Reid v. Secretary of State for Scotland

Hutchison Reid, the respondent, was convicted of culpable homicide in 1967. He was made the subject of a hospital order and a restriction order without any time limit under the Criminal Procedure (Scotland) Act 1955 (the Criminal Procedure Act). A restriction order under the Criminal Procedure Act could only be made if the person posed a serious public harm. The medical evidence at the trial evidenced that Reid suffered from a mental deficiency, which the medical profession at the time may have assumed could be treated.

In 1994, Reid applied for a discharge under s. 64 of the Mental Health (Scotland) Act 1984 (the Mental Health Act), but the sheriff refused to grant the order, stating his release would pose a high risk, which was likely to have a sexual connotation, to the public. Having reviewed evidence presented by various medical experts regarding Reid’s case, the sheriff had concluded that Reid was a psychopath who suffered from “abnormally aggressive ad seriously irresponsible behavior”. The medical evidence was unclear whether as to his condition could be alleviated by treatment, although the sheriff had made a finding that the symptoms of Reid’s condition could be treated by continued hospitalization.

After Reid presented a petition for judicial review, which was dismissed by the Court of Appeal, the appeal was presented before the House of Lords.

The House of Lords agreed to allow the appeal. The issues considered were: (1) Whether, as matter of law, the sheriff or the Mental Health Review Tribunal in England, were under a duty to discharge a psychopathically disordered patient if they were satisfied that the was no longer treatable? (2) What was the minimum necessary to satisfy the treatability test? (3) Whether on the facts the sheriff was justified in finding that treatment was likely to alleviate or prevent deterioration in Reid's condition?

Lord Lloyd of Berwick concurred with allowing the appeal, but discussed his own understanding of whether the relevant section of the Mental Health Act would allow discharge of a psychopath where treatment was not possible. He set out the three statutory criteria which must be met under s.17(1) of the Mental Health Act for the compulsory detention of a patient suffering from a psychopathic disorder: (1) the nature of the mental disorder must make it appropriate for the patient to received treatment in a hospital; (2) the treatment must be likely to alleviate the condition (the treatability test); and (3) the treatment must be necessary for the patient’s or other’s health and safety and such treatment cannot be provided unless the patient is detained. In contrast, Lord Lloyd of Berwick noted that the relevant provision under s. 64(1) of the Mental Health Act, related to a sheriff’s discharge of a patient who was subject to a restriction order, did not specifically mention that the treatability test be satisfied, nor did he find it appropriate to read into such section the treatability test as it would be “most surprising if Parliament intended a dangerous psychopathic offender to be released into the community merely because the disorder from which he is still suffering is no longer regarded as treatable.” [p.487]

Lord Hope of Craighead concurred in allowing the appeal but argued that there was a sufficient link between sections s. 17(1) of the (setting forth the conditions for being admitted and detained in a hospital) and s. 64(1)(setting out the conditions for obtaining discharge) of the Mental Health Act to indicate that the conditions for admission and discharge—including satisfaction of the treatability test--should be the same. Thus, he noted that a patient was entitled to be discharged if the relevant body was satisfied that medical treatment in a hospital was not likely to alleviate or prevent a deterioration of his condition. However, Lord Hope of Craighead determined that the definition of “medical treatment” with respect to the treatability test was broad, including "nursing, care and training under medical supervision". Thus, supervised care - which had the effect of preventing deterioration of symptoms of the disorder, although not the disorder itself, might on the facts of an individual case be sufficient grounds to deny discharge.

Lord Clyde concurred in allowing the appeal. After analyzing the textual intricacies of the relevant sections, the legislation history of the Mental Health Act, and prior decisions by the European Court of Human Rights, Lord Clyde determined that sheriff was obligated to consider the criteria, such as treatability, which were required to forcibly admit a mental patient. He argued that Parliament allowed for the situation in which an untreatable convicted psychopath would be discharged by providing for a conditional discharge. With regard to the issue of the extent of supervisory jurisdiction in an application for judicial review, Lord Clyde determined that, considering, how much evidence the sheriff had accumulated prior to making his decision regarding Reid’s discharge, it was difficult to conclude that such decision was perverse or had been based on poor evidence.

Lord Hutton concurred in allowing the appeal. On the issue of whether the lower court was entitled to set aside the finding of the sheriff that medical treatment could alleviate the respondent’s condition, Lord Hutton found that it was not so entitled. On the issue of whether treatability must be considered in discharging a psychopath, Lord Hutton found, after analyzing the textual intricacies of the relevant sections, that treatability was relevant in both the decision to admit and discharge a patient.  Lord Hutton also noted his agreement that treatment which alleviated the symptoms and manifestations of a mental disorder was to be considered “treatment” within the meaning of the relevant sections.

Thus, on the evidence, the sheriff was entitled to conclude that the Petitioner's condition was being alleviated by medical treatment and the decision of the sheriff denying discharge would stand.

