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House of Lords
Session 1998-99
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Judgments

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

HOUSE OF LORDS

  Lord Slynn of Hadley   Lord Lloyd of Berwick   Lord Hope of Craighead
  Lord Clyde   Lord Hutton Type names here

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

HUTCHISON REID
(RESPONDENT)
v.

SECRETARY OF STATE FOR SCOTLAND (APPELLANT)
AND ANOTHER
(SCOTLAND)

ON 3 DECEMBER 1998

LORD SLYNN OF HADLEY

My 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 BERWICK

My Lords,

On 8 September 1967 the respondent Alexander Lewis Hutchison Reid, then aged 17, was convicted of culpable homicide. He was made the subject of a hospital order under what is now section 58 of the Criminal Procedure (Scotland) Act 1995. He was also made subject to a restriction order under section 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 Mr. Reid 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 section 64 of the Mental Health (Scotland) Act 1984. But Sheriff Reeves refused to make an order. He found that if Mr. Reid 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 connotation. He reached his conclusion after hearing conflicting evidence from seven psychiatrists.

Mr. Reid presented a petition for judicial review of the sheriff's decision. The Lord Ordinary (Rodger) 1995 S.L.T. 555 dismissed the petition. He based himself on the decision of the Divisional Court in England in Reg. v. Mersey Mental Health Review Tribunal, Ex parte Dillon (unreported 19 March 1986) and the subsequent decision of the Court of Appeal in Reg. v. Canons Park Mental Health Review Tribunal, Ex parte A [1995] Q.B. 60. The Inner House 1997 S.L.T. 162 allowed a reclaiming motion, and granted a decree of reduction of the sheriff's decision. There is now an appeal to your Lordships.

Although the appeal is nominally and in substance an appeal by the Secretary of State for Scotland, it is also in reality an appeal against the decision of the Court of Appeal in the Canons Park case. Regrettably their Lordships in the Inner House regarded the Canons Park case as irrelevant on the ground that the "terminology" of the English Mental Health Act of 1983 differs from that of the Scottish Act. Mr. Bell Q.C. for the Secretary of State was unable to sustain that ground. It is now common ground that the relevant provisions of the two Acts are essentially the same. Consistently your Lordships in allowing the appeal have held that the Canons Park case was wrongly decided. Since the Canons Park case and the previous decision in Ex parte Dillon have been treated as guiding authority in numerous decisions in the Sheriff's Court in Scotland (see Reg. v. Secretary of State for Scotland 1989 S.C.L.R. 784) and in Mental Health Review Tribunals throughout England (see Reg. v. Mental Health Review Tribunal, Ex parte Macdonald [1998] C.O.D. 205) it is clear that your Lordships' decision will have wide repercussions. It is not known how many cases where psychopaths are currently being detained under Part II of the Act of 1983 (England and Wales) or Part V of the Act of 1984 (Scotland) will have to be reconsidered.

But the consequences are even more serious in the criminal field. Take the case of a dangerous psychopath who has been convicted of a grave sexual offence. Instead of being sentenced to life imprisonment, he may quite properly have been made subject to a hospital order under section 58 of the Act of 1995, and a restriction order under section 59. For that purpose it would have been necessary for the court to be satisfied on the evidence of two psychiatrists not only that he was suffering from a psychopathic disorder, but also that medical treatment was "likely to alleviate or prevent a deterioration of his condition": (see section 17(1)(a)(i) of the Act of 1984). Now suppose that the psychiatrists turn out to be wrong. Suppose that the current of psychiatric opinion has changed, and it is now the better view that treatment never could have had the desired effect. Or suppose, more simply, that the treatment has run its course, and that it has done for the patient all that it was ever likely to do by way of alleviating his condition or preventing any further deterioration. His condition is stable, but he is still suffering from the same psychopathic disorder, and is still dangerous. If their Lordships of the Inner House are correct, the sheriff would be bound to order his discharge. Conditional discharge under section 64(1)(c) and (2) would not be appropriate, since, ex hypothesi, further treatment would serve no purpose. So the sheriff would be bound to order an absolute discharge.

