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

(back to preceding text)
 

I now turn to the second issue in the appeal. This concerns the extent of the supervisory jurisdiction in an application for judicial review. The statutory appeal which the respondent made to the sheriff was a summary process which is not open to the ordinary means of statutory appeal. This has been described in terms of a distinction that the sheriff in such an appeal is acting in an administrative rather than a judicial capacity (F. v. Management Committee and Managers of Ravenscraig Hospital 1988 S.C. 158). Challenge to such a decision accordingly requires to be taken by way of judicial review and that is what the respondent has done in the present case.

Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence.

These principles are quite clear. But having been invited to examine some of the evidence by the present appellant it seems to me that the judges in the Second Division went further than was appropriate in the analysis and assessment of it. The sheriff heard the oral evidence of seven psychiatrists as well as the respondent. He also had written reports from the psychiatrists and these were put before the Second Division. But in the summary procedure which was used there was no record made of the oral evidence beyond the brief account which the sheriff gives of the material before him. Where one only has an incomplete record of the evidence and the evidence is that of highly qualified experts dealing with the delicate matter of mental disorder, great caution ought to be taken in revisiting the substance of the decision which the sheriff reached. In the circumstances of the present case it seems to me to be particularly difficult to conclude that there was truly no evidence to support the conclusion which was reached or that the conclusion was perverse.

It was not suggested before us that the sheriff had misconstrued what is meant by the expression "medical treatment." It is defined in section 125 of the Scottish Act as including nursing and also care and training under medical supervision. In section 145 of the English Act it is defined as including nursing, and also care, habilitation and rehabilitation under medical supervision. Plainly the expression is wide in its scope. The inclusive character of the definition allows of other things to be comprehended in it and it was not suggested that the particular things noted in the English definition would not also fall within the scope of the Scottish definition, as indeed may much else. The sheriff was plainly aware of the terms of the statutory definition and indeed used its terminology to express the nature of the treatment which he found the respondent was continuing to receive in conditions of maximum security. I see no ground for holding that he misdirected himself in law as regards the question which he had to answer.

It was recognised by the judges of the Second Division that the word "condition" in section 17(1)(a)(i) includes the manifestations and symptoms of the patient's disorder. The Sheriff accepted the evidence of Dr. White that "in the structured setting of the State Hospital in a supervised environment, . . . Mr. Reid's anger management improves, resulting in his being less physically aggressive." The sheriff later states "Medical treatment has alleviated his condition and should continue to do so." The sheriff found that although psychiatrists generally would be unlikely to recommend admission to the State Hospital if the respondent had committed the original offence today, due partly to the current opinion on the efficacy of treatment, the respondent has received and is continuing to receive medical treatment. Dr. White was the respondent's Responsible Medical Officer and no doubt the sheriff would be amply justified in respecting his view. The sheriff also found that the majority medical opinion was that rehabilitation should take place in another hospital and he expressed the view that "presumably rehabilitation will alleviate his condition." Without going further I find enough in the sheriff's note to entitle him to reach the conclusion which he did.

It was suggested on behalf of the respondent that the sheriff's mistaken view on the matter of the construction of section 64(1) vitiated his approach to the evidence and his factual conclusion. But the sheriff clearly proceeded to consider the matter of treatment on the assumption that he was mistaken on the matter of construction. It is precisely that which he intended to signify by the use of the words "in any event" which introduce his consideration of the facts. I find no reason to believe that his consideration of the evidence was tainted by the view which he had taken on the matter of construction. His conclusion on the factual question proceeded on a correct legal basis and does not seem to me to have been irrational.

For the foregoing reasons I would allow the appeal by the Secretary of State and restore the interlocutor of the Lord Ordinary of 29 May 1996 in so far as it dismisses the petition.

LORD HUTTON

My Lords,

This appeal raises the question whether the respondent, Alexander Lewis Hutchison Reid, who on 8 September 1967 was convicted of culpable homicide after he had killed a woman by stabbing her with a knife and was ordered to be detained in hospital with a restriction on his discharge without limit of time, was entitled to be discharged from hospital in 1994 notwithstanding the fact that the Sheriff, who heard his application for discharge under sections 63 and 64 of the Mental Health (Scotland) Act 1984, found that:

     "In the event of the Applicant being released now, there is a very high risk of him re-offending. Any such offence is likely to have a sexual connotation."

