Mental Health

LA v Mental Health Tribunal for Scotland, Sheriff Principal B A Lockhart, Hamilton Sheriff Court, 20 July 2011

Mon, 28 Nov 2011 20:02:00 GMT

This was an appeal against the respondents’ decision on 20 April 2011 in terms of section 324(5) of the Mental Health (Care and Treatment)(Scotland) Act 2003 to refuse the appellant’s application for revocation of a section 44 short term detention certificate.

At the original hearing in respect of the application, the respondents relied on DET2 form (a proforma used by most detaining authorities) which was missing page 2. The appellant’s solicitor challenged the lawfulness of the detention, submitting that the certificate did not sufficiently explain how the conditions in section 44(b)-(e) for short term detention were met. The Tribunal heard evidence from the minuter, the patient and the patient’s husband and held that the relevant conditions continued to be met in respect of the patient and that the detention authorised by the certificate remained necessary. The application to revoke the certificate was accordingly refused.

On appeal, the appellant submitted that there was insufficient material to show that section 44(4)(a) to (e) had been obtempered. The incomplete DET2 was not a valid certificate. It was conceded that the terms of section 44(4)(a), (d) and (e) had been complied with but that section 44(4)(b) and (c) had not been complied with. It was submitted that because the certificate was flawed, the Tribunal had erred in law by proceeding to a hearing as to whether it should be revoked and further, that the Tribunal did not deal fairly and equally with the parties as it did not adjourn to consider the submissions fully.

It was submitted for the respondents that the short term detention certificate was valid and conformed to statutory requirements. The use of form DET2 was not mandatory. Evidence of compliance with section 44(4) could be found in the document before the Tribunal and the Tribunal acted fairly in dealing with all parties.

The minuter adopted the respondents’ submissions. It was clear that the appellant was acutely unwell and detention was necessary. Taking the information contained in the form DET2 minus page 2 in its totality, the statutory tests had been met and there had been no procedural irregularity or unreasonable exercise of discretion.

The Sheriff Principal held that taking the material before the Tribunal as a whole, the respondents were entitled to hold that the minuter had complied with the provisions of sections 44(4)(a) to (e) and 44(9) of the 2003 Act. They had before them a valid section 44 short term detention certificate and were entitled to proceed to hear evidence as to whether it should be revoked. Completion of form DET2 or other document sufficient to satisfy the provisions of section 44(4) and (9) does not require to be done with the same precision as a conveyancing document. The correct approach for the respondents was to consider all the material before them in deciding whether the statutory requirements had been complied with. There had been no procedural impropriety at the Tribunal hearing or unreasonable exercise of discretion in the circumstances. The appeal was accordingly refused, with no expenses due to or by either party.

Variation of a Guardianship Order in respect of J.M., Sheriff Baird, Glasgow Sheriff Court, 8th June 2011

Thu, 15 Sep 2011 20:00:00 GMT

J.M. was an adult who had been placed under the guardianship of Glasgow City Council by the High Court. This was the first order of its kind made by the Court, exercising its criminal jurisdiction under s.58(1A) of the Criminal Procedure (Scotland) Act 1995. J.M. was accused of serious sexual offences against five children between 1973 and 1995. A plea in bar of trial was submitted in July 2007 stating that the then 79-year-old accused was suffering from dementia and was unfit to stand trial. The guardianship order was granted in August 2008. The order was granted indefinitely and granted the Council the power to: gain access to the accused's home; determine and provide appropriate social care services; and provide appropriate medical treatment to the accused as and when required.

On 21st April 2011 the Council applied to vary to terms of the order. J.M.’s condition had worsened considerably since the granting of the order. It was felt that he could no longer remain in the community, requiring 24hr care and support for all aspects of his daily living. His house had become uninhabitable and he had refused the support of care staff at his house. He needed to be in residential accommodation.

The variation was granted by the sheriff. The order was varied to appoint the Chief Social Worker of Glasgow City Council to be the office holder responsible for carrying out the functions imposed by the order. The existing third power was deleted and substituted for the power to assist the adult in attending to medical needs and to make arrangements therefor. The duration of the order was changed from “indefinitely” to a period of 3 years from the date of the amended order. Four additional powers were granted. These were: the power to determine the most appropriate place of residence for the subject of the order and to transport him there as required; the power to return him to his residence should he abscond or wander; the power to assist him in all aspects of his personal care; and the power to escort him whilst in the community.

