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NOEL RUDDLE v. THE SECRETARY OF STATE FOR SCOTLAND [1999] ScotSC 24 (2nd August, 1999)

SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT LANARK
	SUMMARY APPLICATION
	NOEL RUDDLE
	against
	THE SECRETARY OF STATE FOR SCOTLAND

In connection with Appeal under Section 63(2) of the Mental Health (Scotland) Act 1984.

LANARK, 2 AUGUST 1999

The Sheriff, having resumed consideration of the cause, and being satisfied that the applicant is not at the time of the hearing of this appeal 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, Directs the absolute discharge of the applicant as from this date.

J DOUGLAS ALLAN, ESQ.,

SHERIFF

FINDINGS:

1 The applicant, Noel Gerard Ruddle, who was born on 16 December 1954, is

presently a patient in the State Hospital, Carstairs.

2 Case Records

2.1 The bulk of the medical, forensic, personal and family history of the applicant

as set out in his State Hospital Medical Records has been obtained from him at

interview since admission to the State Hospital.

2.2 Exceptions to this include, inter alia, (i) reports concerning his contact with

English psychiatric services in Epsom in 1982 and 1989; (ii) information

obtained from his family by Lisa Osborne, Social Worker, at the time of the

index offences; and (iii) his record of previous convictions in Scotland.

2.3 There are discrepancies in the accounts which he has given since admission

relating to a number of aspects of his personal and forensic history.

2.4 The likelihood is, however, that it will not now be possible to obtain further or

additional, corroborative information to shed light on these discrepancies, since the applicant has had little contact with any of his family in the years leading up to admission, and also since he no longer has any contact with his girlfriend of the period 1985 to 1990.

2.5 There is also little likelihood of obtaining further information now surrounding

the index offences of 30 November 1991 which was not available to the

authorities at that time and could not have been obtained by State Hospital

Staff soon afterwards.

2.6 There is sufficient information presently available to enable diagnosis to be

made of (i) the nature and degree of his mental disorder; (ii) whether that

disorder is treatable, i.e. whether medical treatment in a hospital is likely to

alleviate or prevent a deterioration of his condition, and (iii) whether it is

necessary in the interests of the health and safety of the patient or for the

protection of others that he receive such treatment. Although it is good

practice to attempt to obtain more information, as a matter of practicality,

decisions have to be made and patients have to be treated. Additional

information is not likely to lead to any change in the diagnosis or the

expectation that treatment would help the applicant.

3 Personal and Family History

3.1 It appears that the applicant was born in London and brought up in Epsom,

Surrey; he has an elder sister and a younger brother; his parents were both

psychiatric nurses; his mother is retired and lives in Epsom and his father

died of cancer in 1991; he continues to have telephone contact with his

mother and written contact with his brother and sister.

3.2 The applicant is of above average intelligence; he probably left school at the

age of 16 years, worked for a period, and then returned to full-time education;

having obtained two 'A' levels he spent some years doing clerical work

followed by a few years travelling around France and Spain, during which time he began to misuse a variety of illicit drugs.

3.3 The applicant appears not to have been in full-time employment since at least

1986, and he seems to have been unable to maintain stable employment over a

substantial period of time.

3.4 It appears that in 1985, the applicant met Jane Livingston with whom he moved to Scotland, initially living in the Isle of Bute and then in Glasgow. She is said to have become depressed at her failure to conceive between 1986 and 1990 and took an overdose of medication, resulting in hospitalisation. She left the applicant about February 1990 due to fear of his violent behaviour and ongoing alcohol abuse. They have had no contact since then.

4 Admission History

4.1 Having appeared at Glasgow Sheriff Court on charges of murder, attempted

murder, reckless discharge of a rifle to the danger of life and various Firearms

Act matters, arising out of events of 30 November 1991, the applicant was

admitted to the State Hospital on 10 December 1991 in terms of Section 25 of

the Criminal Procedure (Scotland) Act 1975 in the light of the psychiatric

reports prepared by Dr J A Baird and Dr R Antebi.

4.2 On 24 January 1992, Dr Baird reported that, after very thorough clinical

assessment, no evidence had been found of a detainable mental illness.

4.3 In a second, supplementary psychiatric report, Dr Baird felt unable to offer any

firm opinion as to why the mental state of the applicant had deteriorated at

around 24 February 1992.

4.4 In a third, supplementary psychiatric report around 11 March 1992, Dr Baird

by then considered that the applicant was suffering from a detainable mental

illness and was of diminished responsibility; and this view was shared by Dr

Martin Humphries on 18 March 1992.

4.5 On 20 March 1992, in respect of the 30 November 1991 charges, the applicant

pled guilty at Glasgow High Court to three contraventions of the Firearms Act

1968, two charges of assault to danger of life, one charge of culpable and

reckless discharge of a rifle to the danger of life, and a charge of culpable

homicide.

4.6 The Court, having heard evidence from Dr Baird and Dr Humphries, and being

satisfied that the applicant was suffering from a mental disorder within the

meaning of the Mental Health (Scotland) Act 1984 (hereinafter referred to as

"the 1984 Act"), made a Hospital Order under Section 175 of the Criminal

Procedure (Scotland) Act 1975 (now Section 58 of the Criminal Procedure

(Scotland) Act 1995) specifying the State Hospital as the place of detention,

and also 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 (now

Section 59 of the said Act of 1995).

4.7 The mental disorder from which the applicant was diagnosed as suffering was

the psychotic disorder of paranoid schizophrenia. Personality disorder was not the basis of the recommendation for the Hospital Order.

4.8 The applicant has been continuously detained in the State Hospital since 20

March 1992, where he is presently detained in Forth Ward.

5 Psychiatric History Prior to 1992

5.1 The applicant describes a history of aggressive outbursts, depression and

feelings of fear and anxiety since adolescence.

5.2 He was seen as an out-patient in Epsom in September 1982 following

referral by his general practitioner because of anxiety and depression.

He indicated that he coped with his problems by drinking alcohol, although

he showed no evidence of alcohol addiction. He sought admission but this

was not thought appropriate, as he was considered by the assessing doctor

to suffer principally from a personality disorder of the psychopathic type and

not from a psychosis.

5.3 He was admitted to hospital at Epsom on 3 October 1982 after an overdose

of fluanxol and anti-depressant and in the context of drinking half a bottle of

spirits daily, and arguments with his parents and siblings. He admitted at this

time to a long-standing drink problem and to having taken cannabis, heroin and LSD. The discharge diagnosis was of a psychopathic personality disorder.

There seemed to be no evidence of psychotic illness or significant depression

of mood at this time.

5.4 He was admitted to hospital on 10 October 1989 complaining of withdrawal

from temgesic, DF118 and diamorphine, which he claimed to have been taking

for three months because of "depression". He also claimed to have been

drinking a bottle of spirits and five pints of beer each day. He was again

diagnosed as suffering from a personality disorder.

