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MICHAEL FERGUSON v. THE STATE HOSPITAL MANAGEMENT COMMITTEE [1999] ScotSC 10 (26th April, 1999)

SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT LANARK
	SUMMARY APPLICATION B71/98
	MICHAEL FERGUSON
	against
	THE STATE HOSPITAL MANAGEMENT COMMITTEE
in connection with Appeal under Section 63(2) of the Mental Health (Scotland) Act 1984

LANARK, 26 APRIL 1999.

The Sheriff, having resumed consideration of the cause, and not being satisfied with regard to the matters specified in Section 64(1) of the Mental Health (Scotland) Act 1984, refuses to direct the discharge of the applicant either absolutely in terms of Section 64(1) of the said Act of 1984 or conditionally in terms of Section 64(2) of the said Act of 1984.

J DOUGLAS ALLAN, ESQ

SHERIFF

FINDINGS:

1 The applicant, Michael Ferguson, who was born at Coatbridge on 26 May 1968, is a patient in the State Hospital, Carstairs.

2 Hospital records, based at least in part upon information from the applicant, indicate that

(a) the applicant has two sisters and three brothers, and the brothers

have all received custodial sentences;

(b) the applicant's parents both have a history of alcoholism and separated when the applicant was 10 years of age;

attended List D schools from the age of 10 years until 17 years,

left with no formal qualifications and has been unemployed all

of his adult life;

(d) the applicant, who has never married, has an extensive history

of convictions mainly for theft, breach of the peace and assault, and his longest period at liberty in the community has been 10 weeks;

(e) the applicant has displayed a very unstable and deteriorated

pattern of behaviour when at liberty and, associated with this

behaviour pattern, has been a long history of alcohol and drug

abuse, including benzodiazepines, amphetamines and heroin.

3(a) Hospital records also contain information that the applicant was admitted as an in-patient at Hartwoodhill Hospital from 9 June 1992 until 10 September 1992 after he had held a legal secretary hostage for a brief period.

(b) At this time, no firm diagnosis was made and the features of mental disorder in the form of paranoid delusions and disorder of thinking were considered to be either a consequence of drug abuse or perhaps a longer term mental illness.

(c) He was re-admitted to Hartwoodhill Hospital on 12 November 1993 (following an assault upon a policeman) initially for further assessment and later as a condition of probation.

(d) In December 1984 and following the period of assessment, Dr Isobel Campbell concluded that the applicant had a long history of repeated offending in the context of alcohol abuse; that he suffered from what she characterised as borderline personality disorder with poor impulse control, self-damaging behaviour, drug and alcohol abuse, repeated offending, paranoid attitudes, and that he experienced true mental illness, in particular paranoid psychosis as a result of his alcohol abuse and during periods of incarceration.

(e) The court accepted Dr Campbell's recommendation for treatment of the applicant as a condition of probation.

(f) The applicant did not co-operate with treatment even when psychiatric oversight was made a condition of the probation order, he failed to comply and he absconded from the ward at Hartwoodhill Hospital on 22 December 1993.

(g) The applicant was subsequently imprisoned as a consequence of the breach of probation.

4(a) Shortly after his release from prison on 13 May 1994 and after a period of reportedly excessive consumption of drink and drugs, the applicant was arrested on charges of attempted murder and assault in respect of an incident on 16 May 1994 in a doctor's surgery in Airdrie.

(b) Having been seen on 1 June 1994 by Dr Isobel Campbell, who found that he had become acutely paranoid and recommended that the applicant be assessed in the State Hospital, the applicant was detained initially in terms of Section 25 of the Criminal Procedure (Scotland) Act 1975 from 7 June 1994 until 19 September 1994 and later on an Interim Hospital Order in terms of Section 174 A of the Criminal Procedure (Scotland) Act 1975 from 19 September 1994 until 13 January 1995.

(c) Such short term hospital disposals allow a further period of assessment in circumstances where there is some uncertainty as to the diagnosis and as to the final recommendation to be made to the Court for disposal and, during this period in the State Hospital, the applicant was under the care of Dr Janice Duncan, a Consultant Psychiatrist.

(d) Dr Duncan reportedly concluded that the presentation of the applicant was strongly suggestive of schizophrenic illness, that she considered him detainable at that time in terms of the Mental Health (Scotland) Act 1984 and recommended that he be dealt with by means of an Interim Hospital Order under Section 174 A of said 1975 Act; Dr Campbell reported at the end of November 1994 that it was still not entirely clear whether the applicant suffered from an intermittent paranoid psychosis particularly precipitated by drug and alcohol misuse in a vulnerable premorbid personality or whether he had an ongoing process schizophrenic illness; that he probably did have schizophrenia but that the only way of establishing this would be to withdraw him completely from medication, observe him for a period and ascertain whether his symptoms recurred once anti-psychotic medication was dis-continued.

(e) Dr Duncan did withdraw the applicant's anti-psychotic medication and, following thereon, there was an overall deterioration in his condition and a re-currence of his paranoid feelings and symptoms associated with bizarre, irritable, unco-operative and threatening behaviour, all of which led Dr Duncan to conclude that the applicant had an underlying, ongoing illness, probably schizophrenia, rather than simple, temporary psychotic reaction to drugs or a combination of drink and drugs - and she recommended in December 1994 disposal in terms of Section 175 and 178 of the Criminal Procedure (Scotland) Act 1975.

(f) Dr Campbell also then concluded that the applicant was suffering from major mental illness as defined in the Mental Health (Scotland) Act 1984, in particular paranoid schizophrenia - and she also recommended an Hospital Order disposal to the State Hospital with a restriction on discharge (Sections 175 and 178 of the said 1975 Act).

(g) On 13 January 1995, the applicant appeared at the High Court of Justiciary on a charge arising out of the incident on 16 May 1994 of assault to severe injury and permanent disfigurement and, on the Court being satisfied on the evidence of two registered medical practitioners, approved for the purpose, that the applicant was suffering from mental illness, the Court ordered in terms of Section 175 of the Criminal Procedure (Scotland) Act 1975 that the applicant be detained in the State Hospital and further made an order restricting the discharge of the applicant from hospital without limit of time, all in terms of Section 178 of the said Act of 1975.

(h) The applicant was returned to the State Hospital on 13 January 1995 and, with the exception of some short stays at Hartwoodhill Hospital (referred to later in Finding 9, and ending on 14 April 1998), he has been continuously detained there in terms of Sections 175 and 178 of the said Act of 1975, the current equivalent provisions being Sections 58 and 59 of the Criminal Procedure (Scotland) Act 1995.

5(a) Although the principal diagnosis of the applicant and the basis of his further admission to the State Hospital in January 1995 was paranoid schizophrenia, there was also at least the possibility of a borderline personality disorder.

(b) The applicant has a vulnerable personality and his vulnerable traits can become paranoid when he is under stress or in such situations as during custody or abusing substances when he decompensates into psychotic illness and becomes frankly psychotic and delusional.

(c) Schizophrenia is a functional psychosis and paranoid symptoms are often part of the presentation; schizophrenia is not a normal diagnosis if there is a substantial history of drug and alcohol abuse but the two often co-exist without there being a neat distinction between the two.

6(a) Although there was a Registered Medical Officer for the applicant while he was detained in the State Hospital, Dr Campbell continued to have an involvement since she would have been the Receiving Consultant in the event of the applicant returning to a community hospital.

