Jersey Unreported Judgments

Inferior Number Sentencing - grave and criminal - reasons the Court made treatment and restrictions orders.

[2019]JRC205

Royal Court

(Samedi)

18 October 2019

Before     :

J A Clyde-Smith OBE., Commissioner, and Jurats Ronge and Austin-Vautier

The Attorney General

-v-

Marion Fay Michel

M. Temple, Esq., Solicitor General appeared for the Crown.

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

Advocate V. S. Milner as amicus curiae.

JUDGMENT

THE commissioner:

1.        On 16^th September, 2019, the Court sat in order to sentence the defendant for one count of grave and criminal assault on her long-term partner, in which, without any notice or prior warning, she stabbed him repeatedly with a knife.  Rather than sentence the defendant to imprisonment, fine or probation, the Court granted the conclusions of the Crown, supported by the defence, and made treatment and restriction orders under Articles 65 and 68 respectively of the Mental Health (Jersey) Law 2016 ("the 2016 Mental Health Law").

Details of the offence

2.        The defendant and the victim had been in a relationship for some 33 years.  The defendant has a long history of mental illness and on 7^th September,1999, she stabbed the victim with a knife, for which she was sentenced on 11^th February, 2000, to a two year binding over order for grave and criminal assault, on the condition that she comply with psychiatric treatment to be recommended by the Psychiatric Service. 

3.        The defendant was diagnosed with schizophrenia at some point after her conviction, and has a history of self-harm and attempting suicide.  She has been admitted for treatment in the past and takes daily medication. 

4.        Since that conviction, the victim continued to live with the defendant, although their relationship was platonic.  Some 15 years ago, the victim commenced a relationship with another woman, with whom he would stay for five days in the week. 

5.        The victim's relationship with this other woman terminated some 2 days before this current offence took place, although they had been in touch over the weekend to discuss a holiday in Italy they had booked and paid for.  In the opinion of the psychiatrists, to whom we refer later, this formed the genesis of the assault, in that the defendant became overwhelmed by the fear of the loss of her own relationship with the victim upon whom she was profoundly emotionally dependent.  It is most likely that she feared the victim would find another partner, who might not be so accommodating. 

6.        On the morning of 13^th August, 2018, the victim was sitting in his chair in the living room when the defendant, without any warning, ran at him from behind and stabbed him in the head with a 9 to 10 inch kitchen knife.  When the victim turned, the defendant continued to stab him, causing stab wounds, inter alia, to the front of the chest wall, his right arm and hand.  After he had been able to get the defendant on to the floor and disarm her, he states:-

"She had a catatonic look on her face like she wasn't there.  Her eyes were wide open and throughout she was stabbing me, she said something referring to the holiday in Italy I had booked."

He also recalls the defendant saying "Oh, you're bleeding.  Let me help you."  She was thereafter completely compliant.  A 5.3 mm tip of the knife has been left embedded in his skull. 

7.        We have read the victim's very thorough personal statement and also the letter from his GP Dr Bailey of 7^th September, 2019, who confirms that the effect upon the victim of this assault has been profound and sustained.  He has not been able to return to work as a result of the physical and psychological problems he has experienced.  Quoting from Dr Bailey's letter:-

"[The victim] has fallen a long way and I am concerned his recovery will be very prolonged and with an uncertain outcome at this stage."

8.        The victim bears no ill-will towards the defendant, and with remarkable generosity of spirit says this in his statement:-

"I hold no bad feeling towards [the defendant].  She is ill ... I still care for her health and safety.  I was very upset when I heard that she had tried to take her life at La Moye Prison.  I just want her to have the best and safest care we can provide; knowing that she is safe, is a weight off her parents' shoulders and also the same for her sister. 

I do hope [the defendant] can get better and one day can safely reintegrate back into society."

9.        On 22^nd November, 2018, whilst in custody, the defendant made a determined attempt on her life inflicting serious injury to her neck, wrists and leg with a pair of tweezers.  She was admitted to the Jersey General Hospital and discharged on 4^th December, 2018. 

10.      On 23^rd November, 2018, the Court authorised the defendant's removal to Brockfield House in Essex, England, pursuant to Article 85(1) of the 2016 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.  Brockfield House was not then an approved establishment. 

11.      On 23^rd May, 2019, the defendant was found fit to plead and she pleaded guilty to the offence.  The Court made an interim treatment order, pursuant to Article 64 of the 2016 Mental Health Law.  For the reasons set out in the Court's judgment of 19^th August, 2019, AG v Michel [2019] JRC 160, the Court was persuaded by counsel, without hearing contrary argument, to make an interim treatment order on the basis that the defendant was already at Brockfield House, pursuant to the transfer made under Article 85, but the Court could foresee that at the sentencing hearing, there was a possibility of the Crown asking for a final treatment order under Article 65 and was concerned as to its powers to do so if that treatment was to be carried out at an establishment that was not approved. 

Approved establishment outside Jersey

12.      Accordingly, the Court ordered the appointment of an amicus curiae (Advocate Milner) and a hearing took place on 5^th September, 2019, in advance of the sentencing hearing, so that the issue of the Court's powers could be more fully explored.  The question posed by the Court for determination was whether it had power to make a final treatment order pursuant to Article 65(1) of the 2016 Mental Health Law in respect of an establishment outside the Island of Jersey which is not an approved establishment. 

13.      The Court also asked the Solicitor General to procure from the Minister for Health and Social Services an explanation as to why no hospital outside the Island had been approved, bearing in mind the lack of suitable secure hospitals in the Island, and the potential negative impact upon the ability of the Court to deal effectively with defendants suffering from mental health disorder. 