5.5 There also appears to have been two admissions to Glasgow Royal Infirmary

and Glasgow Victoria Infirmary during 1991 due to overdoses of prescribed

medication, attributed more to personality disorder than to depression.

5.6 Prior to the index offences, the applicant had a substantial drug and alcohol

abuse problem from at least 1982, leading to his being violent and his partner

reportedly leaving him in 1990. The applicant attributed the escalation in his

drinking and drug abuse to the failure of his relationship, the death of his

father and his sense of failure as regards living on his own in Glasgow with no

work prospects.

6 Forensic History

6.1 The index offence took place on 30 November 1991. According to the

applicant (who has given conflicting and inconsistent accounts), he was living

alone in a flat in the Gorbals in Glasgow. He had purchased a rifle and

ammunition in a public house from a former soldier; he had been drinking to

excess on a daily basis for some time; he was intoxicated and paranoid; a

known drug dealer came to his door; the applicant shot him and shot at his

companion who ran away; he then started to shoot in a random fashion from

the balcony of his flat and, in a neighbour's flat, shot in the direction of the

neighbour's friend; the police laid siege to the flat and, after several hours, the

applicant gave himself up.

6.2 SCRO records were supplied at the time of the applicant's admission to the

State Hospital. These identified three minor convictions in Scotland. No

record of English offences has been obtained although attempts have been made to obtain this; nonetheless, the applicant has a significant record of offending in England prior to the index offences and in respect of which he has served several prison sentences in England, including those for robbery and armed robbery.

7 Progress in State Hospital

7.1 After his admission to the State Hospital, the applicant's Responsible Medical

Officer was initially Dr Baird until around Spring 1993, then Dr White until

1994 (both in Tinto Ward), and then Dr Duncan until around January 1995

(in Tay Ward). In January 1995, Dr White again became the applicant's

Responsible Medical Officer (in Forth Ward) and continues to be so.

7.2 By August 1992, there was a marked improvement in the applicant's mental

health in respect of the psychosis which led to his admission. Until August

1992, he was treated with a standard anti-psychotic drug and an anti-

depressant drug; and since August 1992, he has shown no signs of psychosis.

7.3 By early 1994, the diagnosis of the applicant had moved to a provisional view

that he suffered from an anti-social personality disorder. His Responsible

Medical Officer, Dr White, considered that he had made a remarkable

improvement, had been withdrawn from all psychotropic medication but

considered that he required further input with regard to his propensity to

abuse drugs, poor problem-solving skills and generalised anxiety. Dr White

considered that the applicant was treatable at this stage and he anticipated that

this would be likely to diminish the probability of the applicant re-offending and recommended his continued detention in hospital. This view was shared or accepted by the Medical Sub-Committee which, in February 1994, inclined to the view that the applicant suffered from an anti-social personality disorder and that it was not then appropriate to recommend him for transfer out of the State Hospital.

7.4 Dr White, as the Responsible Medical Officer of the applicant, considered then

that specific treatment interventions might alleviate or prevent a deterioration

of his condition. He attempted to arrange for such interventions to take place,

but without success. The applicant was referred for psychological treatment

interventions or therapy packages in October 1994 and April 1995 but, apart

from being assessed for psychological treatment, none was made available to

the applicant and, in January 1997, his Responsible Medical Officer was

informed that the psychology department in the hospital had no-one then

providing a service to patients with addiction problems.

7.5 In 1993 and 1994, the applicant formed and maintained for approximately two

years an inappropriate relationship with a female member of staff who assisted

him to obtain alcohol which he consumed at a Christmas party on 16 December 1994. Thereafter he became verbally aggressive and hostile towards staff and patients, and assaulted a male nurse. There was no positive evidence as to whether he had also consumed drugs at that time but, in his room, he was found to be in possession of two small plastic bottles containing whisky, and other prohibited substances, namely aerosols, disinfectant and super-glue.

7.6 There was no recurrence of psychosis following this incident, although the

deterioration of the applicant's behaviour was probably caused by his use

of alcohol. The female member of staff subsequently resigned although the

applicant maintains contact with her.

7.7 The incident was taken very seriously by the hospital authorities especially

since the extent to which security had been compromised was not known.

Following the incident, the applicant was transferred to Forth Ward where

he was placed under very close observation but showed no evidence of

recurrence of any psychotic symptoms or of any substantive mood dis-

turbence during 1995.

7.8 During 1996 and culminating in October 1996, Dr White sought transfer

of the applicant to Broadmoor Hospital and, in particular, the Personality

Disorder Unit there. The reasons for the proposed transfer were Dr White's

perception of a more appropriate treatment resource at this hospital, and

because the applicant's relatives lived in Surrey. The transfer was agreed to

by the Medical Sub-Committee of the State Hospital on 10 April 1997 and,

in later 1997, the Broadmoor Admissions Panel accepted the applicant for

transfer in due course when a bed became available, presumably it being

hoped for during 1998.

7.9 While the Broadmoor transfer question was under consideration, the

applicant was seen by the Mental Welfare Commission on 19 March 1998.

The Commissioners expressed some concern about the treatability of the

applicant's condition. It was said that they would be interested therefore to

hear the outcome of any further psychological assessment and whether this

led to any more specific treatment within the State Hospital. As had been

commented to the applicant, the Commissioners were interested in the idea of

a move to Broadmoor for a specific treatment programme and, although there

had to be doubts about the likelihood of its success, they hoped that serious

consideration would be given to this option if no more specific and positive

treatment option emerged at the State Hospital.

7.10 After the applicant had stated an intention to make the present appeal against

continuing detention, Dr White was informed by the office of the Respondent

that, on legal advice, the transfer to Broadmoor should not take place until

the appeal had been heard.

7.11 In March 1998, the annual report of the Responsible Medical Officer (Dr

White) informed the Principal Medical Officer at the Respondent's Department of Health that plans for the applicant's transfer to England had been put on hold when he expressed his intention to appeal against his liability to detention, on the basis of the judgement with regard to another patient; that there had been no recurrence of psychotic symptoms; that his principal difficulties lay in the domain of anxiety management and problem-solving, particularly in conflict situations; that he had presented no major management problems but was noted to manipulate more vulnerable people and that there had been a suspicion that he might be inflaming relationships between patients or between patients and ward staff; and it was noted that he had re-commenced off-ward placements.

7.12 Also in March 1998, a nursing report indicated that the applicant continued to

exhibit manipulative behaviour and to test the limits placed upon him. It was

noted that he could be dominating, abusive, intolerant and threatening to those

he perceived as less capable. He had threatened to attack a fellow patient if

made to share the same dining table. He had been involved in a number of

verbal confrontations with his peers over the previous year.

7.13 In addition to the duty contained in Section 62(2) of the 1984 Act on the

Responsible Medical Officer to report to the Secretary of State at least

annually on a restricted patient, the appropriateness of continued detention

and treatment of patients at the State Hospital is systematically (and it

appears annually) reviewed by a body known as the Medical Sub-Committee

(of the former State Hospital Management Committee). [See the additional

material on this at paragraph 2.4 of the Note annexed hereto.] The Medical

Sub-Committee now has no legal status within the structure of the State

Hospital but performs this important expert, advisory, review role. The

persons who comprise the Medical Sub-Committee are usually selected as

senior practitioners of experience whose opinion, in the case of the psychiatrist

members, reflects the majority view of psychiatrists within Scotland generally.