(b) The possibility of the applicant transferring to Hartwoodhill Hospital as a step in his rehabilitation received a setback when, in March or April 1996, he tested positive for cannabis.

(c) It nevertheless remained important to clarify the diagnosis of the applicant with a view to determining the most appropriate and effective treatment and, to that end, Drs Campbell and Duncan agreed that his anti-psychotic medication should once again be discontinued with a view to assessing whether he did in fact relapse into psychosis in the State Hospital where he had very limited access to illicit substances.

(d) The anti-psychotic medication was discontinued at the end of April 1996 and the applicant appears to have been free of psychotic symptoms since then.

(e) In light of the progress made by the applicant while in the State Hospital, in August 1997 Dr Campbell found no evidence of ongoing mental illness and therefore concluded that it was extremely unlikely that he had a schizophrenic illness and inclined to revert to her earlier diagnosis of borderline personality disorder while remaining firmly of the view that the applicant had been genuinely psychotic in the past, had the propensity to become so again, and that he had not faked or feigned the psychosis.

(f) By his own admission, the applicant is frequently untruthful and there are considerable inconsistencies in the accounts which he gives at different times to different psychiatrists - which makes it very difficult to place much reliance on what the applicant says and undoubtedly makes accurate and proper diagnosis much more difficult.

7(a) On 26 February 1997, the applicant assaulted nursing staff in the State Hospital; although the applicant described this as a "minor scuffle", it was in fact an unpleasant, sustained attack on a male charge nurse and a female staff nurse.

(b) This assault took place against a charge nurse whom the applicant said he disliked because he believed the charge nurse picked on him and against a female nurse who came to the assistance of the charge nurse during the restraint of the applicant.

(c) This assault took place at a time when the applicant had been free of anti- psychotic medication for approximately one year, when there was little evidence of any deterioration in his mental health and when there had been no recurrence of his psychosis.

(d) It also took place shortly after the hospital Medical Sub-Committee (an independent committee of experienced doctors, social workers, psychologists and educationalists who review inter alia each patient's liability to detention) had concluded that the applicant required ongoing medical treatment in hospital, which decision disappointed the applicant who complained vigorously at his detention (which he regarded as unjustified and so wrote on a tee shirt), and became annoyed and confrontational in the ward.

8(a) For some time after being admitted to the State Hospital, the applicant sought solitary and isolated situations and tended to avoid company and situations where he was surrounded by his peers, including withdrawing from the gardens department because he felt uncomfortable at the number of people there and declining to attend various therapies because of his paranoia; however during his time in the State Hospital and notwithstanding the assault on staff referred to in Finding 7 above, the applicant improved and came to mix fairly well with other patients; he attended the education department and successfully completed SCOTVEC modules; and he attended recreation and participated in a fairly active off-ward activity programme.

(b) He has also engaged periodically with psychologists in an offending behaviour group and in a cognitive behavioural therapy approach to his anger management and interpersonal difficulties.

(c) He was put on a much more organised behavioural programme which rewarded his good behaviour and discouraged his bad behaviour; he was given a very clear and consistent approach by staff from all disciplines and he took part, albeit reluctantly, in reasoning and rehabilitation courses which are techniques used in attempts to improve and change his behaviour.

(d) He was considered to have derived benefit from this approach having made a good and consistent response, becoming less solitary, more sociable, more willing to communicate with others and showing more insight into his behaviour, although very little if any remorse for offences or violence.

9(a) In the light of the progress made and improvement achieved by the applicant while under medical treatment in the State Hospital, as part of his rehabilitation programme, plans were made to prepare the applicant for an eventual transfer to a local psychiatric hospital; this required full consultation with and agreement of the medical and nursing staff at the local psychiatric hospital concerned, in this case Hartwoodhill Hospital.

(b) Part of this preparation involved the applicant having a number of visits to Hartwoodhill Hospital, initially on a day basis, then overnight, which led to the applicant commencing a five day stay on Monday 13 April 1998.

(c) On Tuesday 14 April 1998 the applicant, along with two other patients, consumed alcohol which had been concealed, and then refused to provide a saliva sample for staff who knew that the applicant had been drinking alcohol.

(d) When the applicant became aware that the staff had contacted the State Hospital to return him there, he smashed a window with a chair, escaped through the window and made off; he was caught by nursing staff within a very short period and detained until staff from the State Hospital arrived and took him back to the State Hospital.

(e) After his return to the State Hospital, the applicant was generally hostile and truculent, but in particular, persistently threatening towards nursing staff in Tay Ward and particularly targeted the female staff nurse who had been the victim of the previous assault on 26 February 1997 (referred to in Finding 7 above).

(f) Because of his generally hostile, resentful and truculent attitude together with concerns regarding his verbal aggression and threats to assault nursing staff in Tay Ward, the applicant was transferred to Forth Ward on 23 April 1998, Forth Ward having all male staff and where there is a high level of observation and control.

(g) These events were not the result of psychotic illness; the applicant's aggressive outburst was the direct result of being told that he would be returned to the State Hospital and his recognition that transfer to Hartwoodhill Hospital was likely to be stopped because he had been found consuming alcohol in the ward; his aggressive and impulsive response was in keeping with his previous behaviour and further confirmed his poor impulse control and his lack of empathy with others was very evident in his account of the events.

(h) While more behaviourally settled in the State Hospital, the applicant lacked and still lacks sufficient internal controls to cope with the less structured environment of the ordinary psychiatric hospital where there is relatively ready access to alcohol and illicit substances.

10(a) After his transfer to Forth Ward on 23 April 1998, the applicant was placed on a careful observation regime and his off-ward activities were cancelled in order to enable his (new) Responsible Medical Officer, Dr White, to undertake a thorough review, including a further psychology report; and a case review was held on 26 May 1998 (with further reviews at approximately three monthly intervals) with a main aim being to formalise treatment interventions with the assistance of a clinical psychologist; at that time, the applicant's main needs and problems were recorded as (i) limited insight, (ii) drug and alcohol abuse, (iii) violence and aggression and (iv) dis-social personality disorder.

(b) The applicant was integrated into Forth Ward and made good progress under the more structured environment and the close observation regime in which good conduct is rewarded and inappropriate conduct is consistently discouraged.

(c) This progress continued until an incident on 27 August 1998 in which, after initial implication, the applicant admitted stealing benzodiazepine tablets from the Ward drug trolley and, although the applicant intended to abuse the medication over a prolonged period of time, in fact the applicant consumed a considerable quantity at one time which had the effect of intoxicating him, making him drowsy, then irritable and hostile towards staff and made a threat (which he subsequently retracted) indicating that he wished to throw acid in the face of his Responsible Medical Officer, Dr White.

(d) The applicant admitted to Dr Campbell that he had feigned symptoms in order to obtain benzodiazepines from a locum general practitioner prior to the theft of the same drug from the Ward drugs trolley.

(e) The incident demonstrated that the applicant would take illicit drugs and was able to gain access to these even within a secure environment; the threat to Dr White being due to disinhibition caused by the benzodiazepine drugs and the applicant's anger at his detention, rather than any psychotic symptoms.

(f) The rapid behavioural decompensation of the applicant following the obtaining and consuming of the illicit drugs and his aggressive and threatening behaviour and attitude to Dr White and other staff was an eloquent indication of what would be much more likely to occur if the applicant were in a less structured environment, and he remains at risk in acting in violent ways.

