Brian Paterson+the Mental Health Tribunal V. Sandra Kent+fife Health Board
| Jurisdiction | Scotland |
| Judge | Sheriff Principal R.A. Dunlop, Q.C. |
| Court | Sheriff Court |
| Date | 17 May 2006 |
| Docket Number | B35/06 |
| Published date | 19 May 2006 |
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE
B35/06
JUDGMENT OF SHERIFF PRINCIPAL
R A DUNLOP QC
in the cause
BRIAN PATERSON
Pursuer and Appellant
against
SANDRA KENT
Defender and First Respondent
and
THE MENTAL HEALTH TRIBUNAL
Defender and Second Respondent
And
FIFE HEALTH BOARD
Defender and Third Respondent
__________________
| Act: | Mr Sharp, Advocate, instructed by Messrs Stevenson & Marshall, Solicitors, Dunfermline |
| Alt: | Mr Munro, Solicitor, Fife Council for the First Respondent |
| Miss Dunlop, QC and Mr K Campbell, Advocate, instructed by Ian Kennedy, WS, Edinburgh, for the Second Respondent | |
| Mr Fitzpatrick, Advocate, instructed by NHS Scotland CLO, for the Third Respondent. |
PERTH, 17 May 2006. The Sheriff Principal, having resumed consideration of the cause, allows the appeal; sets aside the second respondent's decision dated 31 January 2006 and recalls the compulsory treatment order made on that date; in terms of section 65(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 makes an interim compulsory treatment order authorising for the period of twenty eight days from the date hereof the detention of the appellant in Queen Margaret Hospital, Dunfermline and the giving to the appellant, in accordance with Part 16 of the Act, of medical treatment; remits the cause to a differently constituted Tribunal for consideration of the application of new and directs that a hearing shall take place within twenty eight days of the date hereof; certifies the appeal as suitable for the employment of junior counsel; finds the second respondent liable to the appellant in the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and report; quoad ultra finds no expenses to or by any party.
NOTE:
[1] This is an appeal under section 320 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (hereinafter referred to as "the Act") against a decision of the Mental Health Tribunal for Scotland (hereinafter referred to as "the Tribunal") dated 31 January 2006 in terms of which the appellant was made the subject of a compulsory treatment order under section 64(4)(a) of the Act.
[2] The appellant convened the Mental Health Officer as first respondent and, in response to separate orders for intimation to the Tribunal and Fife Health Board, these parties each lodged answers and were sisted as the second and third respondents respectively. The pleadings disclose two distinct issues. The first issue relates to the competency of the proceedings of the Tribunal and, in the event that they were competent, the second issue relates to certain alleged failings of the Tribunal in the conduct of those proceedings. The first and second respondents made submissions and took up essentially the same position in relation to both issues whereas the third respondent confined itself to submissions on the first issue only. Since the second issue only arises in the event of a decision on the first issue adverse to the appellant it is appropriate to deal with the two issues separately.
Competency of the Tribunal Hearing on 31 January 2006[3] The chronology of events leading to the hearing before the Tribunal on 31 January 2006 is not in dispute. The appellant was admitted as a voluntary patient to Queen Margaret Hospital, Dunfermline on 25 October 2005. On 22 December 2005 he was detained on a short-term detention certificate in terms of section 44 of the Act. In terms of section 44(1) of the Act the short-term detention certificate authorised the measures referred to in section 44(5), namely the detention of the appellant in hospital for a period of twenty-eight days and the giving of medical treatment to him. The period of the short-term detention certificate expired at midnight on 18 January 2006.
[4] On 16 January 2006 an application was made by the Mental Health Officer to the Tribunal for a compulsory treatment order. This application was made in terms of section 63 of the Act in pursuance of a statutory duty imposed on the Mental Health Officer in terms of section 57(1). That duty arose when subsections (2) to (5) of section 57 applied. In broad terms these subsections relate to the medical examination of the patient by two medical practitioners, leading to the production of a separate mental health report by each (subsection (4)). Of particular relevance is subsection (3) which provides:-
"(3) This subsection applies where each of the medical practitioners who carries out a medical examination mentioned in subsection (2) above is satisfied -
(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; and
(e) that the making of a compulsory treatment order is necessary."