This enables the practice of psychiatry within the State Hospital to remain

grounded in mainstream psychiatry from which it might otherwise become

disconnected.

7.14 In each of the years between 1993 and 1997, the Medical Sub-Committee had

reviewed the applicant's case and had concluded that he remained

appropriately detained under the 1984 Act although, over time, the diagnosis

had become one of anti-social personality disorder; but, in 1996, the

Committee had clearly hoped that the applicant would receive the psycho-

logical therapy which had been requested given the additional psychologists

newly on staff at the State Hospital; and, in 1997, the Committee was aware

that the possibility of transfer to Broadmoor Hospital Personality Disorder Unit was being pursued along with the opportunity to carry out the therapeutic

treatment work which was needed.

7.15 By the time the Medical Sub-Committee came to review the applicant's case in 1998, it was known that none of the psychological treatment planned since

1994, and expected at the State Hospital up to 1997, had taken place and that

the possibility of treatment on transfer to Broadmoor had been removed by the

decision referred to at Finding 7.10 above.

7.16 On 9 April 1998, the applicant was examined by a panel of the Medical Sub-

Committee of the State Hospital, comprising Dr Chiswick, Dr Morrison and

Mr Samuels a senior nurse. Following lengthy discussion, the Committee

concluded that the applicant was suffering from personality disorder, that is

to say a mental disorder which is a persistent one manifested only by

abnormally aggressive or seriously irresponsible conduct, but that medical

treatment in hospital was not likely to alleviate or prevent a deterioration of

his condition. After Dr White (the Responsible Medical Officer) returned to

duty from leave, he was informed of the view of the Medical Sub-Committee

and had a discussion with Dr Chiswick. Thereafter, the Medical Sub-

Committee confirmed its view. The applicant was told of the Committee's

view that he should be discharged, as was the Respondent.

7.17 In the light of the decision of the Medical Sub-Committee and after further,

extensive consultation with colleagues, outwith and within the State Hospital,

Dr White, the applicant Responsible Medical Officer, reviewed his opinion and changed his mind as to the treatability of the applicant. Not only was Dr

White's position a minority one, but it had become an isolated one; and when,

to that, was added his inability to secure and provide a treatment package

which would meet the applicant's clinical needs, the removal of the possibility

of the transfer to Broadmoor, together with the withdrawal of the support he

had hitherto received from the Medical Sub-Committee, Dr White concluded

that his position had become untenable. He therefore concluded that the view

which he had previously taken was against teaching within Scottish psychiatry

and was probably out of step with the majority view of practising psychiatrists,

including the majority of those who practised in his own sphere and speciality.

He made attempts to obtain a conditional discharge for the applicant but was

unable to find a consultant psychiatrist willing to act as his Responsible

Medical Officer whilst in the community on conditional discharge. The

psychiatric view was that, if he was to be in the community, it would require

to be on a basis of absolute discharge.

7.18 Since the Medical Sub-Committee told the applicant that he ought to be

discharged, there has been a marked improvement in him. He has been more

relaxed and more willing to co-operate with psychiatric services since then.

His security level has been reduced. He presently has full ground parole and

a key to his room. He attends art classes in the State Hospital and he has

some talent in drawing and painting.

8 Mental Disorder

8.1 The applicant presently suffers from a mental disorder, namely anti-social

personality disorder which, for present purposes, may also be described as

a psychopathic or dis-social personality disorder as defined in ICD-10

(International Classification of Diseases - 10th Version). It is a mental

disorder which is a persistent one, manifested only by abnormally aggressive

or seriously irresponsible conduct.

8.2 As to the degree of the mental disorder, it is undoubtedly of long-standing and

the applicant falls comfortably within the criteria laid down in said ICD-10.

8.3 The psychosis from which the applicant suffered at the time of the index

offences was likely to have been a substance-induced psychotic disorder. A

variety of drugs and alcohol, whether separately or in combination, are the

most likely substances involved. It is likely that the psychosis will recur if the

applicant was once more to resort to taking such substances and, in particular,

hallucinogens or amphetamine.

8.4 The applicant's use of drugs and alcohol are a manifestation of his anti-social

personality disorder.

9 Treatment

9.1 In the period until August 1992, the applicant was given anti-psychotic and

anti-depressant medication. He has not received any such medication since

then and there is no question that drug treatment would presently be

appropriate for him.

9.2 The applicant has, throughout his period in the State Hospital, been in a

protective, controlled and structured environment. The wards in which he

has been have had a high staff to patient ratio, have been staffed by trained

psychiatric nurses working under medical supervision 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. This falls within the definition of medical treatment in Section 125 of the 1984 Act.

Such an environment can, in some circumstances, amount to more than simply

components of care or than caring containment for patients able to benefit from it. To this extent, the applicant has received medical treatment in the State Hospital.

9.3 This would not however generally be considered by psychiatrists to constitute

medical treatment in the clinical sense. In essence, although therapeutic, it

involves containment within a safe location, preventing exposure to influences

which may trigger relapses. Psychiatrists would not generally consider it

appropriate to detain a person with uncomplicated anti-social personality

disorder if no specific medical treatment would be likely to be effective.

The security aspect of the State Hospital environment (which should prevent

access to alcohol or drugs or the opportunity to offend and should prevent

the patient deteriorating) can be distinguished from any therapeutic aspects

of the structured ward environment, and such security aspect is not medical

treatment as such.

9.4 The treatment plan which Dr White had prepared for the applicant included

- improvement of his anger management, relationship and problem solving

skills and generalised anxiety through psychology input

- provision of alcohol and drug counselling

- provision of a stimulating environment within the hospital

- remaining vigilant regarding possible security breaches.

While Dr White considered that the structured environment of the State

Hospital would be of help to the applicant, that was secondary to the much

more specific and focused treatments and interventions which he sought in

order to achieve the elements of the treatment plan. He sought focused

psychotherapy, whether cognitive, behavioural or psycho-dynamic.

9.5 There was not simply a therapeutic delay in the applicant receiving the

specific, focused, psychological treatment; it has never been made available

for him, nor is it presently available. Given the passage of time, the duration

of his condition, the events which have taken place and the applicant's own

motivation at different times, it is much less likely that the applicant would be

able to respond to treatment aimed at reduction of his desire for illicit drugs

and alcohol.

9.6 Despite the lack of evidence that such psychological interventions would be

made available to the applicant in the future if he continued to be detained in

the State Hospital, even if they were to be made available to him, he would not

necessarily need to receive any of them as an in-patient. On the contrary, there is advantage, as regards assessment of their efficacy, in providing such

treatment in the community.