Therefore this appeal gives rise to issues of great importance and of grave public concern. Broadly stated, where a psychopath is convicted before a court of killing or injuring another present two courses are open to the court. The court may sentence the psychopath to imprisonment for life or for a fixed term of years or, as in this case, the court may order him to be detained in hospital with a restriction on his discharge without limit of time. Great public concern arises as to whether a convicted psychopath should be released from hospital where there is a real risk that after release he may again cause death or injury.

But there is another issue which arises. When a psychopath is convicted and is sent to prison, if he is sentenced for a fixed term of years he is entitled to be released on the expiration of that term, even if it is feared on reasonable grounds that he will endanger the public in the future. And if in Scotland a psychopath is sentenced to imprisonment for life, the Secretary of State for Scotland has certain powers under the Prisoners and Criminal Proceedings (Scotland) Act 1993 to release him on licence before the end of his natural life. Therefore the question arises whether it is just that a psychopath, ordered by a court after conviction to be detained in hospital, should continue to be held in hospital after many years of detention (and this respondent has now been detained in hospital for more than 30 years since he was aged 17, apart from a few months in prison) because of the risk that if he were released he might attack another person.

Related to this question is the concern of psychiatrists that when treatment in a hospital will no longer alleviate or prevent a deterioration of a psychopath's condition, he should not be kept in hospital, using the hospital merely as a place of detention: in their view the place in which to detain a dangerous person who may injure others and who cannot benefit from medical treatment is a prison and not a hospital. These are all issues which form the background to the difficult point of statutory construction which was argued before this House.

The full facts and statutory background of the present case have been set out in the judgment of my noble and learned friend Lord Clyde and I gratefully adopt that recital. The appeal raises two legal issues. One is confined to the question whether the Inner House was entitled to set aside the finding made by the Sheriff in this particular case that medical treatment in a hospital was likely to alleviate the respondent's condition. My conclusion, for reasons which I later state, is that the Inner House was not entitled to set aside this finding of the Sheriff, with the consequence that the respondent was not entitled to be discharged from hospital, irrespective of the outcome of the argument on the second legal issue, which raises a point of statutory construction and relates to the matter of great public concern to which I have referred.

It is desirable to turn first to this issue of construction which relates to section 64(1) and (2) of the Act of 1984. But before considering the provisions of section 64(1) and (2) it is convenient to set out the provisions of section 17(1) of the Act relating to a patient's admission to, and detention in, a hospital.

Section 17 provides:

     "(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 or 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 by 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."

Whilst I recognise that there is medical debate as to the appropriateness of the term "psychopath" in modern times, it is convenient for the purpose of considering the construction of sections 17 and 64 to use that term in relation to a person whose mental disorder is "a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct."

Section 64 provides:

     "(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 it 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 such 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."

The problem of construction arises because, in setting out the grounds for admission to, and detention in, a hospital, section 17(1)(a) sets out two matters in relation to medical treatment in separate subparagraphs. Subparagraph (a) requires the person to be suffering "from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital", and subparagraph (a)(i) requires that in the case where the mental disorder from which the person suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct "such treatment is likely to alleviate or prevent a deterioration of his condition". But section 64(1)(a) in setting out the matters as to which the sheriff is to be satisfied before directing the discharge of a patient only contains one requirement in one subparagraph, which is (a), in relation to medical treatment, which is 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". Therefore the question arises whether section 64(1)(a) is to be construed by reference back to section 17(1)(a).

This difference in the wording of section 17(1)(a) and section 64(1)(a) has caused a number of courts to give two different constructions to section 64(1)(a) and to section 72(1)(b) of the English Mental Health Act 1983, the provisions of sections 3 and 72(1)(b) of the English Act being basically similar to the provisions of section 17 and 64(1)(a) of the Scottish Act of 1984, although section 64(1)(a) relates to a patient subject to a restriction order and section 72(1)(b) relates to a patient who is not subject to a restriction order. Section 3 provides:

     "(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as 'an application for admission for treatment') made in accordance with this section.

     (2) An application for admission for treatment may be made in respect of a patient on the grounds that--

      (a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

      (b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and

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

Section 72 provides:

     "(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and--

      (b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied--    (i) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of 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    (ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or    (iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would not be likely to act in a manner dangerous to other persons or to himself."

