The Scottish Ministers Against A Decision Of The Mental Health Tribunal Relating To Jm Communicated On 1 April 2011
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Emslie,Lord Hardie |
| Neutral Citation | [2011] CSIH 76 |
| Date | 02 December 2011 |
| Docket Number | XA44/11 |
| Court | Court of Session |
| Published date | 02 December 2011 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Hardie Lord Emslie | [2011] CSIH 76 XA44/11 OPINION OF THE COURT delivered by LADY PATON in the appeal by by THE SCOTTISH MINISTERS Appellants; against a decision of the Mental Health Tribunal relating to JM communicated on 1 April 2011 _______ |
Non-participating party: the Mental Health Tribunal
Interested party (the patient JM): Komorowski; Murray Beith Murray
2 December 2011
Introduction
[1] In this appeal, the Scottish Ministers challenge the revocation by a Mental Health Tribunal of a Restriction Order (RO) affecting a patient suffering from paranoid schizophrenia and living in the community. The hearing date is yet to be fixed. The present motion concerns the interim position. The Ministers seek to preserve the status quo pending the appeal in terms of section 323 of the Mental Health (Care and Treatment) (Scotland) Act 2003. They consider that the patient's mental disorder and his history (which includes the attempted murder of his father) are such that he "would commit offences if set at large, [and] that it is necessary [to have an RO in place] for the protection of the public from serious harm" in terms of section 59 of the Criminal Procedure (Scotland) Act 1995. The patient, JM, opposes their motion on two grounds: first, the motion is said to be incompetent on the basis that the wording of section 323 does not empower the court to make an order when the patient is not currently actually physically detained in hospital; and secondly, the patient's progress has been such as to make an interim order unnecessary. The Mental Health Tribunal do not wish to be represented at this stage.
The patient's history
[2] On 13 May 1991 at Glasgow High Court, the patient (then aged 20) was acquitted by reason of insanity of the attempted murder of his father. He had assaulted his father in an unprovoked attack, repeatedly striking him on the head with a hammer to the danger of his life. The patient claimed to have heard voices instructing him to attack his father. He was diagnosed as suffering from paranoid schizophrenia. Lord Morison imposed a hospital order with an RO in terms of sections 174 and 175(4) of the Criminal Procedure (Scotland) Act 1975. The patient was then detained in Carstairs State Hospital. By virtue of paragraph 20 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Transitional and Savings Provisions) Order 2005, the patient became subject to a Compulsion Order (CO) under section 57A(2) of the Criminal Procedure (Scotland) Act 1995 as amended, and to an RO under section 59 of that Act.
[3] Over the years since 1991, the patient has demonstrated a cyclical pattern of behaviour, with periods of paranoid and violent psychosis alternating with periods of more normal, settled behaviour. The psychotic symptoms suffered by the patient were often triggered by the abuse of alcohol or drugs, and included the hearing of voices, paranoid ideation, delusions and hallucinations. While psychotic, he exhibited violent or bizarre behaviour including absconding from hospital, threatening to kill his wife and baby, making threatening telephone calls to his mother, accusing people of communicating by telepathy around him so that he could not follow what they were saying, attacking and fighting fellow-patients and nurses, and being generally disruptive by, for example, deliberately setting off smoke alarms. Nevertheless when given the appropriate treatment, including antipsychotic medicine, monitoring and supervision, he could improve to such a level that he could live in the community with support and supervision in terms of a conditional discharge (the CO and RO remaining in force).
[4] This cyclical pattern of behaviour is well illustrated by a sequence of five conditional discharges into the community, followed by four recalls (and on one occasion a voluntary re-admission) to hospital as a result of deteriorating health and behaviour. Staff noted that when the patient's symptoms worsened, he lost insight into the nature of his illness and his need for medication. He would also tend to minimise the seriousness of his violence towards others. In a letter dated 19 October 2007, his then RMO (responsible medical officer), a consultant psychiatrist Dr Culshaw, noted that:
"... [his] risk of violence to others [was] significantly increased whenever he had a relapse of his illness".
