MH v Mental Health Tribunal for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 15 March 2019 |
| Neutral Citation | [2019] CSIH 14 |
| Docket Number | No 27 |
| Date | 15 March 2019 |
| Court | Court of Session (Inner House) |
[2019] CSIH 14
First Division
Sheriff Court
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Administration of justice — Principle of open justice — Exceptions to principle of open justice — Access to justice — Whether order for anonymity should be made in respect of a patient appealing against a decision of the Mental Health Tribunal for Scotland — Whether anonymisation necessary in order to ensure access to justice for mental health patients — Whether failure to grant order for anonymity in respect of a mental health patient a breach of right to private and family life — European Convention on Human Rights and Fundamental Freedoms, Art 8
MH was the subject of an application to the Mental Health Tribunal for Scotland for a compulsory treatment order. On 2 March 2018 the Tribunal made an interim CTO. The appellant appealed to the sheriff principal under sec 320 of the Mental Health (Care and Treatment) (Scotland) Act 2003. On 5 July 2018 the sheriff principal refused the appeal. The appellant appealed to the Court of Session under sec 321 of the 2003 Act.
The appellant enrolled a motion for anonymisation, and sought to be identified by the initials ‘MH’ in order to protect her privacy.
On 2 March 2018 an interim compulsory treatment order (‘CTO’) was made by the Mental Health Tribunal for Scotland (‘the Tribunal’) in respect of the appellant. The appellant appealed to the sheriff principal, who refused the appeal on 5 July 2018. The appellant appealed to the Court of Session under sec 321 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (‘the 2003 Act’). The appellant enrolled a motion for ‘anonymisation’, and sought to be identified by the initials ‘MH’ in order to protect her privacy. The respondent did not oppose the motion.
The appellant argued that the principle of open justice was not unqualified, and it was necessary in order to ensure access to justice for mental health patients that their identity should not be disclosed. There was no public interest in revealing the identity of an appellant in a mental health case and to do so would be a breach of Art 8 of the European Convention on Human Rights and Fundamental Freedoms.
The respondent argued that anonymisation might be necessary where the party's mental health would be at risk should their identity become known. A balancing exercise required to be carried out on a case-by-case basis.
Held that: (1) the withholding of any information concerning civil cases pending before the court was an interference with the principle of open justice, which required that proceedings were heard and determined in public and that the public had access to judicial determinations, including the identity of the parties, and the principle of open justice pointed towards the continuing requirement for the courts to publish information on the cases coming before it (paras 16–20, 41–44); (2) the court had the power at common law to withhold information, including the names of the parties, from its published opinions, but should not do so other than in the most compelling circumstances (paras 21–24, 36); (3) in cases where disclosure of a person's identity would threaten their life, or put them at risk of torture or inhumane or degrading treatment, the court required to omit that person's identity from its opinion where the risk was real or substantial, but in other cases the court required to balance the competing rights, such as respect for privacy with open justice and transparency, and the starting point of any balancing exercise was the presumption in favour of open justice (paras 25–27); (4) in mental health cases where an appeal was on a point of law it would seldom be necessary to divulge details of the patient's illness in a court opinion, but there was no need to omit the name of the patient simply because doing so would lead to their involvement in mental health proceedings being revealed, and the patient's identity should not be kept secret where that would conflict with the general need for open justice (paras 28, 29, 35, 49–51); (5) no evidence had been proferred to support the argument that revealing a patient's identity would discourage them from appealing a decision of the respondent and no evidence had been produced that naming the appellant would have an adverse affect on her health (paras 30, 52–54); and motion refused in hoc statu.
Observed that: (1) should medical evidence be produced showing that naming the appellant would have an adverse affect on their health, the court hearing the merits of the appeal may reconsider the motion for anonymisation (para 30); and (2) the making of an anonymity order at common law did not have the same effect as an order under sec 11 of the Contempt of Court Act 1981 (cap 49), and that in order to prevent publication of the identity of an anonymised party in the press an order under sec 11 of the 1981 Act was also required (paras 37–39, 45–47).
A v Secretary of State for the Home Department 2014 SC (UKSC) 151 considered.
The motion called before a Division, comprising the Lord President (Carloway), the Lord Justice-Clerk (Dorrian) and Lord Malcolm, for a hearing on the single bills, on 12 February 2019.
At advising, on 15 March 2019—
Lord President (Carloway)—
[1] This is an appeal from an interlocutor of the sheriff principal refusing an appeal from a decision of the Mental Health Tribunal for Scotland. It raises an important...
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