9.7 The applicant attends weekly meetings within the State Hospital of Alcoholics

Anonymous, representatives of which voluntary organisation attend the

hospital. These meetings are not under medical direction or supervision and

are not medical treatment. The applicant would be able to continue to attend

such meetings in the community if he was discharged; he would intend to do

so and has located a meeting place of Alcoholics Anonymous which he would

intend to attend after discharge.

9.8 Any future transfer to Broadmoor is so beset with problems, difficulties and

uncertainties that it is scarcely now a practical proposition; accordingly, any

assessment now of the efficacy or outcome of treatment there is so speculative

as to be discounted for present purposes.

10 Treatability

10.1 While anti-social personality disorder is not an untreatable condition, the

literature and experience shows mixed and conflicting outcomes. There

appears to be no literature which would support the proposition that the

structured environment of the State Hospital would, alone, be likely to

alleviate or prevent deterioration of the condition of the applicant.

10.2 Age and the passage of time in the State Hospital (rather than any treatment)

may have led to some improvement in the condition of the applicant.

10.3 During his period in the State Hospital, the applicant has, for the most part,

been denied access to drugs or alcohol and he has benefited from this.

However, this has been as a result of the physical security of the State

Hospital and not as a result of the nursing and medical care available in

the structured environment. Physically denying the applicant drugs and

alcohol is an aspect of containment, and not medical treatment; and the

containment element of the State Hospital environment is not medical

treatment as such.

10.4 Although it was held earlier (in Finding 9.2) that the structured environment

of the State Hospital is capable of amounting to medical treatment and

capable of benefiting some patients, there was no evidence of the applicant's

condition being alleviated or prevented from deterioration as a consequence of

anything that could be described as medical treatment, and the symptoms of his personality disorder have continued. Thus, keeping in mind the distinction between reducing the propensity to abuse drugs and alcohol and mere reduction of the opportunity to do so, it is likely that the detention of the

applicant has led to the latter but not to the former. In this regard, his

present detention seems no different in its effect from that which would result

were the applicant in prison.

10.5 In the absence of any primary, focused therapeutic or other treatment, the only

treatment to which the applicant has been subject in the State Hospital has been the structured environment and nursing care under medical supervision. While this structured environment and nursing care in the regime of the State Hospital is medical treatment in the widest sense, it is not clinical treatment; while it may sometimes alleviate or prevent deterioration of condition, it has not done so in the recent past for the applicant and is not doing so at present.

10.6 Accordingly, since the medical treatment which the applicant has received and

is at present receiving has not alleviated or prevented and is not likely to

alleviate or prevent a deterioration of his condition, he does not meet the

"treatability test" and it is not appropriate for him to be liable to be detained in

a hospital for medical treatment, nor to remain liable to be recalled to hospital

for further treatment.

11 Conclusion

11.1 The applicant suffers from a mental disorder which is a persistent one

manifested only by abnormally aggressive or seriously irresponsible conduct;

but medical treatment in a hospital is not likely to alleviate or prevent a

deterioration of his condition: 1984 Act, Section 64 (1) (a) and Section 17

(1) (a) (i).

11.2 It is not appropriate for the applicant to remain liable to be recalled to hospital

for further medical treatment: 1984 Act, Section 64 (1) (c).

11.3 The applicant is entitled to absolute discharge from liability to detention:

1984 Act, Section 64 (1).

J DOUGLAS ALLAN, ESQ., SHERIFF OF SOUTH STRATHCLYDE, DUMFRIES

AND GALLOWAY AT LANARK

NOTE:

1 Introduction

1.1 This is an appeal under Section 63 (2) of the Mental Health ( Scotland) Act

1984 (hereinafter referred to as "the 1984 Act") seeking an order in terms of

Section 64 (1) (a) directing his absolute discharge. It is submitted on behalf

of the applicant that he no longer suffers from a mental illness which justifies

his detention as a restricted patient in terms of Sections 175 and 178 of the

Criminal Procedure (Scotland) Act 1975 (now Sections 58 and 59 of the

Criminal Procedure (Scotland) Act 1995); that he now suffers from a mental

disorder, namely a personality disorder which is a persistent one manifested

only by abnormally aggressive or seriously irresponsible conduct; that his

disorder is not susceptible to treatment which would alleviate or prevent a

deterioration of his condition; that he accordingly is no longer a person

liable to be detained in a hospital for treatment since he no longer meets

the criteria referred to in Section 64(1) (a) of the 1984 Act, under reference

to Section 17 (1) (a) (i).

1.2 It is open to the Secretary of State in terms of Section 68 (2) of the 1984 Act

to order the applicant's discharge; but the Secretary of State has declined to

do so. It is in these circumstances that the application is now made in terms

of Section 63 (2) of the 1984 Act. The respondent is the Secretary of State

for Scotland.

1.3 I heard evidence over four days (9, 28, 29 and 30 April 1999) when witnesses

gave oral evidence in supplement of written reports produced for this hearing

or on earlier occasions. In addition, evidence was given by Dr Derek Chiswick, who convened the Panel of Members of the Medical Sub-Committee which met with the applicant in April 1998 - the Panel also including Dr Margaret Morrison who gave evidence. The applicant himself did not give evidence.

The written medical reports were not significantly departed from in the oral

evidence of the witnesses. These were the reports of :

(i) Dr Thomas White, who was the Responsible Medical Officer of the

applicant in 1993-1994, who again became his Responsible Medical Officer

in January 1995 and remains so up to the present time, and whose report is in

process as:

The Report of 1 April 1999 (Item 2/2 of Process);

(ii) Dr John A Baird, who examined the applicant at the time of his admission

to the State Hospital in 1991/1992 and was his Responsible Medical Officer

in 1992/1993, and who examined the applicant on 22 March 1999 and whose

report is in process as:

The Report of 29 March 1999 (Item 2/1 of Process);

(iii) Dr Andrew H Reid, who examined the applicant on 5 March 1998 and

1 April 1999 and whose two reports are in process as:

The Report of 2 April 1998 (Item 4/1 of Process) and

The Report of 4 April 1999 (Item 4/2 of Process);

(iv) Dr Margaret A E Smith, who examined the applicant on 16 December

1997 and 2 April 1999 and whose two reports are in Process as:

The Report of 9 January 1998 (Item 4/3 of Process) and

The Report of 6 April 1999 (Item 4/4 of Process);

(v) Dr Margaret Morrison, who interviewed the applicant on 9 April 1998

in her capacity as a member of the Medical Sub-Committee and who examined

the applicant, at the request of Dr White (the applicant's Responsible Medical

Officer) on 17 March 1999, whose report is in Process as:

The Report of 7 April 1999 (Item 5 of Process).

There was also lodged a Psychological Report on the applicant prepared by Mr

Gerry Rooney and dated 18 March 1999 (Item 6 of Process) which, although

not spoken to in evidence by Mr Rooney, was referred to during some of the

evidence of the psychiatrist witnesses.

