Scottish Ministers v Mental Health Tribunal for Scotland (JMM) [Court of Session Inner House Extra Division]
| Jurisdiction | Scotland |
| Judgment Date | 28 February 2012 |
| Neutral Citation | [2011] CSIH 18 |
| Docket Number | No 29 |
| Court | Court of Session (Inner House) |
| Date | 28 February 2012 |
Court of Session Inner House Extra Division
Lord Eassie, Lord Clarke, Lord Mackay of Drumadoon
Mental health - Restriction order - Compulsion order - Mental health tribunal revoking restriction order but not proceeding to consider whether compulsion order should be varied - Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), sec 193(5), (6)
Section 193 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) provides, inter alia, "(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 subject to 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. (6) If the Tribunal- (a) makes an order, under subsection (5) above, revoking the restriction order; and (b) is satisfied that the compulsion order should be varied by modifying the measures specified in it, it shall make an order varying the compulsion order in that way."
In 1991 JMM was acquitted by reason of insanity of a charge of the attempted murder of his father and was made subject to a hospital order together with a further order that the detention be without limit of time. Following certain statutory changes he fell to be treated as a person who was subject to both a compulsion order and a restriction order. He was granted conditional discharges into the community on several occasions between 1994 and 2004 but was recalled to hospital when his mental health deteriorated. In 2005 he was prescribed clozapine and his condition settled. In 2008 he was again granted a conditional discharge. The settled nature of his mental state continued, he found voluntary employment and he maintained satisfactory relationships with members of his family. In 2010 his responsible medical officer recommended that the restriction order should be revoked, and the case was referred to the tribunal. There was unanimity of opinion among the expert psychiatric witnesses, JMM's mental health officer and the community psychiatric nurse that the restriction order was no longer justified. The tribunal revoked the restriction order. The appellants appealed to the Court of Session. The appellants challenged the decision to revoke the restriction order in terms of sec 193(5) of the Act and the tribunal's failure to consider whether the compulsion order fell to be varied in terms of sec 193(6).
Held that: (1) there was no legal error which would justify the court interfering with the tribunal's decision under sec 193(5) of the Act, since the appellants' criticisms related essentially to the weight to be given to certain matters by the tribunal in its ponderation of all the evidence and materials before it, and the tribunal had given adequate reasons for its view of that evidence and those materials (paras 19-21); (2) having reached a conclusion under sec 193(5) of the Act to revoke the restriction order, the tribunal was enjoined to proceed to sec 193(6) and consider whether the terms of the compulsion order should be varied, and having proceeded to that question the tribunal was obliged to say how that question was considered and answered and to give reasons for the view it had reached, and since the tribunal did not proceed to do either of those things in reaching its final decision, its decision was flawed in those respects (paras 26, 27); and appeal allowed.
Observed that when the tribunal came to reach its decision, the expert evidence was to the unanimous effect that continuing the restriction order was not necessary, and while the tribunal was not bound by the expert evidence and had to reach its own view, in reaching a view contrary to that unanimously held by the expert evidence a tribunal must have a proper evidential basis for doing so, and there was no such basis upon which the tribunal could properly have reached such a contrary conclusion (para 22).
JMM was made subject to a hospital order in 1991, and following certain statutory changes he fell to be treated as a person who was subject to both a compulsion order and a restriction order. On 26 April 2010 his responsible medical officer recommended that the restriction order should be revoked, and the case was referred by the Scottish Ministers to the Mental Health Tribunal for Scotland. The tribunal (Sheriff IM Fleming, Dr I Berry and J Mouriki) heard evidence on 31 August and 29 October 2010 and 9 March 2011. In a decision communicated to the Scottish Ministers on 1 April 2011 the tribunal revoked the restriction order. The Scottish Ministers appealed to the Court of Session.
