The Scottish Ministers V. Against The Decision Of The Mental Health Tribunal For Scotland In The Case Of Jk
| Jurisdiction | Scotland |
| Judge | Lady Cosgrove,Lord Wheatley,Lord Clarke |
| Judgment Date | 11 February 2009 |
| Neutral Citation | [2009] CSIH 9 |
| Court | Court of Session |
| Published date | 11 February 2009 |
| Date | 11 February 2009 |
| Docket Number | XA132/07 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Wheatley Lord Clarke Lady Cosgrove | [2009] CSIH 9 XA132/07 OPINION OF THE COURT delivered by LORD WHEATLEY in COURT OF SESSION APPEAL UNDER SECTION 322 OF THE MENTAL HEALTH (SCOTLAND) ACT 2003 by THE SCOTTISH MINISTERS Appellant; against the decision of THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND Respondents; in the case of J K Interested Party; |
For the Appellants: Johnstone QC, Poole; Scottish Government Legal Directorate
Respondents: Dunlop QC, K Campbell, Solicitor to the Mental Health Tribunal
Interested Party: O'Carroll: Balfour + Manson LLP
11 February 2009
[1] This in an appeal under section 322 (1)(b) of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act") from a decision of the Mental Health Tribunal for Scotland dated 13 August 2007, revoking a restriction order which had earlier been placed on J K ("the patient"), who is the interested party in this appeal.
[2] The present restriction order was initially imposed on 16 November 1970 in Greenock Sheriff Court, following the patient's conviction for a breach of the peace on a summary complaint. Because the patient was suffering from a mental disorder, and also on account of his dangerous, violent or criminal propensities, the court determined that he required treatment under conditions of special security and ordered him to be detained in the State Hospital in terms of section 55 of the Mental Health (Scotland) Act 1960 ("the 1960 Act"). In addition, the court made an order restricting the patient's discharge, without limitation of time. The patient had originally appeared on petition, but the case was thereafter reduced to a summary prosecution and no indictment was ever served.
[3] The restriction order imposed on the patient was in terms of section 60 of the 1960 Act, although the section itself is not referred to in the court's decision. Section 60 provides:-
"(1) Where a hospital order is made in respect of a person, and it appears to the court, having regard to the nature of the offence with which he is charged, the antecedents of the person and the risk that as a result of his mental disorder he would commit offences if set at large, that it is necessary for the protection of the public so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order."
[4] The current position in respect of the detention of persons suffering from a mental disorder is that the court has powers under the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") to impose a compulsion order authorising the detention of a person in hospital (in terms of section 57(2)(a)), and further to impose restriction orders regulating the treatment of such patients in appropriate cases (in terms of sections 57(2)(b) and 59). By virtue of paragraph 20 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Transitional and Savings Provisions Order 2005 (SSI 452):-
"A restricted patient shall be treated as if a compulsion order under section 57A(2) of the 1995 Act and a restriction order under section 59 of the 1995 Act had been made in respect of that patient."
In the interpretation paragraph of the Order (2(1)) a restricted patient
"means a 1995 Act patient who immediately before 5 October 2005 was subject to the special restrictions set out in section 62(1) of the 1984 Act."
[5] Schedule 5 of the 1984 Act repealed the 1960 Act, but paragraphs 1 and 2 of Schedule 4 made the necessary transitional and savings provisions in respect of restricted patients under the earlier statute. The net effect of these various statutory enactments is that by virtue of the original court order of 16 November 1970, the patient in this appeal is for all present purposes to be treated as being under both a compulsion order and a restriction order under the relevant sections of the 1995 Act.
[6] One of the principal consequences of these legislative developments is to change the way in which restriction orders are supervised and administered. Formerly, only the Scottish ministers had the power to revoke a restriction order, by virtue of section 61 of the 1960 Act, followed by section 8 of the Mental Health (Scotland) Act 1984. This was changed by Parts 9 and 10 of the 2003 Act, which altered the way in which compulsion orders and restriction orders are managed. In terms of Part 9 of the Act, which deals with compulsion orders, the oversight of such orders is supervised by the patient's responsible medical officer. In the case of restriction orders under Part 10, restricted patients are supervised not only by the responsible medical officer but also by the Scottish Ministers and the Mental Health Tribunal, and for the first time, the right to remove the restriction order is given to the Tribunal. At this point it should be noted that restriction orders do not themselves authorise detention in hospital; that is achieved by the imposition of compulsion orders. The purpose of restriction orders is to provide additional safeguards in the decision making process concerned with the management and possible release of a restricted patient. The safeguards in respect of restricted patients are inter alia that while compulsion orders last only for six months (section 57A(2) of the 1995 Act), a restriction order continues the compulsion order without limit of time (section 57A(7)). A restriction order therefore prevents the patient from being released from a compulsion order (either within a hospital or a community setting), unless there has first been a decision of the Mental Health Tribunal following a hearing at which the Scottish ministers have the right to make representations (section 193(8) and (9) of the 2003 Act). In addition, decisions about the transfer of the patient (for example to a lower security hospital) are subject to scrutiny and approval by the Scottish ministers (sections 218 and 224 of the 2003 Act); and restriction orders require the Scottish minister to monitor the patient on a continuing basis (on reports from the relevant health officials) and must refer each case to the Tribunal at appropriate intervals (section 188 of the 2003 Act). Patients who are liable to come into increased contact with the community are subject therefore to regular statutory supervision by the Scottish Ministers, and the Tribunal, to ensure that considerations of public safety are given appropriate weight in the decision making process about the treatment and release of the patient.
