Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 28

THE MENTAL HEALTH (PUBLIC SAFETY AND APPEALS) (SCOTLAND) ACT 1999

Introduction

1. In August 1999, Noel Ruddle successfully appealed under s64 of the 1984 Act for his absolute discharge from the State Hospital, on the basis that he did not meet the criteria for continued detention under the Mental Health (Scotland) Act.

2. Mr Ruddle had been convicted in 1992 of culpable homicide, with a diagnosis of paranoid schizophrenia, and received a hospital order with restrictions. The diagnosis was subsequently revised, and at the time of the appeal, it was accepted that the only mental disorder from which he suffered was a personality disorder, falling within the legal category of a persistent mental disorder manifested only by abnormally aggressive and seriously irresponsible conduct. Under s17 of the 1984 Act, a person can only be detained with such a disorder if treatment is likely to alleviate or prevent a deterioration in his condition (the so called 'treatability test', discussed in Chapter 5). The House of Lords ruled in the case of Reid³⁸ that the same test must be applied in considering whether a patient, at the time of appeal, could continue to be detained.

3. The sheriff in the Ruddle case held that Mr Ruddle was not receiving treatment which was likely to alleviate or prevent deterioration in his condition and was not likely to receive such treatment. His detention did not meet the treatability test and he was therefore entitled to be discharged. The question of whether he presented a risk to public safety was immaterial, since detention was only lawful if all the relevant criteria, including the treatability test, were satisfied.

4. This case generated considerable publicity. Following it, the Scottish Executive passed emergency legislation: the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.

The provisions of the 1999 Act

5. Most significantly, the Act introduced a new "public safety" test, which requires to be satisfied before a sheriff or Scottish Ministers may discharge a restricted patient. Where the sheriff or Ministers are satisfied that the patient is 'suffering from a mental disorder, the effect of which is such that it is necessary, in order to protect the public from serious harm, that the person continues to be detained in a hospital, whether for medical treatment or not'³⁹, then the patient may not be discharged.

6. This test is paramount in all cases concerning restricted patients, superseding questions as to whether the patient would benefit from medical treatment. It is only if the patient does not fall foul of the public safety test that the sheriff or Ministers go on to address whether the normal criteria for detention of 'appropriateness', 'necessity' and (where applicable) 'treatability' are met.

7. The Act also introduced a new right of appeal from decisions of the sheriff in relation to restricted patients. This allows both the patient and Scottish Ministers to appeal to the Court of Session on issues of both fact and law, with a further appeal to the House of Lords.

8. Finally, the Act amended the definition of mental illness in s1 of the 1984 Act to include 'personality disorder', placing beyond doubt the question of whether it was lawful to continue to detain people with a primary diagnosis of personality disorder, rather than a mental illness (as it is normally understood) or learning disability.

9. The amendment to the definition of 'mental disorder' is extremely wide in its effect, applying as it does to the 1984 Act in general. In as much as it changes the scope of the Act, this affects the provisions for detention under civil procedure as well as criminal disposals. However, the Scottish Executive stated during the debates on the legislation that it was not its intention to broaden the range of people who might in future be admitted compulsorily to hospital⁴⁰.

Our initial response to the legislation

10. At the time of the legislation, we expressed our concern that the Bill could have undesirable consequences. We wrote to the Justice Minister, stating our view that the scope of the legislation seemed to go beyond a limited response to the particular case, and elevated a necessary regard for public safety above matters of treatment and appropriate care. We felt that this approach was damaging to the way in which society deals with mental health problems, and did nothing to correct the emphasis in public debate on false and misleading stereotypes of 'dangerous psychopaths'. We continue to have these concerns.

11. During the debates on the Bill, the Scottish Executive stressed that it was intended as an interim measure, pending consideration of the reports of this Committee and the MacLean Committee.

12. In our second Consultation⁴¹, we set out some preliminary views on the legislation. We accepted that public safety was an important consideration in decisions regarding the discharge of mentally disordered persons who have offended, but took the view that the aim of mental health services, including forensic services, should be to offer treatment, and not preventive detention. In general, detention on the basis of risk alone should be a matter for criminal law rather than mental health law. Improved assessment procedures, and better use of options such as interim hospital orders and hospital directions, would reduce the risk of high risk offenders being inappropriately made subject to hospital orders.

13. Support for our approach was widespread, including from the Faculty of Advocates, the Scottish Association of Mental Health, the Law Society of Scotland, the State Hospitals Board, and the Royal College of Psychiatrists. In expressing its support, the Scottish Association for Mental Health, amongst others, emphasised its wish that the 1999 Act should be repealed, following consideration of the reports of this Committee and the MacLean Committee.

Who does the Act affect?

14. Against that background, we go on to consider the 1999 Act, particularly the public safety test, in the context of our wider proposals. The first point which arises is who is affected by the Act?