14.      The Court received a letter from Miguel Garcia-Alcarez, Consultant Psychiatrist, Associate Medical Director and Head of Mental Health dated 5^th September, 2019, explaining that the initial policy intention when the 2016 Mental Health Law was introduced was that suitable approved establishments would be provided within Jersey.  However, in terms of economy of scale, there had not been and still remains no capacity to staff an approved establishment of this nature serving the needs of individuals requiring specialist treatment.  Accordingly, and quoting from the letter:-

"Approval of Brockfield House:

Please take this as confirmation that the Minister for Health and Social Services is inclined to designate Brockfield House as an Approved Establishment pursuant to Article 5 of the Mental Health (Jersey) Law 2016 once the governance and due diligence checks have been completed and the agreement of the provider with appropriate terms and conditions has been secured.  These enquiries are commencing with immediate effect.  At this stage Brockfield House will be designated as an Approved Establishment for the purposes of admissions/detentions under Parts 8 and 9 of the Law".

15.      This was welcome information as it was clear from the skeleton arguments of all three counsel that in their opinion, and perhaps not surprisingly, the Court would not have the power to make a final treatment order under Article 65 in respect of an establishment that was not approved. 

16.      The preliminary hearing proceeded therefore on the basis that by the date of the sentencing hearing, Brockfield House would be an approved establishment and it was therefore a question of whether there was anything in the provisions of the 2016 Mental Health Law that would prevent a treatment order (and a restriction order) being made in respect of an approved establishment that was situated outside the Island and therefore outwith the jurisdiction of the Court. 

Legislative intent

17.      The Court has long been critical of its inability to deal appropriately with defendants suffering from mental disorder and in particular, its inability to make a treatment order at a secure facility - see Attorney General v Le Blancq [2003] JRC 165, Attorney General v Highfield [2009] JRC 104 and Attorney General v George [2012] JRC 216B. 

18.      Under the Criminal Justice (Insane Persons) (Jersey) Law 1964, a person found to be unfit to plead and/or insane at the time of the offence could be placed in a hospital, but, pursuant to Article 1 of the Mental Health (Jersey) Law 1969, only a hospital administered by the Minister in Jersey. 

19.      The projet for the 2016 Mental Health Law makes it clear that the intention of the legislature was to enable persons to be admitted to any approved establishment (paragraph 34) and that a person's circumstances, or the availability of specialist services elsewhere in the British Isles, will sometimes mean that a person is to be transferred to another place in the British Isles to receive care (paragraph 10).  It recognised that there had been frequent criticism that the previous law did not enable the Courts, where appropriate, to divert people who are accused of committing criminal offences out of the Criminal Justice system to receive appropriate treatment (paragraph 9).  The reform of the Court's disposal powers for persons whose offending behaviour is associated or influenced by their mental disorder was a key objective of the proposed law (paragraph 67) and there were no geographical limitations put on Part 9 of the draft law, which deals with the powers of the Court in criminal proceedings.  It was recognised that there would be times when specialist care and treatment would not be available or where it is inappropriate to provide it locally, and the new provisions contained in Part 9 of the draft law would help to ensure that there was parity between Jersey's legislation and that of the UK and Guernsey which will help ensure a smooth transition to specialist care and treatment off Island (paragraph 73). 

20.      Turning to the 2016 Mental Health Law:-

(i)        Article 1(1) defines "approved establishment" as meaning an establishment or premises approved by the Minister under Article 5.  There is no geographical limitation.

(ii)       Article 2 sets out the Minister's primary duty:-

"2       Minister's primary duty

(1)       The Minister's primary duty under this Law is to make provision in Jersey for the care and treatment of persons suffering mental disorder.

(2)       In carrying out the duty imposed by paragraph (1) the Minister must in particular -

(a)       ...

(b)       Approve establishments or premises in accordance with Article 5....

(c)       ...

(d)       ...

(e)       ..."

The reference to "in Jersey" in Article 2(1) might, if construed restrictively, be interpreted as restricting the care and treatment of persons suffering mental disorder to Jersey, but we agree with Advocate Milner, and with the other counsel, that properly interpreted, there is a pause after "Jersey", so to speak, so that the Minister has to make provision in Jersey for care and treatment that can be undertaken outside Jersey, if that is where the required specialist services are available.  It is inherently unlikely that a small Island will be able to provide all such specialist services as may be required from time to time, and the clear intention of the legislature was to enable care and treatment to take place outside Jersey, where those services were available. 

(iii)      Article 5 is in these terms:-

"5       Approved establishments

(1)       The Minister must approve establishments or premises for the purpose of the care and treatment of patients, upon such terms and conditions as (subject to paragraph (2)) the Minister may think fit.

(2)       The Minister may not exercise the function conferred by paragraph (1) unless the Minister is satisfied that, having regard to the best available treatment, the standard of treatment provided by the establishment or premises in question is appropriate and adequate."

There is no geographical limit placed upon establishments that are to be approved.  The reference in Article 5(2) to the Minister having regard to "the best available treatment" strongly indicates that where specialist treatment is not available in Jersey, the Minister is under a positive duty to approve establishments outside Jersey where such treatment is available. 

(iv)      Part 3 is headed "APPROVED ESTABLISHMENTS: ADMISSIONS FOR ASSESSMENT, TREATMENT, ETC.  This part of the Law, as the title suggests, deals with admissions of patients for assessment and treatment, and there is nothing within its provisions that is relevant. 