That might not in itself be cause for alarm if the patient could be brought back into the prison system. But it was common ground that until section 6 of the Criminal Procedure (Scotland) Act 1997 (and section 46 of the Crime (Sentences) Act 1997 in England) there was no way of bringing such a man back into the prison system so as to serve the sentence of life imprisonment which would otherwise have been imposed on him; and section 6 of the Scottish Act and section 46 of the English Act are not retrospective. It is not known how many psychopathic offenders are currently detained in hospital under restriction orders whose cases will now have to be reconsidered, and who may, as a result, have to be released back into the community. The seriousness of these possible consequences does not need to be underlined. The consequences cannot, of course, control the construction of the Act of 1984, if the meaning is clear. But it does lead one to wonder whether a construction which produces such consequences can be correct.

It is convenient at this stage to set out the most relevant statutory provisions. The Criminal Procedure (Scotland) Act 1995 provides:

     "58(1) Where a person is convicted in the High Court or the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment, and the following conditions are satisfied, that is to say -

      (a) the court is satisfied, on the written or oral evidence of two medical practitioners (complying with section 61 of this Act) that the grounds set out in -

       (i) section 17(1); or, as the case may be

       (ii) section 36(a),

       of the Mental Health (Scotland) Act 1984 apply in relation to the offender;

      (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,

      subject to subsection (2) below, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of such local authority or of such other person approved by a local authority as may be so specified.

     "59(1) Where a hospital order is made in respect of a person, and it appears to the court -

      (a) having regard to the nature of the offence with which he is charged;

      (b) the antecedents of the person; and

      (c) the risk that as a result of his mental disorder he would commit offences if set at large,

     that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in section 62(1) of the Mental Health (Scotland) Act 1984, without limit of time."

The Mental Health (Scotland) Act 1984 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 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.

     . . .

     "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 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."

In the Canons Park case [1995] Q.B. 60, 82 Kennedy L.J., who gave the leading judgment, used terms which have been found convenient ever since to describe the three statutory criteria which have to be met under section 3 of the Act of 1983 and section 17 of the Act of 1984 before a patient suffering from a psychopathic disorder can be admitted and detained for treatment. Under the "appropriateness" test the nature or degree of the psychopathic disorder must be such as to make it appropriate for him to receive medical treatment in hospital. Under the "treatability" test the treatment in question must be likely to alleviate or prevent a deterioration in his condition. Under the "safety" test it must be necessary for him to receive such treatment either for his own health or safety or the safety of others, and it must be shown that such treatment cannot be provided unless he is detained.

Turning to section 64 of the Act one finds what appears to be a reflection of the appropriateness test in section 64(1)(a) and of the safety test in section 64(1)(b). But nowhere is there any reflection of the treatability test. Sheriff Reeves put the point very clearly when he said:

     "Nowhere in Part VI of the Act [which covers detention of patients concerned in criminal proceedings, and includes section 64] 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."

By the end of the hearing before the Lord Ordinary it was common ground that treatability was a factor in the overall decision whether to discharge a patient or not. But it was not decisive. In other words it is open for a sheriff to refuse to order the discharge of a psychopathic patient even though his condition is no longer regarded as treatable. I am bound to say that I am attracted by the common sense of that view, especially in the case of a patient who is subject to a restriction order without limit of time.

But the Inner House took a different view. In their opinion the fact that the psychopathic disorder is no longer regarded as treatable is decisive in favour of a discharge. The Lord Justice Clerk (Cullen) put the point at 1997 S.L.T. 162, 165 as follows:

     "[Counsel for the Secretary of State] submitted that the terminology of section 64 can be treated as wholly independent of the terms of section 17. This seems to me to fail to give proper effect to the use of the word 'appropriate' in conjunction with the words 'liable to be detained'. That language plainly refers to the judgment which requires to be exercised as to whether or not there should be a liability to be detained in hospital for medical treatment, and hence involves the need to look beyond the existing hospital order. Thus it is necessary in my view to refer to the criteria set out in section 17(1) of the Act."

A little later he said:

     "Given that section 64(1) refers back to the terms of section 17(1) what are the matters as to which the sheriff requires to be satisfied before he has to direct the absolute discharge of a patient?"

