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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McKay v Secretary of State for Justice [2013] EWHC 3728 (Admin) (27 November 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/3728.html Cite as: [2013] EWHC 3728 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT MANCHESTER

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		27 November 2013

His Honour Judge Sycamore:

1. The claimant, aged 28, is a serving Category B prisoner who was sentenced on 25 October 2002 to discretionary life terms for offences including one count of rape, four counts of robbery, one of assault with intent to rob and one of indecent assault. He was aged 16 at the time of the offences and is now aged 28. His tariff was fixed at 2 ½ years and expired on 25 April 2005.
2. The claimant seeks to challenge the continuing decision of the defendant to refer the claimant to a Dangerous and Severe Personality Disorder ("DSPD") Unit for assessment. Since permission was granted by His Honour Judge Stephen Davies, sitting as a Judge of the High Court, at an oral hearing on 23 April 2013 the defendant has reconsidered and maintained his decision in letters of 24 May 2013 and 13 September 2013. The parties agreed that the lawfulness of the earlier letters is now academic and that these decision letters should now be the focus of the hearing. I agreed to treat the matter as a "rolled up" hearing. As the challenge is now to decision letters in respect of which the claimant has not been granted permission I must first consider whether in the light of those decisions an arguable case for permission is disclosed. I observe that in refusing permission on the papers on 8 February 2013 Supperstone J said:

"Where as in the present case there are conflicting opinions as to whether the claimant is suitable for treatment, the defendant is entitled to refer so that the DSPD may then assess for itself which of the opinions is correct".

3. Although in granting permission His Honour Judge Davies did not specifically limit the grounds to be argued at the substantive hearing I am informed that, on the basis of the information then available to him, he considered that there were two arguable grounds of challenge. These are identified in the defendant's skeleton argument at paragraph 31 as follows:

i) The defendant had not given adequate reasons for differing from the conclusions of Dr Hill and the Parole Board; and

ii) The defendant had not explained why he had preferred a DSPD Unit over treatment in Therapeutic Community ("TC") despite the wording of paragraph 22 of Prison Circular 21/2008.

4. The claimant summarises the issues arising in the claim in his skeleton argument as follows:

i) Is it reasonable for the defendant to have concluded that the claimant might be suitable for SPD treatment?

ii) If so, is it reasonable/permissible for him to direct that the claimant must submit to SPD assessment or else be deprived of access to other risk reduction opportunities?

iii) To what extent is the defendant required to take account of determinations made by the Parole Board following the hearing of oral evidence?

and sought in submissions to me to raise two additional points:

i) That it was irrational not to explain why the assessment could not take place in prison and

ii) A failure to interview the claimant before making the decision under challenge.

5. Before I proceed to deal with the question of permission I should deal with a factual issue which was drawn to my attention. This relates to the DSPD Unit to which the claimant would be referred. The claimant appears to proceed on the assumption that he would be referred to the Westgate DSPD Unit at HMP Frankland, Durham and identifies one of his concerns, derived from the information sheet from the Westgate Unit, as the lengthy waiting time, said to be between 12 and 18 months, until the assessment process begins. In fact the referral in his case would be to the Unit at HMP Whitemoor (known as the FENS Unit). This information is derived from the statement of Kathy Burrow, the Head of Psychology and Programmes at HMP Prison Frankland dated 24 January 2013. Ms Burrow explains that this is due to the claimant's home area falling within the appropriate catchment area for referral. The information provided to the court, on the instructions of the defendant to his counsel, was that a placement for assessment at the FENS Unit could be made within 6 weeks, not 18 months as suggested in the claimant's skeleton argument, with a 16 to 20 week assessment period.
6. This application has to be seen against the background of the necessary risk assessments in dealing with the claimant, a prisoner convicted of serious violent offences involving attacks late at night on young women who were alone.
7. As part of that process in 2004 the claimant had attended a Sex Offenders Treatment Programme ("SOTP") but was de-selected for breach of confidentiality requirements. He had made little progress on a subsequent SOTP in 2005, revealing little about his motivation for offending.
8. There were further assessments in 2006 and 2007 which were indicative of a high level of psychopathy and that the claimant was unlikely to benefit from further offending behaviour work. It was acknowledged that the traits which were suggestive of schizoid or schizotypal personality disorder were also indicative of psychopathy. Thus it is possible that the claimant suffers from both a schizoid or schizotypal personality disorder and psychopathy.
9. There were Parole Board hearings in 2008 and 2009 which did not recommend release or transfer. In February 2010 the claimant was expressing a willingness to attend a DSPD Unit. There was a further Parole Board hearing on the 29 February 2012 which proceeded by way of oral hearing. The decision was dated 13 March 2013 and the Parole Board decided that the claimant should not be released and was not suitable for transfer to open conditions. Expert reports had been provided on behalf of both the claimant and the Prison Service for the purposes of that Parole Board hearing. The expert report provided on behalf of the Prison Service recommended that the claimant would benefit from assessment at a DSPD Unit. The report prepared on behalf of the claimant was from a Dr Hill who was of the view that a referral was inappropriate and expressed a preference for sentence progression by way of attendance at a TC.
10. The Parole Board was critical of the approach of the Psychology Department at HMP Frankland saying in particular:

i) "…. the Prison Psychological Department, although aware that you were in all probability unsuitable for a DSPD Unit have resolved that you should be assessed for a DSPD Unit.

ii) …. the written policy of HMP Frankland, that if a prisoner refuses to do or be assessed for DSPD that that will not impede his progress, was being ignored ….

iii) …. the Panel found Dr Hill's report persuasive and did not see any convincing evidence that a DSPD Unit was appropriate to your needs….".

