Byrne v Mental Health Tribunal for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 13 February 2006 |
| Date | 13 February 2006 |
| Court | Sheriff Court |
Sheriff Principal Taylor
Mrs Hanlon for EB; Mr Campbell for the Tribunal.
Whether a decision to deny an adjournment was lawful; whether the Tribunal had acted in excess of jurisdiction in extending a Compulsory Treatment Order
EB was detained under the provisions of the Mental Health (Scotland) Act 1984, which became a Compulsory Treatment Order under the Mental Health (Care and Treatment) (Scotland) Act 2003 on 5 October 2005 when the 2003 Act came into force. On 25 November 2005, EB was examined by her Responsible Medical Officer, though no papers were served upon her. On 6 December 2005, she was informed that there was to be a hearing in her case on 8 December 2005; she then contacted a firm of solicitors which had acted for her in 2002 in relation to an application under the Adults With Incapacity (Scotland) Act 2000,though the solicitor who attended on 8 December, which was the earliest opportunity for her to see EB, had not acted in that matter. EB had made an application to revoke the existing order before speaking to her solicitor. The solicitor indicated that she would seek an adjournment to become familiar with the papers, which she had seen for the first time just 10 minutes before the hearing, and obtain an independent medical report (noting that the psychiatrist to be instructed was due to visit that evening); the RMO indicated that she did not oppose this, and that it might be helpful if the independent psychiatrist agreed with her diagnosis and plan. The solicitor also indicated that there was no objection to an interim extension of the CTO during the adjourment period. However, the Tribunal refused the application to adjourn. EB appealed against that decision. The Tribunal also declined to deal with EB's application to revoke and proceeded to extend the CTO.
A preliminary point was taken by the Tribunal, namely that it had acted outside its powers and so there was no decision capable of being appealed. It was noted that the application had sought measures suitable only for an in-patient CTO and also measures suitable only for an out-patient order: the RMO was invited to clarify what was sought, and the application was amended so that it sought an in-patient order. It was suggested that this amounted to an extension of the existing CTO, which could be made only by the RMO under s. 86 of the Act, and so the decision to that effect by the Tribunal was null and could not be appealed to the Sheriff Principal. For EB, it was noted that the s. 92 required the RMO to then apply to the Tribunal, which could make a decision under s. 103 to extend the order; it was submitted that this is what had happened.
On the merits, it was submitted for EB that (i) she had not been given adequate notice of the application and so natural justice had not been accorded; it was suggested that, although no period is specified in r9(3) Mental Health Tribunal for Scotland (Practice and Procedure) (No 2) Rules 2005, and although there might be urgent situations, it would normally be necessary to give more than 14 days' notice of the hearing since the patient was required under r14(5) to give notice of an intention to make representations or produce evidence within 14 days of receipt of the notice; (ii) as the application to adjourn was unopposed, and would not prejudice anyone since it would have been accompanied with an interim extension of the CTO, the reasons for refusing the application were not coherent; (iii) the Tribunal breached the general principles set out in s. 1 of the 2003 Act, namely s. 1(3)(c), the importance of patient participation, and s. 1(3)(g), patients should not be treated less favourably than non-patients, which was breached because EB had impaired intellectual function and needed assistance to participate; and (iv) Arts 5 and 6 European Convention were breached. The Tribunal submitted that the purpose of notice was to ensure that parties were aware of the hearing; that the solicitor would have had some knowledge of EB's circumstances because of her firm's previous involvement with her; and everybody present had been able to contribute their views.
1. This was an appeal under s. 320 of the Mental Health (Care and Treatment) (Scotland) Act 2003. The appellant was represented by Mrs Hanlon, solicitor and the respondents by Mr Campbell, advocate. After hearing submissions I allowed the appeal and remitted the case back to a differently constituted Tribunal. However, Mrs Hanlon asked me to write a Note. Practitioners in the mental health field have been encountering problems similar to those which she had experienced in this case.
2. The facts were by and large agreed. The appellant had been made the subject of a s. 18 Order in terms of the Mental Health (Scotland) Act 1984. That became a CTO on 5 October 2005 when the 2003 Act came into force. On 25 November 2005 the appellant was examined by her Responsible Medical Officer, Dr Kelly, at Leverndale Hospital where the appellant...
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Brian Paterson v Sandra Kent, Mental Health Tribunal for Scotland andFife Health Board
...set out in s. 1(3) of the 2003 Act. Reference in this regard was made to Elizabeth Byrne v Mental Health Tribunal for Scotland [2007] Mental Health Law Reports 2, the submissions on behalf of the appellant in which were largely adopted and repeated in the present case. These submissions wer......