The core of Lord Macfadyen's reasoning is contained in the following paragraph at page 171:

      "Leaving aside for the moment the language of sections 17(1) and 64(1), it seems to me that in principle if certain cumulative criteria require to be satisfied before a person may be detained, that person should be entitled to his discharge if he establishes that any one of the necessary criteria is no longer satisfied . . . It would, however, in my view be readily understandable if the effect of section 64(1), properly construed, were to be that discharge would be granted if it could be shown by the patient that, judged at the time of the application for discharge, not all of the cumulative criteria for ordering detention were satisfied. Conversely, it would in my view be unjust and unwarrantable interference with the liberty of the subject if a person who had been detained because a number of necessary criteria were all satisfied could not obtain his discharge despite proving that one or more of these criteria were no longer satisfied. I would therefore be slow to be persuaded that section 64(1), properly construed, could have that effect."

Both the Lord Justice Clerk and Lord Macfadyen would have agreed with the way the point was put by Roch L.J. in his dissenting judgment in the Canons Park case at p. 78:

     "It cannot, I would suggest, be accepted that Parliament intended that a tribunal should when reviewing a decision under section 3 . . . 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."

There are, I think, considerable difficulties in reading section 64 as if it "referred back" to section 17 when it does not in fact say so. But before coming to those difficulties I wish to address the point of principle mentioned by Lord Macfadyen. Is there anything so very strange in Parliament having provided that of the three criteria necessary for the making of a hospital order under section 58 of the Act of 1995, which in turn refers to section 17 of the Act of 1984, only two should be decisive when it comes to considering the discharge of a patient subject to a restriction order under section 64?

It seems to me that Parliament has intentionally drawn a distinction between two different types of psychopathic disorder, one being likely to yield to treatment in the sense envisaged by section 17(1)(a)(i), and the other not. If the psychopathic disorder is of a type which is likely to yield to treatment, then the next question is whether that disorder is of a nature and degree which makes it appropriate for the patient to receive that treatment in a hospital. But if the psychopathic disorder is not of a type which is likely to yield to treatment, then that is the end of the matter. The psychopathic offender cannot be admitted as a patient under section 58 and must be sent to prison instead. I can see no reason why Parliament should not have intended the decision as to the type of pathological disorder from which the offender is suffering to be made once and for all at the outset. For that is the time when it has to be decided whether to send him to prison or not. If that be so, then one would not expect treatability to be in issue when the case comes to be considered under section 64. Either the treatment has worked in which case he is no longer suffering from that disorder, and he is eligible for discharge under section 64(1)(a); or he is still suffering from that disorder, in which case it remains, by definition, treatable. What Parliament did not envisage was that an existing psychopathic disorder might be regarded as treatable today and untreatable tomorrow owing to a change in psychiatric thinking. If that had been within the contemplation of Parliament, there would surely have been provision for the revocation of hospital orders, and the substitution of an appropriate term of imprisonment.

At the end of his admirably clear and succinct reasons Sheriff Reeves said:

     "I am told that psychiatrists would today be unlikely to recommend admission to the state hospital. However, the applicant was properly admitted and detained, and I have not been satisfied that he is now not suffering from a 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."

I agree with the sheriff that what psychiatrists would be likely to recommend today is not the relevant question. Mr. Reid was properly admitted and detained in 1967. The fact that many psychiatrists would take a different view today would only be relevant if Mr. Reid had been detained under Part V of the Act, and his period of detention had expired. Then the question would arise whether his detention ought to be renewed under section 30(2). There is a specific reference in that context, as one would expect, to the grounds set out in section 17(1): (see section 30(3)). But Mr. Reid is not detained under Part V. He is detained without limit of time under Part VI, and the authority for his detention continues under section 62(1)(a) until his absolute discharge. In those circumstances I do not find it at all surprising that of the three criteria necessary for the making of a hospital order under section 58 of the Act of 1959, only two are relevant when it comes to an appeal under section 64. Indeed my surprise is the other way round. I would find it most surprising if Parliament intended a dangerous psychopathic offender to be released into the community merely because the disorder from which he is still suffering is no longer regarded as treatable. With respect therefore I cannot accept the principle which governed Lord Macfadyen's approach. The considerations which arise on the admission of a restricted patient are not the same as those which arise on his discharge. For the same reason I do not agree with the passage which I have quoted from the judgment of Roch L.J. in the Canons Park case.