1.4 The applicant was represented by Mr G C Bell Q.C. and Mr S G Collins,

Advocate and Ms McKenna, Solicitor, and the Respondent was represented by

Mr R A McCreadie, Advocate, and Mrs Lyons, Solicitor. I heard submissions

on the evidence from Counsel on 20 May 1999.

2 General

2.1 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 1999 SLT 279.

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 both the respondent and the applicant, to

adopt the approach set out by Lord Clyde (at page 294B-G). I did so in the

appeal by Michael Ferguson -v- The State Hospital Management Committee

in which my detailed decision is dated 26 April 1999 and I shall adopt the

same pattern in this appeal. (I should perhaps add that my references

hereafter to my decision in the case of Mr Ferguson are entirely for the

sake of brevity and clarity, and not for any other purpose).

2.2 The guidance provided by Lord Clyde incorporates the interpretation which

was given to Section 64 (1) of the 1984 Act by the House of Lords in that

case. Lord Hope put the approach adopted by the majority of their Lordships

as follows (page 287J):

"the issues to which the Sheriff is required to address his mind

when he is considering an application for discharge under

Section 64 (1) are the same as those which have to be

considered when an application is made under Section 18

(1) for admission to a hospital."

The criteria for admission to hospital under Section 18 are contained in Section 17 (1) of the 1984 Act. Section 17 (1) (a) (i) contains an important condition which requires to be satisfied:

"In the case where the mental disorder from which (a person)

suffers is a persistent one manifested only by abnormally aggressive

or seriously irresponsible conduct, such treatment is likely to

alleviate or prevent a deterioration of his condition."

Their Lordships held that this test, the so-called "treatability test", is

incorporated into the so-called "appropriateness test" in Section 64 (1)(a)

per Lord Hope at page 288J, where he approves that view as expressed by

Lord Macfadyen in the Inner House.

Lord Hope observes (at page 288H-I) :

"It is only if the 'treatability test' is satisfied that it will be

necessary to consider whether it is appropriate that that

treatment should be received by a person in a hospital

and, if so, whether it is necessary for his health or safety

or for the protection of other persons."

He continues (at page 288 J-K):

"The medical practitioner must ask himself first, what is

the mental disorder from which the person is suffering?

The next question, if it is of a kind which must pass the

treatability test, is whether that test is satisfied. Only

then can it be determined whether the treatment which

would have that effect makes it appropriate for him to

receive it in a hospital."

Thus, in the case of a patient who satisfies the condition in Section 17(1)

(a) (i) of the 1984 Act, the test contained therein must be satisfied.

2.3 Before applying Lord Clyde's guidance on how to deal with such an appeal

to the facts of the present case, I wish to deal with four preliminary matters.

The first concerns an issue which was raised by Counsel for the applicant in

his examination of the psychiatric witnesses. 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) As in the Ferguson case, all of the psychiatric witnesses questioned on this

matter were very frank. Their evidence was that they would not admit the

applicant in terms of Section 17 of the 1984 Act as he presents today.

(b) This issue was raised before me in Ferguson, where I dealt with the matter

in some detail, concluding that I considered it appropriate to approach the case

of the applicant (Mr Ferguson) in the way in which Lord Hope (whose

approach had been supported by Lords Clyde and Lloyd) had approached the

case of Mr Reid in R -v- The Secretary of State for Scotland (already cited)

at pages 284 E-G, 287 E-G and 294 H-K, namely 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. I was also referred to the Opinion of the Court

(delivered by Lord McCluskey) in

WILKINSON -v- SECRETARY of STATE for SCOTLAND, 1999 SCLR 481. I followed the approach of Lord McCluskey and concluded that

consideration of such a hypothetical situation introduced a difficult and

unreal element which is not part of the facts of the case and has nothing to do

with the task of a 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. I have not been persuaded that that approach is

incorrect or inappropriate and I propose to adopt it in this present case, that

is to say on the basis that the applicant has been since 1992 detained in hospital under a Hospital Order, and in respect of whom Section 64 (1) requires to be applied.

2.4 The second preliminary matter relates to the legal status of the Medical Sub-

Committee at the State Hospital following the abolition of the State Hospital

Management Committee. I consider it important to clarify this matter because

of uncertainty in both medical and legal minds, which affects matters of

substance as well as procedure. In this, I am grateful for the material

presented to me by Counsel for the Respondent, which has greatly helped in

clarifying the position.

(a) The State Hospital Management Committee was constituted by the

Secretary of State under and in terms of Section 91 (2) of and Schedule 1 to

the 1984 Act to manage the State Hospital on his behalf. Its membership and

procedure were regulated by The Mental Health (State Hospital Management

Committee, State Hospital, Carstairs : Membership and Procedure) (Scotland)

Regulations 1984 (SI 1984/294). Regulation 9 provided :

"Without prejudice to the generality of Regulation 8, the Management

Committee shall appoint a Sub-Committee, to be known as the Medical Sub-Committee, for the exercise on their behalf of their functions in relation to the admission and discharge of patients."

(b) Section 90 of the 1984 Act (dealing with the provision of State Hospitals

by the Secretary of State) and Section 91 (1) of the 1984 Act (providing that

State Hospitals were to be under the control and management of the Secretary

of State) were repealed by Section 2(3) of the State Hospitals (Scotland) Act

1994 (c.16).

574) constituted a Special Health Board to be known as the State Hospitals

Board for Scotland. Article 4 of the Order conferred on the Board the duty

to provide State Hospitals with associated services for the mentally disordered

detained under the Mental Health (Scotland) Act 1984 who require treatment

in conditions of special security. The Order came into force on 1 April 1995.

(d) The Mental Health (State Hospital Management Committee, State Hospital, Carstairs) (Scotland) Transfer and Dissolution Order 1995 (SI 1995/575) also came into force on 1 April 1995. Under Article 2 thereof the property, rights and liabilities of the State Hospital Management Committee were transferred and vested on that date in the State Hospitals Board for Scotland. Under Article 3, the State Hospital Management Committee was dissolved.

(e) Although the Medical Sub-Committee has continued to exercise functions

within the State Hospital, including the review on an annual basis of the liability of patients to detention, these functions no longer have any statutory basis as a result of the dissolution of the State Hospital Management Committee. The Medical Sub-Committee is not a committee of the State Hospitals Board for Scotland. That said, however, I am happy to recognise that the Medical Sub-Committee performs an important, expert, advisory function within the State Hospital and is a valuable source of advice and expertise to the State Hospitals Board.

2.5 The third preliminary matter in effect flows from what is contained in

paragraph 2.4 above. Having received the clarification contained therein,

Counsel for the applicant moved to amend the name and designation of the

Respondent from "The State Hospital Management Committee" to "The

Secretary of State for Scotland". There was no objection to this and I allowed

it since it was clear that the Secretary of State was then the person entitled to

appear and oppose the application (although that will now have altered under

devolution arrangements and the appropriate respondent will be the First

Minister).

