Scottish Court of Session Decisions

L. v Scottish Ministers [2002] ScotCS 14 (17th January, 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Coulsfield Lord MacLean	XA103/01 OPINION OF THE COURT delivered by LORD MacLEAN in APPEAL under section 66(A) of the Mental Health (Scotland) Act 1984 as amended by section 2 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 and Rule of Court 41.19 by L. Appellant; against THE SCOTTISH MINISTERS Respondents _______

 

 

Act: G.C. Bell, Q.C., Collins; Brodies, W.S.

Alt: Miss Crawford; Richard M. Henderson, Solicitor to the Scottish Executive

17 January 2002

1. The appellant is L. who was convicted at the High Court sitting in Edinburgh on 28 February 1991 on charges of indecent assault, rape, breach of the peace and a contravention of a bail order, and thereafter was detained in the State Hospital at Carstairs in terms of sections 175 and 178 of the Criminal Procedure (Scotland) Act 1975 until he was transferred to Lennox Castle Hospital on 16 August 1999, where he remains in a secure unit. On admission to the State Hospital it was determined that he was suffering from a mental disorder of a nature or degree which made it appropriate for him to receive medical treatment in a hospital and that such mental disorder was a mental handicap, comprising mental impairment where such treatment was likely to alleviate or prevent a deterioration of his condition, in terms of section 17(1)(a)(ii) of the Mental Health (Scotland) Act 1984 ("the Act"). In terms of section 1(2) of the Act, mental impairment means a state of arrested or incomplete development of mind not amounting to severe mental impairment which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct.
2. In about August 2000 the appellant lodged an appeal under section 64 of the Act by way of a summary application to the Sheriff Court of Glasgow and Strathkelvin in which he craved the Court to grant his absolute discharge in terms of section 64(1) of the Act or, alternatively, his conditional discharge in terms of section 64(2) of the Act. It was averred that his detention in the State Hospital had been continued under sections 58 and 59 of the Criminal Procedure (Scotland) Act 1995 before he was transferred to Lennox Castle Hospital in 1999. It was also pleaded that he was no longer suffering from mental disorder of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment and it was not necessary for his health of safety or the protection of other persons that he should receive such treatment. So it was not appropriate for him to remain liable to be recalled for such treatment and the Court should grant his absolute discharge in terms of section 64(1) of the Act. Alternatively, he pleaded that if the Court was nevertheless satisfied that he should be liable to be recalled for such treatment, his conditional discharge should be granted in terms of section 64(2) of the Act.
3. After proof, the sheriff pronounced an interlocutor dated 18 April 2001 in which he dismissed the appeal and refused to discharge the appellant from hospital. Attached to his interlocutor is a long note in the form of a judgment from which it has to be said that it is not always easy to discern the findings he made. Indeed, it is regrettable that he did not follow the customary, but admittedly not statutorily prescribed form in such cases, by appending to his interlocutor the findings in fact which he had made together with an explanation for them in a following note.
4. Thereafter, the appellant appealed to the Court of Session under section 66A of the Act (as amended by the Mental Health (Public Safety and Appeals) (Scotland) Act 1999). Before us, counsel for the appellant invited us to set aside the sheriff's refusal of the application and to remit it back to him with a direction to set the conditions for the appellant's conditional discharge under section 64(2) of the Act. This was consistent with the evidence of all the doctors at the proof who postulated or addressed a discharge, as the sheriff says on page 30 of his judgment. The other matter which we should record at this point is that, in accordance with the respondents' answers to the grounds of appeal, counsel for the respondents accepted at the Bar that it was for the respondents to establish that the appellant suffered from a mental disorder, that the mental disorder was of such a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment and that it was necessary for the health or safety of the appellant or for the safety of other persons that he should receive such treatment.
5. In view of the conclusion to which we have come it is not necessary for us at this time to consider and determine all the competing submissions of the parties. Given the concession which the respondents have made with regard to the onus of establishing what is set out in sections 64(1)(a), (b) and (c), it is essential that they should establish that the appellant is still 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, and, in this case, that it is necessary for his health and safety or the protection of other persons that he should receive such treatment. It is accepted that the mental disorder from which he suffers is a mental handicap comprising mental impairment where the medical treatment he receives is likely to alleviate or prevent a deterioration of his condition. Given the definition of mental impairment in the Act which we have set out earlier, the respondents had to show inter alia that the appellant's state of mind was associated with abnormally aggressive or seriously irresponsible conduct, if the appellant were not to be conditionally discharged, which his medical witnesses all maintained he should be. The difficulty we have is in discovering from the sheriff's judgment whether he has made a clear finding to this effect in the context of sections 64(1)(a) or (b). It is clear from what he says on page 18 that he considered the conduct founded on in the case made under section 64(A1) of the Act and that he came to the conclusion that such conduct did not make it necessary for the appellant to continue to be detained in hospital in order to protect the public from serious harm. When he turns to deal with sections 64(1)(a) and (b) the sheriff says on page 24, with regard to Dr Young's evidence, that Dr Young's view is that the appellant is "significantly impaired in intelligence and social functioning and this is associated with abnormally aggressive or seriously irresponsible conduct." The sheriff goes on to say:

"I have already rejected the quality of this aggressive and irresponsible conduct."

But, is that finding restricted to the case made under section 64(A1)? The sheriff goes on to conclude that the appellant is suffering from a mental disorder which is a mental handicap. We have not been persuaded by counsel for the respondents in her reference to certain passages in the judgment, that the sheriff properly directed his mind to this question. Part of the difficulty, of course, lies in the manner in which the Sheriff has chosen to formulate his judgment, which we have already mentioned. Being uncertain about what the sheriff has done, we feel compelled to consider for ourselves the evidence which was led on this whole question. For the avoidance of doubt, we take the view that section 66A of the Act empowers us to take that course. Counsel for the respondents, under reference to an answer by the Deputy Minister and the Minister for Justice in the Scottish Parliament (Official Report, Scottish Parliament, 9 September 1999, column 245), assured us that the section had this scope, and her submission was not controverted by counsel for the appellant. We should add that we do not consider it appropriate to remit the matter to the sheriff and to invite him to consider making further findings.

6. We will therefore continue this appeal so that we may be addressed on the necessary, relevant evidence. It will obviously be important that the continued appeal should be heard as soon as possible since the appellant will continue to be detained in hospital until the continued hearing.