11(a) In the State Hospital, the applicant has been receiving and continues to receive medical treatment; his psychotic symptoms have responded to treatment with anti-psychotic medication (up to April 1996) and abstinence from alcohol and illicit drugs.

(b) Treatment in hospital has produced an improvement in his behaviour and he has benefited from the structured environment, which includes a very controlled environment, a very high staff to patient ratio, trained nursing staff using their psychiatric nursing skills, a high level of observation, a high tolerance of aggressive or hostile words and actions, intervening and counselling to avoid escalation, and a minimising of opportunities to behave impulsively or aggressively; he has also benefited from cognitive behavioural therapy (which involves psychology and other staff) and from lack of access to illicit substances, all of which is properly described as nursing care and training under medical supervision, since all report to and are responsible to the Responsible Medical Officer.

(c) The improvement in his behaviour was not sustained in the less structured environment and regime in a local hospital and, when allowed to spend a very short period of time there, he availed himself of the opportunity to abuse alcohol with the result noted earlier in Finding 9.

12 The applicant lacks sufficient internal control and, until he demonstrates by progressing satisfactorily through diminishing levels of control in the State Hospital regime and through a less structured setting in a local psychiatric hospital (such as Hartwoodhill) that he has sufficient internal control, there is a likelihood almost amounting to certainty that he would rapidly resume his previous pattern of behaviour with drug and alcohol misuse, increasing paranoia, carrying weapons and further offending behaviour, all of which would place in jeopardy the health of the applicant as well as imperilling the safety of the applicant himself and of other members of the public.

13(a) The abnormality in the personality functioning of the applicant could be improved and he would therefore benefit from:

- cognitive behavioural therapy to enhance his ability to

accept responsibility for his behaviour and to improve his

empathy with other people he could potentially damage;

- further input regarding anger management;

- further input regarding his drug and alcohol misuse;

- counselling regarding the relationship between his

substance abuse and his behavioural difficulties and

mental health;

- a structured programme whereby appropriate behaviour

is clearly rewarded;

- a programme involving placement in progressively

lower levels of security in a structure within the State

Hospital in order to establish his ability to control

his behaviour and cope with these regimes when

subject to less intensive supervision;

- a clear treatment programme with clear goals identified

for the applicant to work towards;

- the possibility of administration of anti-psychotic

medication intending that it might have a protective

or preventative effect and reduce likelihood of relapse

in future even if drugs or alcohol were misused and,

secondly, that it would have a tranquillising and anti-

depressive effect assisting him in dealing with the effects

of stress and thereby preventing further psychotic breakdown;

(b) The long term aim of these treatment elements would be in the hope that the applicant would feel able to participate actively in the treatments offered and for the applicant to be sufficiently well for a further attempt to transfer to a local psychiatric hospital and, eventually, for a conditional discharge to supported staffed accommodation in the community.

14(a) The applicant has a long history of a wide variety of criminal offences, many of which involve disturbances, violence, assaults (some of considerable gravity and consequence) and a willingness and propensity to use knives and other weapons; victims have included uninvolved members of the public as well as police officers.

(b) Because of his mental disorder, the applicant represents a danger to others; he has shown a long-standing tendency to carry knives and has frequently used these to threaten, intimidate or inflict serious injury on others.

(d) He continues to represent a danger to the general public on account of his dangerous, violent and criminal propensities.

15(a) The applicant suffered from psychotic illness in 1994 and 1995 and the psychotic symptoms responded to treatment with anti-psychotic medication and abstinence from illicit drugs and alcohol.

(b) For many years - and at least from 1994 - the applicant suffered and continues to suffer from mental illness which is a persistent disorder manifested only by abnormally aggressive and seriously irresponsible conduct.

(c) The applicant has received medical treatment in the State Hospital and this treatment in hospital has not only prevented a deterioration of his condition but has produced an improvement in his condition; he has benefited from the structured environment, from cognitive behavioural therapy and from the lack of access, or very limited access, to illicit substances; because of the borderline personality disorder elements in the applicant's condition, he continues to have a predisposition towards psychotic breakdown.

(d) Consideration of the whole circumstances relating to the applicant, including his progress as a result of all of the treatment in the widest sense which he has received in hospital, including the attempts made to place the applicant in aless structured environment with reduced external controls, and including the effects on his health and safety and that of other persons, has led to the conclusion that it is appropriate for the applicant to continue to receive medical treatment in detention in hospital and for him to be liable to be detained in a hospital for medical treatment.

(e) Further, it is necessary for the health and safety of the applicant and for the protection of other persons that the applicant should continue to receive the said medical treatment in detention in hospital.

J DOUGLAS ALLAN, ESQ., SHERIFF OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT LANARK.

NOTE:

In this appeal under Section 63 of the Mental Health (Scotland) Act 1984 (hereafter called "the 1984 Act"), I heard evidence over two days (3 and 4 March 1999) when witnesses gave oral evidence in supplement of written reports produced for this hearing and on earlier occasions. The applicant himself did not give evidence. The written medical reports were not significantly departed from in the oral evidence of the witnesses. These reports were the reports of:

1 Dr Thomas White, who became the Responsible Medical Officer of the applicant on 23 April 1998 and who interviewed the applicant on a number of occasions, but two of whose reports are in process as:

the report of 13 May 1998 (Item 3/1 of process) and

the report of 23 February 1999 (Item 8/1 of process);

2 Dr Isobel Campbell, who examined the applicant for the purpose of preparing psychiatric reports or at the request of his consultant at the State Hospital on 8 November 1993, 1 June 1994, 16 November 1994, 30 December 1994, 18 December 1995, 31 July 1997, 9 March 1998, 23 April 1998 and 25 March 1999 and three of whose reports are in process as:

the report of 23 March 1998 (Item 2/4 of process)

the report of 28 April 1998 (Item 2/5 of process) and

the report of 1 March 1999 (Item 9/1 of process);

3 Dr John A Baird, who examined the applicant on 3 July 1997 and 18 February 1999 and whose two reports are in process as:

the report of 4 July 1997 (Item 4/3 of process) and

the report of 22 February 1999 (Item 10/2 of process);

4 Dr Ronald F Gray, who examined the applicant on 2 August 1996, 18 July 1997, 29 April 1998 and 24 February 1999, whose four reports are in process as:

the report of 8 August 1996 (Item 4/1 of process)

the report of 28 July 1997 (Item 4/2 of process)

the report of 1 May 1998 (Item 4/4 of process) and

the report of 24 February 1999 (Item 10/3 of process)

The applicant was represented by Mr Collins, Advocate and Ms McKenna, Solicitor, and the respondent was represented by Mr McCreadie, Advocate and Mrs Towers, Solicitor. I heard submissions on the evidence from Counsel on 5 March 1998.

As I indicated earlier, this appeal is made to the Sheriff under Section 63 (2) of the 1984 Act to order the discharge of the applicant either absolutely in terms of Section 64 (1) of the 1984 Act or conditionally in terms of 64 (2) of the 1984 Act and, in his closing submissions, Counsel for the applicant moved in the alternative under both heads.