2.6 The fourth preliminary matter relates to an order which I made on 28 April

1999 at the invitation of Counsel for the applicant under Section 4(2) of the

Contempt of Court Act 1981. In that order, I restricted publicity regarding

accommodation and related matters which might be made available for the

applicant until the conclusion of the present appeal proceedings. Now that

proceedings have reached the present, determinative stage, I have written a

separate Interlocutor lifting the restriction which I imposed with effect from

the date of this decision.

3 I turn now to consider the application of the detail of Lord Clyde's guidance

to the evidence in this appeal.

3.1 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 is no dis-

agreement that the applicant has a mental disorder. All of the psychiatrists

who gave evidence did so to this effect and I also heard that that was also the

view of a number of others who did not give evidence but had had involvement in the applicant's case.

3.2 Nature and Degree of it

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

(i) The witnesses all agreed that the applicant was suffering from a

personality disorder. Although this had only manifested itself

following his admission to the State Hospital on the basis of his

psychotic behaviour, there is a consistency in the medical files of the

applicant initially foreshadowing and later actually diagnosing the

anti-social personality disorder. Dr White identified it as anti-social

or psychopathic personality disorder. Dr Baird was in broad

agreement, describing the personality disorder as one manifested by,

inter alia, his anti-social, unstable and deteriorated lifestyle prior to

admission. Dr Reid described his disorder as dis-social personality

disorder (a synonym for anti-social or psychopathic personality

disorder) as defined in ICD-10 (International Classification of

Diseases - 10th Version). Dr Morrison confirmed in evidence that

the personality disorder she described in her report was anti-social

or personality disorder. Dr Smith was the only witness to describe

the disorder as borderline personality disorder. However, the fact

that Dr Smith prefers such a description is of little moment in the light

of the issues which I have to resolve.

(ii) As to the degree of it, although Dr Baird was of the opinion, having

regard to the degree of superficiality about the applicant and the way he imparted information, that he suffered from a "very significant degree of personality disorder", none of the other witnesses explicitly addressed this particular question. However, none of them suggested that the applicant was other than a person who clearly fell within the category of anti-social personality disorder. The consistent identification of that particular disorder not only by the witnesses but by other experts referred to in the applicant's case notes, their diagnoses being referred to in the various psychiatric reports, points to the applicant's disorder being of sufficient degree to be readily recognisable.

(iii) As to whether, in addition, the applicant suffers from any under-

lying psychosis, Dr Baird, who examined him on several occasions

after he was remanded to the State Hospital on 10 December 1991

from Glasgow Sheriff Court, concluded that he was psychotic; and

it was on the basis of that mental disorder - paranoid schizophrenia -

that he was detained in the State Hospital on 20 March 1992. At that

stage there was no consideration of personality disorder. However,

following admission to the State Hospital, the psychotic symptoms

subsided and he has shown no psychotic symptoms since August 1992;

nor has he received any anti-psychotic medication since then.

However, Dr White referred to and concurred in the Opinion of

Professor R Blackburn (Director of Research at Ashworth Hospital

who saw the applicant to provide a further Opinion in April 1995)

that his psychosis was not characteristic of typical schizophrenia but

was most likely to be due to his taking drugs. Dr Reid agreed, stating

that the gradual elimination of the psychosis was in keeping with the

natural history of substance-induced psychotic disorder. Clearly, if the psychosis was indeed drug-induced, it could return in future if the

applicant were again to abuse illicit drugs; Dr White considered that

it was likely to do so.

3.3 Nature of any Possible Treatment

The next issue to be determined is the matter of medical treatment in hospital.

The Court is required to consider the nature and effectiveness of any possible

treatment and to consider whether the "treatability test" is satisfied in cases of

psychopathic disorder.

Firstly, the nature of any possible treatment.

(i) The witnesses were, I believe, all aware of and were 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."

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):

"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 applicant's Responsible Medical

Officer said in his report that there was evidence that the

applicant'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."

(ii) It is possible to set out three broad categories of treatment which are

relevant to the present application:

(a) The first type of treatment is medication. In the applicant's

case, anti-psychotic medication in the form of chlorpromazine was

administered until August 1992 along with anti-depressant medication.

It is not clear from the evidence whether this medication - initially

administered in a high dose - eliminated the psychotic symptoms or

whether the absence of illicit drugs did so; but it is probably reasonable to assume that it was a combination of both.

Clearly this is treatment for the purposes of the definition in Section

125. However, in the present case, it was not suggested by any of

the witnesses that anti-psychotic medication should form part of a

treatment package for the applicant. Consequently, it may for present

purposes be ignored.

(b) Secondly, the structured environment of the State Hospital (in

the applicant's case the highly structured environment of Forth Ward,

where he has been since December 1994), providing structured

supervision under medical direction, with experienced nursing staff to

monitor and counsel him and to keep him away from alcohol and illicit

substances. I was satisfied on the evidence that this is not simply a

containment regime like that of a prison. The structured environment

of Forth Ward of the State Hospital 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. This is essentially what Dr Baird was referring to when he described the "sophisticated interactions" between the applicant and professional hospital staff "on the one hand maintaining a positive therapeutic relationship and on the other continuing to maintain limits and to discuss his present and past difficulties with him".

In the light of Lord Hope's approach, I consider that this structured

and supervised environment can clearly be "treatment" for the

purposes of Section 125; whether it is or not will be a matter of

fact based upon the evidence in each case.

I think that none of the witnesses disputed the existence of the

structured, caring environment and the input of trained nursing staff,

all under medical supervision.

Where the difference of view emerged was whether the elements of

that were, in themselves, "treatment" or simply components of care

in a detention setting. There was also some difference of view as to

whether what Dr Baird called the structured, therapeutic environment

of the State Hospital amounted to what the others variously called

primary treatment, active treatment, specific treatment, focused

treatment, goal-oriented treatment, clinical treatment - all of which

would be in addition to or over and above the underlying regime of

structured care.

While that divergence of view was never really resolved, what became

clear (as I shall deal with later) was that, while the structured

environment of Forth Ward of the State Hospital can in some

circumstances and for some patients able to benefit from it, amount to

medical treatment in its broadest or widest sense in terms of the

statutory definition, it is not likely on its own that that will alleviate

or prevent a deterioration of the patient's condition.

A number of the witnesses were also most anxious to differentiate

between, on the one hand, the security aspects of the State Hospital

environment which should prevent access to alcohol or drugs or the

opportunity to offend and which should prevent the patient

deteriorating or relapsing but which are not medical treatment as such

and, on the other, any therapeutic aspects of this structured ward

environment.

summarised these when he described the further input (i.e. primary,

specific, focused treatments) which the applicant required in relation

to his propensity to abuse drugs, poor problem solving skills and

generalised anxiety. In his evidence, he referred to the psychological

treatment initiatives which he had wished (but had been unable to

realise), related to improvement of his anger management, relationship,

inter-action and problem solving skills, counselling regarding

substance abuse and a group-based approach to his anti-social

personality.

I am quite satisfied that these all clearly fall within the statutory

definition of "medical treatment" and, apart from Dr Baird, whose

position I deal with later, these were the elements which the

psychiatrist witnesses were comfortable in describing as clinical,

active or focused treatment.