(v)       Part 9 is headed "CRIMINAL JUSTICE POWERS OF COURT IN RELATION TO ACCUSED PERSONS SUFFERING MENTAL DISORDER."  Under Articles 61 to 68 of Part 9, the Court has the following powers (to be exercised for the category of defendant specified in Article 60(2) to (4)), in summary:-

(a)       Under Article 61, to remand a defendant on bail for a report on the defendant's mental health. 

(b)       Under Article 62, where bail is not appropriate, to remand a defendant to an approved establishment for a report on the defendant's mental condition.  

(c)       Under Article 63, to remand a defendant to an approved establishment for the purpose of treatment. 

(d)       Under Article 64, to order a defendant to be admitted to and detained in an approved establishment for the purpose of assessment and the advisability of making a final treatment order under Article 65. 

(e)       Under Article 65, to order a defendant to be admitted to and detained in an approved establishment for treatment.  Where such a final treatment order is made, then under Article 65(3)(c) the Court may not pass a sentence of imprisonment, impose a fine or make a probation order in respect of the offence.  

(f)        Under Article 67, where a sentence of imprisonment fixed by law is imposed (article 60(4)) to give directions that the defendant may, instead of being removed to and detained in a prison, be removed to and detained in an approved establishment. 

(g)       Under Article 68, to impose special restrictions on treatment orders.

21.      The power to make a treatment order, rather than impose a custodial or other sentence, gives the Court the ability, in an appropriate case, to ensure that the defendant receives the medical care he or she needs.  The House of Lords explained at paragraph 9 of R v Drew [2003] UKHR 25 the  effect of making such an order (without a restriction order), there referred to as a hospital order made under section 37 of the Mental Health Act 1983 ("the 1983 Mental Health Act"), and which corresponds with Article 65 of the 2016 Mental Health Law:-

"Once the offender is admitted to hospital pursuant to a hospital order or transfer without restriction on discharge, his position is almost exactly the same as if he were a civil patient.  In effect he passes out of the penal system and into the hospital regime.  Neither the court nor the Secretary of State has any say in his disposal.   Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled.  If the authority expires without being renewed, the patient may leave.  Furthermore, he may be discharged at any time by the hospital managers or the responsible medical offer.  In addition to these regular modes of discharge, a patient who absconds or is absent without leave and is not retaken within 28 days is automatically discharged at the end of that period (section 18(3)) and if he is allowed continuous leave of absence for more than six (now twelve) months, he cannot be recalled (section 17(3)).

Another feature of the regime which affects the disordered offender and the civil patient alike is the power of the responsible medical officer to grant leave of absence from the hospital for a particular purpose, or for a specified or indefinite period of time: subject always to a power of recall (except as mentioned above).

There are certain differences between the positions of the offender and of the civil patient, relating to early access to the review Tribunal and to discharge by the patient's nearest relative, but these are of comparatively modest importance.  In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence.  A hospital order is not a punishment.  Questions of retribution and deterrence, whether personal or general, are immaterial.  The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment.  The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts."

22.      If a treatment order is made under Article 65 (with or without a restriction order) to an approved establishment outside Jersey, then the defendant will move out of the jurisdiction of the Court and so reciprocal arrangements have to be in place.  For approved establishments in England and Wales, we need to have regard to the relevant provisions under the 1983 Mental Health Act. 

23.      Sections 83 and 85 of the 1983 Mental Health Act provide for the removal of patients to and from the Channel Islands and the Isle of Man. Section 83 is in the following terms:-

"83     Removal of patients to Channel Islands or Isle of Man

If it appears to the Secretary of State, in the case of a patient who is for the time being liable to be detained or subject to guardianship under this Act (otherwise than by virtue of section 35, 36 or 38 above), that it is in the interests of the patient to remove him to any of the Channel Islands or to the Isle of Man, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him into guardianship there, the Secretary of State may authorise his removal to the island in question and may give any necessary directions for his conveyance to his destination."

24.      In terms of the carve out, section 35 is concerned with the remand of an accused person for a report on his or her mental condition, section 36 with a remand of an accused person to hospital for treatment and section 38 with interim hospital orders. 

25.      Section 85 is in these terms:-

"85     Patients removed from Channel Islands or Isle of Man

(1)       This section applies to any patient who is removed to England and Wales from any of the Channel islands or the Isle of Man under a provision corresponding to section 83 above and who immediately before his removal was liable to be detained or subject to guardianship in the island in question under a provision corresponding to an enactment contained in this Act (other than section 35, 36 or 38 above)."

26.      The relevant sections in the 1983 Mental Health Act are sections 37 and 41 (which are not subject to the carve out). Section 37 is concerned with the making of an order for hospital admission (or guardianship) and corresponds to Article 65 of the 2016 Mental Health Law.  Section 41 is concerned with the imposition of restrictions where a hospital order is made and corresponds with Article 68 of the 2016 Mental Health Law. 

27.      Where a patient is removed to be admitted and detained in England and Wales under these corresponding provisions, section 85(2) and (6) of the 1983 Mental Health Act goes on to provide as follows:-

"(2)     Where the patient is admitted to hospital in England and Wales he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the corresponding enactment contained in this Act and, where he is subject to an order or direction restricting his discharge, as if he were subject to a hospital order and a restriction order or to a hospital direction and a limitation direction or to a transfer direction and a restriction direction.

(3)...

(4)...

(5)...

(6)       Whilst being conveyed to the hospital referred to in subsection (2) or, as the case may be, the place referred to in subsection (3) above, the patient shall be deemed to be in legal custody, and section 138 below shall apply to him as if he were in legal custody by virtue of section 137 below."