“By the end of the hearing before the Lord Ordinary it was common ground that treatability was a factor in the overall decision whether to discharge a patient or not. But it was not decisive. In other words it is open for a sheriff to refuse to order the discharge of a psychopathic patient even though his condition is no longer regarded as treatable. I am bound to say that I am attracted by the common sense of that view, especially in the case of a patient who is subject to a restriction order without limit of time.” (Lord Lloyd of Berwick, page 485)

“I would find it most surprising if Parliament intended a dangerous psychopathic offender to be released into the community merely because the disorder from which he is still suffering is no longer regarded as treatable. With respect therefore I cannot accept the principle which governed Lord Macfadyen's approach. The considerations which arise on the admission of a restricted patient are not the same as those which arise on his discharge.” (Lord Lloyd of Berwick, page 487)

“It seems to me that, in the case of the person in whose case the 'treatability' test requires to be satisfied, the question as to whether the 'appropriateness' test is satisfied cannot be addressed unless and until the treatment which one is talking about has been identified. The 'treatability' test refers to 'such treatment', as also does the 'safety' test. The effect of the 'treatability' test, where it applies, is to define the treatment which needs to be considered in order to see whether all three tests can be met. It is only if the 'treatability' test is satisfied that it will be necessary to consider whether it is appropriate that that treatment should be received by the person in a hospital and, if so, whether it is necessary for his health or safety or for the protection of other persons that the should receive such treatment. No good purpose would be served by considering the 'appropriateness' test first in those cases which must pass the 'treatability' test.”  (Lord Hope of Craighead, page 494)

“The expression 'medical treatment' is, as I have said, given a wide meaning by s 125(1) of the Act. It includes nursing, and it also includes care and training under medical supervision. The width of the expression is not diminished where it requires to be examined in the context of the 'treatability' test. Medication or other psychiatric treatment which is designed to alleviate or to prevent a deterioration of the mental disorder plainly falls within the scope of the expression. But I think that its scope is wide enough to include other things which are done for either of those two purposes under medical supervision in the State Hospital. It is also wide enough to include treatment which alleviates or prevents a deterioration of the symptoms of the mental disorder, not the disorder itself which gives rise to them. Dr. Thomas White, who is the respondent's responsible medical officer, said in his report that there was evidence that the respondent's anger management improves when he is in the structured setting of the State Hospital in a supervised environment. The environment is one which is set up and supervised by the medical officers of the hospital. While the question is one of fact for the sheriff to decide on the facts of each case, I consider that it will be open to him in such circumstances to find that the 'treatability' test is satisfied.” (Lord Hope of Craighead, page 496)

“Anxiety might well be felt over the proposition that a sheriff is bound to discharge a psychopath where he is not satisfied from the evidence before him that treatment is no longer likely to alleviate or prevent a deterioration of his condition, so that he no longer qualifies under sub-para (i). In the civil context the balance may properly fall in favour of the liberty of the individual if further detention in hospital can serve no further purpose in alleviation or securing the stability of his condition. In the case of one who has been convicted of a criminal offence such anxiety would be well justified if the only course open was to release the patient freely into society. But Parliament has allowed for that situation in providing not only for an absolute discharge but also for a conditional discharge.” (Lord Clyde, page 504)

“In the present case the sheriff did not order the discharge of the patient who was subject to a restriction order because there was medical evidence before him which entitled him to find that the supervision which the patient received in the structured setting of the State Hospital which improved the patient's anger management constituted 'medical treatment' within the meaning of s 64(1)(a) which was likely to alleviate his condition. But there may be other cases where the evidence before a sheriff does not lead to a finding by him that a psychopathic patient is receiving treatment which is likely to alleviate his condition. In such a case under the construction which I and the majority of your Lordships place upon s 64(1)(a) the sheriff would be obliged to direct the absolute discharge of the patient irrespective of what fears there might be that he would be likely to harm other persons.” (Lord Hutton, page 514)

“As I have stated, the danger which could arise under section 64(1)(a) is that a Sheriff would be obliged to direct the absolute discharge from hospital of a psychopath, who might well harm members of the public, if the evidence adduced before him satisfied him that medical treatment in hospital was not likely to alleviate or prevent a deterioration of his condition (including the symptoms and manifestations of that condition). But a proposal to change section 64(1)(a) to remove or reduce that danger gives rise to the problem whether it would be just to detain a psychopath for many years in hospital when medical treatment was not likely to alleviate or prevent a deterioration of his condition and when, if at the time of his conviction, he had been sentenced to imprisonment instead of being ordered to be detained in hospital subject to a restriction order without limit of time, he might have been released at the end of his term of imprisonment or, where a life sentence was imposed, by the order of the Secretary of State for Scotland, by the date when he applied to a Sheriff to be discharged from hospital.” (Lord Hutton, page 515).

“I consider that the balancing of the protection of the public as against the claim of a psychopath convicted many years ago that he should not continue to be detained in hospital when medical treatment will not improve his condition, is an issue for Parliament to decide and not for judges.” (Lord Hutton, page 515)