Jersey Unreported Judgments

Capacity - re Mental Health Law - reasons.

[2021]JRC305

Royal Court

(Samedi)

7 December 2021

Before     :

J. A. Clyde-Smith OBE., Commissioner, and Jurats Crill and Blampied

 

Crown Advocate L. B. Hallam for the Attorney General.

Advocate J. W. R. Bell for the Defendant.

judgment

the commissioner:

1.        On 11^th October 2021, the Court released the Defendant unconditionally, pursuant to Article 58(3) of the Mental Health (Jersey) Law 2016 ("the 2016 Law"), and we now set out our reasons.

2.        The Defendant has an intensive history of excessive alcohol abuse, including dependent drinking and multiple detoxes over the last fifteen years, and in addition, he has suffered three significant brain injuries.  The first head injury, in 2011, brought about a personality change and his misuse of alcohol and aggressive behaviour increased.  The second head injury in 2013 and third head injury in 2019 aggravated his cognitive impairment and behavioural aberrations. 

3.        He was charged with illegal entry with intent to commit a crime.  The facts are that on 20^th March 2021, Mr Trevor Morris (who is aged 86) went into his kitchen and found the Defendant looking inside the kitchen cupboard in which he and his wife kept alcohol.  Mr Morris recognised the Defendant as a male who had previously entered his house without permission and who he believed had previously stolen alcohol from the address. Mr Morris confronted the Defendant and asked him what he was doing.  He told the Defendant to sit down whilst his wife telephoned the police.  Once outside the property, the Defendant was asked by the police to empty his pockets and he produced a steak knife from the front pocket of his jacket. The knife had not been used in the incident.

4.        When the Defendant first appeared in the Magistrate's Court on 22^nd March 2021, defence counsel raised the issue of capacity.  The case was committed to the Royal Court on 26^th May 2021 with the Defendant being remanded in custody where he had been ever since. 

The 2016 Law

5.        The test in Article 55(1) of the 2016 Law is whether a person charged is incapable because of mental disorder of "participating effectively" in the proceedings.  Article 55(2)(c) elaborates what is meant by "participating effectively", stating that:

"(c)     "participating effectively" includes, but is not limited to:-

           (i)         entering a plea, and

           (ii)        understanding the nature and significance of the      proceedings or any stage of the proceedings:"

6.        In determining the issue of incapacity, Article 57 provides as follows:

"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 ion 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.

(2)       The issue as to the defendant's incapacity shall be determined on the balance of probabilities.

(3)       For the purpose of determining the issue of incapacity -

(a)        the court must obtain, and have regard to, medical evidence on that issue; and

(b)        the court shall have all such powers to make orders in respect of the defendant under this Part as it has in respect of a defendant under Articles 61(1) and 62(1).

(4)       Where the court determines that the defendant is incapable but considers that the defendant's incapacity might be alleviated by special measures to enable the defendant to participate effectively in the proceedings -

(a)        the court shall have regard to whether it is practicable to put in place such special measures; and

(b)        if the court considers it is practicable to do so, shall direct that such special measures are put in place."

Incapacity

7.        The defence instructed the psychiatrist, Dr T Engelbrecht, who in her report of 16^th July 2021 concluded that the Defendant did not have the capacity to participate in the proceedings, having regard to the test set out in Article 57(1) of the 2016 Law.  Quoting from her report:

"12.27  He does not have capacity to participate effectively in Proceedings, as he is unable to play a meaningful role in this process.  Due to [the Defendant's] cognitive impairment, his judgement and problem-solving abilities are impaired.  [The Defendant] could not explain the difference between a 'guilty and 'not guilty' plea.  He only repeatedly stated 'I didn't do anything wrong ... I want peace ...' .  I am of the opinion [the Defendant] has significant comprehension difficulties.  He struggles to retain information and would be unable to make informed decisions."

8.        She expressed the opinion that it was unlikely special measures would allow him to participate effectively in the proceedings. 

9.        The prosecution instructed the psychiatrist Dr A Kaushal.  He expressed this opinion in his report of 25^th August 2021: 

"10.1   In my opinion, [the Defendant] has presented with significant cognitive impairment.  [The Defendant's] cognitive impairment is likely to be a lifelong condition.  Whilst there may be some cognitive recovery if he remains abstinent from alcohol, residual effects of brain injury are less likely to do so due to age related loss of neuronal plasticity. 