Against that background I now turn to section 64. At the outset it is vital to bear always in mind that the section falls within Part VI of the Act, and not Part V. The legislative purpose underlying Part V of the Act, corresponding to Part II of the English Act, was considered by the House in Reg. v. Bournewood Community and Mental Health N.H.S. Trust, Ex parte L [1998] 3 W.L.R. 107. Putting it very briefly, the purpose was to encourage the admission of patients on a voluntary basis, and to discourage the use of compulsory powers, except where necessary: see especially the judgment of my noble and learned friend Lord Goff of Chieveley at pp. 113-116, and the crucial importance attached to section 131(1) of the English Act reproduced verbatim in section 17(2) of the Scottish Act. There is a reflection of the same approach in sections 35A-35J of the Scottish Act introduced into Part V by section 4 of the Mental Health (Patients in the Community) Act 1995: see Krol v. Craig. It is obvious, therefore, that the legislative purpose underlying Part V of the Act is very different from the purpose underlying Part VI of the Act. Indeed Part VI might as well have found a place in Part VI of the Criminal Procedure (Scotland) Act 1995. So it is difficult to see what room there is for any presumption in favour of the liberty of the subject, when the patient would, in the example given, have been sentenced to a term of life imprisonment if not made subject to a hospital order.

It is said that a construction of section 64 should be favoured which produces symmetry between section 64 and the provisions of Part V of the Act, and in particular section 33 which covers the discharge of non-criminal patients. But how does this help? In the discharge of non-criminal patients the central role is played by the responsible medical officer. But the responsible medical officer does not feature in the discharge of a patient who is subject to a restriction order. Clearly he is not competent to order the discharge of such a patient, and still less is the patient's nearest relative; see section 33(5). In the case of a restricted patient it is the Secretary of State who plays the central role, as one can see from section 68 of the Act and other provisions in Part VI. So I do not think much help is to be gained from a comparison with section 33. Indeed section 62(1) specifically provides:

     "None of the provisions of Part V of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is absolutely discharged under sections 63 to 68 of this Act."

Section 33 is specifically disapplied by Part II of the Second Schedule.

And so I come to the language of section 64. The first point to be made is the obvious one that whereas section 58(1)(a)(i) of the Act of 1995 makes specific reference to section 17(1) of the Act of 1984, section 64 does not. If Parliament had intended a patient to be discharged whenever the conditions set out in section 17(1) were not all satisfied, then it would have been easy enough to say so. A form of wording was suggested by Kennedy L.J. in the Canons Park case. An alternative form of wording might have been "the sheriff shall direct the discharge of the patient if satisfied that one of the grounds set out in section 17 has ceased to apply." But Parliament has not taken this simple course. The only explanation that I can think of is that Parliament intended section 64 to stand on its own without reference back to section 17(1)

There are other linguistic pointers in the same direction. First there is the problem of interpretation noted by the Lord Justice Clerk at p. 165. In section 17(1)(a) the question is whether it is appropriate for the patient to receive medical treatment. In section 64(1)(a) the question is whether it is appropriate for the patient to be liable to be detained in hospital for medical treatment. If section 64 is referring back to section 17, then on the face of it section 64(1)(a) would seem to cover all three statutory criteria. But that would mean that section 64(1)(b) is rendered otiose. The Lord Justice Clerk preferred on balance the view that section 64(1)(a) only "refers back" to section 17(1)(a); and this is also the view of Lord Macfadyen. But the problem only arises at all if one assumes (wrongly in my view) that section 64(1) is intended to refer back to section 17(1).

There is another pointer to be found in section 64(1)(c). Where a patient suffering from a pathological disorder has been conditionally discharged, the Secretary of State can recall him at any time for further treatment: see section 64(2)(a) coupled with section 68(3). It could not, I think, be suggested that the Secretary of State can only recall such a patient if the treatment is likely to alleviate or prevent a deterioration in his condition. Parliament has given him an unfettered discretion. But if continuing treatability is not a decisive consideration under the recall procedure (it would always be a relevant consideration) why should it be a decisive consideration under section 64(1)(a)?

