D.c. For Judicial Review Of A Decision To Return Him To Hospital Dated On Or About 8 December 2009 By Dr Ian Mitchell Nd A Decision Of The Mental Heal
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Judgment Date | 2011 |
| Neutral Citation | [2011] CSOH 193 |
| Date | 22 November 2011 |
| Docket Number | P341/10 |
| Year | 2011 |
| Court | Court of Session |
| Published date | 22 November 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 193 | |
| P341/10 | OPINION OF LORD STEWART in the Petition of D C Petitioner; for Judicial Review of (1) a decision to return him to hospital dated on or about 8 December 2009 by Dr Ian Mitchell and (2) a decision by the Mental Health Tribunal of Scotland dated 4 November 2009 ________________ |
Petitioner: Leighton, advocate; Balfour + Manson LLP for Peter J Woolfson & Co, Glasgow;
First and Second Respondents and Fourth Interested Party: MacGregor, advocate; NHS Scotland Central Legal Office
Third Respondents: Springham, advocate; Mental Health Tribunal for Scotland
22 November 2011
[1] This Petition raises further challenging questions about the interpretation of the Mental Health (Care and Treatment) (Scotland) Act 2003 [cf. Scottish Ministers v Mental Health Tribunal for Scotland (MM) 2010 SC 56; Sherrit v NHS Greater Glasgow & Clyde Health Board 2011 SLT 480]. I find the most difficult of these questions to be: if a psychiatric patient detained under a hospital-based Compulsory Treatment Order [CTO] is given leave of absence during a number of discontinuous periods of, say, a few weeks at a time and days here and there, how do you calculate the cumulative period of "9 months in the period of 12 months" ending with the expiry of the latest leave period, which is the maximum total amount of leave allowable in terms of section 127(2) of the Act?
[2] The answer is that you cannot calculate it, or that you cannot calculate it with certainty, which may come to the same thing. At least none of the Counsel who appeared in this case could explain how to do it. This is because, I was told, the Interpretation Act, "calendar month" definition cannot apply in the context of section 127 (2); because the 2003 Act itself does not provide an alternative definition; and because, without other definition, "month" is a variable period, 28 days to 31 days in length, depending on the month in question, so that the cumulative period of "9 months" can mean 252 days or 279 days or anything in between.
[3] Consequential questions arise, the first of which is: does section 127(2) meet the standard of legal certainty for Convention Rights-compliance, particularly for compliance with Article 5 ECHR (right to liberty and security); and, if it does not meet the standard, what are the implications? Luckily these interpretative challenges turn out to be, if not entirely academic, then not the most important questions for determination in this case: but there are plenty of other challenging issues arising both from the terms of the Act and from the apparently disjointed management of the Petitioner's mental health regime.
[4] The Petitioner is or has been a psychiatric patient subject to compulsory treatment. He now applies by way of Judicial Review for damages for alleged wrongful mental-health detention. In order to found his claim for damages he seeks to quash various decisions and certificates connected with the management of his treatment, to have it declared that his CTO ceased to be in force and to have it declared that he was wrongfully detained for a certain period. He is represented by Mr Leighton, Advocate. The Petition is opposed by the psychiatrist who recalled the Petitioner to hospital at a time when the Petitioner claims his CTO was no longer operative, by the managers of the hospital specified in the CTO as the place of the Petitioner's detention and by the Petitioner's Responsible Medical Officer [RMO] at various material times. These parties are respectively the First Respondent, the Second Respondents and the Fourth Interested Party ["the First Respondent et al"]. They are represented by Mr MacGregor, Advocate. Ms Springham, Advocate, represents the Third Respondents, namely the Mental Health Tribunal for Scotland [MHTS]. The MHTS made irreconcilable decisions about the Petitioner's CTO and the Petitioner now seeks to have the Court set aside the MHTS decisions which affirmed the existence of the CTO.
[5] Counsel were agreed that the First Hearing, which took place on 5 and 6 May with a continuation on 15 July 2011, should address the merits of the wrongful detention claim with the question of damages being held over for further discussion, if necessary. Having heard the submissions of Counsel and made avizandum I have formed the Opinion that there is merit in the allegation of wrongful detention and that damages will have to be discussed.
