A.b. V. Mental Health Tribunal For Scotland+gerard Mccabe
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Sir Stephen S.T. Young |
| Court | Sheriff Court |
| Date | 23 October 2008 |
| Docket Number | B354/08 |
| Published date | 28 October 2008 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
B354/08
| JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC in the cause AB Appellant against MENTAL HEALTH TRIBUNAL FOR SCOTLAND First Respondent and GERARD McCABE Second Respondent |
Act: Mr Ian Woodward-Nutt, solicitor, Woodward Lawson, Aberdeen
Alt: Mrs Valerie Mays, solicitor, Mental Health Tribunal for Scotland
Mr A J Foster, solicitor, Aberdeen City Council
Aberdeen, 23rd October 2008
The sheriff principal, having resumed consideration of the cause, sustains the pleas in law for the first and second respondents, repels the pleas in law for the appellant and refuses the appeal; on the opposed motion of the first and second respondents finds no expenses due to or by any of the parties in respect of the appeal.
Note
[1] In this case the appellant has appealed against a compulsory treatment order made in respect of him on 1st May 2008 by the Mental Health Tribunal for Scotland ("the Tribunal") which is the first respondent in this appeal. The second respondent is the mental health officer who made the original application for the order in terms of sections 57 and 63 of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Act"). Before making such an order the Tribunal has to be satisfied that all the conditions specified in section 64(5) of the Act are met. These conditions are as follows:
(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.
[2] Where an application is made under section 63 the Tribunal may in terms of section 65(2) make an interim compulsory treatment order if satisfied as to the matters mentioned in section 65(6). An interim compulsory treatment order is an order authorising for such period not exceeding 28 days as may be specified in the order such of the measures as may be made on the making of a compulsory treatment order as may be specified. Section 65(6) provides that the matters referred to in section 65 (2) are:
(a) that the conditions mentioned in paragraphs (a) to (d) of section 64(5) of this Act are met in respect of the patient; and
(b) that it is necessary to make an interim compulsory treatment order.
[3] Section 320(2) provides in the context of this case that the person to whom the decision relates, in other words the appellant, may appeal to the sheriff principal against the making of a compulsory treatment order. Section 324(1) provides that such an appeal may be made only on one or more of the grounds mentioned in section 324(2). These grounds are:
(a) that the Tribunal's decision was based on an error of law;
(b) that there has been a procedural impropriety in the conduct of any hearing by the Tribunal on the application;
(c) that the Tribunal has acted unreasonably in the exercise of its discretion;
(d) that the Tribunal's decision was not supported by the facts found to be established by the Tribunal.
Section 320(3) provides that, as in this case, the Tribunal may be a party to an appeal under section 320(2).
[4] The original application for a compulsory treatment order in respect of the appellant was dated 12th March 2008. It was accompanied by mental health reports by the appellant's responsible medical officer, Dr Elizabeth Willox, and his general practitioner, Dr Matthew Jack. Both reports indicated that the appellant suffered from all three forms of mental disorder specified in section 328(1) of the Act, namely mental illness, personality disorder and learning disability. An initial hearing before the Tribunal took place on 19th March 2008. The appellant was not present or legally represented at this hearing, though it appears that at one point during the proceedings the members of the Tribunal did go and speak to him in the hospital ward in which he was then being cared for. The outcome of this hearing was that the Tribunal made an interim compulsory treatment order and fixed a further hearing to take place on 15th April 2008.
[5] At this second hearing the appellant was present along with his solicitor. Also present were the second respondent, the appellant's independent advocate (see section 259 of the Act) and Dr Willox. I shall refer to the events of this hearing in a little more detail shortly. The outcome was that the Tribunal made a further interim compulsory treatment order and fixed a third hearing to take place on 1st May 2008.
[6] At this third hearing the three members of the Tribunal were not the same persons as those who had constituted the membership of the Tribunal at the hearing on 15th April 2008. The appellant, his solicitor, his independent advocate, the second respondent and Dr Willox were again present along with the appellant's sister who appeared as his named person (see section 250 of the Act). The outcome of the hearing was that the Tribunal made the compulsory treatment order which is the subject of this appeal.
[7] The appeal itself was lodged with the sheriff clerk on 14th May 2008 and by interlocutor dated 16th May 2008 I granted warrant to cite the respondents and fixed an initial procedural hearing to take place on 11th June 2008. At that hearing the appellant's solicitor indicated that he wished to rely at the hearing of the appeal on transcripts of the proceedings before the Tribunal on 15th April and 1st May 2008. These were in due course lodged and I heard parties' solicitors on the appeal on 27th August 2008.
[8] In support of the appeal two pleas in law were tabled on behalf of the appellant. In their final form these read as follows:
1. The Tribunal's refusal to allow the appellant's solicitor to cross-examine the responsible medical officer being a procedural irregularity in the conduct of the Tribunal hearing on 15th April 2008 et separatim being an unreasonable exercise of discretion et separatim being an error of law the compulsory treatment order made on 1st May 2008 should be set aside.
2. The Tribunal having erred in law in making the compulsory treatment order on 1st May 2008, the said order should be set aside.
On the strength of these two pleas the appellant's solicitor developed two grounds of appeal to which I shall refer shortly.
[9] Before turning to these, I think that it may be helpful to examine in more detail certain aspects of the proceedings during the hearing on 15th April 2008 as disclosed by the transcript of these proceedings. After various introductions the second respondent spoke in support of the application and was cross-examined by the appellant's solicitor. At page 15 of the transcript the convener turned to Dr Willox and invited her to take the hearing through her mental health report and explain why she thought that the statutory grounds for a compulsory treatment order had been made out. This she proceeded to do, and the transcript of this part of her evidence runs to page 36. It is to be noted in particular that at page 23D/F, referring evidently to section 64(5)(d) of the Act, Dr Willox said:
In terms of Mr (AB), looking at the third .... his ability to make decisions about the provision of such medical treatment is significantly impaired. I believe it continues to be, and I think this is due to his learning disability in combination with his personality disorder, and now also by his mental illness, and really at this stage is incapable of making decisions about his mental disorder.
After a short interlude the appellant's solicitor began to cross-examine Dr Willox at page 37, and the transcript of this chapter of her evidence runs to page 58 at which point the appellant's solicitor was asking the witness whether the appellant could not be satisfactorily treated in terms of a compulsory treatment order which allowed him to live in the community rather than requiring him to remain in hospital.
[10] At age 58 the convener adjourned the hearing briefly, chiefly it appears to allow the appellant to assimilate what had been said so far and to speak to his independent advocate and his solicitor. The proceedings resumed at page 59 when the appellant's solicitor indicated that he wished to continue his cross-examination of Dr Willox. He was permitted to do so, and he continued to question her about the prospects of a community-based compulsory treatment order for the appellant. Then at pages 62 to 64 the following exchanges took place (Dr Johnston was the medical member of the Tribunal and Mr Woodward-Nutt the appellant's solicitor):
DR WILLOX: But I don't think, I don't think there's support for a community CTO. Just because you need to ... just because you are able to do that doesn't mean that it's applicable to the person that you are talking about.
MR WOODWARD-NUTT: So why is it not applicable?
THE CONVENER: Could we maybe move on to hear about what could be offered in the community because it seems to me that you are suggesting that the community would be ... it would be possible to deliver the services that he needs within the community setting and I believe there has been some work done towards looking at the future and what could be offered in the community. So I think that it might be helpful if we moved on to the care manager who has been looking at the community care needs of this man.
DR JOHNSTON:...
To continue reading
Request your trial