The two differing views have been clearly set out in a number of judgments. One construction was stated by Kennedy L.J. (with whose judgment Nourse L.J. agreed), in reversing the decision of the Divisional Court, in Regina v. Canons Park Mental Health Review Tribunal, Ex parte A. [1995] Q.B. 60. The construction adopted by Kennedy L.J. was, I think, influenced by his view, stated at p. 82E, that three separate tests were required in respect of a psychopath for admission and detention under section 3 of the Act of 1983:

     "A patient suffering from psychopathic disorder may not be admitted to hospital and detained for treatment unless three criteria are satisfied, namely: (1) his disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital, and (2) such treatment is likely to alleviate or prevent a deterioration of his condition, and (3) it is necessary for his health or safety, or for the protection of others that he should receive such treatment, and it cannot be provided unless he is detained. Those three criteria which can, for convenience, be referred to as the appropriateness test, the treatability and the safety test, are set out in section 3 of the Act . . ."

He then said at p. 86A:

     ". . . but I see no reason why the words of section 72(1)(b)(i) should be read as a form of legal shorthand referring back to the three tests which have to be positively satisfied before a patient can be admitted and detained, and which are set out in section 3. If that was what Parliament intended to achieve when enacting section 72(1)(b) it could have said so, but I find it difficult to see how it could have done so without transferring the onus of proof, and thus putting the tribunal in the same position as the responsible medical officer."

This construction was adopted by the Lord Ordinary in the present case 1997 S.L.T. 555, 559D:

     "When a doctor recommends the detention of someone suffering from this form of mental disorder, he will have to have been satisfied as to all the various criteria which I have mentioned in relation to the generality of cases. But in addition under s 17(1)(a)(i) he has to consider whether any medical treatment in hospital 'is likely to alleviate or prevent a deterioration' of the patient's condition. Kennedy L.J. christens this 'the treatability test.'

     "It is worth noticing that a doctor need only confront this question 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. The doctor has already satisfied himself that such treatment would be appropriate but, having done so, he must then ask whether with such a psychopathic patient the medical treatment in hospital 'is likely to alleviate or prevent a deterioration' of the patient's condition. Unless he is satisfied on that point, he cannot recommend the patient's admission and detention."

The other construction of section 72(1)(b) was stated in the Divisional Court in the Canons Park case [1994] 1 All E.R.481 by Sedley J. (with whose judgment Mann L.J. agreed). Sedley J. first referred at p. 487F to the "treatability test" as defined by counsel for the applicant:

     "In all these provisions it is central to Mr. Gordon's case that in relation to psychopathic disorder they contain what he calls the treatability test, that is to say, the requirement that medical treatment in a hospital is likely to alleviate or to prevent a deterioration in the patient's condition."

He then stated at p. 490b:

     "As a straightforward matter of construction I prefer Mr. Gordon's argument. Put simply, it is never 'appropriate' under the provisions of the 1983 Act relating to admission, renewal or reclassification for a patient to be 'liable to be detained in a hospital for medical treatment' for psychopathic disorder if he or she is not at that point in time treatable. The phrase 'appropriate for him to be liable', while clumsy, picks up the language of ss 3 and 20 which include in their criteria for liability to detention the appropriateness of medical treatment as well as the likelihood of its being effective, and thus reasserts the role of expert assessment by the tribunal in its turn."

In the Court of Appeal in the Canons Park case Roch L.J. agreed with the construction placed upon section 72(1)(b) by Sedley J. In the present case the judges of the Inner House gave the same construction to section 64(1)(a) as Sedley J. gave to section 72(1)(b), although two judges in the Inner House expressed the view, from which I would respectfully differ, that because of the difference in wording between the Scottish and English statutory provisions, no assistance could be derived from the reasoning of the judgments in the Canons Park case. Lord Macfadyen put it as follows at p. 172f:

     "There is, certainly, no repetition in s 64(1)(a) of the language of the subparagraphs. That, however, does not seem to me to be the end of the matter. It seems to me that the subparagraphs of s 17(1)(a) are to be seen as setting out certain specific provisions which qualify the generality of the introductory words of para (a). Paragraph (a) tests the appropriateness of receipt of medical treatment in hospital by reference to the nature or degree of the mental disorder. Subparagraph (i) then provides that where the disorder is a psychopathic disorder, such treatment will not be appropriate unless it is likely to alleviate or prevent deterioration of the condition. Similarly, subpara (ii) provides that where the disorder is mental handicap, such treatment will not be appropriate unless the handicap is treatable mental impairment or severe mental impairment. Paragraph (a) therefore forms a unit comprising a general rule and two special rules, all addressing the question of whether it is appropriate that the person receive medical treatment in hospital. It is only if a person passes the test set by para (a), including in cases where they are relevant the special tests set in subpara (i) or (ii), that it can be said that the person suffers from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital. Accordingly, when one turns back to s 64(1) at the stage of an application for discharge, a patient can satisfy the test in para (a) of that section if he shows that his condition is of the sort mentioned in s 17(1)(a)(i) and that treatment in hospital is unlikely to alleviate or prevent a deterioration of his condition, because if he shows that, he shows that the nature of his mental disorder is not such as to make it appropriate for him to be liable to be detained.