I referred earlier to the specific, focused, psychological treatments

which Dr White sought in vain to have applied for the benefit of the

applicant; and I set out in Findings 7.3 and 7.4 the failure of the

State Hospitals Board for Scotland (or its predecessor Management

Committee) to provide that treatment for the applicant. That such

treatment was relevant, appropriate and necessary for the applicant

was generally agreed by all of the psychiatric witnesses who were

asked about it; but was specifically the subject of questions to Dr

Chiswick in the course of his evidence. Dr Chiswick is, of course,

a very experienced and highly respected Consultant Forensic

Psychiatrist whose view was that the most credible treatment

approaches to personality disorder in general in a clinical sense

involve psychotherapy, i.e. talking treatments either on a one-to-

one basis or in a specially supervised form of treatment known as

group psychotherapy which he explained further as designed to assist

the functioning of the patient, or the concept of the so-called

therapeutic community, involving a carefully monitored environment

in which inter-action, including social inter-action, is used to improve

or attempt to improve day-to-day functioning.

I do not have all the necessary information available to me in this

present forum to reach an informed and concluded view; but I have

to express my disappointment - to put it at its very lowest - that the

Board or Management Committee was unable to make the necessary

arrangements to provide the treatment which was considered clinically

necessary by the applicant's Responsible Medical Officer. Dr Baird

kindly and euphemistically spoke of a therapeutic delay in the applicant receiving the specific psychological treatment which Dr White sought; but it was much more than that. It has never been made available to the applicant from October 1994 nor is it presently available. I heard in evidence that the way the psychology service was delivered to the hospital was changed around the beginning of 1996. Before that, projects were hospital-wide; but during 1996, emphasis was placed on multi-disciplinary team working and psychologists were allocated to specific wards. However the service was delivered, the applicant missed out. I do not consider that staff turnover, re-structuring or re-arranging within the hospital provides an adequate or satisfactory explanation; if it was not available within the hospital, then perhaps it should have been "bought in" or other arrangements made. All I can say is that I do not consider that the applicant has been best-served by the State Hospital; and he has been denied the one form of primary, psychological treatments which are regarded as the most credible, clinical approaches to the type of personality disorder from which the applicant suffers.

3.4 Effectiveness of any Possible Treatment

As to the effectiveness of any possible treatment, in the light of Lord Clyde's

guidance, this issue is bound up with the question of 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. If he

is not, he must be discharged.

(i) The witnesses were unanimous that the personality disorder from

which the applicant was suffering fell within the definition contained in

Section 17 (1) (a) (i) and the matter requires to be considered in that light.

(ii) The key question is therefore whether medical treatment is likely

to alleviate or prevent a deterioration of the applicant's mental disorder,

or the symptoms of that disorder. The applicant's case is undoubtedly

an extremely difficult one and this has been the experience of everyone

who has become involved. It is also complicated by the fact that it is

not possible to look to exact or precise diagnoses or assessments; rather

one is dependant on professional opinions based upon experience and

knowledge and the matter becomes one of judgement, leading to valid

but differing conclusions.

It is also important to keep in mind that

(a) as I held in Findings 7.14 to 7.16, the view of the Medical Sub-

Committee changed in 1998 from having previously concluded that the

applicant remained appropriately detained under the 1984 Act, to a

view that he was no longer appropriately detained since medical treatment

in hospital was not likely to alleviate or prevent a deterioration in his

condition (and I heard evidence from Dr Chiswick and Dr Morrison who

were the psychiatrist members of the Sub-Committee and whose opinion

was subsequently homologated by Dr Zealley and the other members of

the Medical Sub-Committee); (b) that Dr Margaret A E Smith, also a

most distinguished and very experienced clinical forensic psychiatrist

changed her view from her conclusion in January 1998 that the applicant

suffered from a mental disorder, namely a personality disorder which was

a persistent one and of such a nature or degree that compulsory treatment in

hospital was appropriate to alleviate or prevent a deterioration of the condition

of the applicant, to her conclusion in April 1999 that, although he still suffered

from a personality disorder, it was no longer appropriate for him to be liable

to compulsory detention in hospital since treatment in hospital was not likely

to alleviate or prevent a deterioration in his condition, such treatment as he

needed being available in the community; and (c) that, as I held in Findings

7.16 and 7.17, Dr White, (the applicant's Responsible Medical Officer)

changed his view after learning of the changed view of the Medical Sub-

Committee and after consulting extensively with experienced colleagues

within and outwith the State Hospital.

While it is not possible to be completely confident, I am persuaded that these

changes of view were greatly influenced by the failure to secure the specific,

focused, psychological treatments or interventions sought by Dr White over

and above the structured environment of the State Hospital, and the inability

to proceed with the planned transfer of the applicant to the Personality

Disorder Unit at Broadmoor Hospital. Certainly, the changes of view are of

great significance.

Of all of the psychiatrists who gave evidence, Dr Baird was alone in

considering that the benefits flowing from the structured environment of the

State Hospital, were likely, on their own, to alleviate or prevent a deterioration

of the applicant's condition. As was indicated earlier, a number of witnesses

saw a difference between the security aspects and the therapeutic aspects of the State Hospital environment. Dr Baird was clear that the applicant had made progress in the seven years since his admission to the State Hospital.

Compared with his condition when he knew him earlier (from 1991-1993),

he was more accepting of his need for assistance and more engaged with the

hospital. This followed what Dr Baird described as the four stages involving

the active, psychotic symptoms being resolved, the settling-in to the hospital

and testing the limits, the close monitoring and assessment of his potential,

and the more recent increase in his freedoms along with deciding what should

happen next. He considered that the progress had involved both alleviation of

and prevention of deterioration in the applicant's condition and was due to the

medical and nursing care environment of the hospital - the security and

controlled environment, the therapeutic contact with clinical staff, the

maintenance of a positive relationship and the handling of problems in a

sensitive, clinical way.

Dr Baird concluded that the applicant's mental disorder was susceptible to

treatment which would continue to alleviate his condition and would prevent

a deterioration in his condition. The elements of this treatment were "the

professional staff associated with him in the hospital and the sophisticated

inter-actions which they have with him". In evidence, Dr Baird agreed that

he was describing the structured environment of the State Hospital and that

these "sophisticated inter-actions" were the most appropriate form of

treatment for the applicant. He also said that the sophistication lay in the

balancing of an empathetic relationship with the applicant against the need

to impose constraints and restraints on his behaviour, which required

particular forensic psychiatry expertise. The goal was to enable a patient

such as the applicant ultimately to gain some control and understanding of

himself, to enable him to move on to a less controlled setting. In this regard,

Dr Baird laid particular importance on obtaining more independent information about the applicant's background and his life prior to admission, including his offending in England and Scotland and the whole criminal record, so that he could understand to an even greater extent the reasons for his behaviour in the past.