15. The concern which prompted the legislation appears to have been the suggestion that a small number of patients at the State Hospital, who had in the past committed very serious offences, might be released in the wake of the Ruddle decision. However the new 'public safety' test applies more widely. It extends to:

• patients subject to a hospital order with restrictions
• patients who are transferred prisoners with an accompanying restriction direction
• patients subject to hospital directions.

16. The test is not confined to patients in the State Hospital but applies to restricted patients in any setting. As we point out in Chapter 27, many restricted patients are not in the State Hospital. Nor is the test restricted to patients with personality disorder. It applies equally to patients with mental illness or learning disability.

17. However, all the patients concerned have this in common: at admission to hospital they were deemed to have met the criteria for detention under the Mental Health Act. In the cases of mental impairment and 'persistent mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct', the criteria included a 'treatability' requirement.

The public safety test

18. The fundamental question is whether it should be the mental health system or the criminal justice system which should deal with offenders who present a risk to public safety, but who would not benefit from treatment delivered under compulsion. In our view, where a person who has offended requires treatment in hospital in order to reduce the risk he or she presents to the public, such treatment should be provided. However, where treatment is not indicated, it should be the criminal justice system which ensures public safety.

19. It is also important that the criminal justice system should seek to make the right disposal at the time of sentencing, after full assessment.

20. So far as the Mental Health Act is concerned we have dealt with our proposed new grounds for compulsion in Chapter 5. In summary, these are

• the presence of mental disorder
• impaired judgement
• risk, including, where appropriate, risk to others, and
• likely benefit from treatment.

21. The 'benefit' test is linked to the individual circumstances of the patient and the proposed plan of care, and 'treatment' is broadly defined. The test would supersede the 'treatability' test for personality disorder and mental impairment, and would apply, on admission, to all restricted patients in future. Convicted offenders who did not meet the test would receive a penal disposal.

22. On risk, the presence of 'a significant risk of harm to other persons' is one of the factors we propose in Chapter 5, which may, alongside the other relevant criteria, justify compulsion under the Mental Health Act.

23. We make recommendations in Chapter 26 which are designed to ensure that psychiatrists considering the recommendation of a hospital order with restrictions always consider the possibility of an interim hospital order, to allow time for a full assessment of the offender's mental condition. We also recommend clarification of the circumstances when a hospital direction may be appropriate. The greater use of interim hospital orders, and in appropriate cases, hospital directions, should help avoid a recurrence of the situation which apparently arose in the Ruddle case: an offender being given a mental health disposal, on the basis of a diagnosis which changed, with no mechanism to transfer the offender to a penal setting. Our recommendations on these points are consistent with those of the MacLean Committee.

24. In the case of personality disorder, which is commonly considered to have particular implications for public safety, we have set out our view in Chapter 26 that a hospital order should not normally be considered suitable for offenders with a primary diagnosis of personality disorder, but that, in appropriate cases, a hospital direction should be used. (See Chapter 26 paragraphs 16-19).

25. We should also point out that, in any case, very few patients with a primary diagnosis of personality disorder are detained under the Mental Health Act at the moment and we would expect that to continue to be the case.

26. The Order for Lifelong Restriction, which the MacLean Committee recommends, would be available for those offenders, including those with mental disorders, who are found to present a continuing risk to public safety. Although it is likely only to apply to a small group, the Order is intended, inter alia, for the kind of high risk mentally disordered offender against whom the 1999 Act is apparently directed (notwithstanding that it is in fact wider in its effect).

27. The MacLean Committee has also recommended the creation of a Risk Management Authority (RMA). The RMA would have a function of promoting best practice in risk assessment and risk management. On the issue of responsibility for restricted patients, we have recommended in Chapter 27 that this be vested in a Restricted Patients Review Board, with day to day management issues delegated to the proposed RMA. We believe that this will improve public safety, in helping to ensure that disposals of mentally disordered offenders are based on as robust an assessment of the risk presented by an offender, and the possible treatment needs, as is achievable.

28. We believe that taken as a whole the recommendations of this report, and of the MacLean Committee, provide a framework under which the aim of maintaining the integrity of the mental health system, while providing appropriate protection for public safety, can be achieved.

29. That being so, and in the light of what we have said above, we believe that there is no need for the 'public safety' test, which should be abolished.

Entry and exit criteria

30. In all of the above, we have assumed that the 'entry' and 'exit' criteria for detention should be the same. In other words, the justification for continuing to detain a patient should reflect the basis on which detention was initiated. This is an important principle which we have emphasised throughout our report: no-one should be detained if they no longer meet the grounds for detention. We wish to maintain this principle in respect of restricted patients. The effect of the public safety test in the 1999 Act is that some restricted patients may be required to remain in hospital when they no longer meet the criteria for admission to hospital.