11. The Psychology Department at HMP Frankland nevertheless remained of the view that the claimant should be assessed at a DSPD Unit. On 1 May 2012 the solicitors acting for the claimant wrote a letter before action challenging the decision that the claimant be assessed for SPD to which the defendant responded by letter of 23 May 2012 and making it clear:

i) That the Psychology Department was not suggesting that SPD services were necessarily appropriate but that a referral for assessment would allow them to ensure that he would be able to access the services if they were found to be appropriate for him and

ii) That other forms of treatment were available to the claimant irrespective of this view.

12. As was pointed out to me by the parties, on 13 September 2012 the Director of HMP Dovegate, a prison operated by Serco, not the defendant, wrote to the claimant's solicitors indicating that a recommendation for DSPD would prevent the claimant from being accepted at HMP Dovegate TC. I make two observations in respect of this letter, first the claimant is a long way out of time to challenge this. It was first referred to in the claimant's skeleton argument in relation to the hearing before me. In any event Serco has not been joined as a party to these proceedings.
13. In my judgment the correct questions to address in determining whether an arguable case is disclosed for the purpose of permission are those identified by His Honour Judge Stephen Davies when granting permission on the original grounds to which I made reference at paragraph 3 of this judgment.
14. A careful reading of the letter of 24 May 2013 demonstrates that the writer Julie Luther who is the PD Pathway Lead Psychologist carefully reviewed the decision to make a reference for assessment for DSPD. Julie Luther acknowledged that the view expressed by the claimant expert Dr Hill was that although the claimant continues to pose an unacceptable risk to the public her preference was for a TC. Ms Luther went on to explain why she had formed the view that in her professional opinion there was sufficient evidence to pursue a referral for a DSPD assessment. It is quite clear that Ms Luther had regard for the views expressed by both Dr Hill and the Parole Board:

"…. whilst I have great respect for the clinical expertise of Dr Hill and those who sit on the Parole Board, it is my view that it would be remiss not to highlight, in my professional opinion, that continued exploration into DSPD in your case is warranted …. I believe it would be psychologically ill informed to simply state that you are clearly inappropriate for DSPD services. I am of the opinion that it would be most beneficial to address these uncertainties and encourage yourself to actively engage within the DSPD assessment process ….".

Ms Luther did not exclude TC saying:

"…. in my opinion, it may be too simplistic to state, without further exploration, that you would benefit from a Therapeutic Community. The appropriateness of such treatment needs exploration. The Probation Circular 21/2008 suggests that consideration be given to referral to a TC as an alternative to DSPD, however it states that the individual should be "willing to work as part of a community, (and) participate in groups". Given the documented difficulties that you experienced during your last engagement with group work, during two Core Sex Offender Treatment Programmes, further exploration of your level of motivation and expectation is warranted before further group work would be appropriate ….".

15. In the second letter which was for consideration at the rolled up hearing, 13 September 2013, Ms Luther responded to a letter from Dr Hill of 2 August 2013 saying as follows:

"…. therefore, whilst reviewing all of the information, including the ongoing debate between HMP staff and Dr Hill, I continue to support a referral for a DSPD. Whilst Dr Hill clearly feels that there is sufficient evidence to rule out DSPD as part of Mr McKay's Sentence Plan, I feel there continue to be areas where a more informed assessment should be made, namely presence of personality disorder, and level of psychopathy, both of which would be clarified more comprehensively via a DSPD assessment process.

and

"…. it appears that to date no formal assessment of personality disorder has been conducted. In her report, Dr Hill reports that, in her view, there is no recent evidence of schizoid, borderline or schizotypal traits. However I would suggest that this hypothesis has not been fully explored – generally prison staff are not trained to identify or monitor such traits, and therefore would not record relevant behaviours on Prison Service monitoring systems – which is the information that Dr Hill would have relied upon, other than her observations in interview, to reach her conclusions. Additionally – there have not been any assessments to understand the reasons for these traits to be no longer present (if this is the case) – which could be due to environmental factors rather than personality changes, or development of better management strategies – this will be something which could be explored in a full personality assessment ….".

and

"…. in summary, whilst reviewing the case of Mr McKay, as well as considering my respected colleague – Dr Hill's opinions, I continue to be believe that Mr McKay would benefit from a referral for a DSPD assessment.

16. I refuse permission on this rolled up hearing. In my judgment this is a classic example of a situation in which two experts disagree. It is not for the court to interfere and substitute its own view. There is nothing to support the view that Ms Luther's decision is arguably Wednesbury unreasonable nor that Ms Luther disregarded the view expressed by the Parole Board in March 2012 as is apparent from my analysis above. It is quite clear that Ms Luther did take those views into account in forming her views. It has to be borne in mind that the views expressed by the Parole Board were formed from a single hearing. Ultimately the question was one for the weight to be given by the decision maker to that factor in reaching a conclusion. At the end of the day this ground is unarguable as Ms Luther was entitled, and indeed required, to exercise her own clinical judgement and in so doing it was open to her not to defer to the view expressed by the Parole Board.
17. Similarly my analysis of the decision letter of 24 May 2013 demonstrates why it was that she preferred referral to a DSPD Unit for assessment over treatment in TC whilst not excluding TC as an appropriate setting in the event that the claimant was found unsuitable for DSPD.
18. The information available to me in dealing with this rolled up hearing was very different and much more informative than that available to Judge Davies when granting permission on the information then available.
19. I refuse permission as it is clear that there are no arguable grounds for challenge to the two decision letters with which I am now concerned, namely 24 May 2013 and 13 September 2013.