Brian Paterson v Sandra Kent, Mental Health Tribunal for Scotland andFife Health Board
| Jurisdiction | Scotland |
| Judgment Date | 17 May 2006 |
| Date | 17 May 2006 |
| Court | Sheriff Principal (Scotland) |
Sheriff Principal RA Dunlop QC
Mr Sharp (instructed by Stevenson & Marshall) for BP; Mr Munro, Solicitor of Fife Council for SK; Miss Dunlop QC and Mr K Campbell (instructed by Ian Kennedy, WS) for the Tribunal; Mr Fitzpatrick (instructed by NHS Scotland CLO) for the Health Board.
Whether a Tribunal had jurisdiction to consider an application when it sat outside the statutory time limit; whether a failure to make an interim Compulsory Treatment Order and adjourn to allow the patient to obtain legal representation and an independent medical report was lawful
On 25 October 2005, BP was admitted to hospital as a voluntary patient; on 22 December 2005, he was detained under a Short-Term Detention Certificate, under s. 44 Mental Health (Care and Treatment) (Scotland) Act 2003: this lasted for 28 days, expiring at midnight on 18 January 2006. On 16 January 2006, the Mental Health Officer made an application under s. 63 for a Compulsory Treatment Order, as is necessary if the conditions of s. 57 of the Act are met, namely the receipt of 2 medical recommendations that an order be made. By virtue of s. 68 of the Act, the application extends the effect of the STDC for 5 working days (which was midnight on 25 January 2006).
The Tribunal is required to meet to consider the application before the end of that 5-day period under s. 69 of the Act: it must consider whether to make an interim CTO and, if not, to consider the application. However, the Tribunal did not meet until 31 January 2006. BP had less than 24 hours' notice of the hearing and his solicitor had been unable to attend, though he did have an advocacy service worker present, who suggested that an interim order be made because of the inadequate notice and to allow a solicitor to attend, and participated in the hearing. The Tribunal made a CTO under s. 64(4)(a) of the Act. It rejected the application to make an interim order, stating that "any defective notice was cured by the appearance of the patient and that his views had been adequately represented at the Tribunal".
BP appealed under s. 320, arguing that the Tribunal had no jurisdiction to hear the application in light of the failure to comply with the time limit; but that if it had jurisdiction, it erred in law because it should have made an interim CTO and adjourned to allow BP to obtain an independent psychiatric report and secure representation by his solicitor at the hearing.
[1] This is an appeal under s. 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 s. 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 2 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 2 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 s. 44 of the Act. In terms of s. 44(1) of the Act the STDC authorised the measures referred to in s. 44(5), namely the detention of the appellant in hospital for a period of 28 days and the giving of medical treatment to him. The period of the STDC expired at midnight on 18 January 2006.
[4] On 16 January 2006 an application was made by the MHO to the Tribunal for a CTO. This application was made in terms of s. 63 of the Act in pursuance of a statutory duty imposed on the MHO in terms of s. 57(1). That duty arose when subss(2)-(5) of s. 57 applied. In broad terms these subsections relate to the medical examination of the patient by 2 medical practitioners, leading to the production of a separate mental health report by each (subs(4)). Of particular relevance is subs(3) which provides:-
"(3) This subsection applies where each of the medical practitioners who carries out a medical examination mentioned in subs(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 an MHO comes under the duty to apply for a CTO he or she must do so within 14 days of the date of the latest medical examination of the patient by the medical practitioners who prepared the mental health reports (subs(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 s. 57(1) the MHO was then required to carry out certain other duties in terms of ss. 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 STDC was authorised only until midnight on 18 January 2006. However when the application for a CTO was made on 16 January the provisions of s. 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 s. 63 of this Act,
the measures mentioned in subs(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 subs(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 s. 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 STDC was authorised until midnight on 25 January 2006, that is to say 5 "working" days after 18 January 2006.
[9] Of central importance to the appeal are the terms of s. 69 of the Act, which provides:
"Where s. 68 of this Act applies, the Tribunal shall, before the expiry of the period of 5 days referred to in s. 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 s. 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 MHO 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 s. 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 s. 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 STDC was granted. Counsel for the appellant contended that this STDC was invalid having regard to the provisions of s. 44(2) of the Act, which in broad terms prohibits a continuous period of detention on the strength of successive STDCs. Suffice it to say that no party at the appeal sought to argue otherwise and in particular it was not suggested that this second STDC had any relevance to the issues in the appeal...
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