MH v Mental Health Tribunal for Scotland

JurisdictionScotland
Judgment Date15 March 2019
Neutral Citation[2019] CSIH 14
Docket NumberNo 27
Date15 March 2019
CourtCourt of Session (Inner House)

[2019] CSIH 14

First Division

Sheriff Court

No 27
MH
and
Mental Health Tribunal for Scotland
Cases referred to:

A v Harrower sub nom A v Procurator Fiscal, Dundee [2017] HCJAC 91; 2018 JC 93; 2018 SLT 72; 2018 SCCR 9

A v Secretary of State for the Home Department [2013] CSIH 43; 2013 SC 533; 2013 SLT 749

A v Secretary of State for the Home Department sub nom A v BBC (Scotland) [2014] UKSC 25; 2014 SC (UKSC) 151; 2014 SLT 613; 2014 SCLR 593; [2015] AC 588; [2014] 2 WLR 1243; [2014] 2 All ER 1037; [2014] EMLR 25; 37 BHRC 664

AB v CD (1851) 14 D 177

Al-Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531; [2011] 3 WLR 388; [2012] 1 All ER 1; [2011] UKHRR 931

Attorney-General v Leveller Magazine Ltd [1979] AC 440; [1979] 2 WLR 247; [1979] 1 All ER 745; 68 Cr App R 342; [1979] Crim LR 247

Attorney-General's Reference (No 3 of 1999) sub nom Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order [2009] UKHL 34; [2010] AC 145; [2009] 3 WLR 142; [2009] EMLR 23; [2009] HRLR 28

B v Forsey 1988 SC (HL) 28; 1987 SLT 681; 1987 SCLR 395

Bank Mellat v HM Treasury (No 1) [2013] UKSC 38; [2014] AC 700; [2013] 4 All ER 495; [2013] Lloyd's Rep FC 557

Black v Mental Health Tribunal for Scotland [2011] CSIH 83; 2012 SC 251; 2012 GWD 2–31

Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29; 2016 SLT 805; 2016 SCLR 448; [2016] HRLR 19; [2016] ELR 474; 19 CCL Rep 422; The Times, 26 September 2016

Diennet v France (A/315-B) [1995] ECHR 28; (1995) 21 EHRR 554

F v Ravenscraig Hospital 1988 SC 158; 1989 SLT 49; 1988 SCLR 327

Fuller v R [2016] EWCA Crim 1867; [2017] MHLR 228

G v Mental Health Tribunal for Scotland [2015] CSIH 18; 2015 GWD 9–170

Guardian News and Media Ltd (Re) [2010] UKSC 1; [2010] 2 AC 697; [2010] 2 WLR 325; [2010] 2 All ER 799; [2010] EMLR 15; [2010] HRLR 14; [2010] UKHRR 181; [2010] NPC 8

H v Ministry of Defence [1991] 2 QB 103; [1991] 2 WLR 1192; [1991] 2 All ER 834

Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago and anr [2004] UKPC 26; [2005] 1 AC 190; [2004] 3 WLR 611; [2005] 1 All ER 499; [2004] EMLR 28; 17 BHRC 661

Joel v Gill (1859) 22 D 6

K (Infants) (Re) sub nom Official Solicitor v K [1965] AC 201; [1963] 3 WLR 408; [1963] 3 All ER 191

Khuja (formerly known as PNM) v Times Newspapers Ltd [2017] UKSC 49; [2017] 3 WLR 351; [2018] 1 Cr App R 1; [2017] EMLR 29; [2017] Crim LR 998

Law Hospital NHS Trust v Lord Advocate 1966 SC 301; 1996 SLT 848; 1996 SCLR 491; [1996] 2 FLR 407; (1998) 39 BMLR 166; [1996] Fam Law 670

Murdoch v Young 1909 2 SLT 450

PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067; [2018] COPLR 346; 163 BMLR 123

R v Westminster City Council, ex p P (1999) 31 HRLR 154; (1997–98) 1 CCL Rep 486

R (on the application of C) v Secretary of State for Justice [2016] UKSC 2; [2016] 1 WLR 444; [2017] 1 All ER 513; [2016] EMLR 13; [2016] HRLR 7; 19 CCL Rep 5; 149 BMLR 1

