B.d. V. The Mental Health Tribunal For Scotland
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Mhairi M. Stephen |
| Court | Sheriff Court |
| Docket Number | B1749/13 |
| Date | 28 February 2014 |
| Published date | 09 April 2014 |
| SHERIFFDOM OF LOTHIAN AND BORDERS Case Number: B1749/13 | |
| Judgment by SHERIFF PRINCIPAL MHAIRI M STEPHEN in appeal by B D Appellant against THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND Respondent ___________________________ |
Act: Mackay, Advocate instructed by Ormiston Solicitors (for the Appellant)
Alt: Hunter, Solicitor (for the Mental Health Tribunal for Scotland)
Alt: Cobb, Advocate, instructed by the Central Legal Office of the NHS (for the Responsible Medical Officer)
EDINBURGH, 28 February 2014
The Sheriff Principal having resumed consideration of the cause refuses the appeal and makes no order in respect of expenses.
(signed) Mhairi M Stephen
NOTE:/
NOTE:
1. This is an appeal against the decision of the Mental Health Tribunal for Scotland (hereinafter referred to as "the Tribunal") of 28 August 2013. The appeal is in terms of section 320(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"). The appeal proceeds on the ground that the Tribunal's decision of 28 August 2013 was based on an error of law. The error of law is the Tribunal's failure to find that the breaches by the Responsible Medical Officer (RMO) and Mental Health Officer (MHO) of their statutory duties in terms of sections 84 to 86 of the 2003 Act rendered the determination by the RMO to extend the Compulsory Treatment Order (CTO) on 4 April 2013 by virtue of section 86 of the 2003 Act invalid.
PROCEDURAL HISTORY AND BACKGROUND
2. The procedural history relevant to this appeal centres on the appellant who has been subject to a CTO since April 2006. The CTO was due to expire on 22 April 2013. In these circumstances the RMO comes under a duty to consider whether it is necessary for the patient to be subject to a CTO after the current order ceases. The RMO gave consideration to this during the last two months of the CTO. During that same period there was a further hearing before the Tribunal to deal with an earlier application made by or on behalf of the appellant for revocation of the CTO. That hearing took place on 13 March 2013. The RMO, having decided that her preliminary view was that the CTO should be extended, decided to await the outcome of the hearing on 13 March 2013. The MHO visited the appellant at home together with the Community Psychiatric Nurse and Social Worker to discuss the forthcoming hearing on revocation (March 2013) and the likelihood of an extension to the CTO. Both the RMO and the MHO gave evidence before that Tribunal on 13 March 2013 as to the necessity of the CTO. That earlier Tribunal refused the appellant's application for revocation. Following that decision the RMO met with the appellant at the end of March. The MHO was unable to attend. She informed the appellant of her recommendation that the CTO be extended.
3. The RMO and MHO work closely together and have weekly meetings to discuss patients including the appellant. The appellant's Community Psychiatric Nurse (CPN) and Social Worker also attend these meetings. During the critical period of the final two months leading up to the expiry of the CTO, the RMO actively considered whether the CTO should be extended and discussed this matter with the MHO and others at these meetings. Both the MHO and the RMO considered that the statutory conditions for a CTO set out in section 64(5)(a) to (f) were met.
These are:-
(a) That the patient has a mental disorder
(b) That medical treatment which would be likely to -
(i) Prevent the mental disorder worsening; or
(ii) Alleviate any of the symptoms, or effects, of the disorder, is available for the patient;
(c) That if the patient were not provided with such medical treatment there would be a significant risk -
(i) To the health, safety or welfare of the patient; or
(ii) To the safety of any other person;
(d) That because of the mental disorder the patient's ability to make decisions about the provision of such medical treatment is significantly impaired.
(e) That the making of a Compulsory Treatment Order in respect of the patient is necessary; and
(f) Where the Tribunal does not consider it necessary for the patient to be detained in hospital, such other conditions as may be specified in regulations.
4. The CTO in respect of the appellant is a community based CTO requiring the appellant to take medication and to engage with relevant parties. The appellant has been subject to such a CTO for a number of years. When the Tribunal considered the appellant's application to revoke the extension of the CTO ostensibly made on 4 April 2013 he had been subject to a CTO for more than seven years.
