R v Secretary of State for Scotland
| Jurisdiction | England & Wales |
| Judgment Date | 03 December 1998 |
| Date | 03 December 1998 |
| Docket Number | No. 3 |
| Court | House of Lords |
HL
Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hope of Craighead, Lord Clyde and Lord Hutton
PracticeMental healthPatient suffering psychopathic personality disorderPatient detained in state hospitalWhether appropriate for him to be liable to be detained in hospital for medical treatmentWhether medical treatment likely to alleviate or prevent deterioration of his conditionWhether patient entitled to be discharged from hospitalMental Health (Scotland) Act 1984 (cap 36), secs 17 and 641
PraticeExtent of supervisory jurisdiction in application for judicial reviewWhether sheriff entitled to reach conclusion he didRole of court of review
Statutory interpretationConstruction of sectionWhether to be read as referring back to previous sectionMental Health (Scotland) Act 1984 (cap 36), secs 17 and 641
Section 17(1) of the Mental Health (Scotland) Act 1984 enacts, inter alia, that: A person may 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 and 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.
Section 64 of the Act enacts, inter alia, that: (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. Section 64(2) makes provision for a conditional discharge if the sheriff is satisfied as to (a) or (b) but not (c).
In 1967 the petitioner was convicted of culpable homicide in the High Court of Justiciary. An order was made for his detention in the State Hospital, Carstairs, in terms of sec 55 of the Mental Health (Scotland) Act 1960. In addition, the petitioner was made the subject of an order restricting his discharge in terms of sec 60 of the 1960 Act. Being a restricted patient subject to a restriction order, the petitioner made application to the sheriff in terms of sec 53(2) of the 1984 Act seeking discharge. The sheriff held that the statutory criteria had not been met. The petitioner thereafter brought a petition under
the judicial review procedure in which he sought reduction of the sheriff's decision. The Lord Ordinary refused to grant decree of reduction and dismissed the petition. The petitioner thereafter reclaimed to the Inner House. The Second Division allowed the appeal. The Secretary of State appealed to the House of LordsHeld (rev judgment of the Second Division) (1) that the statutory scheme was to specify certain criteria all of which had to be met before a court could make a hospital order under which an offender was liable to be detained and the purpose of sec 64 of the 1984 Act was to enable a person so detained to apply to the court in order to be discharged from the order if he had ceased to be a person in respect of whom all those criteria were said to apply, that discharge being either absolute or conditional; (2) (Lord Lloyd of Berwickdissenting) that if, as in the present case, the offender suffered from a psychopathic personality disorder he was not liable to be detained unless the additional condition imposed by sec 17(l)(a) applied to him, being that medical treatment in the hospital was likely to alleviate or prevent a deterioration of his condition; (3) that in an appeal under sec 64 the sheriff must decide whether the patient had a mental disorder and if so must identify the nature and degree condition and if he was satisfied that such treatment was not likely to do so he was bound to grant a discharge; if he was not so satisfied, or if he was dealing with any other kind of mental disorder, he must consider the propriety of the patient receiving the medical treatment in detention in hospital, and in doing so must look to the nature and degree of the mental disorder; (4) that the circumstances which he might consider included the health and safety of the patient and the safety of other persons, including members of the public; (5) that in a judicial review of the decision of a sheriff in such an appeal the court may explore the evidence in order to see if the decision is vitiated by a legal deficiency, but may not form its own view of the evidence, and that where, as in the present case, the sheriff had heard the evidence of seven psychiatrists but the oral evidence had not been recorded, great caution was required in revisiting the substance of the decision; (6) that the sheriff was entitled to find that medical treatment had alleviated the patient's condition and should continue to do so, and accordingly would not nave been entitled to discharge him; (7) that the sheriff's mistaken view of the construction of sec 64(1) did not vitiate his approach to the evidence as he had clearly considered the question of medical treatment on the assumption that he was wrong; and accordingly (8) that the Second Division had not been entitled to interfere with the decision of the courts below and the interlocutor of the Lord Ordinary should be restored; and appealallowed.
Observations on the similarity of the relevant provisions of the Mental Health (Scotland) Act 1984 and the Mental Health Act 1983.
R v Canons Park Mental Health Tribunal, ex parte A [1995] QB 60 not followed.
(In the Court of Session, 22 August 1997 (1998 SC 49))
ALHR applied to the sheriff under sec 63(2) of the Mental Health (Scotland) Act 1984 seeking discharge from a restriction order imposed on him on 8 September 1967 when an order was made for his detention in the State Hospital at Carstairs in terms of sec 55 of the Mental Health (Scotland) Act 1960. After proof the sheriff refused the application.
The petitioner thereafter applied to the Court of Session under the judicial review procedure seeking reduction of the sheriff's decision.
After a first hearing the Lord Ordinary (Rodger) at advising on 26 May 1996 refused to grant decree of reduction and dismissed the petition:see 1997 SLT 555.
The petitioner reclaimed. The petition called before the Second Division comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Macf adyen for a hearing on the summar roll.
At advising on 22 August 1997 their Lordships allowed the reclaiming motion: see 1998 SC 49. The Secretary of State appealed to the House of Lords.
Cases referred to:
Associated Provincial Picture Houses Ltd v Wednesbury CorporationELR [1948] 1 KB 223
F v Management Committee and Managers of Ravenscraig HospitalSC 1998 SC 158
K v CraigSC 1999 SC (HL) 1
R v Bournewood Community and Mental Health NHS Trust,exp L [1988] 3 WLR 107
R v Canons Park Mental Health Review Tribunal, exp A [1994] 1 All ER 481; [1995] QB 60
R v Mental Health Tribunal, ex p Macdonald[1998] COD 205
R v Mersey Mental Health Review Tribunal, exp Dillon (unreported, 19 March 1986)
R v Secretary of State for ScotlandUNK 1989 SCLR 784
X v United KingdomHRC (1981) 4 EHRR 188
The appeal was heard in the House of Lords before Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hope of Craighead, Lord Clyde and Lord Hutton on 12 and 13 October 1998.
At delivering judgment, on 3 December 1998
LORD SLYNN OF HADLEYMy Lords, I have had the advantage of reading a draft of the speech prepared by my noble and learned friend Lord Clyde. For the reasons he gives, I too would allow the appeal and restore the interlocutor of the Lord Ordinary. I also agree with the guidance given by my noble and learned friend Lord Hope of Craighead as to the application of the statutory provisions.
LORD LLOYD OF BERWICKMy Lords, on 8 September 1967 the respondent R, then aged 17, was convicted of culpable homicide. He was made the subject of a hospital order under what is now sec 58 of the Criminal Procedure (Scotland) Act 1995. He was also made subject to a restriction order under sec 59 of the Act, without limit of time. A restriction order may only be made if it appears to the court that it is necessary for the protection of the public from serious harm.
The medical evidence at the trial was to the effect that R was suffering from what was then known in Scotland as mental deficiency, but is now known as mental handicap. It is common ground (and the sheriff has so found) that he is not mentally handicapped. Instead he is suffering from a persistent and permanent mental disorder characterised by abnormally aggressive and seriously irresponsible behaviour. In other words he is a psychopath. In July 1994 he made an application for his discharge (not for the first time) under sec 64 of the Mental Health (Scotland) Act 1984. But Sheriff Reeves refused to make an order. He found that, if R were to be released now, there would be a very high risk of his re-offending, and his offending would be likely to have a sexual...
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