It is said that the phrase "liable to be detained in a hospital for medical treatment" in section 64(1)(a) is the link which imports the treatability test from section 17(1). But once a hospital order has been made, coupled with a restriction order, the patient continues to be liable to be detained for medical treatment until he is absolutely discharged: see section 62(1)(a). The only question under section 64(1)(a) is whether he is still suffering from a mental disorder of a nature or degree which makes it appropriate for him to continue to be liable to be detained for medical treatment. Bearing in mind the wide definition of medical treatment in section 125, I am unable to see how "treatability" in the narrow sense, that is to say, treatment which is likely to alleviate or prevent a deterioration in the patient's condition, arises.

It is said that the construction favoured by the Inner House is more consistent with the judgment of the European Court of Human Rights in X v. United Kingdom (1981) 4 E.H.R.R. 188. The relevant passage is to be found at pp. 209-210, para. 58 as follows:

     "The [judicial] review should, however, be 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 (see paras. 40 and 52 above). 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."

As Mr. Clark Q.C. pointed out, the court was concerned with the question whether the disorder still persisted, not whether, if it persisted (as it does on the facts of the present case) it is still regarded as treatable.

In the end it comes back to the language of section 64. Are the words clear enough to require the sheriff to order the discharge of a pathological offender, thereby releasing him back into the community, on the ground that his condition is no longer regarded as treatable? I can give only one answer to that question. They are not. In my view the Canons Park case was rightly decided. I agree with the conclusion and reasoning of the Lord Ordinary, and would allow the appeal on that ground.

As for the second ground of appeal I have nothing to add to what will be said by my noble and learned friend, Lord Clyde. The sheriff's finding on the evidence was that medical treatment had alleviated Mr. Reid's condition, and would continue to do so. I am unable to accept the view of the Inner House that there was no evidence to support that finding, or that it was so contrary to common sense as to justify the court's intervention on judicial review. I would allow the appeal on that ground also.

LORD HOPE OF CRAIGHEAD

My Lords,

The respondent was 17 years old when on 8 September 1967 he was convicted in the High Court of Justiciary at Glasgow of culpable homicide. He pled guilty to the charge, which appears from the circumstances of the offence to have been reduced on the ground of diminished responsibility. Had it not been for reports by two medical practitioners that he was suffering from mental deficiency, it seems likely that he would have been charged with murder and, if found guilty, sentenced to life imprisonment. After hearing the oral evidence of the two medical practitioners the trial judge was satisfied in terms of section 55(1) of the Mental Health (Scotland) Act 1960 that he was suffering from mental disorder of a nature or degree which would warrant his admission to a hospital under Part IV of that Act and that the most suitable method of disposing of the case was by means of a hospital order. He was also satisfied in terms of subsection (5) of that section that, on account of his dangerous, violent or criminal propensities, the respondent required treatment under conditions of special security. So he made an order under section 55 that he was to be detained in the State Hospital. He also made an order restricting the respondent's discharge from hospital without limit of time. This order was made under section 60(1) of that Act, which enabled the court to impose the special restrictions which that section set out to protect the public against the risk that he would commit further offences if set at large.

The powers which the trial judge exercised are now to be found in sections 58 and 59 of the Criminal Procedure (Scotland) Act 1995. Section 58(1)(a) of that Act requires the court to be satisfied, before it makes a hospital order, that the grounds set out in section 17(1) of the Mental Health (Scotland) Act 1984 apply in relation to the offender. And section 59(1) of the Criminal Procedure (Scotland) Act 1995, which now requires that a restriction order should only be made where it is necessary for the protection of the public from serious harm, provides that where a restriction order is made the special restrictions are those set out in section 62(1) of the Mental Health (Scotland) Act 1984. The effect of the transitional provisions in Schedule 4 to the Act of 1984 is that the orders which the trial judge made under the Mental Health (Scotland) Act 1960 are to be treated as having been made with reference to the corresponding provisions of the Act of 1984. So it is to the provisions of that later Act that one must turn in order to discover the effect of the restriction order on the respondent's liability to be detained in a hospital.

