Jersey Unreported Judgments

Grave and criminal assault - capacity to participate in proceedings - interim treatment order

[2019]JRC160

Royal Court

(Samedi)

19 August 2019

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Crill and Olsen

The Attorney General

-v-

Marion Fay Michel

C. M. M. Yates Esq..  Crown Advocate.

Advocate R. C. L. Morley-Kirk for the defendant.

JUDGMENT

THE COMMISSIONER:

1.        On 23^rd May, 2019, the Court found the defendant fit to plead and she then pleaded guilty to the charge of grave and criminal assault.

2.        The defendant attended the hearing by video link from Brockfield House in Essex, England, a secure facility, to where she had been removed for assessment with the authority of the Court under Article 85(1) of the Mental Health (Jersey) Law 2016 ("the  Mental Health Law"), and this for the reasons set out in the Court's judgment of 28^th February 2019 (AG-v-Michel [2019] JRC 031).

3.        The circumstances of the assault had raised immediate concerns as to the defendant's mental health.  It was alleged that without notice or prior warning, she stabbed her long-term partner with a knife.  There had been a similar incident some 19 years before.

4.        Dr Bettadapura Ashim, a consultant psychiatrist instructed by the prosecution, confirmed in his report of the 19^th November, 2018, that the defendant most likely fulfils the criteria for a diagnosis of paranoid schizophrenia and advised that there should be a comprehensive assessment, which could not be carried out at HM Prison or Orchard House, Jersey's only in-patient psychiatric facility for adults.

5.        Professor Eastman, Emeritus Professor of Law and Ethics in Psychiatry at the University of London and an honorary consultant forensic psychiatrist in the National Health Service, instructed by the defence, confirmed the defendant's long history of being diagnosed with schizophrenia, and agreed that the defendant needed to be transferred to a specialist medium secure forensic service for assessment.

6.        As a consequence on the 23^rd November, 2018, the Court gave authority for the defendant to be removed to Brockfield House for assessment.

7.        The Court sat on 23^rd May 2019 in order to determine, on the balance of probabilities, whether the defendant was capable of participating effectively in the proceedings, pursuant to Article 57 of the Mental Health Law.

8.        The relevant test is set out in paragraph 57 of the Mental Health Law, which is a statutory formulation of the previous customary law test as set out in AG v Driscoll [2003] JLR 390:-

"57     Determining issue of incapacity

(1)       The court determining an issue as to the defendant's incapacity shall have regard (so far as each of the following factors is relevant in the particular case) to the ability of the defendant -

(a)       To understand the nature of the proceedings so as to be able to instruct his or her lawyer and to make a proper defence;

(b)       To understand the nature and substance of the evidence;

(c)       To give evidence on his or her own behalf;

(d)       To make rational decisions in relation to his or her participation in the proceedings (including entering any plea) which reflect true and informed choices on his or her part."

9.        Article 57(2) provides that the defendant's incapacity shall be determined on the balance of probabilities and Article 57(3) provides that in determining this issue, the court must obtain and have regard to medical evidence.

10.      Medical evidence is defined under Article 55(2)(b) as being at least two registered medical practitioners who in the opinion of the Court have appropriate experience in the diagnosis or treatment of such a matter.  Article 1(1) of the Law defines a registered medical practitioner as a person registered as a medical practitioner under the Medical Practitioners (Registration) (Jersey) Law 1960.

Medical evidence

11.      The Court had reports and heard evidence from Professor Eastman and from Dr Vivak Bisht, a consultant forensic psychiatrist at Brockfield House, who had been instructed by the prosecution and the defence, both of whom in the opinion of the Court have appropriate experience in the diagnosis or treatment of such a matter.  We take the evidence of Dr Bisht first.

12.      Dr Bisht explained that the defendant has a well-established diagnosis of paranoid schizophrenia from at least 1988, which he described as a severe and enduring mental disorder, which is the commonest type of schizophrenia in most parts of the world.  The clinical picture is usually dominated by relatively stable, often paranoid delusions, usually accompanied by hallucinations.  It was a complex case, and in his view, her presentation could not be solely explained by a psychotic illness.  She also suffered from mixed personality disorder, with features of emotionally unstable personality, impulsive and borderline type, and schizoid personality.