JG v. Mental Health Tribunal for Scotland, Sheriff Principal Scott, Glasgow Sheriff Court, 17th June 2011

Fri, 01 Jul 2011 13:33:05 GMT

Parties and Background
This was an appeal against a decision of the Mental Health Tribunal for Scotland. The appellant had been subject to a compulsory treatment order since 19 July 2006. In November 2010 the appellant's mental health deteriorated. On 20th December 2010 the Tribunal decided to vary the existing compulsory treatment order from a community-based order to a hospital-based order.

Parties’ Submissions
The appellant argued that the hearing had been conducted improperly because evidence was taken by telephone and there was a suggestion that a witness was not alone. The Mental Health Tribunal for Scotland (Practice and Procedure) (No 2) Rules 2005/519 SSI state that hearings must take place in private. Further, the Tribunal had unreasonably exercised its discretion and had failed to carry out a proper balancing exercise in arriving at its decision. Insufficient weight had been attributed to the breach of procedure.

The respondent argued that there was no evidence to suggest that the privacy of the proceedings had been breached in any way. Such an incident could not serve to undermine the making of an order in relation to a person who was clearly unwell. Regarding the exercise of the Tribunal's discretion, the respondent argued that there was ample foundation for the decision arrived at.

Decision
The sheriff found for the respondents. Any difficulties in obtaining telephone evidence did not materially impact upon the proper conduct of proceedings. The Tribunal did not act outwith its legitimate discretion as there was an abundance of material which served to inform its decision.

LBN v. Fiona Borland and the Mental Health Tribunal for Scotland, Sheriff Principal Lockhart, Ayr Sheriff Court, 9 May 2011

Tue, 21 Jun 2011 16:34:30 GMT

Parties and Background
The appellant was a patient being treated for a mental health illness at Ailsa Hospital. The first respondent was the patient’s Mental Health Officer. The second respondent was the Mental Health Tribunal for Scotland. In March 2011 a short term detention certificate was granted in respect of the appellant. The MHO then applied to the Tribunal for a compulsory treatment order under the Mental Health (Care and Treatment) (Scotland) Act 2003.

The application required to be made within 14 days of the grant of the detention certificate and was to be accompanied by medical reports. The application was made within 14 days; however, the medical reports were received 15 hours late. The Tribunal did not consider that this defect was fatal and granted the application. The appellant appealed against this decision.

Parties’ Submissions

The appellant submitted that the late lodging of the medical reports was a fundamental breach of the legislation which was not capable of being cured. The consequences of the breach were that the appellant would be detained in Ailsa Hospital and would be required to undertake treatment. Accordingly there had been prejudice to the appellant.

The first respondent averred that there had been substantial compliance with the requirements of the 2003 Act. The mental health reports had been delayed in the post and were delivered by fax to the Tribunal when the delay was discovered. There had been very little prejudice to the appellant.

The second respondent argued that the legislation did not specify the consequences of failure to comply with the statutory time limits. Parliament could not have intended that failure to comply with the 14 day time-limit would invalidate the application in a situation where the reports were lodged some 15 hours late. There was no prejudice to the appellant.

Decision

The Sheriff Principal refused the appeal and upheld the Tribunal’s decision. The delay did not invalidate the application nor did it prejudice the appellant. There was substantial compliance with the 2003 Act by the deadline and total compliance 15 hours later. Parliament did not intend that a 15 hour delay would frustrate the overriding purpose of the legislation.

J.G. v. Mental Health Tribunal for Scotland, Sheriff Principal James A. Taylor, Glasgow Sheriff Court, 14 October 2010

Sun, 02 Jan 2011 20:06:35 GMT

On 13 April 2010, the mental health officer of the appellant was in possession of a report which expressed the view that the appellant had a mental disorder such that an application to the Mental Health Tribunal under section 63 of the Mental Health (Care and Treatment) (Scotland) Act 2003 was warranted. Prior to being in a position to make an application under Section 63, the mental health officer required to have two medical reports supporting the need for an application for a compulsory treatment order. Before he came into possession of a second report the mental health officer gave notice to the appellant of his intention to apply for a compulsory treatment order.

In this appeal under section 320 of the 2003 Act, it was submitted that the mental health officer had not compiled with section 60 in that notice was given to the appellant before the duty to make an application to the Mental Health Tribunal, imposed by Section 63, had crystallized. The duty to make a compulsory treatment order did not arise until he was in receipt of the second medical report and that there had been prejudice to the appellant by virtue of the notification having been given to him prematurely. It was submitted that the issue was partly one of confidence in a patient being able to rely upon what a mental health officer said. The appellant submitted that the court should be reluctant to endorse a position where a mental health officer could undermine the confidence which a patient was entitled to have in the mental health officer/patient relationship and moreover, that distress could be occasioned to patients in such situations.