Counsel for the applicant accepted that he faced some difficulties in light of the evidence, especially since none of the psychiatrists would wish to see the applicant discharged at the present time. Nevertheless, he submitted that the question was whether, if the applicant did not presently meet all of the conditions for detention in hospital de novo, he was entitled to be discharged. Put broadly, Counsel for the applicant said that admission criteria for the applicant involved three tests - of (one) appropriateness, (two) treatability and (three) safety. He submitted that the first of these tests had not been satisfied; but accepted that he could not, on the evidence, submit that I would not be entitled to hold that the applicant was not treatable (i.e. the second criterion); nor could he properly advance the proposition that I should be satisfied that it was not necessary for the safety of the applicant or others (i.e. the third criterion and the Section 64 (1) (b) test).

He therefore submitted that, if the question was answered in the negative i.e. if the evidence was that the applicant's present condition did not justify detention de novo, it was a relevant consideration for continued detention in considering whether it was appropriate for him to be liable to be detained in hospital for medical treatment. Alternatively, even if the applicant was not entitled to be discharged because he did not meet the admission criteria, I would be entitled on the evidence to order discharge using such evidence as part of all the circumstances. He therefore submitted that, firstly, I would be bound to order the applicant's discharge if he did not meet the criteria or admission de novo and, secondly, (and in effect alternatively) if not, then I was entitled to take that into account as a relevant circumstance when considering the whole matter.

Counsel for the applicant drew attention to the fact that Section 17 of the 1984 Act provided the grounds for admission to and detention in hospital - for both civil and criminal procedures. He also drew attention to the provisions of Section 33 of the 1984 Act in terms of which, if the Responsible Medical Officer could not say that the patient would be admitted (i.e. if the grounds for admission were not met), the order for discharge would take effect. He submitted that this had the effect of directing the attention of the doctors to Section 17 and was a question which the doctors were called upon to ask themselves and to answer. Counsel accepted that these provisions were disapplied in respect of restricted patients (by Section 62 of the 1984 Act) but he submitted that, as regards discharge criteria, the intention of Parliament had been that, unless admission criteria continued to be met, the patient should be discharged. He submitted that this should be applied by me, by analogy, to the interpretation of the terms of Section 64 (1), despite the disapplication terms of Section 62.

He submitted that support for this approach could be found in the case of R -v-THE SECRETARY OF STATE FOR SCOTLAND both before the House of Lords (1999 SLT 279) and before the Second Division (1998 SLT 162).

He drew attention to the apparent similarity between the patient Reid and the applicant in respect that a different diagnosis now applied to that which had led to initial detention in hospital. He submitted that, on the basis of the decision in the House of Lords in the case of Reid, the criteria involved in Section 64 (1) (a) reflect those involved in Section 17 (1) (a) and therefore whether, if any of the Section 17 (1) (a) criteria are not met, the patient is entitled to discharge. This was why, in the present case, Counsel was submitting that, although the applicant was treatable, because the unanimous view of the psychiatrists was that they would be unlikely to recommend his admission to hospital if his offence had been committed today, the net effect of the evidence was that it was not appropriate for him to be detained in a hospital (even although the treatment test was met).

Counsel then analysed the Opinions in the House of Lords decision and drew specific attention to passages in the Opinion of Lord Hope at page 287 D - L and 288 A - L and in the Opinion of Lord Clyde at page 291 L - onwards, page 292 A - J and page 293 D - H,

under reference also to the case of X -v- UNITED KINGDOM (1981 4 EHRR 188) and the case of T, PETITIONER 1997 SLT 724, the latter case as authority for reference, pre-incorporation, to the European Convention on Human Rights as an aid to construction where there was ambiguity.

Counsel then turned to Lord Clyde's procedural guidance (in the case of Reid) at page 294 B and considered firstly whether the applicant suffered from a mental disorder. He noted that while the evidence showed that opinions varied as to whether the applicant suffered predominantly from borderline personality disorder or anti-social personality disorder, this was somewhat academic and he accepted that the applicant did suffer from a mental disorder. Secondly, as to the nature and degree of it, he accepted that Doctors White, Campbell and Baird were of the view that the nature and degree of the disorder were of appropriate significance, whereas he submitted that Dr Gray's view was that the degree of the present personality disorder was not of sufficient severity to warrant detention.

Thirdly, so far as medical treatment is concerned, Counsel referred to what Lord Hope said at page 289 B onwards and page 290 A - B and accepted that, in the Reid case, there were disagreements as to the treatability whereas in the present case, there was unanimity that the applicant was receiving treatment and was treatable in terms of the statutory definition and that the treatability test was passed. However, Counsel submitted that, even if the applicant did pass the treatabililty test, still it might not be appropriate to detain him in hospital for treatment. He referred to what Lord Clyde said at page 294 E - F and submitted that Lord Clyde seemed to be wrongly importing into Section 64 (1) (a) public safety and protection elements which had no place there (and were otiose there), being separately provided for in Section 64 (1) (b). He drew the parallel as between Section 17 (1) (a) and (b) and submitted that the criteria in (a) and (b) were different and were intended to be so; in which connection he referred to the case of R -v-MENTAL HEALTH REVIEW TRIBUNAL, Ex Parte PICKERING 1986 1 All ER99 per Mr Justice Forbes at page 101 "e" to "j" and R -v-OXFORD REGIONAL MENTAL HEALTH REVIEW TRIBUNAL & ANOTHER, Ex Parte SECRETARY OF STATE FOR THE HOME DEPARTMENT & ANOTHER 1986 3 All ER239 per L J Lawton at page 245 "a".

Counsel submitted that the effect of the decision of the House of Lords in the Reid case was that the test for the Sheriff in Section 64 (1) is the same as the test in Section 17 (1), these being two sides of the same coin. In order to be detained as either a civil or criminal psychopath, he submitted that the essential criteria were appropriateness, treatability and safety - in terms of Section 17 (1). He submitted that, if I accepted the evidence that the applicant did not continue to meet any of these cumulative criteria, the applicant would be entitled at least to conditional discharge.

In the light of the evidence, Counsel submitted that the detention of the applicant was not justified on the grounds of any psychotic illness but rather of a personality disorder, in respect of which detention in hospital for treatment was not now generally considered by psychiatrists in Scotland to be appropriate. He submitted that the evidence showed that, on the basis of the present day diagnosis, the applicant would not be admitted to hospital to de novo, even although in broad terms all of the psychiatrists considered him to be treatable. In addition, Counsel submitted that, if the applicant had been the subject of the "hybrid order" contained in a Hospital Direction (introduced by Sections 6 and 7 of the Crime and Punishment (Scotland) Act 1997 and now respectively Sections 59 A of the Criminal Procedure (Scotland) Act 1995 and Section 62 A of the 1984 Act) he would have been transferred to prison given the current state of his mental condition. He added that there was also agreement in the evidence that the clinical criteria for renewal of detention of a patient subject to a restriction order (in terms of Sections 175 and 178 of the Criminal Procedure (Scotland) Act 1975 and the present equivalent, namely Sections 58 and 59 of the 1995 Act) were different from those for initial admission de novo, since the onus of care for the patient and responsibility for public safety had been placed on the medical authorities in a medical disposal as opposed to the prison authorities in a penal disposal.

