QUEEN'S BENCH DIVISION
B e f o r e :
| The Queen
(on the application of Stuart Hall)
|- and -
|Secretary of State for Justice
Mr Richard O'Brien (instructed by Government Legal Department) for the Defendant
Hearing dates: 4 July 2018
Crown Copyright ©
The Hon. Mrs Justice Moulder DBE :
"he is unlikely to make therapeutic progression if he remains within the prison setting, and the environment could contribute to the progressive decline in his presentation rather than improvement with associated risk reduction."
"[the claimant's] engagement had been poor and it has been an extremely challenging effort to get him to engage. He was clearly apprehensive about losing his diagnosis. He commented that he was not "mentally prepared" for the "test". He had been reading extensively on ASD and personality disorder. Books on how to test for ASD and PD have been found in his possession. There were four appointments cancelled with the psychologist who had organised the ADOS assessment before he decided to engage."
"In the assessment process it is important to note that Mr Hall tends to extensively research assessment tools and processes before participating in assessments. There is evidence of him attempting to manipulate results on standard assessment tests by possibly giving answers or eliciting performances that he believes would favour an outcome he desires.… It would hence be important to look at the entire trajectory of his progress and the symptoms that he has presented with consistently, that have been objectively reported over the years.
Mr Hall engaged with part of an ADOS assessment conducted by Dr Zoe Whitaker.… Mr Hall became uncooperative after this and develop the belief that staff were going to "stitch him up". He developed a worry that his ASD diagnosis would be taken away and a diagnosis of personality disorder given to him. He subsequently became uncooperative with the assessment.…
There have been extensive discussions with psychology in relation to the presence of potentially some symptoms of autism and a comorbid personality disorder. Mr Hall has met cut off for psychopathy has been diagnosed with antisocial personality disorder in the past. Based on his observed behaviour and incidents on the ward and also based on the reported incidents from his progress in prison there is sufficient evidence to support the diagnosis of a paranoid personality disorder in addition.
The relationship between autism spectrum disorders and personality disorders is not completely clear. Both conditions imply lifelong impairment.…
As indicated in previous reports there may be an overlap of symptoms between the Autism and Personality Disorders in Mr Hall." [emphasis added]
"my view is that a return to prison can be facilitated and that work can be completed within prison to help him progress if he is willing to do so."
i) the claimant dated 3 January 2018, 29 January 2018 and 31 May 2018;
ii) from Mr Sperling, the solicitor acting for the claimant, dated 8 June 2018.
i) Georgina Vince, a psychologist and the Specialist Pathways Progression lead for the Long Term and High Security Estate, dated 27 June 2018;
ii) Brendan Burke, Head of Drug Strategy and Healthcare at HMP Manchester dated 26 June 2018;
iii) Rebecca McDonnell dated 18 May 2018;
iv) Suzanne Wheeler, the psychology clinical lead for Specialist Interventions at HMP Manchester, dated 27 June 2018;
v) Jacqueline Gourley, Head of Residence at HMP Manchester responsible for accommodation, dated 16 May 2018.
i) from Georgina Vince dated 9 July 2018;
ii) from Mr Sperling dated 13 July 2018;
iii) from the claimant's mother, Roberta Hall, an unsigned and undated statement.
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
(3) In relation to the protected characteristic of disability—
(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;
(b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability."
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation."
(7) A duty to make reasonable adjustments applies to—
(a) a service-provider (and see also section 55(7));
(b) a person who exercises a public function that is not the provision of a service to the public or a section of the public."
"(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts disabled persons generally at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4) The second requirement is a requirement, where a physical feature puts disabled persons generally at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take (a) to avoid the disadvantage, or (b) to adopt a reasonable alternative method of providing the service or exercising the function.
(5) The third requirement is a requirement, where disabled persons generally would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid."
"(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.
(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person."
i) to identify the PCP (or in this case, the PCP and/or physical feature) which is said to put the disabled person at a substantial disadvantage;
ii) to determine whether the PCP in fact puts disabled persons at a substantial disadvantage;
iii) to assess whether the Secretary of State took such steps as it was reasonable to take to avoid the disadvantage.
The claimant's case concerning reasonable adjustments
i) to make available to the claimant a place at a suitable establishment with specialist services for autistic spectrum disorder and Asperger's syndrome;
ii) to make available to the claimant a place at a suitable establishment which can cater for his specific needs and in particular that there is a staff team who support the claimant and have a good understanding of autism with skill and expertise and training; that there is an appropriate physical environment which is not noisy or crowded and is highly structured with a predictable routine. He should be in a small ward with few patients. He needs intervention to help him understand rules, to have appropriate behaviour modelled for him, to have directed teaching and reinforcement about social relationships, the management of emotion and appropriate behaviour;
iii) to allocate specially trained and autism aware staff;
iv) to ensure staff understand the best way to communicate with and manage the claimant and understand the manifestations of autism;
v) to not order the claimant to relocate from segregation to normal wings or health care and to not subject him to disciplinary action for failing to obey those orders.
i) a suitable establishment with specialist services for autism which would involve both a suitable environment, appropriately trained staff and teaching;
ii) specially trained staff who understand the way to communicate with prisoners with autism;
iii) not to order the claimant to relocate from segregation to normal wings.
