F. v Management Committee and Managers of Ravenscraig Hospital
| Jurisdiction | Scotland |
| Judgment Date | 01 March 1988 |
| Date | 01 March 1988 |
| Docket Number | No. 25. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Administrative lawAppeal to sheriff by mental patient against transfer to different hospitalWhether sheriff exercising judicial or administrative functionMental Health (Scotland) Act 1984 (cap. 36), sec. 29 (4).
PracticeCompetencyMental patient appealing to sheriff against transfer to different hospitalWhether further appeal to sheriff principal and Court of Session competentMental Health (Scotland) Act 1984 (cap. 36), secs. 29 (4), 113 (1)1Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 50.2
After an apparent improvement in his health, a patient detained in hospital in terms of the Mental Health (Scotland) Act 1984 was transferred from Carstairs State Hospital to Inverclyde Royal Hospital. After the transfer the appellant's behaviour caused anxiety for the safety and welfare of other patients and, finally, the appellant violently assaulted another patient. The respondents then arranged for him to be re-transferred to the state hospital. The appellant appealed against the transfer direction in terms of sec. 29 (4) of the Mental Health (Scotland) Act 1984 by way of summary application to the sheriff. The sheriff refused the appeal and the patient appealed to the sheriff principal, who held that the appeal was incompetent as the sheriff had been exercising an administrative rather than a judicial function. The patient appealed to the Court of Session.
Held that the role of sheriffs in the detention, control and discharge of persons who suffer from mental illness had been consistently regarded as administrative since it began and the sheriff principal had been right to find that sec. 113 (1) of the 1984 Act gave a clear indication that there was no change in the administrative jurisdiction of the sheriff whether he was approached by way of application or by way of summary application; an appeal from the sheriff was accordingly incompetent; and appeal refused.
F. appealed to the sheriff of North Strathclyde at Greenock, by summary application under sec. 29 (4) of the Mental Health (Scotland) Act 1984, against a decision of the management committee and managers of Ravenscraig Hospital.
At advising, on 20th August 1986, the sheriff refused the appeal. F. thereafter appealed to the sheriff principal (P. I. Caplan, Q.C.).
The following narrative is taken from the opinion of the sheriff principal:"This appeal raises important questions of law which are not without difficulty. The appellant has a history of severe psychiatric illness and about 1974 was committed to the state hospital at Carstairs under the then applicable mental health legislation. He was detained at Carstairs until about 17th March 1986 when he was transferred to the psychiatric admission ward at Inverclyde Royal Hospital. It appears that it was hoped that it would eventually be possible to discharge him back into the community. However, he assaulted another patient while at Inverclyde Royal Hospital and on 4th June 1986 it was decided by the hospital managers to transfer him back to the state hospital. This transfer was effected on 18th June 1986. On 2nd July 1986 the appellant presented by way of summary application an appeal to the sheriff in terms of sec. 29 (4) of the Mental Health (Scotland) Act 1984. The said subsection provides:Where a patient is transferred to a State hospital under subsection (1) (a) of this section he or his nearest relative may, within 28 days of the date of the transfer, appeal by way of summary application to a sheriff of the sheriffdom within which the hospital from which the patient was transferred is situated against the decision of the managers of that hospital to transfer the patient; and on any such appeal the sheriff shall order the return of the patient to the hospital from which he was transferred unless he is satisfied that the patient, on account of his dangerous, violent or criminal propensities, requires treatment under conditions of special security, and cannot suitably be cared for in a hospital other than a State hospital. After sundry procedure on the appeal a hearing was held on 20th August 1986. At that hearing the respondents led evidence from Dr Moffat who is a consultant psychiatrist at Inverclyde Royal Hospital and from Mr Connelly who is a charge nurse there. Although the appellant was represented at the hearing no evidence was given by him or led on his behalf."