Richardson v Wilson (1879) 7 R 237

S (A Child) (Identification: Restrictions on Publication) (Re) [2004] UKHL 47; [2005] 1 AC 593; [2004] 3 WLR 1129; [2004] 4 All ER 683; [2005] EMLR 2; [2005] 1 FLR 591; [2004] 3 FCR 407; [2005] HRLR 5; [2005] UKHRR 129; 17 BHRC 646; [2005] Crim LR 310

Scott v Scott [1913] AC 417

Scottish Lion Insurance Co Ltd v Goodrich Corp [2011] CSIH 18; 2011 SC 534; 2011 SLT 733; [2013] BCC 127

Scottish Ministers v Stirton [2013] CSIH 81; 2014 SC 218; 2013 SLT 1141; [2014] Lloyd's Rep FC 18

Z v Finland (22009/93) (1998) 25 EHRR 371; (1999) 45 BMLR 10

Textbooks etc referred to:

Erskine, J, An Institute of the Laws of Scotland (8th Nicholson ed, Bell and Bradfute, Edinburgh, 1871), I, ii, 8

Lord President (Gill), Practice Note (No 1 of 2015): Reporting restrictions etc (Court of Session, Edinburgh, February 2015), paras 8, 9 (Online: http://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/practice-notes/court-of-session/practice-note-(immigration)-2-of-2015.pdf?sfvrsn=12 (7 April 2019))

Millan, B, New Directions: Report on the review of the Mental Health (Scotland) Act 1984 (SE/2001/56) (Scottish Executive, Edinburgh, January 2001), Ch 9, paras 14, 90, 97; recommendation 9.6 (Online: https://www.mhtscotland.gov.uk/mhts/files/Millan_Report_New_Directions.pdf (7 April 2019))

President of the First-tier Tribunal Immigration and Asylum Chamber (Mr Michael Clements), Presidential Guidance Note (No 2 of 2011): Anonymity directions in the FtT(IAC) (Tribunals Judiciary, London, February 2011) (Online: https://www.judiciary.uk/wp-content/uploads/2014/07/guidance-2-2011-.pdf (7April 2019))

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)

Introduction

[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...

To continue reading

Request your trial
11 cases
  • British Broadcasting Corporation v Chair of the Scottish Child Abuse Inquiry
    • United Kingdom
    • Court of Session (Inner House)
    • 23 February 2022
    ...583 Lone v Secretary of State for Education [2019] EWHC 531; [2019] IRLR 523; [2019] ELR 222 MH v Mental Health Tribunal for Scotland [2019] CSIH 14; 2019 SC 432; 2019 SLT 411; 2020 SCLR 240 MacMillan v T Leith Developments Ltd (in receivership and liquidation) [2017] CSIH 23; 2017 SC 642; ......
  • K v Chief Constable, Police Scotland
    • United Kingdom
    • Court of Session (Inner House)
    • 28 April 2020
    ...40; [2018] 1 WLR 4021; [2018] 4 All ER 1007; [2018] ICR 1353; [2018] IRLR 954 MH v Mental Health Tribunal for Scotland [2019] CSIH 14; 2019 SC 432; 2019 SLT 411; 2020 SCLR 240 McGuffie v Forth Valley Health Board 1991 SLT 231 McLoughlin v O'Brian [1983] 1 AC 410; [1982] 2 WLR 982; [1982] 2 ......
  • Petition Of X & Y Against The Principal Reporter And Kb
    • United Kingdom
    • Court of Session
    • 8 April 2022
    ...to become available to the petitioners in the futur e. The Lord President had made clear in MH v Mental Health Tribunal for Scotland 2019 SC 432 (at paragraph 7) that confidentiality in one process or in one part of 16 a process did no t guarantee confidentiality in all judicial or acquis j......
  • (first) The British Broadcasting Corporation; (second) Times Newspapers Limited; (third) News Group Newspapers Limited For Judicial Review
    • United Kingdom
    • Court of Session
    • 19 March 2020
    ...Abrogation of open justice is, or should be, as the Inner House made clear as recently as MH v The Mental Health Tribunal for Scotland [2019] CSIH 14. ...” [7] The sheriff clerk communicated the first petitioner’s concerns to the first respondent the same day. Later that day she replied to ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT