B.g. Against The Mental Health Tribunal For Scotland And Mark Mcilwraith, Mental Health Officer
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Brodie,Lord Eassie |
| Neutral Citation | [2015] CSIH 18 |
| Year | 2015 |
| Published date | 04 March 2015 |
| Docket Number | XA129/14 |
| Court | Court of Session |
| Date | 04 March 2015 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 18
XA129/14
Lord Eassie
Lady Smith
Lord Brodie
OPINION OF THE COURT
delivered by LADY SMITH
in the APPEAL
by
BG
Appellant;
against
(FIRST) MENTAL HEALTH TRIBUNAL FOR SCOTLAND and (SECOND) MARK McILWRAITH, MENTAL HEALTH OFFICER
Respondents:
For the appellant: Party
For the first respondent: Springham; Russell Hunter, Solicitor
For the second respondent: MacGregor; Anderson Strathern LLP
4 March 2015
Introduction
[1] This is an appeal by JG’s son from a decision of the sheriff principal of Lothian and Borders refusing his appeal against a decision of the Mental Health Tribunal for Scotland (“MHTS”). The decision of the MHTS which he had appealed against was a decision to make a compulsory treatment order (“CTO”) in relation to his mother. The appellant is a named person under the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”), Part 17, Chapter 1. He was also, formerly, his mother’s carer and interim guardian under and in terms of the relevant provisions of the Adults with Incapacity (Scotland) Act 2000 (“the 2000 Act”). The CTO authorised the detention of JG in hospital and the giving of medical treatment in accordance with Part 16 of the 2003 Act.
Background
[2] It is not disputed that JG suffers from advanced dementia, cannot mobilise without assistance, is doubly incontinent and requires full nursing care. It is not disputed that, due to her mental condition, she becomes agitated and distressed, including during necessary nursing intervention.
[3] Her condition is summarised in a report by Dr Suzanne Roscrow, a medical practitioner approved under section 22 of the 2003 Act (“the RMO”) dated 1 May 2014:
“This lady suffers from advanced Alzheimers Disease, with poor memory and understanding of recent events. No understanding or knowledge of events prior to her admission. She does not have capacity to make decisions regarding her welfare and care needs. She is unable to respond to simple questions. Her mobility is very poor and she sustained a fractured femur in December 2013 and did not regain mobility. Following this she was transferred to a medical unit and was assessed to require nursing home care. She mobilises with the help of 2 people. She requires full assistance with her continence and self care. She becomes agitated and distressed during nursing interventions and currently continues to require 24 hour nursing input and supervision to maintain her safety and self care.”
Dr Roscrow considered that, in these circumstances, if JG were not provided with treatment, there would be a risk to her health, safety or welfare. The treatment required is summarised by her, in the same report:
“She is at risk of falling without 2 people to mobilise her. She needs to have all personal care given in a sensitive manner to minimise distress and to maintain her physical health and hygiene………24 hour psychiatric nursing care – flexible input from staff to manage her distress during interventions relating to her self care……Low dose sedative Medication to help minimise distress and improve sleeping pattern.”
JG’s general practitioner, Dr Fiona Stirrat, in her report dated 1 May 2014, confirmed that JG has marked cognitive impairment caused by Alzheimer’s Disease and that she is, due to her mental condition, unable to care for herself or keep herself safe. She explains that JG has osteoporosis, has suffered two fragility fractures because of falls , needs two people to mobilise her and requires regular toileting, day and night: “She needs total care for taking medication, ADL’s, feeding and mobility.” Dr Stirrat explains:
“JG can become agitated in changing circumstances and will benefit from staying in the one place with familiar staff. She still gets upset at times with nursing interventions and benefits from being in a setting where staff have the skills, manpower, 24 hour input that she requires. She needs constant supervision as her mobility is poor and she has had serious falls in the past. She is not aware of this risk and has occasionally tried to set off walking on her own. She needs to be encouraged to take her medication and nutrition.”
In his report dated 6 May 2014, the second respondent summarised the information obtained from these three doctors. Having made his own enquiries, he provided some additional information including that the frequency with which JG requires to be checked on account of her double incontinence is two hourly and that her ability to engage with physiotherapy was limited due to her cognitive impairment. He referred to it being felt that she had reached her optimum level of functioning on the ward.
