David Roy Sherrit V. Nhs Greater Glasgow And Clyde Health Board
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Judgment Date | 2011 |
| Neutral Citation | [2011] CSOH 37 |
| Date | 18 February 2011 |
| Year | 2011 |
| Published date | 18 February 2011 |
| Court | Court of Session |
| Docket Number | A763/08 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 37 | |
| A763/08 | OPINION OF LORD STEWART in the cause DAVID ROY SHERRIT Pursuer; against NHS GREATER GLASGOW AND CLYDE HEALTH BOARD Defenders ________________ |
Pursuer: Logan; Drummond Miller LLP
Defenders: Fitzpatrick; NHS Scotland Central Legal Office
18 February 2011
[1] On 2 December 2010 this action for damages called before me on the Procedure Roll for a debate on parties' preliminary pleas. The action raises questions about the relationship between Article 5 of the European Convention on Human Rights (right to liberty and security) and sections 264-266 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13). Sections 264-266 of the 2003 Act bear to address the mischief of mentally disordered offenders "trapped" in conditions of excessive security in the State Hospital, Carstairs.
[2] The interpretative challenge lies in the fact that ss 264 and 265 seem to be laws without effect: if orders made under s 264(2)(b) to bring about the transfer of "trapped" patients are not complied with, nothing seems to happen, except that further orders can be made under s 265; and if orders made under s 265(3)(b)(ii) to bring about the transfer of "trapped" patients are not complied with, nothing seems to happen, except that further orders can be made under s 266.
[3] At one point during the debate the provisions were described as "window-dressing", enacted in the knowledge that medium security facilities for the number of patients that might require to be transferred to them were not available. The pursuer was one such patient. He claims to have been unlawfully detained in the State Hospital pending his eventual transfer. He seeks damages for his claimed unlawful detention.
Factual background
[4] On 24 February 2000, after trial at the High Court, Glasgow, the pursuer was convicted of attempted rape. The victim was a bedridden woman living in a sheltered housing complex. Following conviction the pursuer was made the subject of a Hospital Order with a Restriction Order in terms of the Criminal Procedure (Scotland) Act s 58 (now repealed and replaced) and s 59 (now amended). I was told at the debate that the warrant for the pursuer's compulsory treatment became a Compulsion Order in terms of the Criminal Procedure (Scotland) Act 1995 as amended s 57A. (When and how this happened was not explained.) The Restriction Order continued, though now regulated by Part 10 of the 2003 Act. The Hospital Order and subsequently the Compulsion Order authorised the pursuer's detention at the State Hospital, Carstairs, in conditions of special security.
[5] The pursuer avers that for some years before 2006 he did not require to be detained at the State Hospital: but he could do nothing about that until the 2003 Act came into force. The relevant provisions of 2003 Act came into force on 1 May 2006, the long-stop date for bringing the provisions into effect. Six weeks later, on 19 June 2006, the pursuer applied to the Mental Health Tribunal for Scotland ["the Tribunal"] in terms of the 2003 Act s 264 (first) for a declaration that he was being detained in conditions of excessive security and (second) for an order on the defenders to identify another hospital where the pursuer could be detained in conditions of appropriate security. Following a hearing on 11 September 2006 the Tribunal made a declaration that the pursuer was being detained in conditions of excessive security and specified a period of three months for performance by the defenders of their duties under s 264 to identify another hospital for the pursuer, etc. The last date for compliance was 10 December 2006.
[6] The defenders did not comply and the Tribunal arranged a further hearing. Following the further hearing on 9 January 2007 the Tribunal made a declaration that the pursuer was being detained in conditions of excessive security and specified a period of three months for performance by the defenders of their duties under s 265 to identify another hospital for the pursuer, etc. The last date for compliance was 8 April 2007.
[7] The defenders did not comply and the Tribunal arranged a further hearing. Following the further hearing on 20 April 2007 the Tribunal made a declaration that the pursuer was being detained in conditions of excessive security and specified a period of 28 days for performance by the defenders of their duties under s 266 to identify another hospital for the pursuer. The last date for compliance was 18 May 2007.
[8] The defenders did not comply. The pursuer remained in conditions of special security at the State Hospital, Carstairs, until 11 September 2007. On that date he was transferred to the newly-opened Rowanbank Clinic, a 74-bed, medium security, forensic mental health unit at Stobhill, Glasgow. Since transfer the pursuer has received appropriate treatment for his condition and has been able to undertake supervised visits into the community. He has visited public places such as museums, shops and restaurants with members of his family.
The Pursuer's claim and the Defenders' preliminary defence
[9] The pursuer seeks declarator and damages. He asks the Court to declare that his Article 5(4) rights, European Convention of Human Rights [ECHR], were breached "by the acts and failures to act of the defenders as a result of which he was detained in conditions of excessive security at the State Hospital, Carstairs." The pursuer seeks damages for the fact that he was, he says, wrongly detained in conditions of excessive security "for at least an additional nine months".
[10] The nine month period is the period from the last date for compliance with the Tribunal's first order, 10 December 2006, to the date of the pursuer's eventual transfer, 11 September 2007. The pursuer avers that, while his detention at the State Hospital continued, he did not receive appropriate treatment for his condition, he was deprived of privacy, his movements were unnecessarily restricted, his possessions were unnecessarily controlled and his access to the outside world was impaired. He also claims consequential loss: because of the defenders' failures, he alleges, his ultimate release date will be delayed by six to twelve months. The sum sued for is £20,000 with interest.
[11] The pursuer does not, at this stage, claim that his continued detention at Carstairs after 10 December 2006 constituted a breach by the defenders (or anyone else) of their duties to him under the 2003 Act ss 264-266.
[12] The case came before me on the Procedure Roll for debate on parties' preliminary pleas. The defenders plead that the action is incompetent and should be dismissed and, separately, that the pursuer's averments are irrelevant and that the action should be dismissed for that reason also. The pursuer pleads that the defences are irrelevant and should be repelled. Pursuer's Counsel moved during the debate to amend the pursuer's case by adding a claim of breach of statutory duty. I refused the motion in hoc statu on the ground that it was not expedient to have a substantial new case added mid-debate. Parties were agreed that the case should be put out by Order in due course when the motion to amend might be renewed.
[13] Having heard submissions from counsel and made avizandum, I have reached the conclusion that the action as pled is not well founded in law.
Legislative framework
[14] The Human Rights Act 1998 (c. 42) s 1 and Sched 1 incorporates Article 5 of the European Convention on Human Rights, insofar as relevant to the present case, to the following effect:
"Article 5
Right to liberty and security
1. - Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
[...]
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
[...]
4. - Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. - Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
[15] The Mental Health (Care and Treatment) (Scotland) Act 2003, ss 264-267 provides that where a patient is detained in conditions of special security under one of the orders specified, which the pursuer was, application may be made by the patient to the Tribunal for review of the conditions of detention as follows:
"Part 17 Patient Representation etc
CHAPTER 3: DETENTION IN CONDITIONS OF EXCESSIVE SECURITY
State hospitals
264 Detention in conditions of excessive security: state hospitals
[...]
(2) On the application of [the patient], the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order-
(a) declaring that the patient is being detained in conditions of excessive security; and
(b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed.
(3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital-
(a) which is not a state hospital;
(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and
(c) in which accommodation is available for the patient.
[...]
(5) Where the Tribunal makes an order under subsection (2) above in respect of a patient, the...
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