Counsel submitted that there was opinion evidence which, if accepted, should lead to the conclusion that it was not appropriate for the applicant to be detained in a hospital for treatment even although he was treatable; and that accordingly the appropriateness test in Section 17 (1) (which is in the same terms as Section 74 (2) of the 1984 Act) was not met. Therefore, considering the terms of Section 64 (1) of the 1984 Act, Counsel submitted that it was not appropriate for the applicant to be liable to be detained in a hospital for medical treatment, liability to detention being appropriate to incorporate the appropriateness test from Section 17.

I have not recorded separately the submissions made by Counsel for the respondent since I have, in the main, accepted these submissions as well-founded and I have used them in my examination and discussion of the evidence and the application thereto of the relevant law.

The basis on which and the manner in which this appeal has been conducted has been very greatly influenced by the decision and Opinions expressed in the House of Lords in the case of R -v- SECRETARY OF STATE FOR SCOTLAND (already cited). Although the approach to be adopted by the Sheriff when dealing with an appeal under Section 64 of the 1984 Act is set out in the detailed guidance from Lord Clyde, and although the matter is expressed in slightly different form by Lord Hope, there is in fact no significant difference in the approach to be adopted and as to the questions which require to be answered. Lord Slynn agreed with both Lords Clyde and Hope and so, in essence, did Lord Hutton. This being so, I have been content in dealing with this appeal, as I was urged to do by Counsel for the respondent, to adopt the approach set out by Lord Clyde (at page 294 B - G).

Before applying Lord Clyde's guidance on how to deal with such an appeal to the facts of the present case, I shall deal with an issue which was raised by Counsel for the applicant in his cross-examination of all the psychiatrists and in his submissions. It is the hypothetical issue of whether or not a patient such as the applicant, suffering only from a personality disorder, would be admitted to the State Hospital today.

(a) All of the psychiatrists were very frank on this matter. Dr White said that he was unlikely to recommend hospital disposal in a case of "uncomplicated" personality disorder. In so saying, he stated that the applicant's personality disorder was complicated by involving two types (borderline and anti-social) but not the complicating factors of schizophrenia or depression, although he had shown a history of repeated psychotic symptoms. Dr Baird said that he shared the prevailing professional view in Scotland over several years which was against admitting patients with personality disorder; when admission to hospital was being considered, priority was given to patients with psychotic illnesses as opposed to personality disorder. His opinion was that the applicant would not be detained on Dr Baird's present diagnosis if he had not previously been detained. Dr Campbell said that if the applicant had been suffering from the condition (in her view borderline personality disorder) today, she would have recommended a prison disposal; but added the important rider that if he had been psychotic at the time of the disposal, she would have recommended a hospital disposal. Dr Gray stated that he doubted very much whether he would detain the applicant presenting as he does at the present time (i.e. with in Dr Gray's view, borderline personality disorder and anti-social personality disorder).

(b) This is not a new issue which has been raised on behalf of the applicant. It also arose in R -v- SECRETARY OF STATE FOR SCOTLAND. It was dealt with very briefly by Lord Hope in a manner which I am content to follow. Lord Hope referred (at page 287 E) to what he described as the important point that "there is now a substantial body of medical opinion that this [anti-social personality disorder] is a condition which is not susceptible of treatment in a hospital." He continued (at page 287 G)

"The Sheriff made a finding of fact in this case to the effect that, if the

respondent's offence were committed today, psychiatrists generally would be

unlikely to recommend admission to the State Hospital. On this view

these persons would be sentenced after conviction to detention in a Young

Offenders' Institution or to imprisonment. But we are dealing in this case with a patient who has been since 1967 liable to be detained in a hospital under a Hospital Order. That is the background against which I now turn to the issue as to the meaning of the conditions in Section 64 (1) of the 1984 Act about which the Sheriff requires to be satisfied".

Further support for the view that this is not a relevant issue can be found in the comments of Lord Clyde. He referred (at page 294 H) to the current psychiatric opinion but clearly did not consider it of relevance to the way in which the Sheriff had to deal with an appeal and there is no mention of it in his guidance. He noted (at page 294 H-I)

"Parliament was evidently satisfied that the psychopathic condition was

susceptible to alleviation by treatment. On the other hand the Sheriff in the

present case held that current psychiatric opinion would question the

efficacy of treatment and he recognised that psychiatrists generally

would be unlikely to recommend admission to the State Hospital if

the respondent's offence had been committed today."

Having then noted that the Sheriff had held that there was a very high risk of the patient re-offending if he was released, Lord Clyde continued (at page 294 I-K)

"But the possibility that a psychopath may be at once a public danger

and beyond treatment may well have been regarded by Parliament as

remote, having regard particularly to the wide terms of the definition

of 'treatment.' 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."

In addition, the matter is commented upon by Lord Lloyd (at page 284E-G) where his Lordship says

"At the end of his admirably clear and succinct reasons Sheriff Reeves

said 'I am told that psychiatrists would today be unlikely to recommend

admission to the State Hospital. However, the applicant was properly

admitted and detained, and I have not been satisfied that he is not now

suffering from a mental disorder of a nature or degree which makes it

appropriate for him to be liable to be detained in a hospital for medical

treatment.' I agree with the Sheriff that what psychiatrists would be

likely to recommend today is not the relevant question. R was

properly admitted and detained in 1967. The fact that many

psychiatrists would take a different view today would only be relevant

if R had been detained under Part V of the Act, and his period of

detention had expired. Then the question would arise whether his

detention ought to be renewed under Section 30(2). There is a

specific reference in that context, as one would expect, to the

grounds set out in Section 17 (1): see Section 30 (3). But R is

not detained under Part V. He is detained without limit of time

under Part VI and the authority for his detention continues under

Section 62(1) (a) until his absolute discharge."

In my view, the fact that Lord Lloyd goes on to conclusions which are not supported by the majority in the decision, does not invalidate his comments in the passage which I have quoted.

I therefore consider that it is appropriate to approach the applicant's case in the way in which Lord Hope approached the case of Mr Reid, as a person liable to be detained in hospital under a Hospital Order and in respect of whom Section 64(1) requires to be applied. That being so, it follows that I reject the submission of Counsel for the applicant that I would be bound to order the discharge of the applicant if he did not meet the criteria for admission de novo, that is assuming the index offence had been committed today.

(c) Further support for this approach that the Sheriff is not required to consider this hypothetical issue is to be found in the opinion of the Court (delivered by Lord McCluskey) in WILKINSON -v- SECRETARY OF STATE FOR SCOTLAND, 16 February 1999 - unreported. The issue in that case was the separate one of anti-social personality disorder and related sexual deviance. One of the grounds on which the Sheriff's decision in that case refusing an application under Section 64 was challenged was (at page 5, '(f)') that the Sheriff had erred in law in failing to make a finding as to whether or not, had the petitioner committed the index offence in 1996 (it had in fact been committed in 1974) he would have satisfied the criteria for detention in terms of Section 17 (1). The court's response (at pages 11 and 12) was as follows:

"Apart from the circumstance that the Sheriff had no obligation when

exercising his quasi-administrative function to make any express finding

on this matter, we are satisfied that, while it might have been a useful

exercise for the purposes of testing the validity of his own approach to

the matter and his conclusions about it, it was not necessary for him to

make any express finding on what was necessarily a hypothetical situation.