[4] The nursing care identified by these doctors as being required is, of course, available in a hospital setting without there having to be a CTO. However, the appellant does not agree that his mother needs to be in hospital. On 3 April 2014, he removed his mother from St Michael’s Hospital – a geriatric, long stay hospital – without informing staff and against medical advice. He took her home. Home for JG is a house on three levels. No aftercare arrangements had been discussed and none were in place. The appellant did not agree that she should be returned to hospital; the second respondent, accordingly, applied for a short term detention certificate, relying on a report by Dr Rajitha Jayawardena , dated 10 April 2014 which stated that if JG remained at home, she would, due to her very poor cognitive function, be at high risk of falls and self‑neglect. The certificate was granted that day and JG was transferred to hospital.
[5] That was not the first occasion on which the appellant had removed his mother from residential care; he had removed her from a nursing home, against the advice of the social work department, in October 2012.
[6] The second respondent also explained, in his report, why it was considered that JG’s needs could not adequately be met by the provision of a 24 hour care package delivered in her home; those reasons included the apprehension that the appellant would, once more, remove his mother from hospital and there being a continuing lack of agreement between him and the relevant health care professionals regarding JG’s needs.
[7] In November 2013, JG had been able, for the purposes of the 2000 Act proceedings, to express her views to an advocacy worker. They included that she wished to be able to stay in her own home. However, all three of the doctors who examined her in April and May 2014 reported that she did not have capacity to make decisions regarding her own welfare. The second respondent reported, similarly, that he had attempted to ascertain her views and wishes in relation to the proposed care plan but it had proved impossible to do so, due to her cognitive impairment.
Proceedings before the MHTS
The first tribunal
[8] A hearing took place on 14 May 2014 by which time a curator – Mr Whitten - had been appointed. The appellant was present and he lodged a detailed written submission setting out his opposition to the granting of a CTO. Mr Whitten asked for time to make further investigations and invited the tribunal to make an interim CTO. That motion was opposed so the tribunal proceeded to hear and consider evidence and submissions. After having done so, it granted an interim CTO.
[9] It is clear from its detailed reasons that the tribunal gave careful consideration to all the evidential material available to it – both written and oral - including that which was given by the appellant. The tribunal noted that he held very strong views about mobilising JG - that he could do so without help, that she ought to be walking longer distances more frequently, that she should go up and down stairs, at home, on her own and that overall, he knew his mother’s care needs better than others. The tribunal explains that it, however, accepted the evidence of the witnesses relied on by the second respondent, particularly that of the three doctors and explains why, on that evidence, it concluded that the appellant’s views could not be accepted given that there would be a significant risk to JG’s health, safety and welfare if no interim order were granted. In particular, it identified that JG would be deprived of psychiatric and cognitive assessment, 24 hour nursing care, a safe environment and the availability of two persons for mobilisation.
[10] The tribunal not only granted the interim CTO (for no longer than 28 days) but added that the appellant’s past and proposed approach to JG’s care was of such concern that the Mental Welfare Commission and the Office of the Public Guardian were to be advised of their decision.
The second tribunal
[11] A hearing took place three weeks later, on 4 June 2014, before a differently constituted tribunal, to consider whether or not a CTO should be granted for a longer period. The curator advised that he had completed his investigations and, having done so, supported the second respondent’s application for a CTO. The appellant advised the tribunal, at the start of the hearing, that he had obtained two further medical reports but he was not producing them. That was because they were adverse to his views.
[12] The second tribunal had the same written material before them as had the first tribunal and it was also provided with two written submissions from the appellant. It heard oral evidence from Dr Roscrow, Mr Charles MHO (the second respondent’s supervisor) and from the appellant. Having heard and considered all the evidence, documentary and oral, it concluded that that there was no substantial dispute about the facts. Its findings in fact included:
- JG is 81 years old and has severe and progressive cognitive impairment caused by advanced Alzheimer’s disease;
- JG fell twice at home in December 2013, fracturing her arm and hip;
- JG had not regained any significant degree of mobility despite having spent a lengthy period in...
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