Sarah Beattie v Peter Dunbar, Mental Health Officer, and Mental Health Tribunal for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 22 February 2006 |
| Date | 22 February 2006 |
| Court | Sheriff Principal (Scotland) |
Sheriff Principal BA Lockhart
Mr Buchanan (instructed by Messrs Cartys) for MB; Mr O'Carroll (instructed by the MHO, North Lanarkshire Council) for the MHO; Mr Howie QC (instructed by the Mental Health Tribunal for Scotland) for the Tribunal.
Whether an application to a Tribunal had been validly made in light of the incomplete nature of one of the medical recommendations
An application for a Compulsory Treatment Order is made under s. 63 Mental Health (Care and Treatment) (Scotland) Act 2003 by a Mental Health Officer. Under s. 57, the MHO must obtain 2 medical recommendations: they must agree that the criteria for compulsion are present, namely (i) the patient suffers from a mental disorder, (ii) treatment is available which would be likely to prevent the disorder worsening or alleviate any symptoms or effects, (iii) there would be a significant risk to the health, safety or welfare of the patient or the safety of any other person in the absence of treatment, (iv) the disorder significantly impairs the patient's ability to make treatment decisions and (v) a CTO is necessary. The reports must give reasons for their conclusions. Inter alia, the reports must make recommendations as to the measures which should be authorised by the Order, and must agree on these measures. If an MHO has 2 mental health reports complying with the statutory requirements, he or she must prepare a report under s. 61 of the Act, make an application for an Order and propose a care plan to the Tribunal.
An application was made in relation to SB. The Tribunal hearing was adjourned from 10 November 2005 until 2 December 2005 to allow her solicitor to obtain an independent psychiatric report. Rule 62 of the Mental Health Tribunal for Scotland (Practice and Procedure) (No 2) Rules 2005 provides that any expert report shall be provided to the Tribunal 7 days prior to the next hearing unless the Tribunal gives permission for that not to happen: such an application was made and granted. On 2 December 2005, the Tribunal made a CTO under s. 64 of the Act. SB appealed on the ground that there was an error of law, namely that the Tribunal decision was ultra vires as the application had not complied with the statutory provisions: it was submitted that strict compliance was necessary because the liberty of the subject was affected. The errors alleged were in relation to one of the medical reports, namely that (i) it did not contain a statement that a CTO was necessary (the doctor not having completed the relevant tick-box part of a pro-forma statement designed to comply with s. 57) and (ii) as the relevant page on the pro-forma had been mislaid and was not before the Tribunal, it did not recommend the same measures as the other report. Similar submissions had been made to the Tribunal, but it dismissed them and proceeded to make the order.
The MHO submitted that the question was whether the reports met the substantive requirements of the statute, and that it did on the facts because (i) in relation to the failure to check the relevant tick-box to state that the making of an order was necessary, that opinion was made plain in the narrative part of the report; and (ii) and in relation to the missing page setting out the recommendations as to the measures to be included in the CTO, the measures which the doctor felt were needed were also set out in narrative form on the report and agreed with the views of the other doctor. The Tribunal supported these submissions and also submitted that if the MHO made an application in accordance with s. 63, the Tribunal was bound to consider it and apply the criteria under s. 64 of the Act, which is what had occurred.
Background to the appeal
1. This is an appeal against a decision of a Mental Health Tribunal made on 2 December 2005 in which a Compulsory Treatment Order was granted in respect of the appellant. Before dealing with the appeal and the submissions of parties, it is proper to set out the relevant statutory provisions.
A. Mental Health Officer's duty to apply for a Compulsory Treatment Order.
Section 57(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 provides:
"Where subss(2) to (5) below apply in relation to a patient, a mental health officer shall apply to the Tribunal under s. 63 of this Act for a Compulsory Treatment Order in respect of that patient."
Subsections (2)-(5) of the Act are in the following terms:
"(2) This subsection applies where two medical practitioners carry out medical examinations of the patient in accordance with the requirements of s. 58 of this Act.