28.      Thus, under these reciprocal provisions, a defendant made subject to a treatment order in an approved establishment situated in England and Wales, pursuant to Article 65 (and a restriction order pursuant to Article 68), will be admitted and detained there as though he or she had been made the subject of a hospital order under section 37 of the 1983 Act (and if applicable a restriction order under section 41) and the provisions as to custody, conveyance, detention and re-taking of escaped patients in sections 137 and 138 of the 1983 Mental Health Act automatically come into play.

29.      We need to comment on the provisions of Article 60(6)(b) and Article 65(3)(b) of the 2016 Mental Health Law which provide:-

"60(6)  Where a court makes an order in exercise of its functions under Articles 62 to 65 or 71(3) -

(a)       ...;

(b)       the managers of that establishment shall admit the defendant within that period and detain the defendant in accordance with the relevant provisions of this Part; and

(c)       ..."

"65(3)  Where a treatment order is made in respect of a defendant -

(a)       ...

(b)       The managers of the establishment shall admit the defendant and thereafter detain and deal with the defendant as a patient in respect of whom a treatment authorization had been made under Part 3;

(c)       ..."

30.      Where the approved establishment is situated in England and Wales, the managers of that establishment will admit, detain and deal with the defendant under the reciprocal provisions of the 1983 Mental Health Act.  Bearing in mind the intention of the legislature to allow treatment orders to be made in respect of approved establishments outside Jersey and applying a purposeful construction to these provisions we would not interpret them as requiring the managers of an approved establishment in England and Wales to deal with the defendant as a patient under the 2016 Mental Health Law, when self-evidently they would detain and deal with the defendant under the reciprocal provisions of the 1983 Mental Health Act.  The same point applies to Article 68(4)(b) relating to restriction orders. 

31.      Advocate Milner pointed out that once a person is transferred to an approved establishment in England and Wales, he or she falls within the care and protection of the statutory mental health regime in England and Wales, and theoretically, orders made by the English courts.  As she submitted, the legislative provisions under the 1983 Mental Health Act are sufficiently in line with those in Jersey that it is logical that the Court can make a final treatment order under Article 65, knowing the orders that would be made by a court in England and Wales in similar circumstances.  The 1983 Mental Health Act can then put the Jersey treatment order into effect under section 85, notwithstanding that the person already falls within the scope of the 1983 Mental Health Act.  This might be viewed as a stepped or rolling process, with the Jersey Court making successive orders which are put into effect in England under the 1983 Mental Health Act one after the other, rather than mirror provisions of the 2016 Mental Health Law and the 1983 Mental Health Act both being considered to be in place in relation to that person at the same time. 

32.      Thus we are satisfied and all three counsel agreed that the Court does have power to make a treatment order under Article 65 of the 2016 Mental Health Law (and a restriction order) for a defendant to be admitted to and detained in an approved establishment in England and Wales, pursuant to the reciprocal arrangements in force in both jurisdictions. 

Treatment and restriction orders

33.      Article 65 is in the following terms:-

"65     Treatment orders

(1)       A court may order that the defendant be admitted to and detained in a specified approved establishment for treatment, where -

(a)          the court is satisfied, on the evidence of 2 medical practitioners, at least one of whom is an approved practitioner, that -

(i)         the defendant is suffering mental disorder of a nature or degree that warrants admission to and detention in an approved establishment for treatment, and

(ii)        the treatment cannot be given to the defendant without such admission and detention;

(b)        the court is of the opinion, having regard to all the circumstances including (but without limitation) the nature of the offence and the defendant's character and antecedents, and to other methods of dealing with the defendant, that an order under this Article (a 'treatment order' is the most suitable method of disposing of the case; and

(c)        the court is satisfied, on the written or oral evidence of the approved practitioner 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.

(2)       Evidence under paragraph (1)(a) -

(a)        must be given in writing signed by the practitioners who have personally examined the defendant either jointly or, if separately, at an interval of not more than 5 days; and

(b)        must specify the form of mental disorder from which the defendant is found to be suffering.

(3)       Where a treatment order is made in respect of a defendant -

(a)        the defendant shall be conveyed to the specified approved establishment within the period of 7 days beginning with the date of the order, and in accordance with any directions which may be given by the court for

(b)        the managers of the establishment shall admit the defendant and thereafter detain and deal with the defendant as a patient in respect of whom a treatment authorization had been made under Part 3; and

(c)        the court may not pass sentence of imprisonment, impose a fine or make a probation order in respect of the offence for which the defendant is convicted, but may make any other order which the court has power to make apart from this provision."

34.      Article 68 is in the following terms:-

"Special restrictions on treatment orders

(1)       Where a treatment order is made in respect of a defendant and it appears to the court, having regard to the matters in paragraph (2), that it is necessary to do so to protect the public from serious harm, the court may further order that the treatment order shall take effect only with special restrictions, either without limit of time or during such period as the court may specify.

(2)       The matters mentioned in paragraph (1) as those to which the court must have regard are -

(a)  the nature and gravity of the offence;

(b)  the antecedents of the defendant;

(c)  the risk of the defendant committing further offences if the defendant remains at liberty.

(3)       A further order under paragraph (1) (a "restriction order") shall not be made unless at least one of the practitioners giving evidence for the purposes of Article 65(1)(a) has given evidence orally before the court.

(4)       Where a restriction order is made in respect of a defendant -

(a)        the defendant shall be conveyed to the specified approved establishment within the period of 7 days beginning with the date of the order and in accordance with any directions given by the court for that purpose;

(b)        the managers of the establishment shall admit the defendant and thereafter detain and deal with the defendant as a patient in respect of whom a treatment authorization had been made under Part 3, except that -

(i)         leave of absence under Article 24 shall not be granted nor the defendant be transferred under Article 26 without leave of the court, and

(ii)        Article 27(1) to (5) shall not apply unless and until the restriction order ceases to have effect in accordance with paragraph (5).