     Accordingly, to adopt the shorthand terminology derived from Reg. v Canons Park Mental Health Review Tribunal, Ex parte A, I am of opinion that the treatability test is incorporated as part of the appropriateness test in s 64(1)(a)."

In my opinion the construction given to section 72(1)(b) by Sedley J. and to section 64(1)(a) by the Inner House was correct. Whether a psychopath should be admitted to, and detained in, a hospital to receive medical treatment under section 17(1)(a) will depend, in part, on whether the treatment is likely to alleviate or prevent a deterioration of his condition. Accordingly when a sheriff has to decide under section 64(1)(a) whether he is satisfied that a psychopathic patient 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, he will be so satisfied when the treatment is not likely to alleviate or prevent a deterioration of the psychopathic patient's condition.

In my opinion in section 17(1), in the case of a psychopathic patient, subparagraph (a) is so closely linked to subparagraph (a)(i) that when section 64(1)(a) refers to 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," the treatment referred to is treatment which "is likely to alleviate or prevent a deterioration of his condition." I consider that emphasis on the distinction between "appropriateness" and "treatability" tends to lead to an erroneous construction of section 64(1)(a). I also consider that the practical application of the distinction between "the appropriateness test" and "the treatability test" as stated by the Lord Ordinary at p. 559E of his judgment gives rise to considerable artificiality, because I think that a doctor, seeking to apply section 17(1)(a) to a psychopath, would not decide, first, whether it was appropriate for the psychopath to receive medical treatment in a hospital, and then go on to decide whether the treatment in hospital was likely to alleviate or prevent a deterioration in his condition. Rather, in deciding whether his mental disorder was of a nature or degree which made it appropriate for him to receive medical treatment in a hospital, he would decide at the same time and as part of the one question, whether such treatment was likely to alleviate or prevent a deterioration of his condition.

In my opinion there is no force in the argument that if section 64(1) refers back to section 17(1), then section 64(1)(a) would also cover the requirement in section 17(1)(b) leaving section 64(1)(b) otiose, because I think, as Lord Macfadyen stated at p. 172C, that section 64(1)(a) reflects section 17(1)(a) and section 64(1)(b) reflects section 17(1)(b).

I further consider that the construction given to section 64(1)(a) by the Inner House is strongly supported by the policy underlying section 64(1)(a) and section 72(1)(b) which provide for a judicial body to decide whether a patient detained in hospital should be discharged. In X v. The United Kingdom (1981) 4 E.H.R.R. 188 the European Court of Human Rights held:

     "The right guaranteed by Article 5(4) to test the lawfulness of detention does not incorporate a right for the court to substitute its discretion on all matters for that of the decision-making authority; but the scope of the judicial review must be sufficient to enable enquiry to be made whether, in the case of the detention of a mental patient, the reasons which initially justified the detention continue thereafter to subsist."

Section 64(1)(a) and section 72(1)(b) were passed to give effect to that ruling of the European Court of Human Rights. Under section 17(1)(a) and section 3 one of the reasons which initially justifies the detention of a psychopathic patient is that medical treatment would be likely to alleviate or prevent a deterioration of his condition. Therefore I consider that in enacting section 64(1)(a) and section 73(1)(b) Parliament intended that a judicial body would have power to determine whether that reason continued to subsist. Accordingly I am in agreement with the view of Roch L.J. in the Canons Park case who, referring to the criticisms made by the European Court of Human Rights in X v. The United Kingdom stated at p. 78C:

      "Parliament would have failed to meet those criticisms if a tribunal, despite being satisfied that medical treatment was not likely to alleviate or prevent deterioration in the psychopathic patient's condition, and had never been likely to do so, was not then under a duty to direct the patient's discharge. The terms of section 66 of the Act make the tribunal's function under section 72 as a reviewing body, in my view, quite clear, and it cannot, I would suggest, be accepted that Parliament intended that a tribunal should when reviewing a decision under section 3 or under section 20 apply only two of the three criteria laid down in the Act to justify the compulsory detention of patients suffering from psychopathic disorder or mental impairment."