10.2    Given his background of excessive dependent alcohol abuse for over 15 years and multiple episodes of traumatic brain injury with residual damage (stable brain volume loss over last 5 years) manifesting with cognitive impairment, confabulation and behavioural changes, his presentation is consistent with the diagnosis of both ICD 10 F10.6 Amnesic syndrome (alcohol induced) and FO4 Organic amnesic syndrome." 

10.      Dr Kaushal agreed with Dr Engelbrecht that the Defendant was not capable of participating effectively in the proceedings for these reasons:-

"10.3.1             [The Defendant's] communication difficulties arise from his prominent cognitive impairment.  He can struggle to express himself at times and confabulates.  He struggles to follow some aspects of reasoning particularly where there is stress and pressure of urgent decision making.  This can be highly significant in the legal arena (section 3.8 Advocate's Gateway Toolkit 3).

10.3.2              At various assessments, [the Defendant] has been noted to give irrelevant answers, confabulate and has demonstrated limited flexibility of thought in terms of responsive thinking and articulating, possibly due to poor attention and comprehension arising from his mental condition.  These are very likely to contribute to his offering information about his own thoughts and desires rather than what information the interviewer was seeking.  This would affect [the Defendant's] ability to understand the nature of the proceedings so as to be able to instruct his lawyer and to make a proper defence."

11.      Dr Kaushal further advised that special measures were not likely to benefit the Defendant to a sufficient degree to participate effectively in the Court process. 

Decision

12.      The Court accepted the advice of both psychiatrists and found that the Defendant was incapable of participating effectively in the proceedings, because of mental disorder.  Following that advice, the Court further found that the Defendant's incapacity would not be alleviated by special measures to enable him to participate effectively in the proceedings. 

13.      Having made those findings, the Court had the following options as to the disposal of the matter, namely: 

(i)        It may adjourn the case for up to six months for the Defendant to receive treatment (Article 58(12))

(ii)       It may release the Defendant unconditionally (Article 58(3));

(iii)      If the Court is satisfied after hearing evidence that the Defendant did the acts of which he is charged, the Court may make either a treatment order under Article 65 or a guardianship order under Article 66 - (Article 59(2)). 

14.      Both psychiatrists agreed that an adjournment of up to six months would not assist.  The Defendant has an enduring condition, and his cognitive functioning was unlikely to change in any material way in six months, or even a longer term. 

15.      The psychiatrists were equally clear that a treatment order would not be appropriate, as simply detaining him in hospital does not constitute treatment.  Whilst his mental disorders satisfy the criteria for admission and detention at an approved establishment, due to the nature of his disability, any interventions would be patchy due to non-engagement.  Significant residual cognitive difficulties would be likely to persist along with other impairments and treatment in an approved establishment would be inappropriate.  It would not serve in preventing a worsening of his disorder, and as he has limited insight into his alcohol abuse, along with a strong denial of such a habit, he would seek alcohol as and when he could. 

16.      Whilst the Defendant would satisfy the legal criteria for a guardianship order, a guardian could not compel treatment or give consent to treatment on his behalf, and such an order would do little more than to compel the Defendant to live at a specified place, from which he would be able to leave and drink alcohol.  A guardianship order was unlikely to be able to promote sobriety in his case.  

17.      No purpose would be served by a hearing to determine whether the Defendant did the act for which he is charged, as that only opens the door to the making of either a treatment or guardianship order, neither of which would be likely to be appropriate. 

18.      There was no wider public interest in a finding under Article 59(1) that the Defendant did the act for which he is charged.  Such a finding would not constitute a conviction for the purposes of making a restraining order under the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008.  There is no question of compensation for damage to stolen goods and the Crown was unable to identify any orders it could invite the Court to make as a result of a finding under Article 59(1). 

19.      The Court was left with no alternative therefore other than to release the Defendant unconditionally.  The Defendant will return to the family home with his wife and adult son, who are supportive of him returning home.  He will be in receipt of support from the Brain Injury Service and from the Adult Social Work Team. 

Authorities

Mental Health (Jersey) Law 2016. 

Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008.