[5] Once a Mental Health Officer comes under the duty to apply for a compulsory treatment order he or she must do so within fourteen days of the date of the latest medical examination of the patient by the medical practitioners who prepared the mental health reports (subsection 7). In the present case the last date by which an application could be made was 26 January 2006.
[6] Having come under the statutory duty specified in section 57(1) the Mental Health Officer was then required to carry out certain other duties in terms of sections 60, 61 and 62 of the Act. These involve, among others, giving notice to the patient that an application is to be made, interviewing the patient and informing him of his rights and the availability of independent advocacy services and preparing a report with the personal circumstances of the patient and other information relevant to the Tribunal's determination of the application.
[7] As I have already noted, the detention of the appellant in terms of the short-term detention certificate was authorised only until midnight on 18 January 2006. However when the application for a compulsory treatment order was made on 16 January the provisions of section 68 of the Act applied. Section 68 of the Act provides as follows:-
"(1) Where -
(a) the detention of a patient in hospital is authorised by -
(i) a short-term detention certificate; or
(ii) an extension certificate; and
(b) before the expiry of the period of detention so authorised, an application is made under section 63 of this Act,
the measures mentioned in subsection (2) below are authorised.
(2) Those measures are -
(a) the detention in hospital of the patient for the period of 5 days beginning with the expiry of the period for which the certificate authorises the detention of the patient in hospital; and
(b) the giving to the patient, in accordance with Part 16 of this Act, of medical treatment.
(3) In reckoning the period of days mentioned in subsection (2)(a) above, there shall be left out of account any day which is not a working day.
(4) In this section "working day" has the meaning given by section 47(8) of this Act."
[8] It is a matter of agreement that, in terms of this section, the appellant's continued detention after the expiry of the short-term detention certificate was authorised until midnight on 25 January 2006, that is to say five "working" days after 18 January 2006.
[9] Of central importance to the appeal are the terms of section 69 of the Act, which provides:
"Where section 68 of this Act applies, the Tribunal shall, before the expiry of the period of 5 days referred to in section 68(2)(a) of this Act -
(a) determine whether an interim compulsory treatment order should be made; and
(b) if it determines that an interim compulsory treatment order should not be made, determine the application."
[10] It will be observed therefore that, having only convened the hearing on 31 January 2006, the Tribunal failed to comply with the time limit prescribed by section 69 of the Act. The primary issue in the appeal is what is the consequence of that failure.
[11] For the sake of completeness it should be said that the Mental Health Officer was alert to the difficulties that might arise if the Tribunal did not convene a hearing before the expiry of the period of continued detention authorised in terms of section 68. A letter was sent to the Tribunal on her behalf on 24 January 2006 bringing this to the attention of the Tribunal and requesting an urgent response. In fact no response was dispatched until 1 February 2006, that is to say the day after the Tribunal hearing. The failure to comply with the time limit of section 69 put the responsible medical officer in a difficult position. It was plainly felt that the appellant required to be detained further and, having taken advice from the Mental Welfare Commission, a further short-term detention certificate was granted. Counsel for the appellant contended that this short-term detention certificate was invalid having regard to the provisions of section 44(2) of the Act, which in broad terms prohibits a continuous period of detention on the strength of successive short-term detention certificates. Suffice it to say that no party at the appeal sought to argue otherwise and in particular it was not suggested that this second short-term detention certificate had any relevance to the issues in the appeal. Accordingly I have not thought it necessary to rehearse the appellant's submissions on that matter and have simply adopted the common approach of the parties in excluding this factor as irrelevant.
[12] The primary question in the appeal therefore is the effect of the admitted failure...
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