Background and legislative framework
[6] In 2002 the Petitioner was diagnosed as suffering from paranoid schizophrenia complicated by cannabis misuse. There followed a number of psychiatric inpatient admissions and four short periods of detention under one short-term detention certificate and three interim CTOs. On 16 June 2008 a full, hospital-based CTO was made by the Mental Health Tribunal for Scotland [MHTS], authorising the Petitioner's admission to Parkhead Hospital, Glasgow for detention and treatment. The pleadings do not disclose the duration of the original order: but a copy is produced by the Petitioner; and the copy order shows the original CTO granted for a period of six months in conformity with section 66 (1) (a) of the Act which gives the MHTS power to grant a first CTO "for the period of 6 months beginning with the day on which the order is made..." Thereafter the power to extend the CTO lies with the Responsible Medical Officer [RMO], subject to safeguards. In terms of section 86(2) (a) the RMO can authorise a first extension for six months. In terms of section 86(2) (b) and (c), second and subsequent extensions are for twelve months. Presumably, in January 2009, a six months extension of the CTO was authorised by the RMO, which carried the detention forward to 15 June 2009. Since the hearing, Counsel have confirmed that this is what happened. Anyway, for most of his first twelve months under detention the Petitioner was actually on leave of absence from the hospital, living in the community (see below). The first twelve months of detention expired on 15 June 2009.
[7] A number of questions arise in relation to what happened at the beginning of May 2009, which is about six weeks before the presumably extended CTO expired. To understand the controversy, we have to go back to the provisions that authorise compulsory treatment. Section 66(1) of the Act lists the measures that may be authorised by a CTO. Depending on the measures specified in the CTO, CTOs may be community-based or hospital-based. Hospital-based orders may subsequently be varied so as to become community-based orders and vice versa, all by application to the MHTS. The Petitioner's CTO made on 16 June 2008 was a hospital-based order. The relevant measure for present purposes is measure (1) (a) of section 66 namely "the detention of the patient in the specified hospital". The hospital specified was Parkhead Hospital, Glasgow.
[8] The RMO has power to suspend the detention element so as to give the patient, effectively, leave of absence from hospital for, it is conventionally said, a trial of community-based care and treatment. The power to suspend the detention element of CTOs is contained in section 127 which provides as follows [my underlining]:
"127 Suspension of measure authorising detention
SThis section has no associated Explanatory Notes
(1) Where-
(a) a patient is subject to a compulsory treatment order that authorises the measure mentioned in section 66 (1) (a) of this Act; and
(b) subject to subsection (2) below, the patient's responsible medical officer grants a certificate specifying a period not exceeding 6 months during which the order shall not authorise that measure,
the order does not authorise that measure during that period.
(2) If the sum of-
(a) the period that the responsible medical officer proposes to specify in a certificate under subsection (1) above; and
(b) the period specified in any other certificate granted under that subsection in respect of the same patient,
would exceed 9 months in the period of 12 months ending with the expiry of the period mentioned in paragraph (a) above, the responsible medical officer may not grant a certificate under that subsection. "
Patients on leave of absence are liable to recall to hospital. Recall is effected under the 2003 Act by the RMO taking advantage of section 127(6) to attach a recall condition to the Suspension Certificate authorising leave [cf. section 301(2), discussed below]; or by the RMO exercising his or her power under section 129 to revoke the Suspension Certificate. The existence of the power of recall may be an incentive for some patients to stick to their treatment regime in the community.
[9] I found it helpful to learn how the present system had evolved. Before 1995 there was apparently no restriction on the duration of leave of absence other than that it could not be granted for more than six months at a time. Following several high profile cases in England, the Mental Health (Patients in the Community) Act 1995 introduced, for the whole United Kingdom, Community Care Orders and a twelve-month limit on consecutive periods of leave. There was apparently nothing to prevent further leave being granted almost immediately afterwards, following a few days in hospital. In 1999 the Scottish Executive appointed a committee chaired by the Rt Hon Bruce Millan to review the working of the Mental Health (Scotland) Act 1984 and to report. The Millan Committee's remit included reference to "leave of absence and care outwith hospital". The six-month limit on any single period of leave in the 2003 Act s. 127(1)(b) and the nine-month cumulative limit in subsection (2) come straight from recommendations 6.21 and 6.23 of the Millan Report [New Directions: Report on the Review of the Mental Health (Scotland) Act 1984, SE/2001/56 (Edinburgh, 2001)].
[10] Since "leave" from detention sounds like a good thing, it may surprise some readers to find the Millan Report...
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