Petition Of John Smith Mental Health Officer For Fife Council For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Judgment Date | 17 March 2006 |
| Neutral Citation | [2006] CSOH 44 |
| Docket Number | P274/06 |
| Court | Court of Session |
| Date | 17 March 2006 |
| Published date | 17 March 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 44 | |
| P274/06 | OPINION OF LADY SMITH in the Petition of JOHN SMITH, Mental Health Officer for Fife Council Petitioner; for Judicial Review ________________ |
Petitioner: Brown, Advocate, Innes, Advocate; HBJ Gateley Wareing, LLP
First Respondent: Campbell, Advocate; Ian Kennedy, W.S.
17 March 2006
Introduction
[1] This petition for judicial review was presented by the petitioner in his capacity as a mental health officer appointed by Fife Council under and in terms of s.32 of the
Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"). The first respondent was the Mental Health Tribunal for Scotland, a body created by s.21 of the 2003 Act. His application concerned the welfare of a patient ("P") at Stratheden Hospital.
Factual Background
[2] P had been compulsorily detained at Stratheden Hospital on 10 January 2006 in terms of a short term detention certificate ("STDC") granted by medical practitioners there under and in terms of s.44 of the 2003 Act. He suffers from Korsikoff's psychosis and was considered to be a danger to himself and to others.
[3] The STDC authorised the detention of P under s.44(5) of the 2003 Act for a period of 28 days.
[4] On 7 February 2006, the petitioner, in fulfilment of the duties incumbent on him under s.57 of the 2003 Act, presented an application to the first respondent for a compulsory treatment order in respect of P, it being the view of the doctors responsible for his care at Stratheden Hospital, that such an order was required. The application was properly and timeously presented under s.63 of the 2003 Act. Presentation of the application had the effect of extending the STDC by a further five working days to midnight on 14 February 2006 (see: s.68 of the 2003 Act). Such applications require to be considered at a hearing fixed by the first respondent.
[5] By letter dated 10 February 2006, the first respondent's Chief Executive responded to Fife Council's enquiry regarding the fixing of a tribunal hearing in terms which included the following:
"Your understanding of the Act is correct. Your understanding of the reasons for the failure in this instance to meet the requirements of Section 69 is not. The reason no hearing has been arranged is not related to the availability of panel members, this is not an issue. Mr John Smith was advised by 2 members of my staff that a hearing was not possible due to the lack of a venue within the timescales and the compromised ability of the Administration to give other participants notice of the hearing.
Both the President and the Tribunal Administration were already aware of their responsibilities under the Act in this regard. Unfortunately, the number of CTO applications being received late in the Short Term Detention Period has increased hugely since the inception of the Tribunal. In October 17% of applications were received in the last 3 days of the 28 day period. By January this had risen to nearly 70%.
The Administration continues to make all possible efforts to meet our obligations in respect of hearing dates under the Act but we also have obligations to patients and others in terms of the notice they are given of hearing so that they can obtain representation, prepare for and properly participate in hearings. Where applications are received late but we are able to quickly identify a suitable venue etc we will do so, even where the notice is only 48 hours. We continue to meet our obligations under the Act in all but a handful of instances, but where we also have limited availability of venues there will be occasions when we are simply not able to do so.
Mr Smith advised me that the decision to proceed with a CTO application was made on day 14. If the medical records had been completed shortly thereafter no issue would have arisen. Or if Stratheden Hospital had greater availability of a hearing venue, even with an application received on day 28, we may have been able to secure a hearing. Neither of those is within my control."
[6] Fife Council wrote to Mrs Davie, the President of the First Respondents by letter dated 10 February 2006 in the following terms:
"Dear Ms Davie
Re: DT
CHI Number: 0103520457
Compulsory Treatment Order
I am writing to make you aware of a situation that has arisen concerning a Compulsory Treatment Order application for Mr T. He is currently on a Short Term...
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