The Sheriff could have had great difficulty in forming a confident view as

to all the dimensions and features of that hypothetical situation. He would

presumably have had to exclude the finding of temporal lobe epilepsy which

was a feature of the petitioner's condition in 1974 but not in 1996. It

would then have been necessary to find some other explanation - of a purely

hypothetical character - to fill that gap in the explanation for the conduct

manifesting itself in the offences for which the petitioner was convicted in

1974. We recognise that the medical evidence as to the petitioner's

condition in 1996 differed from the evidence which was before the Court

when the original order was made on 29 September 1974, particularly in

relation to the operative effects of temporal lobe epilepsy, but, in our

opinion, it is clear that the duty of the Sheriff was to come to a view, on

the basis of all the evidence before him, as to whether or not the

petitioner was in April 1996, suffering from 'mental disorder' within

the meaning of the Act. To introduce a hypothetical element by

postulating that he committed the index offence at that time would

be to introduce an unreal element. In point of fact, of course, the

petitioner committed no such offence after 1974. The Sheriff's

task was simply to make his judgement in 1996 as to 'mental

disorder' on the basis of the evidence before him."

I consider that what Counsel for the applicant in the present case is asking the court to consider is also "necessarily a hypothetical situation", namely had the applicant committed the index offence now, in his present condition, would he have been admitted to hospital? In my view, there would necessarily be great difficulty in forming a confident view as to all the dimensions and features of that hypothetical situation. One would have to try to discount the psychosis - the paranoid schizophrenia - which was believed to be a feature of his condition in 1994. But both Dr Campbell and Dr Gray spoke of the difficulties surrounding that particular element, because both of them associated the psychotic symptoms with the borderline personality disorder. I consider that the hypothetical situation introduces a difficult and unreal element which is not part of the facts of the case and has nothing to do with the task of the Sheriff, whose task is to make his judgement on whether the conditions for discharge are met in relation to a person who is presently liable to be detained.

It is perhaps worthy of note that, in relation to this matter, it has not been suggested that the psychiatrists who gave evidence applied the wrong discharge criteria. All of them addressed themselves comprehensively and with great skill and frankness to the treatability test, the appropriateness test, the safety test and conditional discharge. Two further points can be added. Firstly that none of the psychiatrists has said that the diagnosis in 1994 and 1995 was wrong; it has been clarified and has altered in the light of treatment but that is all. Secondly, while prevailing professional views have changed over the period as to detaining in hospital persons suffering solely from uncomplicated personality disorders, all of the psychiatrists were of the view that some aspects at least of the features, symptoms or traits of the applicant's personality disorder were treatable and that he was receiving medical treatment in the State Hospital.

I turn now to consider the application of the detail of Lord Clyde's guidance to the evidence in this appeal.

(a) Mental Disorder

As regards Section 64 (1) (a), the Sheriff must decide whether the applicant has at the time of the hearing a mental disorder. If he is satisfied that he has not, then he must order a discharge. I am satisfied that there was no disagreement that the applicant has a mental disorder. All four of the psychiatrists who gave evidence did so to this effect.

(b) Nature or Degree of it

If he has a mental disorder, the Sheriff must then identify the nature and degree of it.

(i) There was a strong measure of agreement amongst the witnesses

as to the nature of the applicant's mental disorder. All were agreed

that it was a personality disorder. Dr White identified it as a

personality disorder with anti-social (i.e. psychopathic) and border-

line features. Dr Campbell and Dr Gray described it as borderline

personality disorder (although the latter also considered that he showed

symptoms of anti-social personality disorder). Dr Baird said in

evidence that he had a personality disorder the predominant features

of which were in the "anti-social" or "psychopathic" category. There

was discussion in evidence of whether borderline personality disorder

and anti-social personality disorder were separate personality disorders

or were features of personality disorders which could often be mixed;

but that appears to be of little moment so far as related to the issues I

have to decide. As Dr Baird and Dr White put it, the applicant has a

personality disorder as defined in ICD - 10 (International Classification

of Diseases - 10th Version).

Dr White, Dr Campbell and Dr Baird were all of the view that the

applicant was suffering from a mental disorder which was a persistent

one characterised only by abnormally aggressive or seriously

irresponsible conduct; and Dr Gray was of the view that the applicant

was suffering from a mental disorder which was a personality disorder

characterised not only by abnormally aggressive or seriously

irresponsible conduct but, in addition to these features, was

associated with disturbed regulation of mood, impulsive behaviour,

disturbed inter-personal relationship and transient psychotic

symptoms in response to increased stress, alcohol or drugs.

(ii) As to the degree of it, Dr White said that, while the applicant did

not quite reach the criterion levels for assessing psychopathic disorder

under the PCL (Psychopathy Check List revised scale, which is a

structured way or formal tool to assess the presence of psychopathic

personality), he came close to it and almost met it. In any event,

he had no doubt that the applicant satisfied the criteria for anti-

social personality disorder laid down in ICD-10 and that if that

was satisfied then the person did have that disorder. Dr Baird

said in evidence that the features which the applicant had displayed

since coming to the State Hospital "comfortably" placed him in

the category of having a personality disorder. Neither Dr

Campbell nor Dr Gray were in any doubt that he fell within

the category of borderline personality disorder.

(c) Nature of any possible treatment

So far as the nature of any possible treatment is concerned, Dr White made it clear in his reports and in evidence what treatment was available for the applicant. In this context, he was taking careful note of the definition of medical treatment in Section 125 of the 1984 Act, namely

"Medical treatment includes nursing, and also includes care and training

under medical supervision."

He also indicated his awareness of the breadth of the "legal" - as opposed to "clinical" - meaning of treatment in the light of their Lordships' observations in R -v- SECRETARY OF STATE FOR SCOTLAND. Lord Hope said of Section 125 (at page 289B):

"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."

After referring to the treatability test, Lord Hope continued (at page 289 L - 290 B):

"The expression 'medical treatment' is, as I have said, given a wide

meaning by Section 125 (1) of the Act. It includes nursing, and it also

includes care and training under medical supervision. The width of the

expression is not diminished where it requires to be examined in the context

of the 'treatability' test. Medication or other psychiatric treatment which is

designed to alleviate or prevent a deterioration of the mental disorder

plainly falls within the scope of the expression. But I think that its scope

is wide enough to include other things which are done for either of those

two purposes under medical supervision in the State Hospital. 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."

In the present case, Dr White referred in his report and in evidence to various "treatments" falling within that definition - to the treatment package which I have set out in Finding 13 but which included

(i) The structured environment of the State Hospital (at present the

highly structured environment of Forth Ward) providing structural

supervision under medical direction, with experienced nursing

staff to monitor and counsel him and to keep him away from

alcohol and illicit substances.

He emphasised that this was not simply a containment regime.

Nursing skills under medical supervision were involved. This was

echoed by Dr Baird who said that to equate containment within the

State Hospital with mere containment was not recognising the

significant professional input from the staff. He referred to the

"professional, sophisticated environment" being created for the

applicant, which was more than simple containment. These views

were also supported in the evidence of Dr Campbell and Dr Gray.

I consider, that, in the light of Lord Hope's comments, this supervised

and structured environment under medical supervision is clearly

treatment for the purposes of Section 125 of the 1984 Act.

(ii) There was then a second level of specific treatments. Dr White and the other psychiatrists referred to cognitive behavioural therapy from

psychologists in respect of his anger management and inter-personal

difficulties. They also referred to counselling on alcohol and drugs.

