Petition Of W.m. (a.p.) For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Eassie |
| Date | 11 July 2002 |
| Court | Court of Session |
| Published date | 12 August 2002 |
| OUTER HOUSE, COURT OF SESSION | |
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| OPINION OF LORD EASSIE in Petition of W.M. (AP) Petitioner; for Judicial Review of acts and failures to act regarding the detention of the petitioner under section 26 of the Mental Health (Scotland) Act 1984, and to administer medical treatment to him without his consent whilst detained by virtue of this provision ________________ |
Petitioner: Bell, Q.C., Collins; Anderson Strathern, W.S. (for Frank Irvine, Glasgow)
First and Second Respondents: Stacey, Q.C., Ross; R F Macdonald
Third Respondents: Davidson, Q.C., Creally; R Henderson
11 July 2002
[1]The petitioner in this petition for judicial review was detained in terms of the Mental Health (Scotland) Act 1984 - "the 1984 Act" - in a psychiatric hospital between 11 September 2000 and 23 November 2000 when, though continuing to be liable to detention, he was granted leave of absence. He seeks in these proceedings to challenge the compatibility of his detention and treatment with the rights afforded to him by the European Convention for the Protection of Human Rights and Fundamental Freedoms as applied internally within Scotland by the Human Rights Act 1998. The treatment in issue consisted in the administration of a particular anti-psychotic medication on four occasions, namely on 21 and 25 September and on 9 and 23 October 2000 to which administration the petitioner expressly declined to give his consent but which he accepted without physical protest or resistance on the basis that it had been explained to him that the responsible medical officer was legally empowered to administer the treatment to him without his consent. The first respondent in these proceedings is a medical practitioner approved for the purposes of section 20 of the 1984 Act and was the petitioner's "responsible medical officer" in terms of section 59 of that Act. The second respondents are an NHS Trust and have the management of the psychiatric hospital. The first and second respondents have joint representation in these proceedings. The third respondents are the Scottish Ministers.
[2]The procedural history of the petitioner's detention is as follows. On 6 September 2000 the petitioner was seen by the first respondent at a clinic to which the petitioner had been referred by his general medical practitioner who was concerned about the petitioner's relapse into psychotic illness. According to averment on behalf of the first respondent the petitioner appeared to be suffering from a paranoid psychosis. The first respondent was able to persuade the petitioner to allow himself to be admitted to a psychiatric hospital on a voluntary basis and the petitioner was so admitted on 7 September 2000. Having been so admitted the petitioner rejected efforts by the hospital staff to persuade him to resume taking a particular anti-psychotic medication with which he had previously been treated and on 11 September 2000 the petitioner decided that he wished to discharge himself from the hospital. The petitioner was then made the subject of an emergency admission to the hospital in terms of section 24, read with section 25, of the 1984 Act which empowered his detention for a period of 72 hours. Shortly before the expiry of that period the first respondent presented to the managers of the hospital a report in terms of section 26 of the 1984 Act resulting in the petitioner being subject to the short-term, 28 day detention, provided for in that section of the 1984 Act. On 10 October 2000 a mental health officer of the North Lanarkshire Council submitted to the sheriff court an application in terms of section 18 of the 1984 Act for the petitioner's further detention in the hospital. The making of that application prolonged for five days the authority for the petitioner's detention and a hearing having been held within that timescale in due course the sheriff, at an adjourned hearing, granted the application. It is convenient to note that each of the four administrations of the anti-psychotic drug thus took place when the petitioner's status was that of a patient subject to short-term detention in terms of section 26 of the 1984 Act.
[3]The leading criterion for short-term compulsory detention under section 26 of the 1984 Act may be stated by reference to subsections (2)(a)(i) and (ii) as follows:-
"(i)the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for at least a limited period; and
(ii)the patient ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons;".
It is not disputed that as regards the petitioner's short-term detention that criterion was satisfied and no issue arises respecting the other subsidiary or procedural criteria in the section. Accordingly, viewed in terms of the 1984 Act, no issue arises as to the regularity of the procedures resulting in the petitioner's detention, all of those procedures having been duly followed. Nor, it should be stressed, is any suggestion made in the pleadings or in argument that the first and second respondents acted otherwise than in good faith having regard to their genuine perception of the petitioner's best interests and their desire to assist his restoration to sound mental health.
[4]Provision is also made in the 1984 Act whereby those subject to short-term detention may apply to the sheriff. Thus section 26(6) states:-
"Any patient may, within the period for which the authority for his detention is renewed by virtue of a report furnished in respect of him under this section, appeal to the sheriff to order his discharge and the provisions of section 33(2) and (4) of this Act shall apply in relation to such an appeal."
Section 33(4) provides that where an appeal is made to the sheriff under, among others, section 26 the sheriff shall order the discharge of the patient if he is satisfied that -
"(a)the patient is not at the time of the hearing of the appeal suffering from mental disorder of a nature or a degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(b)it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment."
Although advised of that right of appeal as provided for in section 35 of the 1984 Act, the petitioner did not exercise it. Counsel for the petitioner stated at the Bar that the petitioner did not do so because he had been advised that he had little prospect of success.
[5]The pertinent provisions of the mental health legislation in Scotland relating to the need for or absence of consent to treatment are contained within Part X (sections 96-103) of the 1984 Act. Subject to certain exceptions from the category of persons liable to detention under the 1984 Act, those provisions apply to persons within that category. The exceptions are specified in section 96(1) and include among others those detained under an emergency recommendation. However, the provisions of Part X do extend to those such as the petitioner subject to short-term detention under section 25 of the 1984 Act. It is, I think, sufficient to give a short summary of those provisions.
[6]First, section 97 concerns certain treatments for mental disorder to which the patient must be able to give consent and give such consent and which must be certified by a medical practitioner appointed by the Mental Welfare Commission as being treatment which should be given for therapeutic reasons. The treatments to which that requirement of "consent and second opinion" applies are surgical operations for the destruction of brain tissue, or the destruction of the functioning of brain tissue or the surgical implantation of hormones for the purpose of reducing the male sexual drive in terms of the Mental Health (Specified Treatments, Guardianships Duties Etc.) (Scotland) Regulations 1984, S.I. 1984/1494. Secondly, section 98 addresses other forms of medical treatment for mental disorder for which it stipulates either (a) that the patient shall have consented to that treatment (his ability to give consent being certified by a medical practitioner) or (b) where the patient is not capable of giving consent, or being capable yet refuses consent, a medical practitioner other than the responsible medical officer shall have certified that the treatment should be given. The treatments to which the requirement of "consent or second opinion" apply include, in terms of paragraph (b) of section 98(1):-
"The administration of medicine to a patient by any means (not being a form of treatment specified under paragraph (a) of this subsection or section 97 of this Act) at any time during a period for which he is liable to be detained as patient to whom this Part of this Act applies if 3 months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder."
The requirements of sections 97 and 98 do not apply in certain emergency or urgent situations, such as treatment necessary to save the patient's life more particularly specified in section 102.
[7]Having thus set out the requirements for consent accompanied by, or replaced by, a second opinion in the case of certain treatments the 1984 Act, always subject to the provisions addressing emergency situations, then provides in section 103 as follows:-
"The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within section 97 or 98 of this Act, if the treatment is given by or under the direction of the responsible medical officer."
As already foreshadowed, it is not suggested on behalf of the petitioner that in administering the particular anti-psychotic drug to him in the absence of his active consent, the first respondent was acting in any way inconsistent...
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