From Mental Health Law Online
(1) Treatability test is part of admission criteria for psychopathic disorder, so entitled to discharge when it is not met; definition of treatment is wide and can include treatment only for symptoms rather than underlying disorder, e.g. anger management. (2) Decision not to discharge not irrational.
A change made by the Mental Health Act 2007 is related to this case. See Appropriate treatment test replaces treatability test and applies to all patients under long-term detention 3/11/08
The patient had been convicted of culpable homicide aged 17 and given a hospital order with restrictions without limit of time. He had remained in hospital for nearly 30 years and was at the time of the sheriff's (Tribunal) hearing classified as suffering from psychopathic disorder.
To be admitted for psychopathic disorder in the first place the patient's disorder must be treatable, i.e. treatment must be "likely to alleviate or prevent a deterioration of his condition". However, the discharge criteria do not explicitly mention treatability.
The sheriff (Tribunal) did not discharge the patient, saying that treatability was irrelevant to discharge, but that in any event the disorder was treatable.
The patient unsuccessfully judicially reviewed the Tribunal's decision.
He was successful at the Second Division (Court of Appeal), who stated that treatability had to be considered, and substituted the sheriff's (Tribunal's) decision with their own decision that the patient was untreatable.
The Secretary of State appealed to the House of Lords.
There were two parts to the decision:
(1) In cases of psychopathic disorder, the treatability test (as set out in the admission criteria) should be considered in deciding whether detention should continue; but the definition of "treatment" was a wide one which can include treatment for the symptoms and manifestations of the disorder even if it does not cure the disorder itself.
(2) The Tribunal's decision should not have been interfered with in this case, as judicial review is only a challenge to the legal validity of the decision. There was evidence that the patient's "anger management improves when he is in the structured setting of the State Hospital in a supervised environment" - which could satisfy the treatability test.
The approach the Tribunal should take
Opinion Plain English Firstly, so far as (a) is concerned, (1) he must first decide whether the appellant has at the time of the hearing a mental disorder. If he is satisfied that he has not, then he must order a discharge. (2) If the appellant has a mental disorder the sheriff must identify the nature and degree of it. Then (3) he should turn to the matter of medical treatment in hospital. He will have to consider the nature and effectiveness of any possible treatment. Where the appellant is a psychopath or has a mental impairment which is not severe he must consider whether such treatment is likely to alleviate or prevent a deterioration of the condition. If he is satisfied that such treatment is not likely to do so, then he is bound to grant a discharge. (4) If he is not so satisfied, or if he is dealing with any other kind of mental disorder, he must consider the propriety of the appellant receiving the medical treatment in detention in hospital. In doing so he must look to the nature and degree of the mental disorder. If he is satisfied in the light of all the evidence before him and in the whole circumstances that the appellant is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, then he must discharge him. The circumstances which he may consider can include the matter of the health and safety of the patient and the safety of other persons, including members of the public; that is to say the propriety, as distinct from the necessity, of his continued detention in hospital. If he is satisfied that the requirements of paragraph (a) have been met, then it is not necessary for him to consider paragraph (b), and should turn to paragraph (c). (a) Appropriateness (nature/degree). See s72(1)(b)(i).
(1) Discharge if no mental disorder
(2) Identify nature and degree.
(3) Discharge if psychopath not treatable.
(4) Discharge if not "appropriate".
Go to (c) if discharging.
Secondly, if he is not satisfied that the provisions of paragraph (a) have been met, then he should turn to paragraph (b). The single question here is whether he is satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive medical treatment in hospital. The standard here is one of necessity, not desirability. If he is so satisfied then he must discharge the appellant, and he should then turn to paragraph (c). If he is not so satisfied he must refuse the appeal.
(b) Necessity (health/safety/others). See s72(1)(b)(ii).
Discharge if not "necessary".
Go to (c) if discharging.
Finally, if he has been satisfied on either heads (a) or (b) he must then consider head (c). Here the question is whether it is or is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. In the light of his decision on this matter he will grant a conditional or an absolute discharge.
(c) Conditional/absolute discharge. See s73(1)(b).
Consider whether liability to recall is appropriate.
- I also consider that the practical application of the distinction between "the appropriateness test" and "the treatability test" as stated by the Lord Ordinary at p. 559E of his judgment gives rise to considerable artificiality, because I think that a doctor, seeking to apply section 17(1)(a) to a psychopath, would not decide, first, whether it was appropriate for the psychopath to receive medical treatment in a hospital, and then go on to decide whether the treatment in hospital was likely to alleviate or prevent a deterioration in his condition. Rather, in deciding whether his mental disorder was of a nature or degree which made it appropriate for him to receive medical treatment in a hospital, he would decide at the same time and as part of the one question, whether such treatment was likely to alleviate or prevent a deterioration of his condition.
- 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 he should receive such treatment.
Wide definition of "medical treatment"
- I find myself in agreement with the views which were expressed by Roch L.J. about the corresponding provisions in section 72(1)(b) of the Mental Health Act 1983 in his dissenting judgment in Regina v. Canons Park Mental Health Review Tribunal, Ex parte A  Q.B. 60, 76D-78C. Having reached the conclusion that Parliament did not intend to refer here simply to the "appropriateness" test and that the words used refer clearly in the case of psychopathic disorder and mental impairment to the "treatability" test, he said at p. 77E:
- "A psychopathic patient is not liable to be detained in hospital for medical treatment, unless the treatment is likely to be of some good to him. If his psychopathic disorder is untreatable then it is not of a nature which makes it appropriate for him to receive medical treatment in a hospital. The policy of the Act, in relation to patients with psychopathic disorders, is treatment not containment."