31. In the case of Anderson⁴² the Court of Session did not accept the argument that the fact that the criteria for discharge were different from the criteria for admission necessarily constituted a breach of the European Convention on Human Rights. Be that as it may, we note that European case law, particularly the leading cases of Winterwerp⁴³, and X v UK,⁴⁴ supports the view that the purpose of review is generally to ensure that the circumstances which justified the initial detention continue to obtain.

32. Where this is not the case, there is the potential for the role of the hospital to change from therapeutic intervention to containment. This is inconsistent with the approach adopted by psychiatrists in Scotland over many years, and with our principle of Benefit, which is one of our recommended criteria for compulsory measures.

The 1999 Act and prisoners

33. As we have said, the 1999 Act applies not only to patients seeking discharge into the community, but also to prisoners who have been transferred to hospital with a restriction direction, and those subject to hospital directions. The effect of the Act on this group appears to be particularly perverse.

34. The criteria under which a transferred prisoner should be returned from hospital to prison are set out in s71A and s74 of the 1984 Act. Essentially, they provide that a prisoner should be returned to prison when Ministers are satisfied that the person does not meet the criteria for detention under the 1984 Act. However, s1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 provides that a prisoner subject to a restriction direction cannot be returned to prison from hospital when Ministers are satisfied that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in hospital.

35. The implication of this provision is that there may be prisoners who can be more safely managed in the hospital than in prison, even although they are not 'treatable' or otherwise detainable under the normal Mental Health Act criteria. This implication was criticised in the MacLean Committee's Report⁴⁵. The report argued that prisoners should only be detained in health care settings where treatment was appropriate. If this was not the case, and the only issue was how safely to manage the prisoner, that should be a matter for the Scottish Prison Service.

36. We are in agreement with the MacLean Committee on this point. The justification for a prisoner remaining in hospital should be the need for treatment. Where a prisoner no longer requires treatment for a mental disorder, Ministers should make the necessary arrangements for transfer to prison. Of course, these decisions must be taken with sensitivity to recognise the needs of those whose mental state may be variable.

Other provisions of the 1999 Act

37. We have no difficulty with the new appeal rights in relation to decisions concerning restricted patients. We recommend at Chapter 9 that these be retained under our proposals.

38. The definition of mental disorder is discussed in Chapter 4, including the question of personality disorder. We recommend there that personality disorder should be a separate category of mental disorder, and that its inclusion within the definition of mental illness should be removed.

Those a new Act will not cover

39. Overall, the recommendations we make are intended to supersede the provisions of the 1999 Act, which will then become unnecessary. However, there may be a transitional problem. It appears that there may be a very few patients already subject to hospital orders with restrictions under the current, or even earlier, Mental Health Acts who may present a risk to the public, are not treatable, and cannot lawfully be transferred to prison. Such people might not meet the criteria for continuing detention under our new proposals. We do not know the number of such patients, but it would seem that it may be very few.

40. We note that the MacLean Committee considered this group, and did not feel there was any recommendation they could make which would alter the existing situation for such patients⁴⁶. We have the same difficulty. We considered whether it would be desirable to revert to the assumed position prior to the Reid case⁴⁷, that 'treatability' would be a criteria for admission to hospital, but lack of treatability would not be a ground for discharge. However, as we have already indicated, we do not believe that the treatability test, as currently set out, should remain. Also, such a proposal would be subject to similar objections to the 'public safety' test, in that it would result in patients being detained who no longer meet the criteria for hospital admission, effectively for preventive detention rather than treatment.

41. Our proposals regarding the Restricted Patients Review Board and Risk Management Authority would apply to this group. This should, at the least, ensure that there is a full assessment of whether there is, in fact, a serious risk to public safety in individual cases, with a mechanism to consider the most appropriate ways to manage and, if possible, reduce the risk.

42. Nevertheless, that would not resolve the basic question of whether such patients should continue to be detained, in the absence of any other feasible option, under provisions similar to those in the 1999 Act. Ultimately, we have concluded that it is a matter for the Scottish Executive and Parliament to consider whether there is a need for some form of transitional provision which would retain the effect of the 1999 Act for this very limited group of high risk patients admitted to hospital prior to the introduction of reformed legislation. If such a transitional provision were to be introduced, we would recommend that it should be tightly drawn so as to ensure that its effect did not reach beyond this very limited group.

43. There is however one improvement we can recommend. The terms of the 1999 Act mean that it is difficult for patients who do not meet the public safety test to progress to conditions of lower security. This is because, under the legislation as it stands at the moment, it is not possible to grant conditional discharge to a patient who is not treatable. Therefore, patients whose only ground for continuing detention is the public safety test have no mechanism under which they can be tested out in conditions of lesser security, in order to establish that a possible discharge may be appropriate. We believe that the possibility of conditional, as well as absolute discharge should be available for all patients, where this is justified by risk assessment and the plan of care.

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