On behalf of the respondents, it was submitted that it was quite common for the mental health officer to give notice to the patient in advance of being in possession of a second medical report, in order to allow the patient more time to seek legal advice. Such a practice, it was said, was to give recognition to the principle set out in Section 1(3)(d) of the Act to the effect that it was important to provide such information and support to the patient as was necessary to enable the patient to participate in the proceedings. A balance had to be struck between causing distress to the patient and giving early notice, and accordingly, more time to prepare.

Acknowledging the deviation from the procedure prescribed by the 2003 Act, the Sheriff Principal nonetheless came to the conclusion that the purpose of the scheme of notification had been achieved and that the extent of non-compliance was not serious. Moreover, the Sheriff Principal concluded that the non-compliance was not enough to render the mental health proceedings invalid, as the patient had not suffered any prejudice and his relationship with his mental health officer had not suffered as a result of the early intimation. Accordingly, the appeal failed.

Dispensing with Service of Applications under the Adults with Incapacity (Scotland) Act 2000 on the Adult Application in respect of DC, Sheriff J A Baird, Glasgow Sheriff Court, 22 October 2010

Thu, 04 Nov 2010 22:10:41 GMT

On 21 October 2010, an application in terms of the Adults with Incapacity (Scotland) Act 2000 was received at Glasgow Sheriff Court, for the grant of powers of guardianship relating to the financial and welfare affairs of an adult.

The application in question sought to dispense with the requirement of intimation on the adult, in terms of section 7(1)(d) and 11(2) of the Act.

The court noted that service of applications under the 2000 Act was regulated by the provisions of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, which by virtue of Rule 3.16.4(1)(a) stipulates that service shall be made on the adult. The Sheriff noted that section 11(1) of the 2000 Act provides that where apart from the provisions of section 11(1), intimation of any application would be given to an adult "and the court considers" that the intimation "would be likely to pose a serious risk to the health of the adult", the court may direct that intimation shall not be given. Rule 3.16.5 of the Rules provides that where in any such application two medical certificates are produced stating that intimation to the adult would be likely to pose a serious risk to the health of the adult, the sheriff may dispense with such intimation.

In the present case, a form completed by two medical practitioners had been submitted in support of the application, purporting to justify dispensing with intimation. However, the Sheriff noted publicly that the form in question was officially produced under authority of the Adults with Incapacity (Evidence in Relation to Dispensing with Intimation or Notification) (Scotland) Regulations 2001 (SSI 2001/79). The Sheriff noted that those Regulations had no application in relation to the provisions of section 11(1) of the Act. The Sheriff noted that the submission of this form was “wholly inappropriate” for submission for the purposes for which it was submitted.

The Sheriff moreover noted the court’s disappointment that only two lines were provided on the form, to enable the medical practitioner concerned to stage a cogent reason as to why intimation or notification should be dispensed with. Further, the Sheriff noted that one certificate stated simply that adult was “too disturbed and mentally ill”, which in any event was insufficient to satisfy the test under section 11 regardless. Application dismissed.

The City of Edinburgh Council v. D, 30 September 2010, Sheriff Fiona Lennox Reith QC

Sat, 09 Oct 2010 15:23:06 GMT

The respondent was admitted to hospital in May 2001 with suicidal ideation and a strong desire to harm himself. He was diagnosed as having a neuro-developmental disorder, Asperger's syndrome. In subsequent years, the respondent had been the subject of guardianship proceedings, due to concerns over his self-care, personal hygiene and behaviour with others in shared spaces.

In August 2007, an order was granted under section 57 of the Adults with Incapacity (Scotland) Act 2000, appointing the applicant as guardian of the respondent for a period of three years, with the single power to decide where the respondent should reside. The applicant sought renewal and variation of this guardianship order in the present action; conversely, the respondent sought recall of the order.

Having regard to sections 1 and 57 of the 2000 Act, the Sheriff considered whether the respondent was incapable in relation to decisions about, or of acting to safeguard his interests in, his personal welfare, and whether he was likely to continue being so incapable, as a result of his condition. Having heard evidence from the only practising consultant neuro-psychiatrist in Scotland, the Sheriff accepted it was clear the respondent could not understand the social consequences of his actions, and does not understand the nature of the decisions he is making. The Sheriff accepted that consequently the respondent cannot adequately look after himself. The Sheriff also noted from the evidence that the duration of the respondent's incapacity is likely to be life-long.