Two issues are raised by the decision of the Inner House to allow the respondent's reclaiming motion against the interlocutor of the Lord Ordinary, which dismissed his petition for judicial review of the Sheriff's interlocutor refusing his summary application under section 63 of the Mental Health (Scotland) Act 1984 to order his discharge. The first relates to the proper construction of the provisions of section 64(1) of that Act which sets out the matters as to which the sheriff must be satisfied before an order for the discharge of a restricted patient may be made. The second relates to the approach which the Inner House took when they were examining the sheriff's decision on the evidence. The first issue is by far the more important, as any guidance which we can give on this matter will affect the position of other patients, hospital managers and medical practitioners as well as that of the Secretary of State and the Mental Welfare Commission for Scotland in the exercise of their functions and duties under the Act. It will affect the public also, bearing in mind that the purpose of a restriction order is to protect the public against the risk that the patient may commit further offences if he is given his discharge. And it may assist consideration of this matter by the Scottish Parliament, bearing in mind that legislation on mental health in Scotland, not being a reserved matter as defined by section 30 of and Schedule 5 in the Scotland Act 1998, will be within its legislative competence. The second issue is a relatively simple one, as to whether the approach which the Inner House took to this case can be reconciled with the fact that they were dealing with a petition for judicial review and not with an appeal from the sheriff's decision on the evidence.

As to the second issue I do not wish to add anything to the reasons which have been given by my noble and learned friend Lord Clyde, with which I agree, for holding that the learned judges of the Second Division were in error in departing from the approach to the evidence which had been taken by the Lord Ordinary. On one view that would be sufficient for the disposal of this appeal, as the sheriff made it clear that the opinion which he had formed of the evidence was unaffected by his decision as to whether he was bound by section 64(1) to order the respondent's discharge if he was satisfied that his condition was not being alleviated. He accepted the view of the respondent's responsible medical officer that his condition was being alleviated by medical treatment which he was receiving in the hospital. But it is clear that this would not be sufficient for the disposal of the wider issues which have been raised by this case. I should like therefore to make the following observations in order to explain why I also disagree with the Secretary of State's argument on the first issue.

Section 64(1) of the Mental Health (Scotland) Act 1984 sets out three conditions to which the sheriff must direct his attention when he is considering whether or not to direct the patient's absolute discharge. The first two are stated in the alternative. The third is one as to which he must be satisfied in either case. They are set out in the subsection in these terms:

     "(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."

The first two conditions relate to the patient's present state, while the third requires the sheriff to look to the future. If he is satisfied as to one or other of the first two conditions but not the third, the sheriff is required by section 64(1) to direct a conditional discharge. The effect of a conditional discharge is that the patient may be recalled to hospital by the Secretary of State by warrant at any time under section 68(3) during the period of the restriction order and that he must comply with such conditions, if any, as may have been imposed on him. These are important safeguards bearing in mind the purpose of making a restriction order, which is to protect the public from serious harm in view of the risk that as a result of his mental disorder the patient would commit offences if set at large: section 59(1) of the Criminal Procedure (Scotland) Act 1995. A further safeguard is that which is provided by section 64(7) of the 1984 Act, which enables the sheriff to defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to him to be necessary for that purpose have been made to his satisfaction.

The situation regarding the conditional discharge of a patient who is subject to a restriction order without limit of time is thus comparable with that regarding the release on life licence of a prisoner convicted of murder who is serving a sentence of life imprisonment. But these safeguards apply only where the sheriff is unable to be satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment and his order is for the patient's conditional discharge. If he is satisfied on this point and one or other of the previous conditions is also satisfied, his duty under section 64(1) is to direct the patient's absolute discharge.

The problem which has arisen in this case is due to the fact that the diagnosis of the mental disorder from which the respondent is now suffering is no longer the same as it was when the judge made the original hospital order. It was recognised by 1980 that he was not suffering from mental deficiency. The mental disorder from which he suffers is that which section 17(1) of the Act of 1984 describes as "a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct." He has been described as having a psychopathic personality, and section 1(2) of the Mental Health Act 1983, which applies to England and Wales, defines the expression "psychopathic disorder" in these terms. Some of the witnesses who gave evidence said that they preferred the term "anti-social personality". Terminology apart however, the important point is that there is now a substantial body of medical opinion that this is a condition which is not susceptible of treatment in a hospital.

Section 17(1) of the Act of 1984 describes the grounds on which a patient may be admitted to a hospital. It says that the ground which must be applied, in the case where the mental disorder from which the patient suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, is that medical treatment in a hospital is likely to alleviate or prevent a deterioration in his conduct. This provision gives effect to the policy that psychopaths should only be detained under compulsory powers in a hospital where there is a good prospect that the treatment which they will receive there will be of benefit.