(3) This subsection applies where each of the medical practitioners who carry out a medical examination mentioned in subs(2) above is satisfied-
(a) that the patient has a mental disorder;
(b) that the medical treatment which would be likely to-
(i) prevent the mental disorder from worsening; or
(ii) alleviate any of the symptoms, or effects, of the disorder,
is available to the patient
(c) that if the patient were not provided with such medical treatment there would be a significant risk -
(i) to the health, safety and welfare of the patient; or
(ii) to the safety of any other person
(d) that because of the mental disorder the patient's ability to make decisions about the provision of such medical treatment is significantly impaired; and
(e) that the making of a compulsory treatment order is necessary.
(4) This subsection applies where each of the medical practitioners who carry out a medical examination mentioned in subs(ii) above submits to the Mental Health Officer a report (any such report being referred to in this Act as a 'mental health report')-
(a) stating that the medical practitioner submitting the report is satisfied that the conditions mentioned in paras (a) to (e) of subs(3) above are met in respect of the patient;
(b) stating, in relation to each of the conditions mentioned in paras (b) to (e) of subs3 above, the medical practitioner's reasons for believing the conditions to be met in respect of the patient;
(c) specifying (by reference to the appropriate paragraph (or paragraphs) of the definition of 'mental disorder' in s. 328(1) of this Act) the type (or types) of mental disorder that the patient has;
(d) setting out a description of
(i) the symptoms that the patient has of the mental disorder; and
(ii) the ways in which the patient is affected by the mental disorder;
(e) specifying the measures that should, in the medical practitioner's opinion, be authorised by the compulsory treatment order;
(f) specifying the date or dates on which the medical practitioner carried out the medical examination mentioned in subs(2) above; and
(g) setting out any other information that the medical practitioner considers to be relevant.
(5) This section applies where:
(a) for the purposes of subs(4)(c) above each of the mental health reports specifies at least one type of mental disorder that is also specified in the other report;
(b) for the purposes of subs(4)(e) above each of the mental health reports specifies the same measures; and
(c) one of the mental health reports (being a report by an approved medical practitioner) states the views of that medical practitioner as to-
(i) subject to subs(6) below whether notice should be given to the patient under s. 60(1)(a) of this Act;
(ii) whether the patient is capable of arranging for a person to represent the patient in connection with the application under s. 63 of this Act;"
Accordingly the author of each mental report is required to state that all the 5 tests specified in s. 57(3) have been met. The mental health report must also specify the measures which the medical practitioner considers should be authorised under the CTO and the 2 medical reports must be fully in agreement with regard to the measures to be authorised.
If the requirements of subss(2) to (5) are met, and the MHO is in possession of the 2 mental health reports which conform with these provisions, the MHO is required to apply to the Tribunal under s. 63 of the Act for a CTO in respect of the patient.
B. Further duties on Mental Health Officer.
Section 61 of the 2003 Act places a duty on the MHO to prepare a report after receiving the 2 mental health reports and s. 62 requires the MHO to prepare a proposed care plan.
C. Application for a Compulsory Treatment Order.
Section 63 of the 2003 Act provides:
"(1) An Application to the Tribunal for a Compulsory Treatment Order may be made by, and only by, a Mental Health Officer.
(2) An application-
(a) shall specify-
(i) measures which are sought in relation to the patient in respect of whom the application is made and
(b) shall be accompanied by the documents that are mentioned in subs(3) below; and
(3) Those documents are:
(a) the mental health reports;
(b) the report prepared under s. 61 of this Act; and
(c) the proposed care plan;
relating to the patient."
D. Powers of Tribunal on application under s. 63: Compulsory Treatment Order.
Section 64 of the 2003 Act applies where an application is made under s. 63 of the Act. Section 64(4) provides:
"The Tribunal may-
(a) if satisfy that all the conditions mentioned in subs(5) below are met make an order-
(i) authorising, for the period of 6 months beginning with the day on which the order is made, such of the measures mentioned in s. 66(1) of this Act as may be specified in the order "
Section 64(5) provides:
"The conditions referred to in subs4(a) are-
(a) that the patient has a mental disorder;
(b) that the medical treatment which would be likely to-
(i) prevent the mental disorder worsening; or
(ii) alleviate any of the symptoms or effects of the disorder,
is available to the...
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