The Sheriff considered that there were no other means through which the respondent’s interests in his personal welfare could be satisfactorily safeguarded or promoted, except through guardianship. The Sheriff noted that if no guardianship order were granted, the respondent would likely move into unsupported accommodation, be unable to cope, and his mental health would deteriorate. The respondent’s application for recall having not been granted, the Sheriff considered in terms of section 1(2) of the 2000 Act that intervention in the form of a guardianship order would benefit the respondent in ensuring the respondent was in a safe and secure environment, with ongoing monitoring to ensure problems with basic hygiene and sanitation in his accommodation were identified at an early stage. In terms of section 1(3), the Sheriff considered that this guardianship order would be the least restrictive option in relation to the freedom of the respondent, consistent with the purpose of the intervention.

The Sheriff additionally considered that the respondent’s refusal to compile with a decision of his guardian in relation to his accommodation had been unreasonable, and granted a section 70 order and warrant to this effect.

Application for renewal of guardianship granted for a further period of three years; application for recall of guardianship refused.

W.S. v. The Mental Health Tribunal, The Scottish Ministers, the Ayrshire and Arran Health Board & Others [2010] CSIH 74

Thu, 26 Aug 2010 13:41:48 GMT

The appellant was admitted to the State Hospital in 1996. In May 2007, the Mental Health Tribunal for Scotland made an order under section 264 of the Mental Health (Care and Treatment) (Scotland) Act 2003 declaring that the appellant was being held in conditions of excessive security. The appellant’s psychiatric condition was such that no suitable alternative accommodation could be found for him in Scotland and he was transferred to Linden House, a medium-secure facility in Yorkshire. On 17 and 18 July 2008 the appellant was involved in a disturbance at Linden House in which staff were threatened and property was damaged and the Secretary of State for Justice made an order under section 80 of the Mental Health Act 1983 for the return of the appellant to the State Hospital. He appealed to the Tribunal against the decision to return him to Carstairs, purportedly under section 220 of the 2003 Act. Here the appellant sought to appeal against a decision of the Tribunal dated 11 August 2008 to refuse to make an order under section 220(5) of the 2003 Act returning the appellant from the State Hospital, Carstairs to Linden House. Here the court considered whether the appeal was competent. The appellant was transferred by the Secretary of State for Justice in the exercise of his powers under the English legislation and not under section 218 of the 2003 Act. The court considered whether the right to appeal to the Tribunal under section 220 of the 2003 Act, and consequently the right to appeal under section 322 could still apply or whether other remedies were available to the appellant, for example, to challenge the decision of the Secretary of State for Justice by an application for judicial review of it in the English courts or to apply again to the Tribunal under section 264 of the 2003 Act.

M.J.J.A.B. v. The Scottish Ministers [2010] CSIH 31

Thu, 08 Apr 2010 17:41:36 GMT

On 10 May 1996, the appellant pled guilty at Kilmarnock Sheriff Court to a charge of assault and robbery and a charge of assault. While on remand prior to sentence the appellant was transferred to the State Hospital at Carstairs for assessment and was diagnosed as suffering from schizophrenia. At sentencing the appellant was made the subject of a hospital order requiring his compulsory detention in the State Hospital under section 58 of the Criminal Procedure (Scotland) Act 1995. The appellant was also made the subject of a restriction order under section 59 of the 1995 Act which restricted his discharge from hospital. On 8 December 1997 the appellant was transferred from the State Hospital to Ailsa Hospital, Ayr, where he remained until 19 July 1998 when he absconded to Blackpool. He was subsequently found and returned to Ailsa Hospital and then transferred back to the State Hospital. He remained in detention in there until 4 April 2005 when he was transferred to Ailsa Hospital, where he continued to be detained when, on 14 September 2005, the appellant made a summary application to the sheriff at Ayr under section 64 of the Mental Health (Scotland) Act 1984 for either an absolute discharge, or alternatively a conditional discharge, from the hospital order pronounced on 10 May 1996. On 5 April 2007 the sheriff refused the application and in his interlocutor stated inter alia:- "...that the Applicant being a restricted patient subject to a Restriction Order is suffering from a mental disorder, the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital whether for medical treatment or not". On 21 March 2009 the appellant was transferred to a hospital in England by virtue of a warrant for that removal issued by the Scottish Ministers under regulation 10 of the Mental Health (Cross border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005, [SSI 467/2005]. In terms of regulation 23 of those Regulations, on such a removal "...the measure which authorised the patient's detention in hospital in Scotland shall cease to have effect when the patient becomes subject to relevant measures in the country or territory to which the patient is removed". The appellant was now subject to the corresponding provisions of English law and the jurisdiction of the administrative and judicial authorities in England and Wales; and therefore a Scottish court could not make any competent order discharging the appellant, however, albeit the Scottish court no longer had the power to order his discharge the court considered it right to proceed to hear the merits of the appeal. Here the court considered in light of the whole circumstances whether the sheriff assessed “serious harm” correctly; particularly in relation to his finding that the appellant had repeatedly raped a female “Ms H” while they were both on abscond from Ailsa Hospital between 26 September 2006 and 16 October 2006. It was submitted by counsel for the respondents that, even if the finding by the sheriff in relation to the rape were to be removed, there was still sufficient to justify the sheriff's decision.