(5)       A restriction order shall not cease to have effect unless the court is satisfied, on an application made for the purpose by -

(a)        the defendant, or the defendant's nearest person appointed or nominated under Part 2; or

(b)        pursuant to a report under paragraph (6), the Attorney-General,

that restrictions in respect of the defendant are no longer required to protect the public from serious harm.

(6)       During the period for which a restriction order remains in effect, the responsible medical officer must -

(a)        examine the defendant at such intervals (not exceeding 12 months) as the court may direct; and

(b)        make a report of each such examination to the Attorney General, containing -

(i)         the responsible medical officer's opinion as to whether the restriction order should continue in effect, and

(ii)        such further particulars as the court may require."

Psychiatric evidence

35.      The Court heard evidence from Dr Vivek Bisht, a consultant forensic psychiatrist at Brockfield House (jointly instructed), Professor Nigel Eastman, Emeritus Professor of Law and Ethics in Psychiatry and Honorary Consultant Forensic Psychiatrist at St George's University of London (instructed by the defence) and Dr Tanya Engelbrecht, a consultant psychiatrist practising in Jersey (instructed by the prosecution).  There is no requirement for three psychiatrists to give evidence, but in any event all three were agreed both as to the diagnosis of the defendant, but also as to her treatment and we can summarise relatively briefly the evidence given by them and contained within their reports. 

Dr Bisht

36.      In his report of 29^th April, 2019, he confirmed that the defendant has a well-established diagnosis of Paranoid Schizophrenia, at least since 1998.  He describes this as a severe and enduring mental disorder, that 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. 

37.      He believes the defendant also suffers from Mixed Personality Disorder, with features of Emotionally Unstable Personality, impulsive and borderline type and Schizoid Personality.  She has displayed features of mood instability, a marked tendency to act impulsively, serious self-harming behaviours to relieve her inattention and fear of rejection and abandonment, all of which are features of Emotionally Unstable Personality. 

38.      She had also displayed traits of Schizoid Personality, namely emotional coldness, emotional detachment, invariable preference for solitary activities, little interest in having sexual experiences with another person and lack of close friends.  Some of the features of Schizoid Personality could overlap with the diagnosis of schizophrenic illness. 

39.      These mental disorders were of a nature and degree to warrant ongoing detention in hospital, in the interests of her own health, safety and the protection of others.  She needs to receive robust psychological treatment within an in-patient setting in order to understand her relapse triggers and the association between the mental disorder and risk of future violence.  It was imperative for her to undertake the following therapies, namely:-

(i)        Dialectical Behaviour Therapy ("DBT"), which is one of the well-recognised treatments for patients with Borderline Personality Disorder.  This would provide her with increased emotional regulation skills, distress tolerance skills and ability to manage stress in interpersonal relationships.  He estimated that this therapy could take between one and one and a half years to complete. 

(ii)       Psycho-education.  This would enhance her understanding of her mental health and her risks.

(iii)      Offending behaviour work.  This intervention would address the risk factors for violence and relapse prevention in order to identify triggers and to formulate a relapse prevention plan.

40.      In his opinion, this psychological work could only safely be provided in an in-patient setting and that sending her back to prison would be counter-productive and would significantly increase the risk of harm to herself. 

41.      In his pre-sentencing report of 11^th September, 2019, he confirmed his previous diagnoses.  There had been internal discussion within Brockfield House as to whether the traits of Borderline Personality Disorder met the diagnostic criteria for Emotionally Unstable Personality Disorder but in his view, whether these abnormal personality traits amounted to a full personality disorder was academic, as it was evidently clear that these traits were highly relevant to describe her previous clinical presentation, namely her history of serious self-harming behaviours, the formulation of current offending, her future risk of violence and the need for ongoing in-patient treatment.  Her mental disorder definitely played a role in her offending. 

42.      He remained of the opinion that she required robust psychological treatment within an in-patient setting, including the treatment summarised above.  She was also due to be screened for Autistic Spectrum Disorder in the near future, due to her rigid thinking style and obsession about routine, work which in his opinion could only be safely provided in an in-patient setting. 

43.      The defendant had shown herself motivated to engage in psychological work, and was considered a "model patient" on the ward, who likes to keep herself occupied with several therapeutic activities and who is pro-social to her fellow peers. 

44.      In his opinion, a treatment order under Article 65 was the most suitable method of disposing of the case, having considered the nature and gravity of the offence, the antecedents of the defendant and the risk of committing further offences if set at large, and in his opinion a special restriction on treatment order under Article 68 would be necessary for the protection of the public from risk of serious harm.  He confirmed that a bedroom remains available for her at Brockfield House where all of this treatment was and would be made available for her. 

45.      It was difficult to say when the defendant would be ready to be safely reintegrated into the community, which would be a staged process, but it could take up to two and a half years. The defendant would benefit from a 24 hour supported hostel discharge, as she would need to be monitored by experienced mental health professionals to minimise any risks and maximise clinical safety.  He was aware that there was no such hostel in Jersey, but such a facility could be sought in Essex, once she had completed her treatment and was ready for discharge. 

Professor Eastman

46.      Working from his second report of 10^th September, 2019, Professor Eastman agreed with the diagnosis of Paranoid Schizophrenia and that the defendant exhibited traits of Mixed Personality Disorder which, although not sufficient in severity psychometrically to make the diagnosis per se, were highly relevant to her tendency to "catastrophise"; that is, to become emotionally overwhelmed and then to act in terms of either severe self-harm or now two assaults upon the victim of the current offence.  He considered the likely genesis of the current offence as described briefly above and which, in his opinion, was solely driven by her borderline personality traits and aspects arising from her long-standing schizophrenia. 