- The definition is a wide one, which is sufficient to include all manner of treatment the purpose of which may extend from cure to containment. ...
- 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.
- It is defined in section 125 of the Scottish Act as including nursing and also care and training under medical supervision. In section 145 of the English Act it is defined as including nursing, and also care, habilitation and rehabilitation under medical supervision. Plainly the expression is wide in its scope. The inclusive character of the definition allows of other things to be comprehended in it and it was not suggested that the particular things noted in the English definition would not also fall within the scope of the Scottish definition, as indeed may much else.
- I am in agreement with the opinion of the Inner House that treatment which alleviates the symptoms and manifestations of the underlying medical disorder of a psychopath is "treatment" within the meaning of section 17(1)(a)(i) even if the treatment does not cure the disorder itself.
Type of discharge
Lord Hope: if untreatable then only an absolute discharge is logical, but conditional discharge possible if wide definition of treatment exploited.
- If the sheriff is satisfied that medical treatment in a hospital is not likely to alleviate or prevent a deterioration of the patient's condition, he must direct the patient's absolute discharge. He cannot direct a conditional discharge, because the only purpose of a conditional discharge is to enable the patient to be recalled to hospital for "further treatment" - that is to say, in the case of those conditions to which it applies, treatment which satisfies the "treatability" test. In other words, a conditional discharge is not an option in these cases. If the "treatability" test cannot be satisfied, the only option is an absolute discharge.
- The advantage of giving a wide meaning to the expression "medical treatment" in the context of the "treatability" test is that it would enable the sheriff to give patients who suffer from these types of mental disorder a conditional discharge... The Secretary of State would have power to recall the patient to hospital for further treatment in the exercise of his discretion under section 68(3) at any time. In this way the important safeguards which the conditional discharge system provides in the case of patients who have been made the subject of a restriction order would remain available, so long as this was necessary to protect the public from the serious harm which might result if the patient were to commit offences after his release from the hospital.
Lord Clyde envisages conditional discharge, perhaps because of the possibility of future medical advances?
- But it is not difficult to anticipate that cases could occur where the patient has reached a position of stability but where after release from hospital his condition may change and recall may become desirable. In the case of psychopathic patients, even if the provisions for discharge can be overcome, such a course may well require to be seriously considered. ...
- Views have evidently differed in the past as to the extent to which such persons can benefit from medical treatment, although the hope must continue to be that medical science will progress to a greater understanding of the condition and the developing of ways of alleviating or resolving it. Moreover it may well be that generalisations cannot readily be made in regard to this difficult condition. While further study and research is continuing it may be the more difficult to affirm with confidence that the condition in any particular case is truly unresponsive to treatment or that no alleviation or stabilisation can be achieved in the secure environment of a hospital. ...
- 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 paragraph (i)... But Parliament has allowed for that situation in providing not only for an absolute discharge but also for a conditional discharge.
Lord Hutton is strongly against anything but absolute discharge if untreatable, no matter what the consequences:
- In such a case under the construction which I and the majority of your Lordships place upon section 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.
- I am of opinion that in such a case the Sheriff would not be entitled to give a direction for the conditional discharge of the patient, because if the medical evidence was that medical treatment in the hospital was not likely to alleviate or prevent a deterioration of the psychopath's condition, it is difficult to see in relation to section 64(1)(c) how the Sheriff could take the view that it was appropriate for the psychopath to remain liable to be recalled to hospital for further treatment. ...
- 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.
- This is a problem of great difficulty which, in my opinion, can only be resolved by Parliament. It cannot be resolved by the courts under the present legislation and, moreover, 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.
Other caselaw states that conditional discharge should be considered even where the patient suffers from no mental disorder, so presumably it should be considered on a case-by-case basis. See R (SSHD) v MHRT, re BR (2005) EWCA Civ 1616 and R (SSHD) v MHRT, re Wilson (2004) EWHC 1029 (Admin). The patient in Johnson v UK 22520/93 (1997) ECHR 88 had no mental disorder but received deferred conditional discharges before his absolute discharge, the aim being to rehabilitate him into the community.
Lord Slynn of Hadley - agreed with Lord Clyde
Lord Loyd of Berwick - dissenting on the first issue
Lord Hope of Craighead
It was accepted that there were no material differences between the Scottish and English Acts.
Since then, the law was changed in Scotland to allow a patient with PD to be detained even if it is untreatable (which is compatible with Article 5: Hutchinson Reid v UK 50272/99 (2003) ECHR 94) The English law remains the same (but not for long if the Government gets its way: see the Mental Health Bill 2006).
In reading the judgment, the following may be useful:
Scottish English Notes s17 s3 Admission criteria s55 s37 Hospital order s60 s41 Restriction order s64 s72 and s73 Discharge criteria The sheriff The MHRT The decision-making body The Lord Ordinary The Admin Court? Judicial review court The Second Division The Court of Appeal? Appeal against JR decision