I do not consider that the validity of this reasoning is weakened in relation to the respondent by the consideration that section 64(1) is contained in Part VI of the Act of 1984 relating to a patient who has committed a criminal offence and is detained in hospital pursuant to a hospital order made by the court which convicted him, whereas section 17(1) is contained in Part V of the Act which relates to a patient who has not been convicted by a court, because where such a patient appeals to the sheriff for discharge from detention in the hospital the material wording of section 33(4)(a) and (b) is identical to the wording of section 64(1)(a) and (b), section 33(4) providing:

     "Where an appeal is made to the sheriff by a patient under sections 26, 30 or 34 of this Act, the sheriff shall order the discharge of the patient if he is satisfied that--

     (a) 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) it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment."

The second principal issue on this appeal relates to the findings of fact made by the Sheriff in relation to the medical treatment of the respondent. Section 125(1) of the Act of 1984 contains a definition of the term "medical treatment". It provides: 

     "'Medical treatment' includes nursing, and also includes care and training under medical supervision."

In the first part of his decision the Sheriff, in my opinion, gave an erroneous construction to section 64(1)(a) when he stated at p. 11:

     "Nowhere in Part VI does it say that a criminal who has been ordered by the High Court to be detained without limit of time requires to be discharged if his condition is not being alleviated."

But I consider it to be clear that the Sheriff then turned to consider what the result of the appeal to him would be if this construction were wrong and the "medical treatment" referred to in section 64(1)(a) was treatment which was likely to alleviate or prevent a deterioration of the respondent's condition. I am of this opinion because immediately after the passage in his judgment giving the erroneous construction to section 64(1)(a) he stated:

     "In any event I agree with Dr. White (as stated in his recommendation two in page four of his Report) that 'in the structured setting of the State Hospital in a supervised environment, that Mr. Reid's anger management improves, resulting in his being less physically aggressive. There is evidence that when this structure or supervision is lessened that Mr. Reid poses more of a danger to others e.g. his abuse of parole while an in- patient in Sunnyside Hospital, Montrose.' Medical treatment has alleviated his condition, and should continue to do so." (emphasis added)

And in his decision he had previously set out the finding:

     "He has not received medication for his condition for more than ten years. He has continued to receive medical treatment in conditions of maximum security. This treatment includes nursing and also includes care and training under medical supervision."

Therefore the Sheriff made a finding of fact that medical treatment was likely to alleviate the respondent's condition. Accordingly the Sheriff was not satisfied as to the matter set out in section 64(1)(a). Although he was not invited by the solicitor appearing for the respondent to address the matter set out in section 64(1)(b) it is clear that the Sheriff was not satisfied as to that matter because he states in his finding of fact no. 19, to which I have earlier referred:

     "In the event of the Applicant being released now, there is a very high risk of him re-offending. Any such offence is likely to have a sexual connotation."

Therefore as the Sheriff was not satisfied either as to the matter set out in section 64(1)(a) or as to the matter set out in section 64(1)(b), he was not entitled to direct either the absolute discharge or the conditional discharge of the respondent.

Accordingly the second issue which arises for determination is whether the Inner House was entitled to set aside the ruling of the Lord Ordinary and hold that there was no evidence to justify the Sheriff's conclusion that medical treatment was likely to alleviate the respondent's condition. I am in agreement with the opinion of the Inner House that treatment which alleviates the symptoms and manifestations of the underlying medical disorder of a psychopath is "treatment" within the meaning of section 17(1)(a)(i) even if the treatment does not cure the disorder itself.

The petition to the Lord Ordinary was a petition for judicial review, and was not an appeal against the decision of the Sheriff. Therefore the Lord Ordinary summarised his jurisdiction with complete accuracy when he said at p. 557H:

      "At the outset it must be recalled that, when it introduced an appeal mechanism, Parliament laid down that the appeal was to be to the local sheriff. Parliament has therefore laid on him the responsibility for hearing and deciding the appeal. In a judicial review there can be no question of a judge of the Court of Session considering the issue in the appeal afresh and substituting his view for that of the sheriff. I can interfere with the sheriff's decision only if there was a procedural irregularity or he erred in law or reached a decision on the facts which was Wednesbury unreasonable."