These are also clearly medical treatment for the purposes of Section

125.

(iii) There was a third possible treatment: anti-psychotic medication to

help alleviate any underlying psychotic symptoms, to act as a

tranquilliser and anti-depressant and also to enable the applicant to

cope better with stress. Dr Baird was in agreement with Dr White

that this was a reasonable element of a treatment package. So was

Dr Campbell (although she expressed some reservation relating to

possible side effects if the applicant did not have a functional

psychosis). Dr Gray said he would be in favour of such medication

if the applicant was willing to take it. Clearly this is also treatment for

the purposes of Section 125 of the 1984 Act.

(d) Effectiveness of any possible treatment

As to the effectiveness of any possible treatment, in the light of Lord Clyde's guidance this is bound up with the question whether the treatability test is to apply - i.e. whether the applicant is a person falling within Section 17 (1) (a) (i) as suffering a persistent disorder "manifested only by abnormally aggressive or seriously irresponsible conduct". If he is, then the treatment must be "likely to alleviate or prevent a deterioration of his condition".

(i) I have concluded that the prevailing view to be preferred is that the

applicant is suffering from such a personality disorder. Dr White says

so in his Supplementary Psychiatric Report (item 8 of process) and so

does Dr Campbell (item 9 of process). Dr Baird agreed in evidence

that that was all that was being displayed at present, and referred to

the three incidents (the assault on the two nurses on 26 February

1997, the abuse of alcohol at Hartwoodhill Hospital on 14 April

1998 and the taking of the benzodiazepine from the trolley on

26 August 1998) as demonstrating his aggression and seriously

irresponsible conduct. Dr Gray was the only one who took a

slightly different view. In his reports, including the latest one (item

10/3 of process), he states that the personality disorder certainly

has these features, but not only these features; he refers also to

disturbed moods, impulsive behaviour, disturbed inter-personal

relationships and transient psychotic symptoms. If all of the

witnesses had taken Dr Gray's view, then the treatability test would

not have applied. But the prevailing evidence and the conclusion

which I have reached on the evidence is that it does apply.

(ii) The question is therefore whether the treatment is "likely to alleviate

or prevent a deterioration" of his mental disorder or the symptoms of

that disorder.

Firstly, the witnesses were unanimous that the structured environment

of the State Hospital (Tay Ward and now Forth Ward) had benefited

the applicant and made him more settled and stable. Dr White said that treatment was likely to alleviate or prevent a deterioration in his

condition; he referred to his behaviour being "markedly more

integrated"; in a less structured setting, he would once more take

illicit drugs or alcohol and rapidly pose a danger to others. Dr Baird

said that deterioration in his condition had been prevented by the

supervised environment with its "sophisticated components" and both he and Dr White were of the view that the treatment overall was likely not only to prevent a deterioration of his condition but also to alleviate it. Dr Campbell agreed that the applicant had benefited from the structured environment and considered it entirely likely that the applicant's psychotic symptoms could recur if the conditions at the time of his admission were replicated. Dr Gray considered that the applicant's condition (which he considered to be borderline personality disorder principally) had benefited from the structured environment. Part of his personality disorder involved an instability in behaviour and Dr Gray considered that the structured regime had provided stability. Dr Gray and Dr Baird both considered that there had been both alleviation and prevention of deterioration.

In these circumstances, I am satisfied that there is treatment which has

prevented deterioration in the applicant's condition - and would be

likely to do so in the future. On that ground alone, even if no other

treatment was on offer, there would be sufficient to establish that the

treatability test had been satisfied in the applicant's case. In R -v-

SECRETARY OF STATE FOR SCOTLAND, the treatability test was

considered to be satisfied solely on the basis of evidence that the

respondent's anger management improved in the structured setting

of the State Hospital in a supervised environment (per Lord Hope at

page 290 A). But the matter does not end there.

Secondly, there was no dispute that the cognitive behavioural therapy

for his anger management and inter-personal difficulties had been of

value when it had been made available to the applicant in the past. As

Dr White and others pointed out, following upon his assault on two

nurses in February 1997, such therapy had been used and sufficient

progress was made for him to progress to visits to Hartwoodhill

Hospital (unfortunately terminated by the applicant's abuse of alcohol

in April 1998). Dr White considered that the abnormality in his

personal functioning could be improved with such therapy to "enhance

his ability to accept responsibility for his behaviour and to improve his

empathy". Dr Campbell agreed that he had benefited from cognitive

behavioural therapy. Dr Baird said that while the applicant had not

really been engaging with the staff and while this limited the alleviation element, both the applicant and the staff wanted the same thing and when the applicant came to see that in the longer term the applican twould improve.

I consider that there is again sufficient evidence that such therapy had

benefited the applicant in the past and thus is treatment which is likely

to alleviate or prevent a deterioration in his condition.

Thirdly, the same can be said of counselling in relation to the use of

alcohol and illicit substances. I do not consider that there was any

dispute that this would be helpful to the applicant if he availed himself

of it. This is also treatment which is likely to alleviate his personality

disorder or prevent it deteriorating.

Fourthly and finally, there is the matter of anti-psychotic medication.

Dr White considered that medication would assist in treating under-

lying psychotic symptoms and preventing breakdown. Dr Campbell

considered that such medication might provide a protective effect -

in decreasing the recurrence of psychosis - as well as a general,

tranquillising, anti-aggressive effect. Dr Baird said that he supported

such prescribing of anti-psychotic drugs. Patients moving on from the

State Hospital faced a great deal of stress. As a preparation for this,

and perhaps even to assist at present, Dr Baird saw it as very positive

and he agreed that it was a reasonable part of the treatment package.

Here again, I consider that there is sufficient evidence that this is

treatment which is likely to alleviate or prevent a deterioration in the

applicant's condition.

(iii) Dr White very frankly and properly described the problems arising

from "system" delays in providing the applicant with his psychological

treatment package and being able to move him to a less structured

setting. However it was not suggested that such treatment was

unavailable; indeed Dr White emphasised that he wished such

treatment to begin without delay. He also emphasised on the

basis of the medical notes that the psychologists' recent proposals

had been more substantial than the applicant had claimed. He

understood that psychology treatment had been offered to him and

that it could go ahead speedily. He considered that matters could

move ahead within the period of a few months although he emphasised

that such matters were for the management of the State Hospital.

I consider that such delays are in part a consequence of having to move

the applicant's ward and utilise a fresh team working with the

Responsible Medical Officer to provide the most effective package.

In any event, I am satisfied that any such delays in providing treatment,

although regrettable, do not affect the conclusion that this is treatment

which is likely to alleviate or prevent a deterioration in the applicant's

condition.

(iv) Nor do I consider that it renders such treatment ineffective or the

applicant untreatable that the applicant has shown little inclination at

present to accept or engage with such treatment. As Lord Justice

Kennedy observed in R -v- CANONS PARK MENTAL HEALTH

REVIEW TRIBUNAL, ex parte A (1995) QB 60 at 84 E :

"The fact that at present a patient demonstrates a fixed

determination not to co-operate in the administration of

psycho-therapy in a group setting, which is the only form

of therapy known to be beneficial, is not decisive (as regards

the treatability test), even although such therapy cannot in

practice be effective without her consent."