47.      In terms of the degree of the defendant's culpability and whilst the defendant most likely fell short of satisfying the legal defence of insanity at the time of the offence, a defence that had not been raised, he advised that in simple terms, her combined personality traits and chronic schizophrenia substantially determined the offence in the context of the particular events that precipitated it.  So that, although 'fear of abandonment' likely drove the offence, such fear, and its affect upon her behaviour, was pathologically determined.

48.      He advised that the defendant is suffering from a mental disorder of a nature or degree that warranted admission to detention in an approved establishment for treatment, and that the treatment cannot be given to the defendant without such admission and detention.  With regard to all the circumstances, including the nature of the offence and the defendant's character and antecedents and to the other methods of dealing with the defendant, a treatment order was in his opinion the most suitable method.  

49.      He also advised that the criteria under Article 68 for the making of a special restriction order was met in this case.  The risk to others could be formulated solely in terms of her combined mental disorders and the risk of violence would be limited to those with whom she was in close intimate relationships.  A far greater risk was to the defendant's own physical safety, as she had a substantial history of very serious attempts at self-harm. 

50.      What will be required post discharge from Brockfield House is close monitoring of her mental functioning and support in dealing with stressor situations, and to that end, he agreed that the next placement after Brockfield House should be to a 24 hour staffed mental health hostel, that is with staffing that includes mental health expertise.  In his view, she would not be ready for such a transfer for at least 2 years, of which DBT would take at least one year. 

Dr Engelbrecht

51.      Dr Engelbrecht agreed with the diagnosis of Paranoid Schizophrenia and that the defendant was also likely to suffer with a Mixed Personality Disorder which warrants the making of a treatment order under Article 65, and which was necessary in the interests of her own health, safety and the protection of others.  She confirmed that the psychological work that would be carried out at Brockfield House was not available in Jersey in an in-patient setting.  In her view, DBT would take a minimum of one year.  Patients at Brockfield House usually complete two cycles of DBT skills training, each cycle taking six months. 

52.      Dr Engelbrecht pointed out that in the past, the defendant's primary treatment had been pharmacological in nature and that she now requires holistic treatment, which should incorporate psychological therapies and occupational therapy, but medication alone will not fully address her mental health issues.  She will not receive the full complement of treatment locally in Jersey or in prison, but it is available at Brockfield House. 

53.      She explained that in a clinical setting such as Brockfield House, the defendant would be safe and should not be exposed to stress and that, when ready, a move to an appropriate hostel would allow her to be exposed to greater stress in a supportive framework. 

Decision

54.      Taking first the postscript to the Court's judgment of 19^th August, 2019, and the fact that when Dr Bisht and Professor Eastman gave evidence as to the capacity of the defendant, pursuant to Article 57 of the 2016 Mental Health Law, neither of them was in fact registered as a medical practitioner under the Medical Practitioners (Registration) (Jersey) Law 1960 as required by Article 55(2)(b).  They are now registered, and at the hearing they confirmed the evidence they had given in relation to the capacity of the defendant and the Court confirmed its finding of 23^rd May, 2019, that the defendant was fit to plead.  The defendant in turn confirmed her guilty plea made on 23^rd May, 2019. 

55.      Turning to the decision in this case, Article 65(1)(a) of the 2016 Mental Health Law requires the Court to have evidence from two medical practitioners (a term which is not defined) whereas Article 62(2)(a), 63(2)(a) and 64(2)(a) requires evidence from two "registered medical practitioners", as indeed, does Article 55(2)(b) for determining the issue of capacity.  The term "registered medical practitioner" is defined under Article 1(1) as meaning a person registered as a medical practitioner under the Medical Practitioners (Registration) (Jersey) Law 1960.  Whether this is a drafting error in Article 65(1)(a) is not clear, but it seems to us that the prudent course in applications under Article 65 is for the Court to hear evidence from two registered medical practitioners, one at least of whom must be an approved practitioner, and in this case, all three psychiatrists are registered medical practitioners, Dr Bisht and Professor Eastman having been registered recently.  Furthermore, Dr Bisht is now an approved person appointed by the Minister under Article 16 and Brockfield House has now been approved as an establishment by the Minister under Article 5. 

56.      The Court was satisfied on the evidence before it, that pursuant to Article 65(1)(a) the defendant is suffering a mental disorder of a nature or degree that warrants admission to and detention in an approved establishment for treatment, and the treatment cannot be given to the defendant without such admission and detention. 

57.      It was also satisfied, that pursuant to Article 65(1)(c) and on the evidence of Dr Bisht representing the managers of Brockfield House, arrangements had been made for the defendant to remain in Brockfield House where she is already admitted and can receive the treatment that all three psychiatrists agreed was necessary. 

58.      The requirements of Article 65(2) were met in that all three psychiatrists examined the defendant within five days, Dr Engelbrecht on 30^th August, 2019, and Dr Bisht and Professor Eastman together on 3^rd September, 2019. 

59.      Turning to Article 65(1)(b) and whether a treatment order was a suitable method of disposing of the case, the Solicitor General referred the Court to a number of English authorities and draft guidelines, given the similarity between Articles 65 and 68 of the 2016 Mental Health Law, and sections 37 and 41 of the 1983 Mental Health Act:-

(i)        The draft guidelines issued by the Sentencing Council do not, of course, apply in this jurisdiction, but nevertheless, the Court found the following extracts of assistance:-

"Section two: Assessing culpability

8.        ... The relevance of any condition will depend on the nature, extent and effect of the condition on an individual and whether there is a causal connection between the condition and the offence.  It is for sentencers to decide how much responsibility the offender retains for the offence, given the particular disorder or condition and the specific facts of the case at hand.

