R v Secretary of State for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 22 August 1997 |
| Docket Number | No 4 |
| Date | 22 August 1997 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
Practice—Mental health—Patient suffering psychopathic personality disorder—Patient detained in state hospital—Patient no longer liable to be detained as medical treatment unlikely to alleviate or prevent deterioration of his condition—Whether patient entitled to be released from hospital—Mental Health (Scotland) Act 1984 (cap 36), secs 17 and 641
Section 17(1) of the Mental Health (Scotland) Act 1984 enacts 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) if 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.
Held (1) that the statutory scheme was to specify certain criteria all of which had to be met before a court was empowered to 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 of law in order to be discharged from the order if he had ceased to be a person in respect of whom all those criteria were deemed to apply, that discharge being either absolute or conditional; (2) 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(1)(a)(i) applied to him, being that medical treatment in the hospital was likely to alleviate or prevent a deterioration of his condition; (3) that, accordingly, if the patient could satisfy the sheriff that at the time of the hearing of the appeal he was not suffering from mental disorder at all or that he was suffering from mental disorder of a nature or degree which did not make it appropriate for him to be liable to be detained in a hospital for medical treatment, then he was entitled to be discharged and, if he were suffering from the mental disorder mentioned in sec 17(1)(a) (i) of the 1984 Act, but it was demonstrated that such treatment as was available to him was not likely to alleviate or prevent the deterioration of his condition, then he was entitled to be discharged under sec 64, “his condition” being referable not just to the underlying mental disorder from which he suffered, but also to the syndrome of symptoms manifested by his abnormally aggressive or seriously irresponsible conduct; (4) that it followed that in terms of sec 64 the sheriff had been obliged to order the petitioner's discharge, unless he was satisfied at the time of the hearing of the appeal that it was appropriate for him to receive medical treatment in a hospital and that such treatment was likely to alleviate or prevent a deterioration of his condition, which was a question to be decided on the evidence and, on the evidence in this case, it was clear that the petitioner's condition did not meet those criteria; and, accordingly (5) that the petitioner was entitled to be discharged; and reclaiming motionallowed.Observed that the question whether treatment was necessary for the health and safety of the patient or for the protection of others was not a relevant consideration when applying the sec 64(1)(a) of the 1984 Act criterion.
Alhr applied to the sheriff under sec 63(2) of the Mental Health (Scotland) Act 1984 seeking discharge from a restriction order imposed upon 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, at advising on 29 May 1996, refused to grant decree of reduction and dismissed the petition:See 1997 SLT 555.
The petitioner thereafter reclaimed.
Cases referred to:
R v Canons Park Mental Health Tribunal ex parte A [1995] QB 60
T, Petitioner 1997 SLT 724
X v UKHRC (1981) 4 EHRR 188
The cause called before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Macfadyen for a hearing on the summar roll.
At advising, on 22 August 1997—
LORD JUSTICE-CLERK (Cullen)—On 8 September 1967, when he was 17 years of age, the petitioner was convicted of culpable homicide in the High Court of Justiciary. The court was satisfied on medical evidence that he was suffering from a mental disorder within the meaning of the Mental Health (Scotland) Act 1960, and that the mental disorder was mental deficiency. The court made two orders in respect of the petitioner, namely: (i) a hospital order under sec 55 of the 1960 Act, that he should be admitted to and detained in the State Hospital; and (ii) a restriction order under sec 60 of the 1960 Act, restricting his discharge from hospital without limit of time.
Thereafter the petitioner was detained in the State Hospital until July 1985 when he was transferred to a mental hospital at Montrose. In August 1986 he re-offended. For this offence he served a prison sentence from which he was released on 7 October 1986. He was then returned to the tate Hospital where he has remained since then. By 1980 it had been recognised that he was no longer suffering from mental deficiency. It is not in dispute that he suffers from a personality disorder which, in the terms of the finding by the sheriff in the proceedings to which I will refer shortly, is described as “manifested only by abnormally aggressive and seriously irresponsible behaviour”. For present purposes it is convenient to refer to the petitioner as having a psychopathic personality.
The general effect of a hospital order, according to sec 60(2) of the Mental Health (Scotland) Act 1984, is that the patient is to be treated as if he had been admitted to hospital on the date of the order in pursuance of an application for his admission to hospital under Part V of the Act. However, the general effect of the imposition of the restriction order in addition to the hospital order is that, in terms of sec 62(1) of the 1984 Act, a number of special restrictions apply to the patient. These include that the provisions of Part V as to the duration, renewal and expiry of authority for the detention of patients are not to apply, and that certain powers are exercisable only with the consent of the Secretary of State. A patient who is the subject of a restriction order has a right of appeal under sec 63(2) to the sheriff who is required to direct his absolute discharge if he is satisfied as to certain matters in terms of sec 64(1) of the 1984 Act. In the event of his absolute discharge from the hospital order the restriction order ceases to have effect. Provision is also made for a conditional discharge, but in this instance the restriction order is not to cease to have effect until such time as the discharge is made absolute. In terms of sec 68(2) of the 1984 Act the Secretary of State has the power to discharge the patient either absolutely or conditionally. Absolute discharge entails that the restriction order ceases to have effect. Alternatively, in terms of sec 68(1), the Secretary of State may direct that the patient is to cease to be subject to the special restrictions set out in sec 62(1). In that case the restriction order is to cease to have effect, but the hospital order itself is left standing.
The petitioner appealed to the sheriff under sec 63(2) of the 1984 Act on several occasions. The present proceedings for judicial review arise...
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