13.      However, Dr Bisht advised that she had responded well to a combination of psychiatric medication and other therapeutic activities available to her at Brockfield House, and in his opinion, and applying the tests set out in Article 57, she did have the requisite capacity to participate in criminal proceedings.

14.      He strongly recommended that she should continue to receive robust psychological treatment, which could only be safely provided in an in-patient setting.  He said that sending her back to prison would be counter-productive and would significantly increase her risk of harm to herself.

15.      Professor Eastman agreed with the diagnosis of schizophrenia, together with likely personality disorder.  Although it was possible to address legal questions of fitness to plead, in his opinion further investigation was required in order properly to advise the Court about sentence diagnostically.  Applying the test in Article 57, he expressed the opinion that the defendant was clearly fit to plead.  Quoting from paragraph 63 of his opinion:-

"In that, although, as will be evident from the foregoing, she suffers from both a severe mental illness and some form(s) of personality, and/or another developmental disorder such as autistic spectrum disorder, she is not currently psychotic, arising from the former, and none of the features of personality disorder or possible autistic spectrum disorder that she may exhibit could be such as to make her unfit in the terms of the statute."

16.      In the light of the advice from both psychiatrists that the defendant had capacity to participate effectively in the proceedings, applying the test in Article 57 of the Mental Health Law, the Court accepted that advice and found the defendant did have such capacity.

17.      The presumption of sanity remains and the Court was informed that insanity would not be raised as a defence.  It would be for the defendant to prove the requisite degree of unsoundness of mind to justify the return of a special verdict under Article 72 which is in these terms:-

"72     Special verdicts

(1)       Paragraph (2) applies in any proceedings, whether or not a determination of incapacity has been made under Part 8 in respect of the defendant.

(2)       Where the court finds that -

(a)       the defendant carried out the act alleged; but

(b)       at the time of carrying out the act, the defendant was suffering from mental disorder to such a substantial degree that he or she ought not to be held criminally responsible for doing so,

the court shall record a special verdict to that effect and may either acquit the defendant or make such an order as it has power to make under Article 59."

"Mental disorder" is defined under Article 1(1) as any order or disability of the mind.

18.      In this case, both psychiatrists had addressed the issue of insanity at the time of the offence, applying the test as set out in Article 72(2)(b), which is the statutory formulation of the previous Criminal Law test set out in the case of AG v Prior [2001] JLR 146.  There is no evidence that she experienced psychotic symptoms around the time of the offence and both psychiatrists agreed that the defendant was not suffering from mental disorder to such a substantial degree that she ought not to be held criminally responsible for so doing.

19.      Dr Bisht was of the view that whilst there was some role of mental disorder, especially her personality disorder, which would have contributed to the offending, it did not amount to "an unsoundness of mind" which would have affected her criminal behaviour to such a substantial degree that she ought not to be found criminally responsible.  In his view, therefore, insanity was not a defence available to her.  He accepted that ultimately this was a matter for a jury to decide.

20.      In Professor Eastman's view, the defendant did exhibit unsoundness of mind at the time immediately before and during the assault, but noted that the final "limb" of the test "ought not to be found criminally responsible" offered a moral, rather than a potentially medically based test.  He expressed the view that the Court might reasonably have been encouraged by the prosecution to conclude that the nature of the causal link between the unsoundness of mind and her actions were not such as to "abolish" a criminal responsibility.

Interim treatment order

21.      Both psychiatrists recommended the imposition of an interim treatment order, and it would seem clear that a final treatment order is very likely to be the appropriate outcome when the Court comes to sentence the defendant.

22.      Crown Advocate Yates submitted that the Court had power under Article 64(1)(b) of the Mental Health Law to impose an interim order for the purpose of assessing the advisability of making a treatment order under Article 65. Article 64(1) is in the following terms:-

"64     Interim orders

(1)       A court may order a defendant to be admitted to and detained in a specified approved establishment for the purpose of assessment of -

(a)       the nature and degree of any mental disorder suffered by the defendant; and

(b)       The advisability, having regard to such assessment, of making a treatment order in respect of the defendant under Article 65."