5. The 2003 Act provides for the review of CTOs in Chapter 4 of Part 7 of the Act. The duties and procedures to be adopted by the RMO where extension of the CTO appears appropriate can be found in section 84 of the 2003 Act. Section 84 requires the RMO to review the CTO and to give notice to the MHO if he or she is proposing to make a determination extending the order (under section 86 of the Act). When that notice is given the MHO comes under certain obligations and duties which are focussed on the patient. The MHO requires to interview the patient and inform the patient that the RMO is proposing to extend the order. The MHO requires to inform the patient of his rights in relation to the proposed determination and the availability of independent advocacy services and also must take the appropriate steps to ensure that the patient has the opportunity of using such services. Finally, the MHO requires to inform the RMO of his position on the proposed determination and his reasons and any other relevant considerations. The RMO then must have regard to the views expressed by persons consulted and the MHO and if, having regard to these views, she remains satisfied that it continues to be necessary for the patient to be subject to the CTO then the RMO comes under a duty to make a determination extending the CTO for the appropriate period.
6. At the first hearing of the appellant's application under section 100 of the 2003 Act for revocation of the CTO on 26 July 2013 the Tribunal were addressed on the validity of the extension of the CTO by the solicitor acting for the appellant. It was accepted that the duties imposed on the RMO and MHO in terms of sections 84 to 86 of the Act had not been complied with. In particular the RMO had failed to give notice in writing to the MHO of her intention to make a determination extending the order in terms of section 84. The MHO had failed to interview the appellant in terms of section 85. The hearing before the tribunal was adjourned to allow the RMO and MHO to obtain legal advice and if necessary representation. When the Tribunal reconvened on 28 August 2013 the appellant, the RMO and the MHO were represented. The Tribunal first of all addressed the preliminary issue of the validity of the RMO's determination to extend the order dated 4 April 2013. Having heard parties and considered the matter they concluded that the failures by the RMO and the MHO in respect of their duties did not have the effect of rendering the determination invalid. Accordingly the Tribunal proceeded to consider the appellant's application for revocation which they ultimately refused having heard again from the RMO, MHO and the appellant. The appellant challenges the decision by the Tribunal to repel the preliminary objection to the validity of the RMO's determination.
SUBMISSIONS FOR THE APPELLANT
7. Mr Mackay for the appellant, patient, spoke to the written submissions he had prepared in support of the appeal. The basis for the appeal is that the Tribunal erred by finding that the clear failures on the part of the MHO and RMO to abide by the statutory duties under section 84 and 85 of the 2003 Act did not have the consequence of invalidating the purported determination by the RMO to extend the patient's CTO. In order words, the Tribunal were wrong to find that the determination was a valid exercise of the RMO's duties under the Act and it follows that the Tribunal were wrong to proceed to hear evidence in relation to the patient's application to revoke said CTO, which they ultimately refused.
8. He submitted that the default by the RMO and the MHO in regard to their clear statutory duties rendered the determination invalid. The correct course would be for me to allow the appeal and set aside the decision of 27 October 2013 and to revoke the determination by the RMO dated 4 April 2013 which purported to extend the appellant's CTO.
9. In support of these submissions reference was made to the approach which the courts have taken to default and failure to comply with a statutory requirement. The most up to date approach to the consequences of failure to follow statutory requirements can be seen in two House of Lords cases - R v Soneji [2006] 1 AC 340 and R v Clarke [2008] UK HL 8. In Soneji the court took the view that they must look at the consequences of the default in the factual context and ask whether Parliament intended that a default even of a minor nature might result in invalidity. Lord Malcolm followed that approach in a case involving judicial review and statutory interpretation of the Prison Rules - Shahid v Scottish Ministers [2011] CSOH 192 as did Sheriff Principal Dunlop in Paterson v Kent 2007 SLT (Sh Ct) 8. I was also referred to DC Petitioner [2011] CSOH 193; Seal v The Chief Constable of South Wales Police [2007] UKHL 31 and Crawford v HMA [2006] JC 57.
10. Applying the principles which derive from these authorities particularly Soneji Mr Mackay looked at the key provisions, namely, sections 84 to 86 of the 2003 Act. The sequence of the duties imposed on the RMO and the MHO and the reasons why the RMO must have regard to the views of the MHO and indeed, the patient, prior to making any determination are important. An examination of the purpose behind the sequence of obligations is necessary as any order made by the RMO relies on compliance with that sequence. This is...
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