9.        In some cases the condition may mean that culpability is significantly reduced, in others, the condition may have no relevance to culpability.  Assessments of culpability will vary between cases due to the differences in the nature and severity of conditions, and the fluctuation of some conditions; it is not possible to be prescriptive in this regard.  Careful analysis of the evidence is required to make this assessment, which the sentencer, who will be in possession of all the relevant information, is best placed to make.  Expert evidence, where offered and relevant, should be taken into account, but sentencers must make their own decisions and should not feel bound to follow expert opinion.  Examples of when it may not be appropriate to follow expert opinion include, but are not limited to, where conclusions are based on incomplete analysis or a misreading of the evidence, or where experts suggest a diagnosis without a clear indication of how it affects culpability.

10.      Courts may find the following list of questions to consider helpful, to assist in deciding the level of culpability:

·              Did the offender's condition mean it impaired their ability to exercise appropriate judgement?

·              Did the offender's condition impair their ability to make rational choices, or to think clearly?

·              Did the offender's condition impair their ability to understand the nature and consequences of their actions?

·              Did the offender's condition have the effect of making them disinhibited?

·              Were there any elements of premeditation or pre-planning in the offence, which might indicate a higher degree of culpability?

·              Were there attempts to minimise their wrongdoing or to conceal their actions, which might indicate a higher degree of culpability?

·              Did the offender have any insight into their illness, or did they lack insight?

·              Did the offender seek help, and fail to receive appropriate treatment or care?

·              If there was a lack of compliance in taking medication or following medical advice, was this influenced by the condition or not?

·              If the offender exacerbated their condition by drinking/taking drugs, were they aware of the potential effects of doing so?

This is not an exhaustive list.

Section three: Determining the sentence

11       Courts should consider all of the purposes of sentencing during the sentencing exercise: the punishment of offenders, reduction of crime, rehabilitation of offenders, protection of the public, and reparation.  Although there is a statutory requirement, under section 142 of the Criminal Justice Act 2003, to consider all the purposes of sentencing, that statutory requirement does not apply when making a hospital order, a hospital order with restrictions or a hospital and limitation direction.  However, consideration of the purposes of sentencing may still be relevant in some cases.  Just because an offender has a mental health condition, neurological impairment or disability, it does not mean they should not be punished, and in the case of serious offences protection of the public may be paramount.  For offenders whose condition has contributed to their offending the effective treatment of their condition should in turn reduce further offending and protect the public.

12       Decisions will need to be made on a case by case basis.  For example, in a case where an offender's culpability was high, the sentence may be more weighted towards punishment.  In a case where an offender's culpability was low, the sentence may be more weighted towards rehabilitation.

13.      An offender's condition at the point of sentence could have a bearing on the type, length or nature of sentence that is imposed, including whether a disposal under the [1983 Mental Health Act] is appropriate.  Some points to consider are:

·              The existence of a condition at the date of sentencing, or its foreseeable recurrence, could mean that a given sentence could weigh more heavily on the offender than it would on an offender without that particular condition.

·              Custody can exacerbate poor mental health and in some cases increase the risk of self-harm. 

·              Some requirements of community orders may be impractical, consideration should be given to tailoring the requirements of orders, as necessary in individual cases.  An offender should not receive a more severe sentence, such as custody, because for example, they would be unable to do unpaid work as part of a community order."

Although there is no statutory equivalent to section 142 of the Criminal Justice Act 2003 within the 2016 Mental Health Law, where a treatment order is made Article 65(3)(c) prohibits the passing of a sentence of imprisonment, the imposition of a fine or the making of a probation order and it follows therefore that the Court should consider all of the purposes of sentencing during what is a sentencing exercise. 

(ii)       In Beulah Birch [1990] 90 Cr. App. R. the English Court of Appeal was concerned with an appeal against a restriction order imposed under section 41 of the 1983 Mental Health Act. It was held:-

"...that even where the relevant medical opinions were unanimous that the appellant did not constitute a threat of serious harm to the general public, the judge did have jurisdiction to make a restriction order under section 41(1) of the Mental Health Act 1983 since section 41(2) required no more than that the Court hear the oral evidence of one of the medical practitioners, not that it need follow the course recommended.  But the restriction order should not be imposed simply to mark the gravity of the offence, nor as punishment, since a restriction order merely qualified a hospital order which was not a mode of punishment."

(iii)      In his judgment, Mustill LJ gave this overview of the regime:-

"In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence.  A hospital order is not a punishment.  Questions of retribution and deterrence, whether personal or general, are immaterial.  The offender who has become a patient is not kept on any kind of leash by the Court, as he is when he consents to a probation order with a condition of inpatient treatment.  The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts.

In marked contract with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41.  A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal.  Nevertheless, it fundamentally affects the circumstances in which the patient is detained.  No longer is the offender regarded simply as a patient whose interests are paramount. No longer is the control of him handed over unconditionally to the hospital authorities.  Instead the interests of public safety are regarded by transferring the responsibility for discharge from the responsible medical officer and the hospital to the Secretary of State alone (before September 30, 1983) and now to the Secretary of State and the Mental Health Review Tribunal.  A patient who has been subject to a restriction order is likely to be detained for much longer in hospital than one who is not, and will have fewer opportunities for leave of absence."

