Brian Black As Curator Ad Litem To The Patient M V. The Mental Health Tribunal For Scotland+the Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Reed,Lord Marnoch |
| Judgment Date | 08 December 2011 |
| Neutral Citation | [2011] CSIH 83 |
| Court | Court of Session |
| Published date | 08 December 2011 |
| Date | 08 December 2011 |
| Docket Number | XA23/11 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Reed Lord Mackay of Drumadoon Lord Marnoch | [2011] CSIH 83 XA23/11 OPINION OF THE COURT delivered by LORD REED in appeal by BRIAN BLACK, as curator ad litem to the patient M Appellant; against THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND First Respondent: and THE SCOTTISH MINISTERS Second Respondent: _______ |
For the first respondent: K J Campbell QC; Legal Secretary, Mental Health Tribunal for Scotland
For the second respondent: Mure QC, Barne; Scottish Governement Legal Directorate
8 December 2011
[1] What remedy, if any, is available to a curator ad litem appointed to represent the interests of a patient in proceedings before the Mental Health Tribunal for Scotland, in the event that the Tribunal acts unlawfully or unfairly or exercises its discretion in an unreasonable manner? That is the question which lies at the heart of the present appeal, which was remitted to this court by the Sheriff Principal of Grampian, Highlands and Islands.
[2] The facts of the case can be stated shortly. On 10 June 2010 the patient M, an elderly woman suffering from senile dementia, was admitted to hospital as an emergency. A short‑term detention certificate was granted by an approved medical practitioner under section 44 of the Mental Health (Care and Treatment) (Scotland) Act 2003, authorising the detention of the patient for a period of up to 28 days. On 5 July 2010 a mental health officer appointed under section 32 of the 2003 Act applied to the Tribunal under section 63 of the Act for a compulsory treatment order to be made in respect of the patient. On 8 July 2010 the Tribunal appointed the appellant as curator ad litem to the patient, under rule 55 of the Mental Health Tribunal for Scotland (Practice and Procedure) (No 2) Rules 2005, SSI 2005/519. It did so on the basis that it was satisfied that the patient did not have the capacity to instruct a solicitor to represent her interests in the proceedings before it.
[3] The hearing of the application took place before the Tribunal on 13 July 2010. The appellant was present, but the patient was not: she had not been notified of the application, or of the hearing, on the basis that the giving of such notice would be likely to cause her significant harm. It was also the view of all involved that she had no understanding of the process in any event. Others present at the hearing included the patient's mental health officer, her responsible medical officer (appointed under section 230 of the 2003 Act), and her two daughters, D and E, who had been appointed as her joint welfare attorneys under section 16 of the Adults with Incapacity (Scotland) Act 2000. D also attended as the patient's named person (by virtue of section 251 of the 2003 Act), and in that capacity was represented by a solicitor.
[4] At the hearing, the appellant requested the Tribunal to adjourn its consideration of the application for a compulsory treatment order, and in the meantime to make an interim compulsory treatment order under section 65 (2) of the 2003 Act. Such an order authorises detention of the patient for a period of up to 28 days, whereas a compulsory treatment order authorises detention for a period of six months. The appellant sought an adjournment in order to obtain a medical report on the patient. The Tribunal however refused to adjourn the hearing, and proceeded to make a compulsory treatment order. In the reasons which they gave for their decision, they explained that the medical evidence before them (which came from the responsible medical officer and from the patient's GP) was clear and unchallenged, and that there was no material advanced from which they could reasonably reach the conclusion that a further report was necessary. We note that the Tribunal included a medically qualified member.
[5] The appellant then purported to appeal to the Sheriff Principal against the order made by the Tribunal, under section 320 of the 2003 Act, on the ground that the Tribunal's refusal of an adjournment had been unreasonable and had resulted in procedural unfairness. The Sheriff Principal noted that section 320(5) lists the categories of person who are entitled to appeal, and that the curator ad litem of a patient is not included in that list. The appeal was therefore prima facie incompetent. Furthermore, the Sheriff Principal considered that the scope of the appellant's appointment as curator ad litem was restricted to representing the patient's interests in the proceedings before the Tribunal. Since those proceedings had come to an end when the Tribunal made the compulsory treatment order, it followed that the curator was functus officio: he had carried out the duty which he had been appointed to perform. The Sheriff Principal considered however that, since the Tribunal had authorised the patient's detention, it followed that the patient was entitled under article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms "to take proceedings by which the lawfulness of [her] detention shall be decided speedily by a court". Section 320 made provision for such proceedings to be taken by the patient, but that was of little or no value if the patient lacked capacity and was unaware of the proceedings before the Tribunal. In those circumstances, the Sheriff Principal concluded that section 320(5) might be incompatible with article 5(4). Since he had no jurisdiction to make a declaration of incompatibility under section 4 of the Human Rights Act 1998, and on the mistaken view that that provision is applicable to Acts of the Scottish Parliament (whereas such Acts are not "primary legislation" within the meaning of section 4: see section 21(1)), he remitted the appeal to this court under section 320(4) of the 2003 Act.
A preliminary point
[6] The order appealed against had expired by the time the appeal was heard by this court. In those circumstances, it was argued on behalf of the respondents that the issue raised was of purely academic interest and that the court should refuse the appeal on that basis, without hearing any argument on the merits. Having considered the parties' written arguments on this point, however, the court came to the provisional conclusion that the appeal should nevertheless be heard. The issues identified by the Sheriff Principal were of general significance, and it appeared to us that there was a public interest in their being clarified. We were also mindful that, given the time which it takes for an appeal to be heard first by a Sheriff Principal and secondly, following a remit, by this court, and given also the changeability of mental disorders, it might prove difficult for this court to provide guidance to lower courts and tribunals in cases of this kind if it were to decline to hear appeals whenever the order in question had expired. That provisional view having been intimated to the parties, the respondents did not press their preliminary objection.
Rights of appeal and compatibility with Convention rights
Article 5 of the Convention provides:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(e) the lawful detention...of persons of unsound mind...
4. Everyone who is deprived of his liberty...
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