Reid v Secretary of State for Scotland

For a restricted patient, the discharge inquiry under section 64(1)(a) of the Mental Health (Scotland) Act 1984 includes the statutory requirement that, for the relevant psychopathic disorder, hospital treatment is likely to alleviate or prevent deterioration. That requirement is integral to whether detention for medical treatment remains appropriate.

“Medical treatment” has a wide meaning. It may include nursing, care, training and a medically supervised structured environment which alleviates symptoms or manifestations of the disorder. On judicial review, the court must not reassess expert evidence or substitute its own view unless the decision is legally vitiated, unsupported by evidence, irrational or otherwise unlawful.

Reid v Secretary of State for Scotland concerned a restricted patient who had been detained in hospital following a conviction for culpable homicide. He sought discharge under section 64 of the Mental Health (Scotland) Act 1984. The sheriff refused his application after hearing psychiatric evidence, finding that treatment in a structured and supervised hospital setting had alleviated his condition and that release carried a very high risk of reoffending.

The Lord Ordinary dismissed the patient’s judicial-review petition: 1995 S.L.T. 555. The Inner House allowed a reclaiming motion and reduced the sheriff’s decision: 1997 S.L.T. 162. The House considered both the construction of section 64(1), including the relevance of treatability, and the permissible scope of judicial review of the sheriff’s factual assessment.

1. Appeal allowed unanimously. The House restored the Lord Ordinary’s interlocutor dismissing the petition for judicial review of the sheriff’s refusal to direct discharge.

2. On the construction issue, Lord Clyde, Lord Hope and Lord Hutton held, with Lord Slynn agreeing with Lord Clyde’s reasons and Lord Hope’s guidance, that section 64(1)(a) required the sheriff to consider the section 17(1)(a) requirements relevant to the nature and degree of the disorder. For a disorder manifested only by abnormally aggressive or seriously irresponsible conduct, this included whether medical treatment was likely to alleviate or prevent deterioration. Lord Lloyd took the contrary view, although he also favoured allowing the appeal.

3. Per Lord Clyde, the sheriff’s inquiry under section 64 is structured. Conditions (a) and (b) are alternatives. If either is met, condition (c) determines whether discharge must be absolute or conditional. The patient bears the onus on the balance of probabilities, with particular care required because of the interests of both the patient and the public.

4. Lord Hope and Lord Hutton explained that “medical treatment” under section 125 is broad. It can include care, training, nursing and a structured environment under medical supervision. Treatment may alleviate symptoms and manifestations, rather than cure the underlying disorder.

5. Per Lord Clyde, the Inner House exceeded the limits of judicial review. It could examine the evidence only to identify legal error, irrationality, perversity, absence of evidence or another legal deficiency. It could not form its own preferred assessment of the expert evidence. The sheriff had evidence entitling him to find that the supervised hospital regime improved the patient’s anger management and was medical treatment likely to alleviate his condition. The sheriff was therefore not obliged to direct either absolute or conditional discharge.

• House of Lords: appeal allowed; the Lord Ordinary’s dismissal of the petition was restored.
• Inner House of the Court of Session: allowed the patient’s reclaiming motion and reduced the sheriff’s decision: 1997 S.L.T. 162.
• Outer House of the Court of Session: Lord Ordinary dismissed the judicial-review petition: 1995 S.L.T. 555.
• Sheriff: refused the restricted patient’s application for discharge under section 64 of the Mental Health (Scotland) Act 1984.