Law Report: Discretion on whether to release psychopath;

Law Report

ON AN appeal pursuant to section 64 of the Mental Health (Scotland) Act 1984 for the discharge of a patient subject to a restriction order, the provisions of section 17(1)(a)(i) and (ii) of the Act were relevant considerations for the sheriff to take into account when considering whether the patient was or was not suffering from mental disorder of a nature or degree which made it appropriate for him to be be detained in hospital for medical treatment, but they were not decisive in favour of a discharge.

The House of Lords allowed the appeal of the Secretary of State for Scotland against a decision of the Inner House that the respondent's appeal for discharge from a state hospital should be allowed.

The respondent had been convicted of culpable homicide when he was aged 17. The court had taken the view that he was suffering from a mental disorder within the meaning of the Mental Health (Scotland) Act 1960, namely mental deficiency, and had ordered his detention in a state hospital under s 55 of the Act. The court had also made a restriction order without limit of time under s 60 of the Act. His detention had subsequently been regulated by the provisions of the Mental Health (Scotland) Act 1984. The respondent was no longer suffering from mental deficiency: he was, however, said to have a psychopathic personality.

His appeal for discharge under section 64 of the 1984 Act had been refused by the sheriff on the ground that, were he to be released, there would be a very high risk of his re- offending, and that his offending would be likely to have a sexual connotation.

The Lord Ordinary had refused his application for judicial review, holding that, following the decision of the English Court of Appeal in R v Canons Park Mental Health Review Tribunal, ex p A [1994] 2 All ER 659, it was open to a sheriff to refuse to order the discharge of a psychopathic patient even though his condition was no longer regarded as treatable.

The Inner House had allowed the respondent's reclaiming motion, holding that section 64 could not be treated as wholly independent of the terms of section 17 of the Act, and that, accordingly, the fact that the psychopathic disorder was no longer regarded as treatable was decisive in favour of a discharge.

Matthew Clarke QC and Robert McCreadie (Treasury Solicitor) for the appellant; Graham Bell QC and Simon Collins (Balfour & Manson) for the respondent.

Lord Clyde said that, in considering an appeal under s 64 of the 1984 Act, a sheriff should first, so far as section 64(1)(a) was concerned, decide whether at the time of the hearing the appellant had a mental disorder. If he had not, he was obliged to order a discharge.

He should, otherwise, identify the nature and degree of the disorder, consider the nature and effectiveness of any possible hospital treatment, and, where the appellant was a psychopath or had a mental impairment which was not severe, should consider whether such treatment was likely to alleviate or prevent a deterioration of the condition. If satisfied that such treatment was not likely to do so, he was bound to grant a discharge.

If not so satisfied, however, or if dealing with any other kind of mental disorder, he should consider the propriety of the appellant's receiving the medical treatment in detention in hospital, and, in so doing, look to the nature and degree of the mental disorder. If he considered, in the light of all the evidence and in all the circumstances, that it was not appropriate for the appellant to be detained in a hospital for medical treatment, he should discharge him.

The circumstances which the sheriff might consider could include the health and safety of the patient and the safety of other persons, including members of the public; that was to say the propriety, as distinct from the necessity, of his continued detention in hospital.

Kate O'Hanlon,

Barrister