The information which Dr Baird sought was absent from the files available

about the applicant and had not been obtained at the time of the applicant's

admission to the State Hospital from relatives, friends or contacts, nor from

police, medical or social service sources. Although Dr Baird considered that

only a body such as the State Hospital, with all its contacts, could obtain this

information, the hospital had not been able to obtain it earlier, and this included the period when Dr Baird himself was the applicant's Responsible Medical Officer. In reality, it is very difficult to accept that much of this further information will still be available or will be made available after the passage of so many years. While fully appreciating the therapeutic use to which Dr Baird envisaged this information being put, the fact that it has not been obtained hitherto seems to me, as was suggested by a number of the other

psychiatric witnesses, that it is unlikely now to be obtained and that its

importance is no greater now than it would have been years ago, perhaps

being used in association with the treatment then being sought by Dr White.

Dr Baird considered that another example of the complexity of the case was

that the applicant's case was longer-term rather than shorter-term. His

experience tended to suggest that, although people could be pessimistic in the

short term, in the longer term there could be change for the better. Dr Baird

also expressed caution against placing undue significance and giving undue

prominence to specific, focused and relatively short-term psychological or

counselling interventions. He was not opposed to them but considered that

they were not the whole answer. He appreciated the desire of energetic and

enthusiastic clinical staff seeking quicker outcomes as a result of modern,

psychiatric practises; but felt that the human condition was more complex than being susceptible to focused, programmes and courses, and needed a much more general and longer-term approach to deal with a complex, global

problem. He also observed on several occasions that the effectiveness of

the structured environment of the State Hospital tended to be overlooked

until one saw the nature of relationships in institutions, such as prisons, where

it did not exist and where progress such as the applicant had made did not

occur.

Although Dr Baird was alone amongst the psychiatrist witnesses in his view

of the effectiveness of the structured environment in alleviating the applicant's

condition and in preventing deterioration, and in his relative optimism about

the effectiveness of future treatment, because of his experience and the esteem

in which he is rightly held by his professional colleagues and by the Courts, his evidence requires to be examined with particular care. He has been a

Consultant Psychiatrist for 18 years and has worked exclusively in forensic

psychiatry, having spent 12 years in practice at the State Hospital and is

extremely familiar with psychopathy and its treatment. He was the

Responsible Medical Officer for the applicant from his admission until 1993

and he has been able to provide an opinion which is well-informed and yet now detached from day-to-day involvement. Although aware of the contrary

opinions of others, he was comfortable in his own opinion and in defending it.

Having considered the detail of the evidence of the other psychiatrists involved in this case, it is clear that they have reached different conclusions to those of Dr Baird based upon their clinical experience and judgement. Furthermore, all of these witnesses are highly regarded and experienced clinical psychiatrists, most of whom have had extensive forensic psychiatric experience and some of whom have had close and detailed experience of the workings, environment and regime at the State Hospital. It is also clear from the detailed and searching questioning to which they were all subjected that they had taken account of the factors and elements relied upon by Dr Baird but that none of them considered that the structured environment of the State Hospital was likely, on its own, to alleviate or prevent a deterioration of the applicant's condition.

Having given the most careful and anxious consideration to this conflict of

views, I have concluded that the weight of evidence is against Dr Baird's

view and I have accepted the majority view that such treatment as the

applicant has received from the structured, controlled and caring environment

at the State Hospital has not alleviated or prevented a deterioration of his

condition, and is not doing so.

I accept, of course, that it is so much a matter of opinion and judgement and

that it can never, for example, be said that a person such as the applicant has

not changed or has not benefited from the structured environment. Neverthe-

less, I also consider that I have been satisfied that it may never be possible to

alleviate a condition of anti-social personality disorder in the sense that it is

cured - I think it may always be there. As Dr Chiswick put it, with some

people, "It may be possible to help them live with the condition and to that

extent it is alleviated, and obviously that is the ideal to aim for. Prevention

of deterioration which is preventing it from getting worse is obviously a

second best".

In addition, although I accept that it is very difficult to assess, I have not

been satisfied that the condition of the applicant has been prevented from

deterioration because of the structured environment alone. I was not

satisfied that there was evidence of linking anything that could be called

treatment with the condition of the applicant either being alleviated or

prevented from deteriorating, nor that there was evidence that there was

a linkage or an effect of the controlled and therapeutic environment upon

the condition of the applicant.

Although the question of whether or not the treatability test is satisfied is

ultimately a matter of legal decision for the Court, based upon the facts of

each case, it is clearly medical evidence which will require to underpin the

application of the facts to the legal definition. The European Court of

Human Rights in the

WINTHERWERP CASE 1979/80 2EHRR 387 at paragraph 37

commented upon this in the context of the lawful detention of persons of

unsound mind in terms of Article 5 sub-paragraph 1 (e) of the Convention.

In particular they stressed that the sub-paragraph could not be taken as

permitting the detention of a person simply because his views or behaviour

deviated from the norms prevailing in a particular society. In paragraph 39,

the Court expresses its opinion on the correct approach to "lawfulness".

In particular the Court agreed with the Commission that there must be no

element of arbitrariness. No-one may be confined as a person of "unsound

mind" in the absence of medical evidence establishing that his mental state

is such as to justify his compulsory hospitalisation. Clearly, in approaching

an appeal under Section 64 of the 1984 Act, the domestic Court will require

to be mindful of that approach. There must therefore be medical evidence

establishing that continued compulsory hospitalisation is necessary or

appropriate.

(iii) As far as the specific treatments are concerned, Dr White made it clear

that, in the circumstances outlined in Finding 7.17, he had changed his mind

earlier this year about the treatability of the applicant's personality disorder.

After discussions with colleagues he had aligned his view with that of the

Medical Sub-Committee. In addition, it appeared to be accepted by Dr White

as his evidence that the most recent psychological information and report was

to the effect that the applicant would not necessarily require to be detained as

an in-patient to receive and participate in some psychological interventions.

In these circumstances and in the light of the evidence of the other witnesses,

I have concluded that there is insufficient evidence that the specific treatments

delineated by Dr White are a factor in this case. They have not been made

available and the evidence is unsatisfactory as to whether they would now be

likely to alleviate or prevent a deterioration in the applicant's condition.

In these circumstances, and upon the evidence, I have concluded that it has

not been shown that the medical treatment is likely to alleviate or prevent a

deterioration of the mental disorder of the applicant nor of the symptoms of

that disorder.

3.5 That being so, I am bound to grant a discharge of the applicant. Since the

treatability test is not satisfied, it is not necessary to consider whether it is

appropriate that that treatment should be received in a hospital, nor whether

it is necessary for his health or safety or for the protection of other persons

(Section 17(1) (b) of the 1984 Act).

In these circumstances, I have 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

been met (and I do not therefore require formally to consider Section

64 (1) (b) ).

3.6 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."

That is precisely the situation here, and I therefore am required to direct the

absolute discharge of the applicant.

It has therefore been in the light of these foregoing considerations that I have allowed 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 difficult task and I would wish to place on record my appreciation.