Petition of WM
| Jurisdiction | Scotland |
| Judgment Date | 11 July 2002 |
| Date | 11 July 2002 |
| Court | Court of Session (Outer House) |
Court:Outer House, Court of Session
Lord Eassie
Appearances:Bell QC and Collins (instructed by Anderson Strathern WS) for WM; Stacey QC and Ross (instructed by RF Macdonald) for the hospital and treating psychiatrist; Davidson QC and Creally (instructed by R Henderson) for the Scottish Ministers
Whether the administration of medication without consent breached Arts 6, 8 or 14 European Convention.
WM had been detained under the Mental Health (Scotland) Act 1984between 11 September 2000 and 23 November 2000, and was then granted leave of absence. He challenged by judicial review the legality of the administration without his consent of anti-psychotic medication on 4 occasions in September and October 2000, when he was detained under s. 26 of the Act, detention for a limited period; he did not in that period exercise his right to appeal to the sheriff against his detention.
Under Part X of the Act, patients may be treated without their consent in certain circumstances: in particular, treatment with medication after 3 months since its first use requires either the consent of the patient or the certification of a second opinion doctor that the treatment should be given (except in urgent situations), but otherwise the consent of the patient is not required for treatment for the patient's mental disorder. WM argued that his detention and treatment infringed Arts 6 (fair trial), 8 (respect for private and family life) and 14 (no discrimination) European Convention.
In relation to Art 6, it was argued for WM that the effect of the statute being that consent to treatment was dispensed with, that amounted to a determination of his civil rights and obligations which was effected otherwise than by an independent and impartial tribunal. The Scottish Ministers argued that Art 6 did not apply unless there was a dispute as to the extent of the right and so could not be invoked when the substantive law was clear. In relation to Art 8, the issue was whether the test of proportionality was met: for WM, it was argued that the powers set in the statute were broader than necessary and did not include adequate procedural safeguards.
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 4 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 s. 20 of the 1984 Act and was the petitioner's "responsible medical officer" in terms of s. 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 s. 24, read with s. 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 s. 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 s. 18 of the 1984 Act for the petitioner's further detention in the hospital. The making of that application prolonged for 5 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 4 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 s. 26 of the 1984 Act.
3. The leading criterion for short-term compulsory detention under s. 26 of the 1984 Act may be stated by reference to subs(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 s. 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 s. 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, s. 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 s. 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 (ss96-103) 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 s. 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 s. 25 of the 1984 Act. It is, I think, sufficient to give a short summary of those provisions.
6. First, s. 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, SI 1984/1494.Secondly, s. 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...
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