Man loses appeal against compulsion order imposed following acquittal of assault

The Sheriff Appeal Court refused the appeal after ruling that the sheriff’s approach could not be faulted.

Compulsion order

Sheriff Principal Mhairi Stephen QC, sitting with Appeal Sheriff Peter Braid, heard that the appellant “FD” pled not guilty in July 2017 to a charge of contravention of section 5(1) of the Emergency Workers (Scotland) Act 2005, by “assaulting, obstructing or hindering a nursing assistant by placing him in a headlock and repeatedly punching him on the head to his injury”.

The plea was accepted on the basis that the Crown accepted the appellant’s defence in terms of section 51A of the Criminal Procedure (Scotland) Act 1995, that he was unable by reason of mental disorder to appreciate the nature or wrongfulness of his conduct.

Prior to passing sentence, the sheriff obtained four reports, two from a Dr Khan; one from a Dr Billcliff; and one from a mental health officer, and at the time of sentence the appellant was detained in the State Hospital at Carstairs, being subject to a compulsory treatment order made under the Mental Health (Care and Treatment) (Scotland) Act 2003.

Having taken the reports into account, on 7 September 2017 the sheriff at Lanark imposed a compulsion order in terms of section 57A of the 1995 Act, but on appeal it was argued that the sheriff erred in concluding that the statutory criteria for the imposition of the order were met.

‘Flawed approach’

Counsel submitted that the reports did not entitle the sheriff to conclude that the condition in subsection (3)(d) was satisfied, as neither doctor stated in terms that a compulsion order was necessary, and in any event, they did not explain why such an order was necessary standing the existence of the compulsory treatment order.

The sheriff had accepted that neither Dr Billcliff nor Dr Khan dealt expressly with the issue, but had observed that both were consultant psychiatrists accredited under section 22 of the 2003 Act and concluded that this entitled him to presume that both had a full working knowledge of the legislation and in particular the criteria for the imposition of a compulsion order.

Since both doctors had stated that the appellant met the criteria that must mean that they each were of the view that the necessity criterion was satisfied.

The sheriff had gone on to take the view that the decision was a judicial one, not a medical one, and had himself considered the question of necessity in the light of all the circumstances of the case, but it was argued that his approach was “flawed”.

Counsel submitted that there was “insufficient material” before him to entitle him to conclude that a compulsion order was necessary even if the criterion in subsection (3)(d) was superficially met.

The decision as to necessity was properly to be regarded as a mixed judicial and medical one, and without the necessary medical evidence from the doctors, the sheriff was not entitled to reach his own view as to necessity.

‘No reason to interfere with decision’

Refusing the appeal, the court held that in the circumstances the sheriff was “entitled” to conclude that the relevant statutory criteria had been met.

Delivering the opinion of the court, Sheriff Braid said: “The fact that the question of necessity is essentially a medical question means that, in our view, the medical practitioners are entitled to disregard the existence of a compulsory treatment order. The existence of another order is a matter which bears upon appropriateness rather than necessity. Indeed, were the medical practitioners to express a view that an order was not necessary because of the existence of another order, such as a compulsory treatment order, that would arguably be usurping the role of the sheriff.”

He added: “Having regard to the passages to which we have drawn attention and reading the reports as a whole, although neither states expressly that the making of a compulsion order is necessary, it can readily be inferred from both reports that the authors were of that view. Both doctors deal with the question of necessity by stating that treatment can only be provided under compulsion in a hospital setting. That amounts to necessity by any other name.

“Accordingly, we conclude, albeit for different reasons than he gave, that the sheriff was entitled to proceed on the basis that the conditions specified in subsection (3) were met… Having accepted the medical evidence, the sheriff then had to consider appropriateness rather than necessity.

“That is the stage where he required to consider, among other factors, whether to make a compulsion order standing the fact that there was already in place a compulsory treatment order which also placed the appellant under a degree of compulsion. This was the stage for the sheriff to take into account the appellant’s antecedents and the nature of the acts which had committed, as well as the mental health officer’s report (which, as the appellant acknowledged, did support the imposition of a compulsion order).

“The sheriff’s approach in considering those matters, with regard to appropriateness, cannot be faulted. He highlighted certain differences between a compulsory treatment order and a compulsion order, and the appellant does not dispute that there are differences. Whether or not to impose a compulsion order was ultimately a matter for the exercise of the sheriff’s discretion and we see no reason to interfere with the manner in which he did so.“