, appears to be a very attractive and convenient method of reference to the various ingredients, it carries with it a possible danger of affirming a tripartite scheme of criteria which then seems difficult to fit with the scheme set out in section 64(1). In the present case the labelling may operate as a distraction from the proper understanding of the provisions. I am also conscious that the construction which I favour is contrary to that adopted by Sheriff McEwan in Reg. v. Secretary of State for Scotland 1989 S.C.L.R. 784, following Reg. v. Mersey Mental Health Review Tribunal, Ex parte Dillon [1987] C.L.Y. 2420. But the earlier understanding which is reflected in these cases cannot stand in the way of the proper construction of the critical provision.

How then should a sheriff deal with an appeal brought before him under section 64? Clearly the onus is on the appellant to satisfy him on the particular matters embodied in section 64. The standard of proof is the balance of probabilities, but the importance of the issue for the parties and the public is such as to require particular care and consideration. He must be ready to turn his attention to all of the three paragraphs.

Firstly, so far as (a) is concerned, (1) he must first decide whether the appellant has at the time of the hearing a mental disorder. If he is satisfied that he has not, then he must order a discharge. (2) If the appellant has a mental disorder the sheriff must identify the nature and degree of it. Then (3) he should turn to the matter of medical treatment in hospital. He will have to consider the nature and effectiveness of any possible treatment. Where the appellant is a psychopath or has a mental impairment which is not severe he must consider whether such treatment is likely to alleviate or prevent a deterioration of the condition. If he is satisfied that such treatment is not likely to do so, then he is bound to grant a discharge. (4) If he is not so satisfied, or if he is dealing with any other kind of mental disorder, he must consider the propriety of the appellant receiving the medical treatment in detention in hospital. In doing so he must look to the nature and degree of the mental disorder. If he is satisfied in the light of all the evidence before him and in the whole circumstances that the appellant is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, then he must discharge him. The circumstances which he may consider can include the matter of the health and safety of the patient and the safety of other persons, including members of the public; that is to say the propriety, as distinct from the necessity, of his continued detention in hospital. If he is satisfied that the requirements of paragraph (a) have been met, then it is not necessary for him to consider paragraph (b), and should turn to paragraph (c).

Secondly, if he is not satisfied that the provisions of paragraph (a) have been met, then he should turn to paragraph (b). The single question here is whether he is satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive medical treatment in hospital. The standard here is one of necessity, not desirability. If he is so satisfied then he must discharge the appellant, and he should then turn to paragraph (c). If he is not so satisfied he must refuse the appeal.

Finally, if he has been satisfied on either heads (a) or (b) he must then consider head (c). Here the question is whether it is or is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. In the light of his decision on this matter he will grant a conditional or an absolute discharge.

Parliament has in the past extended the scope for the detention of psychopaths. By virtue of sections 23(1) and 55 of the Mental Health (Scotland) Act 1960 psychopaths over the age of 21 were excluded from qualifying as liable to be detained under the Act except where the Court had granted an order for their detention after conviction of a criminal offence. The age limit was removed by Section 8 of the Mental Health (Amendment) (Scotland) Act 1983. Parliament was evidently satisfied that the psychopathic condition was susceptible to alleviation by treatment. On the other hand the sheriff in the present case held that current psychiatric opinion would question the efficacy of treatment and he recognised that psychiatrists generally would be unlikely to recommend admission to the State Hospital if the respondent's offence had been committed today. The sheriff also held that if the respondent was released there was a very high risk of him re-offending. But the possibility that a psychopath may be at once a public danger and beyond treatment may well have been regarded by Parliament as remote, having regard particularly to the wide terms of the definition of 'treatment'. Views have evidently differed in the past as to the extent to which such persons can benefit from medical treatment, although the hope must continue to be that medical science will progress to a greater understanding of the condition and the developing of ways of alleviating or resolving it. Moreover it may well be that generalisations cannot readily be made in regard to this difficult condition. While further study and research is continuing it may be the more difficult to affirm with confidence that the condition in any particular case is truly unresponsive to treatment or that no alleviation or stabilisation can be achieved in the secure environment of a hospital.

Anxiety might well be felt over the proposition that a sheriff is bound to discharge a psychopath where he is not satisfied from the evidence before him that treatment is no longer likely to alleviate or prevent a deterioration of his condition, so that he no longer qualifies under paragraph (i). In the civil context the balance may properly fall in favour of the liberty of the individual if further detention in hospital can serve no further purpose in alleviation or securing the stability of his condition. In the case of one who has been convicted of a criminal offence such anxiety would be well justified if the only course open was to release the patient freely into society. But Parliament has allowed for that situation in providing not only for an absolute discharge but also for a conditional discharge. Moreover in terms of section 64(7) the sheriff may defer his direction for a conditional discharge until "such arrangements as appear to the sheriff to be necessary for that purpose have been made to his satisfaction." In the present case the respondent sought either an absolute or a conditional discharge. It may also be noted that Parliament has recently made a further provision by section 6 of the Crime and Punishment (Scotland) Act 1997, enabling a Court to pronounce both a sentence of imprisonment and a hospital direction, and no doubt if the situation is considered to be unsatisfactory further statutory provisions can be made.

 
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