23.      Article 64(2) sets out the circumstances in which the power to make an interim order can be made:-

"(2)     The power conferred by paragraph (1) may not be exercised unless the court is satisfied -

(a)       on the written or oral evidence of 2 registered medical practitioners, at least one of whom is an approved practitioner, that there is reason to suspect that the defendant is suffering from mental disorder such as may warrant the making of a treatment order under Article 65 in respect of the person;

(b)       On the written or oral evidence of the responsible medical officer, or some other person representing the managers of the approved establishment in question, that arrangements have been made for the admission of the defendant to that establishment within 7 days of the date of the order,

and if the court is so satisfied it may give directions for the conveyance and admission of the defendant to the establishment, and for his or her detention in the establishment or in a place of safety pending the admission."

24.      The Court had the written and oral evidence of Professor Eastman and Dr Bisht so the provisions of Article 64(2)(a) were met, and the Court heard evidence from Dr Tanya Engelbrecht, a consultant psychiatrist who is an "approved practitioner" as defined under Article 16 of the Mental Health Law.  She too advised that an interim treatment order to be undertaken at Brockfield House was the appropriate mechanism with which to remand the defendant until sentencing.  Article 64(2)(b) is satisfied in that Dr Bisht is the responsible medical officer at Brockfield House and of course, the defendant is already admitted there.

25.      The Court was faced with the same difficulty as it faced when it gave authority for the defendant to be removed to Brockfield House, namely that Brockfield House is not an "approved establishment".  That term is defined under Article 1(1) as meaning "an establishment or premises approved by the Minister for Health and Social Services" and the Minister has not approved any establishments outside Jersey.  The Court, on the last occasion, was able to circumvent this issue by the use of Article 85 under Part 12 of the Mental Health Law, concerned with the transfer of "patients" between Jersey and other jurisdictions (see paragraphs 12-16 of the Court's judgment of 28^th February 2019).

26.      Crown Advocate Yates argued that the defendant is already out of the Island, and lawfully admitted to Brockfield House, and that technically, therefore, there is no need for the defendant to be "admitted" to Brockfield House as per Article 64(1).  Given the Court's power to impose an interim treatment order, in circumstances in which that could equally be achieved by transferring the defendant out of the Island pursuant to Articles 85 and 86, he submitted that it would be a simple continuation of the existing arrangements to stipulate that the defendant complete such an order at Brockfield House.

27.      Advocate Morley-Kirk agreed that the Court had the jurisdiction to make an interim treatment order in this way, and certainly when considering the interests of the defendant as a patient, it was clear, on advice from the psychiatrists, that it would be damaging to her mental health for her to be brought back to the Island to be held at HM Prison, La Moye, where none of the recommended ongoing assessments and treatments would be available.  It was equally clear that it was not in her interests to be released from Brockfield House and set at liberty.

28.      In the circumstances, the Court was prepared to proceed in the manner requested, and agreed by counsel, but it did so without hearing argument as to the true extent of its powers under the Mental Health Law.

29.      In the premises, the Court made an interim treatment order, pursuant to Article 64(1), and in doing so, specified the periods of detention laid down in Article 64(3).

Postscript

30.      On subsequent inquiry by the Court of counsel, it transpires that, eminently qualified as they are, neither Professor Eastman nor Dr Bisht was in fact registered as a medical practitioner under the Medical Practitioners (Registration) (Jersey) Law 1960 at the time of the hearing.  Furthermore in terms of a number of remands that have been made on the advice of Dr Bisht, he is not an "approved practitioner" as required the Mental Health Law.  Both Professor Eastman and Dr Bisht have now been registered and an application for Dr Bisht to be approved by the Minister is well advanced.  No point has been taken by the defence over these defects in the procedure and they will be addressed at the start of the sentencing hearing when Professor Eastman and Dr Bisht will be asked to confirm their evidence.  The Court will, if appropriate, confirm its finding as to capacity and the defence, again if appropriate, will confirm the defendant's guilty plea.

Authorities

Mental Health (Jersey) Law 2016. 

AG-v-Michel [2019] JRC 031. 

AG v Driscoll [2003] JLR 390. 

AG v Prior [2001] JLR 146. 

Medical Practitioners (Registration) (Jersey) Law 196