It is clear that there was a difference of opinion between the seven psychiatrists who gave evidence before the Sheriff. The Sheriff recognised this and stated that "the majority opinion among the witnesses was that the medical treatment provided by the State Hospital had not alleviated and would not alleviate his condition." But the Sheriff referred to the evidence of Dr. Chiswick, who was in favour of an absolute discharge of the respondent, and who stated that "Dr. White's plans for anger management etc. would be regarded by him as treatment." And it is clear from the passage of his decision which I have set out above that the Sheriff accepted the opinion of Dr. White, who was the responsible medical officer for the respondent, that the anger management of the respondent in the structured setting of the State Hospital in a supervised environment resulted in his being less physically aggressive. In other words it was Dr. White's opinion that the symptoms of his underlying condition were alleviated, and this led the Sheriff to the conclusion that medical treatment "should continue" to alleviate his condition.

Therefore, in my view, contrary to the opinion of the Inner House, the Lord Ordinary was right to decide that, given the evidence which was before the Sheriff, it would be wrong to hold that no sensible Sheriff could have reached the decision which he did. I consider that the Lord Ordinary's conclusion is also supported by the consideration that the Inner House reached its decision by reference to the written reports of the seven psychiatrists, but it is clear that they also gave oral evidence before the Sheriff, the transcripts of which were not before the Inner House, and in the course of that oral evidence the Sheriff may have heard additional matters which supported the decision to which he came.

I recognise that if the Inner House had been hearing an appeal from the decision of the Sheriff, it would have been open to it to have come to the conclusion that it was not satisfied that medical treatment was likely to alleviate the respondent's condition, but I differ, with respect, from its decision that there was no basis for the Sheriff to conclude that medical treatment was likely to alleviate his condition. Accordingly I would allow the appeal on this ground and would uphold the ruling of the Sheriff that the respondent was not entitled to a direction that he be discharged from hospital.

In conclusion I return to the issues of importance and public concern to which I referred at the commencement of this judgment. In the present case the Sheriff did not order the discharge of the patient who was subject to a restriction order because there was medical evidence before him which entitled him to find that the supervision which the patient received in the structured setting of the State Hospital which improved the patient's anger management constituted "medical treatment" within the meaning of section 64(1)(a) which was likely to alleviate his condition. But there may be other cases where the evidence before a Sheriff does not lead to a finding by him that a psychopathic patient is receiving treatment which is likely to alleviate his condition. In such a case under the construction which I and the majority of your Lordships place upon section 64(1)(a) the Sheriff would be obliged to direct the absolute discharge of the patient irrespective of what fears there might be that he would be likely to harm other persons.

I am of opinion that in such a case the Sheriff would not be entitled to give a direction for the conditional discharge of the patient, because if the medical evidence was that medical treatment in the hospital was not likely to alleviate or prevent a deterioration of the psychopath's condition, it is difficult to see in relation to section 64(1)(c) how the Sheriff could take the view that it was appropriate for the psychopath to remain liable to be recalled to hospital for further treatment. I consider that in relation to, for example, a schizophrenic patient, the position in respect of a conditional discharge might be different, because I think that psychiatrists might give evidence before a Sheriff that the improvement in the patient's condition in hospital had been such that it was no longer appropriate to detain him for medical treatment, but that there was a risk that he might have a relapse which would make it appropriate for him to be recalled to hospital for further treatment.

As I have stated, the danger which could arise under section 64(1)(a) is that a Sheriff would be obliged to direct the absolute discharge from hospital of a psychopath, who might well harm members of the public, if the evidence adduced before him satisfied him that medical treatment in hospital was not likely to alleviate or prevent a deterioration of his condition (including the symptoms and manifestations of that condition). But a proposal to change section 64(1)(a) to remove or reduce that danger gives rise to the problem whether it would be just to detain a psychopath for many years in hospital when medical treatment was not likely to alleviate or prevent a deterioration of his condition and when, if at the time of his conviction, he had been sentenced to imprisonment instead of being ordered to be detained in hospital subject to a restriction order without limit of time, he might have been released at the end of his term of imprisonment or, where a life sentence was imposed, by the order of the Secretary of State for Scotland, by the date when he applied to a Sheriff to be discharged from hospital.

This is a problem of great difficulty which, in my opinion, can only be resolved by Parliament. It cannot be resolved by the courts under the present legislation and, moreover, I consider that the balancing of the protection of the public as against the claim of a psychopath convicted many years ago that he should not continue to be detained in hospital when medical treatment will not improve his condition, is an issue for Parliament to decide and not for judges.

 
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