Delusions May Have a Foothold in Reality: When Later Re-diagnosis Does Not Undermine a 1998 Hospital Order

1. Introduction

This was an appeal against sentence brought following a reference by the Scottish Criminal Cases Review Commission under section 194B(1) of the Criminal Procedure (Scotland) Act 1995. The appellant sought to show a miscarriage of justice in a 1998 disposal: a hospital order coupled with a restriction on discharge.

The underlying offending (to which the appellant pled guilty in March 1998) involved (i) a breach of the peace and (ii) a serious assault on a solicitor (referred to here as Ms B) immediately after the appellant was granted bail. The appellant’s conduct formed part of a long-running pattern of grievance, pursuit, and escalation following the termination of a solicitor-client relationship.

The appeal was driven by contemporary psychiatric material: the appellant’s treating clinicians now regarded his presentation as best explained by personality disorder, not paranoid delusional disorder. The central question became whether that later diagnostic shift—supported by a richer “longitudinal history”—showed that the statutory preconditions for the 1998 hospital and restriction orders were absent, such that the disposal was a miscarriage of justice.

2. Summary of the Judgment

While accepting that new post-sentence information can assist in evaluating earlier mental state, the court held that the fresh material did not establish that the 1998 disposal proceeded on an erroneous diagnosis. In particular:

• Delusions do not require an absence of real-world triggers; they may have an “understandable foothold in reality”.
• Subjective “understandability” of a belief (including in light of adverse life experiences) does not prevent it being a delusion.
• Remission of delusional disorder is supported by the literature and by ICD-11 categories (including “full remission” and “partial remission”).
• Contemporaneous clinical observation of the appellant’s belief-fixity and conviction in 1998 was accorded significant weight.

3. The Statutory Framework (as applied)

3.1 Hospital order requirements

The 1998 disposal was governed by section 58 of the Criminal Procedure (Scotland) Act 1995, which required, among other things, that the court be satisfied (on written or oral evidence of two medical practitioners) that the grounds in section 17(1) of the Mental Health (Scotland) Act 1984 applied. The hospital order had to specify the form of mental disorder (then: “mental illness” or “mental handicap”).

3.2 Restriction order requirements

A restriction order under section 59 of the 1995 Act required the court to consider the nature of the offence, antecedents, and the risk (as a result of mental disorder) of further offending if set at large, and to conclude that the restriction was necessary to protect the public from serious harm.

3.3 Transitional context

The court noted that a hospital order with restriction has since been deemed a compulsion order with a restriction order (“CORO”), and may be appealed in the same manner as a sentence (1995 Act, section 60). The legal categorisation of personality disorder also changed over time: it was not a distinct statutory category under the 1984 Act as it stood in 1998, but later became expressly included and then separately recognised in the 2003 regime.

4. Analysis

4.1 Precedents cited and their influence

(a) Kennedy v HM Advocate [2024] HCJAC 50, 2025 JC 156

Cited for the general appellate power: the court may interfere with sentence where satisfied it is a miscarriage of justice (1995 Act, section 106(1)(b)). This framed the appeal as one about miscarriage, not merely whether a different disposal might be preferred today.

(b) Johnstone v HM Advocate [2013] HCJAC 92, 2013 SCCR 487

This was the controlling domestic authority on how appeals against hospital/restriction disposals are assessed. The court relied on Johnstone for these propositions:

• Time-anchor: the question is whether a miscarriage occurred at the time of sentence, not whether practice today would differ.
• Fresh evidence limits: later availability of substantially similar psychiatric evidence is not “fresh”.
• No retrospective recalibration: the court will not quash valid orders merely because psychiatric practice or expectations have changed.
• Court’s role: diagnosis/treatability are matters for the court, supported by (usually psychiatric) medical evidence.

In this case, the court treated Johnstone as allowing engagement with post-sentence developments, but only insofar as they illuminate whether the original disposal rested on an erroneous foundation amounting to miscarriage.

(c) Mackison v Bernard [2025] HCJAC 45, 2026 JC 47

Cited to justify the relevance of post-conviction developments: later information can be important in reaching a sound conclusion on a person’s earlier mental state. The court used this to accept, in principle, that a longitudinal history could be evaluated even though it post-dated the 1998 sentencing exercise.

(d) Reid v HM Advocate [2012] HCJAC 150, 2013 SCCR 70

Relied upon by the appellant as an analogy for successfully establishing that hospital detention was not justified. The court did not treat Reid as determinative, instead emphasising that the present appeal turned on whether the 1998 diagnosis had been shown to be wrong (and thus whether the disposal was a miscarriage).

(e) MB v Spain, application 38239/22, 6 February 2025

Invoked by the appellant to frame an Article 5 ECHR “unsound mind” compatibility argument: domestic courts must subject expert evidence to strict scrutiny and reach their own conclusion. The court’s reasoning implicitly responded by undertaking its own evaluative assessment of the competing expert views, including the diagnostic criteria discussion and remission evidence, rather than deferring mechanically to any single clinician.

---

4.2 The court’s legal reasoning

(1) The “fresh evidence” the court was prepared to evaluate

The court accepted it required to evaluate the new longitudinal-history-based evidence alongside the contemporaneous psychiatrist’s evidence, to decide whether a miscarriage of justice occurred. It distinguished the earlier personality-disorder evidence before the sentencing judge (notably from one psychiatrist) from the present material, which was said to provide much greater diagnostic certainty.