"in my opinion this treatment can only be delivered within a specialist autism specific service (paragraph 15.67)."
Suitable establishment with specialist services for autism
Steps taken whilst at HMP Manchester
Following our discussions prior to [the claimant] arriving at Manchester and the subsequent assurances regarding his onward move should he not engage with you whilst here, I am concerned we are now reliant on prison to prison transfer. You indicated his next move would be to an Asperger's unit in the north-east which you would expedite, not to another prison unit where he has to agree to engage, when [the claimant's] history does not suggest this will be the case. I agreed to take him on the basis he would be moved on through a clinical pathway and Manchester not being responsible for any further work or referrals.
Given the anxieties around long-term segregation, it appears that Manchester will be left dealing with a difficult prisoner despite being willing to assist with consistency of delivery of [the claimant's] clinical support programme/pathway. [Emphasis added]
The new specialist unit at Wakefield
"will have been diagnosed as, or suspected of being, on the autistic spectrum and struggle for a variety of reasons to cope on normal location and progress through their prison sentence…Men will not be required to associate with other prisoners who are deemed to pose a risk to them… All men on the unit will present with complex needs which will be supported to ensure each and every person's quality of life, treatment and progression prospects are maximised." [Emphasis added]
The provision will include a sensory room and quiet room.
"if this is not possible given the existing caseloads for these specialist staff, we will identify and train additional staff in autism awareness at the earliest opportunity to take on this role."
The nature of the claimant's disability
"It seems both ASD and PD are intertwined and interact in his offence pathway and are both functionally linked to his risk/offending. Clinically they are both important in his formulation and rehabilitation planning."
Has the defendant taken such steps as are reasonable to take to avoid the disadvantage?
"of a nature and degree that warrants detention in hospital for assessment and treatment. The impact of the autism is such that he has presented with behaviours of risk directed towards others" (paragraph 15.48).
"This requires specific assessment and treatment to reduce that risk for the future." (paragraph 15.49)
"if his mental disorder had been further recognised as autism, it would have been appropriate to consider Mr Hall receiving a hospital order under section 37 MHA for treatment in hospital, with the addition of a section 41 restriction order for protection of the public. (Paragraph 15.55)"
"in my opinion section 41 restriction order would therefore be required for the protection of the public from serious harm given the nature of the risk behaviours. (Paragraph 15.57)."
"Generally the position is that HMPPS have become increasingly aware of the need for provision for autistic prisoners within the prison population since 2015 and working in close partnership with the National Autistic Society has helped HMPSS address the reasonable adjustments locally to meet the needs of these men. This work has progressed at pace in some individual sites-HMP Wakefield being one such site, chosen as a pilot site for the MOJ & NAS accreditation standards. Work is ongoing in joint partnership with Healthcare colleagues in High Secure Hospitals to provide more continuity of specialist care where needed…"
"I am keen to further promote the use of the NAS accreditation across the prison estate."
The press release noted that Feltham was working towards achieving National Autistic Society accreditation later that year
"and will be followed by Parc and Wakefield prisons."
"for example, to ensure there is an establishment which has autism accreditation." (Paragraph 77 of the witness statement of Mr Sperling)
Counsel for the claimant appeared to accept in oral submissions that if a prison was accredited (as for example, is the case for Feltham YOI), that would amount to the provision of autism specific services.
"[the] most complex men whose needs historically have been difficult to meet using mainstream services, and who struggle to cope in custody."
Training for staff
"all present understood the problems of communicating with Mr Hall and the reasons for those difficulties" (paragraph 8 of his witness statement)."
"all officers are trained to recognise and respond appropriately to WCB, work challenging behaviour, and are specifically trained to recognise links between such behaviour and mental illness."
" I have read the claimant's prison medical records and I have seen no evidence to suggest that custodial staff understand the manifestations of Mr Hall's autism or made adjustments as to how he is treated to account for his autism. There is no suggestion that the prison has made any adjustment, on the ground of his disability, to how the claimant is treated.
 the "NOMIS transfer report" contains regular notes by prison staff. There is no suggestion in the notes that any specific support has been provided, or any specific adjustments made, the claimants autism. There is no suggestion that the measures recommended by Dr Pearce have been provided.
 there is no suggestion that custodial staff understand that the claimant's behaviour may result from his autism.… There is no entry indicating custodial staff recognise that his behaviour and presentation may be linked to his autism.
 the medical notes also do not indicate that any of the adjustments recommended by Dr Pearce have been provided to the claimant…"
Move out of the Segregation Unit
"Thereafter he remained in the segregation unit due to his refusal to locate elsewhere in the prison on the basis of his fears for his safety on the wing."