Petition of R.M. v. The Scottish Minsters [2008] CSOH 123

Wed, 03 Sep 2008 17:16:00 GMT

Here the petitioner, a detainee in Leverndale Hospital under a compulsion order under the Criminal Procedure (Scotland) Act 1995, sought to challenge the effectiveness of the provisions of section 268 of the Mental Health (Care and Treatment) (Scotland) Act 2003. It was submitted on behalf of the petitioner that the level of security applied to him was excessive and that he wished to reside in an "open ward", thus improving the quality of his life and increasing the prospects of his ultimate liberation. It was submitted on behalf of the petitioner that there should be a formal mechanism which would enable him to challenge his conditions of security. Here the petitioner sought declarator that the respondents had failed in their statutory duty to lay before Parliament regulations in terms of sub-sections 268 (11) and (12) of the 2003 Act and the existence of such regulations were essential for the practical operation of the section as a whole. Here the court considered whether there was such a duty and whether the actings of the reposndents were unlawful.

Mrs Elizabeth Laurie v The Mental Health Tribunal for Scotland and others -Paisley Sheriff Court 30/8/07

Thu, 18 Oct 2007 18:28:00 GMT

Appeal - Merits of decision of the Mental Health Tribunal for Scotland

An appeal was lodged challenging the validity of a decision of the Mental Health Tribunal for Scotland. It is understood to be the first case in Scotland in which a decision of the Tribunal has been directly challenged on its merits. In February 2007 the Tribunal refused an application by the present Appellant to vary a Compulsory Treatment Order in respect of her son, under which he was detained in a Psychiatric hospital. The Appellant wished to substitute hospital detention for appropriate community based measures so that her son could return home and live with her under supervision and with support. The Appellant’s son suffered from Asperger’s Syndrome. The other option before the Tribunal had been to transfer the Appellant's son to an institution which had a medium-secure Asperger Unit. This option, which the Tribunal preferred, depended very much on the terms of a report by a consultant psychiatrist, Dr. K, who worked at the specialised unit. Dr. K did not give evidence before the Tribunal. The Appellant sought to have the Tribunal’s decision set aside and to have the case remitted to the same Tribunal for fresh consideration. All parties agreed that the Tribunal’s decision was a discretionary one. In order for this to be set aside, it had to be shown that, in excercising its discretion, the Tribunal had acted unreasonably. Sheriff Principal Kerr rejected most of the Appellant's arguments. He was concerned, however, about the manner in which the Tribunal had treated the terms of Dr. K's report. In his view, Dr. K's opinion were very important to the decision which the Tribunal was called upon to make. Although the Sheriff Principal accepted that it was open to the Tribunal to proceed on the basis of a report without the need to call the author of the report as a witness, in this case the Tribunal had placed too much weight on Dr. K's report. The Tribunal had failed to call Dr. K as a witness, which it would have been entitled to do, or even to consider doing so. It had then omitted to consider how to evaluate the terms of the report appropriately. The appeal was allowed and the case was remitted to the Tribunal for consideration anew.

Keith Robbins v. Caroline Mitchell & Mental Health Tribunal for Scotland

Sun, 13 May 2007 23:00:00 GMT

Appeal to Sheriff Principal

Lothian Health Board v. Brian Martin & Mental Health Tribunal for Scotland

Thu, 26 Apr 2007 23:00:00 GMT

Appeal to Sheriff Principal

JT and Legal Guardian for KT v. A Decision by the Additional Support Needs Tribunal Dated 22 September 2006 Refusing a Request for a Co-Ordinated Support Plan to be Prepared by Stirling Council [2007] CSOH 67

Fri, 30 Mar 2007 00:00:00 GMT

Appeal under Section 21 of the Education (Additional Support for Learning) (Scotland) Act 2004

Holmehill Limited v. The Scottish Ministers & Stakis Limited & Stirling Council

Thu, 27 Apr 2006 00:00:00 GMT

Proof Before Answer - Summary Application under Th