The appellants enrolled a motion for interim continuation of the restriction order under sec 323 of the Mental Health (Care and Treatment) (Scotland) Act 2003. On 3 May 2011 the court continued consideration of the motion until 12 May 2011 in respect that the parties' estimate of the length of time required for the motion had not taken into account the question of competency. On 12 May 2011 the motion was further continued until 27 July 2011 due to the lateness of the hour. On 27 July 2011 the court made avizandum. At advising, on 2 December 2011, the court (Lady Paton, Lord Hardie and Lord Emslie) ordered that both the compulsion order and the restriction order should continue to have effect until the final determination of the appeal ([2011] CSIH 76).
Cases referred to:
Scottish Ministers v Mental Health Tribunal for Scotland (JK)SCUNKMHLR [2009] CSIH 9; 2009 SC 398; 2009 SLT 273; 2009 SCLR 224; [2009] MHLR 360
Scottish Ministers v Mental Health Tribunal for Scotland (MM)SCUNK [2009] CSIH 66; 2010 SC 56; 2009 SLT 1093; 2009 SCLR 800
The cause called before an Extra Division, comprising Lord Eassie, Lord Clarke and Lord Mackay of Drumadoon, for a hearing on the summar roll, on 12 and 13 January 2012.
At advising, on 28 February 2012, the opinion of the Court was delivered by Lord Eassie-
Opinion of the Court-
[1] This is an appeal by Scottish Ministers under sec 322 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ('the 2003 Act') against a decision of the Mental Health Tribunal ('the tribunal') communicated to Scottish Ministers on 1 April 2011 whereby, pursuant to sec 193(5) of the 2003 Act, the tribunal revoked a restriction order. The appeal is opposed by the tribunal and by the patient in question, 'JMM'.
[2] On 13 May 1991 in the High Court of Justiciary sitting at Glasgow the patient, JMM, was acquitted by reason of insanity at the time of the offence of a charge of the attempted murder of his father. The patient was diagnosed as suffering from paranoid schizophrenia. The court made a hospital order, with a further order that the detention be without limit of time, in terms of secs 174 and 175(4) of the Criminal Procedure (Scotland) Act 1975 (cap 21). The patient was thereupon detained for treatment in the state hospital at Carstairs. By virtue of various statutory and regulatory provisions which it is unnecessary to rehearse (the provisions are helpfully set out in a schedule to the written note of argument for the tribunal), on the entry into force of the regime established by the 2003 Act the patient fell to be treated by the tribunal as a person who was a '1995 Act patient' and who was subject to both a 'compulsion order' under sec 57A(2) of the Criminal Procedure (Scotland) Act 1995 (cap 46) ('the 1995 Act'), as amended, and a 'restriction order' under sec 59 of that Act.
[3] So far as touching on this appeal those provisions of the 1995 Act are in these terms:
'Compulsion order
-
57A.-(1) This section applies where a person (in this section and in sections 57B to 57D of this Act, referred to as the "offender")-
-
(a) is convicted in the High Court or the sheriff court of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law); or
-
(b) is remitted to the High Court by the sheriff under any enactment for sentence for such an offence.
-
(2) If the court is satisfied-
-
(a) on the written or oral evidence of two medical practitioners, that the conditions mentioned in subsection (3) below are met in respect of the offender; and
-
(b) that, having regard to the matters mentioned in subsection (4) below, it is appropriate,
-
-
-
it may, subject to subsection (5) below, make an order (in this Act referred to as a "compulsion order") authorising, subject to subsection (7) below, for the period of 6 months beginning with the day on which the order is made such of the measures mentioned in subsection (8) below as may be specified in the order.
-
(3) The conditions referred to in subsection (2)(a) above are-
-
(a) that the offender has a mental disorder;
-
(b) that 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 for the offender;
-
-
-
(c) that if the offender were not provided with such medical treatment there would be a significant risk-
-
(i) to the health, safety or welfare of the offender; or
-
(ii) to the safety of any other person; and
-
-
(d) that the making of a compulsion order in respect of the offender is necessary.
-
(4) The matters referred to in subsection (2)(b) above are-
-
(a) the mental health officer's report, prepared in accordance with section 57C of this Act, in respect of the offender;
-
(b) all the circumstances, including-
-
(i) the nature of the offence of...
-
-
-
To continue reading
Request your trial