[7] The legislative provisions concerned with the revocation of restriction orders are found in section 193 of the 2003 Act. The relevant parts of section 193 are as follows:-
"(1) This section applies where -
(a) an application is made under sections 191 or 192(2) of this Act;
(b) a reference is made under section 185(1), 187(2) or 189(2) of this Act.
(2) If the Tribunal is satisfied -
(a) that the patient has a mental disorder; and
(b) that as a result of the patient's mental disorder, it is necessary,
in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment, it shall make no order under this section.
(3) If the Tribunal is not satisfied that the patient has a mental disorder, the Tribunal shall make an order revoking the compulsion order.
(4) If the Tribunal -
(a) is satisfied that the pursuer has a mental disorder; but
(b) is not satisfied -
(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
(ii) either -
(A) that the condition mentioned in paragraph (b) and (c) of section 182(4) of this Act continues to apply in respect of the patient; or
(B) that it continues to be necessary for the patient to be subject to a compulsion order,
it shall make an order revoking the compulsion order.
(5) If the Tribunal -
(a) is satisfied -
(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
(ii) that it continues to be necessary for the patient to be the subject of the compulsion order, but
(b) is not satisfied -
(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
(ii) that it continues to be necessary for the patient to be subject to the restriction order,
it shall make an order revoking the restriction order.
..............................
(7) If the Tribunal -
(a) is satisfied -
(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
(ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but
(b) is not satisfied -
(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
(ii) that it is necessary for the patient to be detained in hospital,
the Tribunal may make an order that the patient be conditionally discharged and impose such conditions on that discharge as it thinks fit."
[8] Section 193 (8) and (9) allow for representations to be made before the decision is reached by inter alia the patient and the Scottish Ministers.
[9] It is against that background that the Tribunal examined the circumstances of the patient in the present appeal. The Tribunal hearing took place on 24 July 2007 and its decision was issued on 22 August 2007. The first part of the Tribunal's decision comprises a form CORO 2, which...
To continue reading
Request your trial
-
B.g. Against The Mental Health Tribunal For Scotland And Mark Mcilwraith, Mental Health Officer
...had not been given appropriate weight. He, like the RMO in the case of Scottish Ministers v Mental Health Tribunal for Scotland (JK) 2009 SC 398, had extensive personal knowledge of his mother and his evidence was, accordingly, important. [23] Counsel for the respondents submitted that weig......
-
Petition Of C M For Judicial Review And Answers For The State Hospitals Board For Scotland
...Act 2003 has posed a number of interpretative challenges for the courts [Scottish Ministers v Mental Health Tribunal for Scotland (MM) 2010 SC 56; Sherrit v NHS Greater Glasgow & Clyde Health Board 2011 SLT 480; DC Re Judicial Review 2012 SLT 521; RM v The Scottish Ministers (Scotland) [201......
-
In Summary Application Under Section 20 Of The Regulation Of Care (scotland) Act 2001 In The Causes Mrs. Sheila Davies And Another Trading As All Star V. The Scottish Commission For The Regulation Of Care
...years prior to that I was party to the decision of an Extra Division in The Scottish Ministers v The Mental Health Tribunal for Scotland 2010 SC 56 [2009] CSIH 66 where, at para [5], Lord Reed felt constrained to remark that it was unfortunate that the legislation in question "should be so ......
-
John Stuart Johnston For Judicial Review Of Failures By The Scottish Ministers
...in order to allow for an ordered consideration and review of their circumstances: Scottish Ministers v Mental Health Tribunal for Scotland 2009 SC 398. The consequence of this is that if the Tribunal is satisfied that the patient has a mental disorder and that, as a result of that mental di......