Medical opinion which says that this condition is not susceptible of treatment in a hospital may be capable of being reconciled with the statute in a practical way, because those who hold to this opinion will refrain from recommending that a hospital order should be made in cases of this kind. The sheriff made a finding of fact in this case to the effect that, if the respondent's offence was committed today, psychiatrists generally would be unlikely to recommend admission to the State Hospital. On this view these persons would be sentenced after conviction to detention in a young offenders institution or to imprisonment. But we are dealing in this case with a patient who has been since 1967 liable to be detained in a hospital under a hospital order. That is the background against which I now turn to the issue as to the meaning of the conditions in section 64(1) of the 1984 Act about which the sheriff requires to be satisfied.

It seems to me that this issue resolves itself into two questions. The first is as to the relationship between conditions (a) and (b) in section 64(1) for obtaining a discharge and grounds (a) and (b) in section 17(1) for being admitted to and detained in a hospital. The second is as to the meaning of the expression "medical treatment" in regard to cases of this kind, bearing in mind that condition (c) in section 64(1) requires the sheriff to consider whether or not, in regard to the question whether the patient should be given an absolute or a conditional discharge, it is appropriate that the patient should remain liable to be recalled to hospital "for further treatment."

As to the first of these two questions, I consider that the issues to which the sheriff is required to address his mind when he is considering an application for discharge under section 64(1) are the same as those which have to be considered when an application is made under section 18(1) for admission to a hospital. The language is different because in the case of an application for admission to a hospital it must be shown positively that all the relevant conditions are satisfied. An application for discharge requires that these issues be addressed negatively, because it will be enough that one of the relevant conditions for admission to a hospital is not satisfied. But there is a sufficient link between the language of the two subsections to show that the conditions are the same. This is to be found in the phrase "which makes it appropriate for him to be liable to be detained in a hospital for medical treatment" which appears in section 64(1)(a). The same phrase is used in section 33(3) and (4) of the Act of 1984 in regard to the procedure for obtaining a discharge under Part V of the Act. It refers to the status which a patient acquires when the grounds for admission are satisfied, which the patient then retains until he ceases to be so liable under the various procedures laid down in the Act.

We are, of course, dealing in this case with the provisions for discharge which appear in Part VI of the Act. Section 62(1)(a) provides that none of the provisions of Part V relating to the duration, renewal and expiration of authority for the detention of patients shall apply to a patient in respect of whom a restriction order is in force. But it seems to me that there is no escape from the fact that Parliament has chosen to use the same language in section 64(1)(a) and (b) in Part VI of the Act as it has used in section 33(4)(a) and (b) in Part V. Furthermore, I do not think that it is possible to give any other meaning to this phrase where it appears in sections 33(3) and 33(4), in view of the fact that an order for discharge by the managers of the hospital or by the patient's nearest relative may be met by a report by the patient's responsible medical officer that the grounds set out in section 17(1) apply in relation to the patient. In the case of an order for discharge by the nearest relative which is met by such a report, the issue which the sheriff has to resolve before he can be satisfied 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" is whether the grounds set out in section 17(1) apply. If they do, he must refuse the appeal by the nearest relative. If they do not, he must order the patient's discharge.

I find myself in agreement with the views which were expressed by Roch L.J. about the corresponding provisions in section 72(1)(b) of the Mental Health Act 1983 in his dissenting judgment in Regina v. Canons Park Mental Health Review Tribunal, Ex parte A [1995] Q.B. 60, 76D-78C. Having reached the conclusion that Parliament did not intend to refer here simply to the "appropriateness" test and that the words used refer clearly in the case of psychopathic disorder and mental impairment to the "treatability" test, he said at p. 77E:

     "A psychopathic patient is not liable to be detained in hospital for medical treatment, unless the treatment is likely to be of some good to him. If his psychopathic disorder is untreatable then it is not of a nature which makes it appropriate for him to receive medical treatment in a hospital. The policy of the Act, in relation to patients with psychopathic disorders, is treatment not containment."

As he observed at p. 78C, it cannot be accepted that Parliament intended that a tribunal - in our case, the sheriff - should, when reviewing a decision relating to the patient's discharge, apply only two of the three criteria laid down in the Act to justify the compulsory detention of patients suffering from mental disorder in a hospital.

 
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