This was, I think, the legal decision to which Dr Campbell was alluding when she remarked in evidence that to say a patient was not treatable because he was refusing to have treatment would make a nonsense of the wording of the legislation and had not been accepted in an English case.

In any event, Dr Baird drew attention to more hopeful indications

regarding the applicant's attitude at the time of the case review on 17

December 1998. He said "The psychologist on the clinical team

reported that he had initially refused all psychology input on the

advice of his lawyer but over the previous two weeks he had been

seeing the ward psychologist and his opinion was that Michael

Ferguson was now willing to engage in assessments. It is recorded

that his lawyer had been active in endeavouring to separate psychology

assessments from psychology treatment but the ward psychologist did

feel that Michael Ferguson would like to become more involved with

psychology treatment." This seems to be an important and more

helpful piece of evidence which not only comes from the person who

is directly engaging with the applicant on such matters but also supports Dr White.

(e) Propriety of the applicant receiving medical treatment in detention in

hospital

Since I am persuaded that there is sufficient evidence that medical treatment is likely to alleviate the applicant's personality disorder or prevent it from deteriorating, I consider that I cannot be satisfied that the test has not been met. According to Lord Clyde, if the Sheriff is not so satisfied:

"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 is 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

he should turn to paragraph (c)."

Lord Clyde has used the word "propriety" (as distinct from necessity) and I believe that must in effect be a synonym for the word "appropriate" or the word "rightness". I consider that the written and oral evidence of the witnesses points clearly to the propriety of detaining the applicant in hospital for medical treatment for the following reasons.

Firstly, all the witnesses were agreed as to the importance of the structured

environment - the professional, sophisticated environment as Dr Baird

described it - of the State Hospital in making any progress with the applicant's

condition. Outwith that structure - even in an ordinary psychiatric hospital,

as the alcohol incident on 14 April 1998 illustrated - it was highly likely,

given the nature of his disorder, that the applicant would breakdown and

abuse alcohol or drugs, commit further offences and be a danger to the public

as well as endangering his own health and safety. The evidence of all of

the witnesses was that it was necessary for the applicant to progress through

that structured environment with lessening degrees of structure, before there

could be any question of transfer from the State Hospital. Indeed Dr Gray,

whose view in his most recent report (item 10/3 of process) was that the time

was now right to consider conditional discharge from hospital following a

period of rehabilitation, accepted in his oral evidence that the "period of

rehabilitation" to which he was referring involved successful progress

through just such a programme and that conditional discharge was

really more of a goal for the applicant to aim at in order to assist him.

He added that the structured environment of the State Hospital was an

important part of the package and that the applicant needed "to move

through the system". He also agreed that it was appropriate that the

applicant should remain liable to detention for medical treatment in

hospital on this basis.

Secondly, Lord Clyde makes it quite plain that, in considering

propriety, the health and safety of other persons, including members

of the public, can be considered. The rationale presumably is that, in

considering whether it is appropriate for a person to be detained in

hospital for treatment - as opposed to being treated in the community -

the risk to persons with whom that person might come into contact in

the community is a relevant factor. But whatever the rationale, this is

clearly an element which can be considered in the present case. Again,

I have no doubt from the evidence of all the witnesses and a consideration

of the whole circumstances that the applicant would at present pose a

danger to members of the public if treatment were to be attempted in the

community, with the attendant risks of abuse of drink and drugs and the

commission of offences (including violent offences).

Thirdly, in relation to the alternative submission of Counsel for the applicant,

I should add that whether or not the applicant would have been admitted

to the State Hospital de novo if the matters and his condition had all arisen

now, has not for the reason given and the approach adopted earlier amounted

to a relevant circumstance which has persuaded me that it is not appropriate

for the applicant to be liable to be detained in a hospital for medical treatment.

In these circumstances, I have not been satisfied that the applicant is not, at

present, suffering from mental disorder of a nature or degree which makes it

appropriate for him to be liable to be detained in a hospital for medical

treatment. In other words, the requirements of Section 64 (1) (a) have not

been met.

(f) The safety test

As regards Section 64 (1) (b) Lord Clyde states (at page 294 F) that if the Sheriff:

"is not satisfied that the provisions of paragraph (a) [of Section 64(1)]

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."

Although the applicant relied on paragraph (b) in his Summary Application, he presented no evidence to enable the Court to conclude that it is not necessary for his own health or safety or the protection of others that he should receive qualifying treatment. The evidence of the psychiatrists led in evidence by the applicant (as well as that of the psychiatrists led in evidence by the respondent) is very much to the opposite effect. Their unanimous view was that it is necessary for the applicant to receive treatment if he is to be prevented from breaking down, abusing alcohol and illicit drugs and committing further (probably violent) offences, thereby causing danger to others. Also, it is in my view reasonable to infer from the long history of alcohol and drug abuse from childhood onwards spoken to by Dr White and Dr Campbell, that treatment is necessary to avoid the well known health risks which accompany such abuse. In these circumstances, I have not been satisfied that it is not necessary for the health or safety of the applicant or for the protection of other persons that he should receive such treatment. In other words, the requirements of Section 64 (1) (b) have not been met.

(g) Conditional discharge

Finally, there is the matter of conditional discharge which is referred to in Section 64 (2) of the 1984 Act. In R -v- SECRETARY OF STATE FOR SCOTLAND, Lord Hope made it clear that conditional discharge is incompatible with a failure to satisfy the treatability test. He said (at page 289 G-I):

"It is hard to reconcile an opinion that medical treatment in a

hospital is not, and never will be, likely to alleviate the condition

or to prevent it from deteriorating with the view that the Sheriff

should be invited to order a conditional discharge."

And, eight lines further on (at page 289 H), he continues:

"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."

In the present case, however, I have held that the treatability test has been satisfied in the applicant's case.

Thereafter, the Sheriff would only be entitled to direct conditional discharge if he was satisfied that one or other of the conditions referred to in paragraphs (a) or (b) of Section 64 (1) applied to the patient but was not satisfied that the condition in paragraph (c) applied. As Lord Hope said (at page 290 C):

"This would not be because the "treatability" test did not apply,

but because detention for medical treatment in a hospital was no

longer appropriate or necessary".

If the Sheriff was not satisfied as to either (a) or (b), then in my view he cannot direct the conditional discharge of the patient. It seems to me inevitably to follow that if the Sheriff is not in a position to direct the conditional discharge of a patient, for the reason just given, he would be unable to exercise the power under Section 64 (7) to "defer a direction for the conditional discharge of a patient until such arrangements as appear to the Sheriff to be necessary for that purpose have been made to his satisfaction".

In the present appeal, and putting the matter negatively, the issue of conditional discharge cannot arise if the Sheriff has not been satisfied that the requirements of Section 64 (1) (a) or (b) have been met. Lord Clyde observed (at page 294 G):

"Finally, if he has been satisfied on either head (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 these matters, he will grant a conditional or an

absolute discharge."

As I have already indicated, since I have not been satisfied that the requirements of either paragraph (a) or (b) of Section 64 (1) have been met, the issue of conditional discharge does not arise at the present time.

It has therefore been in the light of these foregoing considerations that I have refused the appeal.

In conclusion, I would add that I was greatly assisted in dealing with this appeal by the courteous, helpful and most able conduct of their cases by Counsel and their solicitors and also by the well prepared and researched submissions. This has greatly aided my task and I would wish to place on record my appreciation.