At advising, on 24th December 1986, the sheriff principal refused the appeal as being incompetent. In the note annexed to the sheriff principal's interlocutor it was set forth, after the narrative quotedsupra, that:"By interlocutor dated 12th September 1986 the sheriff refused the appeal and it is this interlocutor which the appellant now wants to appeal before myself as sheriff principal. In his note the sheriff indicates that he was satisfied that on account of the appellant's dangerous, violent and criminal propensities he requires treatment under conditions of special security. At this stage the sheriff's right to make such a finding is not disputed nor is it disputed that suitable facilities are not available at Inverclyde Royal Hospital. However, in terms of the said sec. 29 (4) the sheriff is obliged to order the return of the appellant to the last mentioned hospital unless he is satisfied that the appellant cannot suitably be cared for in a hospital other than a state hospital. The main contention of the appellant's solicitor before the sheriff appears to have been that the said managers had not established that there were no suitable facilities for the appellant outside the state hospital. It seems that Dr Moffat gave evidence that there were no suitable facilities for the appellant within the area of the Argyll and Clyde Health Board. However, Dr Moffat agreed that he could not give precise details about facilities available in other hospitals such as Gartnavel Royal Infirmary and Leverndale Hospital in Glasgow. Dr Chiswick the consultant psychiatrist at Carstairs had suggested to Dr Moffat that the most appropriate action would be to transfer the appellant back to Carstairs and at no time suggested that any other hospital would be suitable. In this situation the appellant's solicitor had apparently suggested to the sheriff that he could only be satisfied that no suitable facilities alternative to Carstairs were available if there was evidence that the possibility of there being suitable facilities available at any of the other psychiatric hospitals had been explored and discounted. The sheriff had been referred to an unreported decision of Sheriff McInnes at Cupar Sheriff Court, namely, Murrie v. Managers of Stratheden Hospital, 20th December 1985, where the said sheriff had apparently held that it is not sufficient in a sec. 29 (4) appeal merely to show that facilities in the hospital from which the applicant is being transferred are inadequate but that there must be evidence from which the court can infer that the applicant could not be suitably cared for in any other hospital in Scotland (other than a state hospital). However, the sheriff in the present case rejected the said submissions made to him. The sheriff in fact concluded that the comparison has to be made, not between the facilities available at the state hospital which the applicant or his advisers care to think of but between the form of treatment available at the state hospital on the one hand, and, on the other hand, the form of treatment available at the generality of other hospitals which have not been established for treatment under conditions of special security of patients with dangerous, violent or criminal propensities. In presenting his appeal the solicitor for the appellant at once acknowledged that a question mark lay over the competency of the appeal. He maintained that the question was whether in a sec. 29 (4) appeal the sheriff was acting in an administrative capacity or in his ordinary judicial capacity. If the latter then the ordinary rules of appeal against a final judgment ought to apply. I was referred to Dobie, Sheriff Court Practice, p. 305, and to Magistrates of Portobello v. Magistrates of EdinburghUNK (1882) 10 R. 130. I was taken carefully through the provisions of the Mental Health (Scotland) Act 1984 and an attempt was made to differentiate between provisions carried forward from the older legislation which could confer administrative powers on the sheriff and the newer appeal provisions, such as sec. 29 (4), introduced by the 1984 Act which conferred a judicial function. The pattern set by the 1984 Act was different from that in statutes where a specific appeal scheme was laid down (Troc Sales v. Kirkcaldy District Licensing Board 1982 S.L.T. (Sh. Ct.) 77). I was referred to Central R.C. v. B.UNK 1985 S.L.T. 413, andArcari v. Dumbartonshire C.C.SC 1948 S.C. 62, as authorities for the proposition that there is a presumption against restricting the right of appeal. I was also referred to an unreported decision of Sheriff Principal Dick in Thomson v. Secretary of State for Scotland, Glasgow, 17th June 1986, where the learned sheriff principal had held an appeal from the sheriff to himself in terms of sec. 29 (4) to be incompetent. It was submitted (as Sheriff Principal Dick acknowledges in his judgment) that the relevant competency question had not been fully argued before him. In any event the sheriff principal erred in placing emphasis on the use of the phrase a sheriff since this was merely done to denote the geographical limits of the sheriff's jurisdiction. I was referred to the learned exposition of the respective characters of the offices of sheriff and sheriff substitute in Glasgow Corporation v. Glasgow Churches' CouncilSC 1944 S.C. 97. It was contended that the new appeal provisions introduced into the 1983 Mental Health Act and then incorporated in the 1984 Act arose out of certain judgments befo re the European...
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