(iv)      Then in terms of the protection of the public from serious harm, he said this at page 87:-

"...the word 'serious' qualifies 'harm' rather than 'risk'.  Thus the court is required to assess not the seriousness of the risk that the defendant will re-offend, but the risk that if he does so the public will suffer serious harm.  The harm in question need not, in our view, be limited to personal injury.  Nor need it relate to the public in general, for it would in our judgment suffice if a category of persons, or even a single person, were adjudged to be at risk: although the category of person so protected would no doubt exclude the offender himself.  Nevertheless the potential harm must be serious, and a high possibility of a recurrence of minor offences will no longer be sufficient."

(v)       In R v Vowles [2015] 2 Cr App R (S) 6, the English Court of Appeal gave guidance on the correct approach to take in cases where psychiatric evidence was before the Court with a view to the Court making a hospital order, and where it was held:-

"(2)     The judge had to carefully consider all of the evidence in each case and not feel circumscribed by the psychiatric opinion, considering, where the conditions in Mental Health Act 1983 s.37(2)(a) were met, what would be the appropriate disposal.  In considering that wider question, the matters to which a judge would invariably have regard included: (a) the extent to which the offender needed treatment for the mental disorder from which he or she was suffering, (b) the extent to which the offending was attributable to that mental disorder; (c) the extent to which punishment was required; and (d) the protection of the public, including both the regime for determining release and the regime after release.  There always had to be sound reasons for departing from the usual course of imposing a penal sentence and the judge had to set those out in his or her judgment ([51]).

(3)       The judge had to pay very careful attention to the different effects in each case of the conditions applicable to, and after, release.  Such a consideration could be one matter leading to the imposition of a hospital order under ss.37 and 41 ([152]).

(4)       The fact that two psychiatrists were of the opinion that a hospital order with restrictions under ss.37/41 was the correct means of disposal was therefore never a reason on its own to impose such an order. The judge had to first consider all of the relevant circumstances, including the four issues set out in (2) above before considering the various alternatives ..."

60.      The Court was satisfied, applying the criteria in Article 65(1)(b) that a treatment order was the suitable method of disposing of this case.  This was a very serious assault that, applying the well-known criteria in Harrison v Attorney General [2004] JLR 111, would ordinarily have justified a substantial sentence of imprisonment notwithstanding defendant's guilty plea and co-operation with the police, but there was a clear causal connection between her mental disorder, which was profound, and the offence which substantially reduced her culpability.  Addressing the list of questions in the draft English guidelines, the defendant's condition did impair her ability to exercise appropriate judgement, to make rational choices, to think clearly and to understand the nature and consequences of her actions.  Her mental disorder had the effect of making her actions disinhibited.  There was no element of pre-planning and she had not attempted to minimise her wrong doing or conceal her actions.  The defendant did not have insight into her condition and was now actively seeking and cooperating in her treatment and care.  There was no lack of compliance with the taking of medication and she had not exacerbated her condition by drinking or taking drugs. 

61.      In all, the defendant's culpability was low and her sentence could therefore be more weighted towards rehabilitation.  In addition, custody would undoubtedly exacerbate her poor mental health and increase the risk of self harm.  It was whilst in custody that she very nearly took her life in November 2018. 

62.      The other realistic method of dealing with the defendant (having discounted a fine or probation) might be a sentence of imprisonment combined with a direction under Article 67 of the 2016 Mental Health Law that instead of being detained in prison, the defendant be removed and detained in Brockfield House for treatment, but pursuant to Article 67(7) and (8), that would mean that upon discharge before the sentence had expired, the defendant would have to be conveyed to prison to complete that sentence, an outcome that all three psychiatrists were clear would be counter-productive and prevent the implementation of her planned and supervised integration back into the community.  In any event Article 60(4) restricts the application of Article 67 to sentences fixed by law. 

63.      Turning to the restriction order and the requirements of Article 86(3), all three psychiatrists gave evidence orally before the Court that such an order was necessary to protect the public from serious harm.  As made clear in Beulah Birch, the risk need not relate to the public in general and it would suffice if it related to a category of persons, in this case, the prospective future partners of the defendant.  As Professor Eastman pointed out, although incidents of future violence against partners would probably not be frequent, the violence would potentially be very severe. 

64.      Having regard to the gravity of this offence, the defendant's previous offence and the risks identified by all three psychiatrists, the Court was satisfied that a restriction order was necessary, so that the defendant could not be discharged, transferred or granted leave of absence from Brockfield House until further order of the Court.  Pursuant to Article 68(6), the Court ordered that the defendant shall be examined by a responsible medical officer at intervals of not less than six months, and that written reports of such examinations be sent to the Attorney General, containing the responsible medical officers' opinion as to whether the restriction order should continue in effect and opinion as to whether any further treatment of the defendant is to be carried out. 

65.      In conclusion and for all these reasons, the Court made treatment and restriction orders under Articles 65 and 68 respectively of the 2016 Mental Health Law. 

Authorities

Mental Health (Jersey) Law 2016. 

AG v Michel [2019] JRC 031. 

AG v Michel [2019] JRC 160. 

AG v Le Blancq [2003] JRC 165. 

AG v Highfield [2009] JRC 104. 

AG v George [2012] JRC 216B. 

Criminal Justice (Insane Persons) (Jersey) Law 1964. 

Mental Health (Jersey) Law 1969. 

R v Drew [2003] UKHR 25. 

Mental Health Act 1983. 

Medical Practitioners (Registration) (Jersey) Law 1960. 

Criminal Justice Act 2003. 

2016 Mental Health Law. 

Beulah Birch [1990] 90 Cr. App. R. 

R v Vowles [2015] 2 Cr App R (S) 6. 

Harrison v Attorney General [2004] JLR 111.