She noted his significant history of failure in the community, primarily as a result of substance misuse precipitating a relapse of his psychotic symptoms. In her view, the RO remained necessary for the protection of the public because the index offence was "inextricably linked to his mental illness".
[5] In 2008, the patient was again conditionally discharged into the community. The current conditions of his discharge are as follows:
(a) residence at a particular address
(b) psychiatric supervision by his RMO, with regular attendance at appointments
(c) social work supervision
(d) supervision by his community psychiatric nurse (CPN)
(e) access to his accommodation by his clinical team
(f) good behaviour and no criminal offences
(g) compliance with such treatment as his RMO may direct
(h) compliance with directions about the structure of his week by his RMO and MHO
(i) no illegal drugs, and compliance with random testing
(j) a maximum of two units of alcohol on special occasions, and compliance with the care team's alcohol monitoring.
[6] On 9 March 2011 a Mental Health Tribunal, having heard evidence and considered authorities, decided that the RO was no longer necessary. They revoked the RO and varied the CO. As already noted, that is the decision which is challenged by the Scottish Ministers.
[7] In a recent report by the patient's RMO Dr Sankey dated 9 May 2011, the patient's mental state was described as remaining stable. He continued to attend his voluntary job at a Salvation Army shop and to visit his family at weekends. He attended monthly appointments with Dr Sankey. He showed no evidence of returning to illicit drug use. He continued to confine his alcohol intake to one or two pints of lager once a week or fortnight. He complied with random drug tests. Dr Sankey noted that the Mental Health Tribunal had revoked the patient's RO on 9 March 2011, and had varied his CO. She further noted:
"JM himself was very clear with me ... that he anticipated very little changing with his follow-up arrangements despite his potential derestriction ... He himself was of the view that 'very little is going to change' with derestriction or otherwise."
[8] In the section headed "Opinion", Dr Sankey summarised the positive aspects of the patient's current position, but added in paragraph 4:
"... I am still concerned about his potential to return to illicit drug use particularly at times of high stress. "
In all the circumstances, however, she concluded that while the CO should remain in place, it was her submission that the RO was no longer necessary.
The statutory scheme
[9] A judge sentencing an offender with a mental disorder may, by means of a CO under section 57A of the Criminal Procedure (Scotland) Act 1995, make orders for compulsory treatment including detention in hospital, residence at a specific place, compulsory medical treatment, and compulsory attendances for such treatment and/or community care services. Where the court also makes an RO under section 59 of the 1995 Act, imposing special restrictions for the protection of the public as set out in Part 10 of the 2003 Act, then the CO is without limit of time; but in the absence of an RO, the CO lasts for six months only. The provisions in Part 10 give the Scottish Ministers significant monitoring and supervision powers, including the power to recall a patient to hospital and the power to oppose an absolute discharge.
[10] In terms of the Mental Health (Care and Treatment) (Scotland) Act 2003, Mental Health Tribunals hear applications and references relating to patients with mental disorders, and have the power to change their regimes. For example, where a patient is subject to both a CO and an RO and is currently detained in hospital, a Mental Health Tribunal may, in terms of section 193(7) of the 1993 Act, if not satisfied that it is necessary to detain the patient in hospital, authorise his conditional discharge into the community. The patient remains subject to the CO and the RO, and is subject to the conditions imposed by the tribunal. In the event of a breach of any condition, the Scottish Ministers have the power under the RO to recall him to hospital (as occurred in JM's case on four previous occasions).
[11] The following sections of the 2003 Act are relevant to the present motion. Section 323:
"Suspension of decision of Tribunal pending determination of certain appeals
(1) Where the Scottish Ministers appeal under section 322(2) of this Act against any decision of the Tribunal under section 193 of this Act ... the Court of Session may, on the motion of the Scottish Ministers, order -
(a) that the patient in respect of whom the Tribunal's decision was made shall continue, subject to subsection (2) below, to be detained; and
(b) that both the compulsion order and restriction order or, as the case may be, the hospital direction or transfer for treatment direction to...
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