(2) “Delusions” and the role of reality-based triggers

A pivotal reasoning move was the court’s rejection of the proposition that a belief cannot be delusional if it arose from real experiences or appears “rational” in light of the person’s history. The court held:

• Diagnostic descriptions of delusional disorder (as placed before the court) expressly allow delusions to have an “understandable foothold in reality”.
• It is not enough that the belief is subjectively understandable to the patient; it may still be a “false belief” held with fixity and conviction.

This addresses a recurrent forensic dispute: whether grievance-fuelled, entrenched narratives are better conceptualised as personality pathology (non-psychotic) or psychosis. The court’s approach allows a delusional framework even where there is a plausible narrative “seed” (e.g., a solicitor withdrawing), if the subsequent belief-system becomes false, systematised, and unshakeably held.

(3) “Delusional intensity” as a shorthand for diagnostic features

The appellant criticised “delusional intensity” as not being a formal ICD/DSM construct. The court treated that as largely semantic: the court translated the phrase into accepted diagnostic descriptors—fixity, conviction, resistance to counterargument, insight—and held that the appellant’s 1998 presentation met that functional description. In effect, the court held that the label mattered less than what it captured clinically.

(4) Remission: why absence of later delusions did not negate their presence in 1998

The appellant’s case relied heavily on the claimed inconsistency between a delusional-disorder diagnosis in 1998 and the later sustained absence of psychotic symptoms, including limited medication response and no relapse under stress. The court accepted that statistical literature has limitations, but found sufficient support for remission:

• Studies cited supported partial or full recovery in a proportion of cases.
• ICD-11 explicitly recognises delusional disorder in partial and full remission.

The court therefore accepted the respondent’s position that the appellant could have had delusional disorder in 1998 which later remitted, leaving personality disorder as the persisting condition. That reconciliation undermined the “later re-diagnosis implies earlier misdiagnosis” inference.

(5) Weighting of expert evidence: contemporaneous examination mattered

Although all experts were “eminently well-qualified”, the court attached “significant weight” to the psychiatrist who examined the appellant in March and August 1998, including shortly after a serious in-hospital incident. The court accepted that paper records can fail to convey the clinical impression of “crossing a line” into delusion. The court also noted that the other expert who had historical involvement did not rely on personal recollection in forming his opinion.

(6) The Johnstone constraint: changes in practice are not enough

The court treated arguments about today’s longer interim assessment periods and later diagnostic tools (for personality disorder) as irrelevant to the miscarriage inquiry. Even if modern practice might have produced a different diagnostic pathway, the question remained whether the 1998 disposal was shown to have proceeded on an incorrect diagnosis.

4.3 Impact and significance

Practical impact on SCCRC-referred mental health disposals

• Longitudinal evidence is admissible and relevant, but it must do more than show diagnostic drift; it must establish that the statutory foundation at the time was wrong.
• Remission is a live explanatory bridge: where later clinicians see only personality disorder, the court may still accept that an earlier delusional disorder existed and later remitted.
• Foothold-in-reality delusions: litigants should expect courts to reject simplistic “it happened, therefore it can’t be a delusion” arguments, especially where a belief becomes systematised and unshakeable.
• Contemporaneous observation retains strong probative force, particularly where the dispute turns on the qualitative “feel” of conviction/fixity that is hard to capture in notes.

Doctrinal impact

The decision reinforces the Johnstone framework while adding concrete guidance on diagnostic reasoning in appeals: the court anchored the concept of delusion in accepted classificatory descriptions, expressly rejecting the necessity of delusions being untethered from reality, and expressly relying on ICD-11 remission categories as a reason not to infer earlier error from later absence of symptoms.

5. Complex Concepts Simplified

5.1 Hospital order vs restriction order

• Hospital order: a criminal disposal authorising detention in hospital for treatment where statutory criteria are met.
• Restriction order: an additional public-protection measure controlling discharge; it is not primarily about treatment, but about risk linked to the mental disorder.

5.2 “Miscarriage of justice” in a sentence appeal

This is a higher threshold than showing another disposal might now be preferred. The court asks whether the sentence/disposal was wrong in law or unjustified on the basis available at the time (with fresh evidence potentially illuminating that earlier position).

5.3 Delusional disorder vs personality disorder (in forensic context)

• Delusional disorder: defined by delusions—false beliefs held with strong conviction and resistance to counterargument. The court accepted that such beliefs may have an “understandable foothold in reality”.
• Personality disorder: enduring patterns of thinking/feeling/behaving that impair relationships and functioning; may produce intense grievances, hostility, threats, and rigid narratives without necessarily being psychotic.
• Comorbidity: the court accepted both can co-exist, and that one (delusional disorder) may remit leaving the other (personality disorder) predominant.

5.4 Remission and ICD-11 categories

ICD-11’s explicit categories—currently symptomatic, partial remission, full remission—were used to support the proposition that delusional disorder can resolve over time, so later “absence of delusions” does not automatically disprove their earlier presence.

6. Conclusion

In [2026] HCJAC 34 the High Court of Justiciary refused to quash a 1998 hospital order with restriction made on the basis of paranoid delusional disorder. While accepting that longitudinal history can, in principle, help determine earlier mental state, the court held the appellant had not shown the 1998 diagnosis was wrong. Two points stand out: (i) delusions need not be untethered from reality and may grow from real events into fixed, false, systematised beliefs; and (ii) remission is a recognised and evidentially supported pathway, meaning that a later diagnostic shift to personality disorder does not, without more, establish that detention was a miscarriage of justice.