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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 44
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P274/06
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OPINION OF LADY
SMITH
in the Petition
of
JOHN SMITH,
Mental Health
Officer for Fife Council
Petitioner;
for
Judicial Review
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Petitioner: Brown, Advocate, Innes,
Advocate; HBJ Gateley Wareing, LLP
First Respondent: Campbell, Advocate; Ian Kennedy, W.S.
17 March 2006
Introduction
[1] This petition for
judicial review was presented by the petitioner in his capacity as a mental
health officer appointed by Fife Council under and in terms of s.32 of the
Mental Health
(Care and Treatment) (Scotland) Act 2003 ("the 2003 Act").
The first respondent was the Mental
Health Tribunal for Scotland,
a body created by s.21 of the 2003 Act. His application concerned the welfare of a
patient ("P") at Stratheden Hospital.
Factual Background
[2] P
had been compulsorily detained at Stratheden Hospital on 10 January 2006
in terms of a short term detention certificate ("STDC") granted by medical
practitioners there under and in terms of s.44 of the 2003 Act. He suffers from Korsikoff's psychosis and was
considered to be a danger to himself and to others.
[3] The
STDC authorised the detention of P under s.44(5) of
the 2003 Act for a period of 28 days.
[4] On
7 February 2006, the
petitioner, in fulfilment of the duties incumbent on him under s.57 of the 2003
Act, presented an application to the first respondent for a compulsory treatment
order in respect of P, it being the view of the doctors responsible for his
care at Stratheden Hospital,
that such an order was required. The
application was properly and timeously presented under s.63 of the 2003 Act. Presentation of the application had the effect
of extending the STDC by a further five working days to midnight on 14 February
2006 (see: s.68 of the 2003
Act). Such applications require to be
considered at a hearing fixed by the first respondent.
[5] By
letter dated 10 February 2006,
the first respondent's Chief Executive responded to Fife Council's enquiry
regarding the fixing of a tribunal hearing in terms which included the
following:
"Your
understanding of the Act is correct. Your understanding of the reasons for the
failure in this instance to meet the requirements of Section 69 is not. The reason no hearing has been arranged is not
related to the availability of panel members, this is not an issue. Mr John Smith was advised by 2 members of my
staff that a hearing was not possible due to the lack of a venue within the
timescales and the compromised ability of the Administration to give other
participants notice of the hearing.
Both the
President and the Tribunal Administration were already aware of their
responsibilities under the Act in this regard. Unfortunately, the number of CTO applications
being received late in the Short Term Detention Period has increased hugely
since the inception of the Tribunal. In
October 17% of applications were received in the last 3 days of the 28 day
period. By January this had risen to
nearly 70%.
The
Administration continues to make all possible efforts to meet our obligations
in respect of hearing dates under the Act but we also have obligations to
patients and others in terms of the notice they are given of hearing so that
they can obtain representation, prepare for and properly participate in
hearings. Where applications are
received late but we are able to quickly identify a suitable venue etc we will
do so, even where the notice is only 48 hours. We continue to meet our obligations under the
Act in all but a handful of instances, but where we also have limited
availability of venues there will be occasions when we are simply not able to
do so.
Mr Smith advised
me that the decision to proceed with a CTO application was made on day 14. If the medical records had been completed
shortly thereafter no issue would have arisen. Or if Stratheden
Hospital had greater availability
of a hearing venue, even with an application received on day 28, we may have
been able to secure a hearing. Neither
of those is within my control."
[6] Fife
Council wrote to Mrs Davie, the President of the First Respondents by letter
dated 10 February 2006
in the following terms:
"Dear Ms Davie
Re: DT
CHI Number: 0103520457
Compulsory Treatment
Order
I am writing to make you aware of
a situation that has arisen concerning a Compulsory Treatment Order application
for Mr T. He is currently on a
Short Term Detention Certificate that expired on 07/02/06. A
Compulsory Treatment Order application has been made and lodged with the
Tribunal on 07/02/06 within
the 28 day period. The application's by
the MHT was confirmed in a telephone discussion on 07/02/06.
As I am sure you are aware the
detention of Mr T can be extended for the period of 5 days under Section 68 (2)
(a) of the Act pending determination of application.
John Smith, MHO, was advised
yesterday afternoon (09/02/06)
that it would not be possible for the Tribunal to be held within 5 days, i.e.
before or on 14/02/06.
I believe that you need to be
aware i.e. this inability by the Tribunal to hear this application within the
terms of the duties laid out in the Act.
We will be advising our legal
section also and liaising with the relevant parties to make them aware of this
situation.
I look forward to receiving your
response.
Yours
sincerely".
Relevant Legislation
[7] The 2003
Act imposes strict time limits regarding the issuing of STDC's and compulsory
treatment orders. It is important, for
the purposes of this petition, to note the terms of s.69 which are:
"69
Time limit for determining application etc. where section 68 applies
Where section 68
of this Act applies, the Tribunal shall, before the expiry of the period of 5
days referred to in section 68(2) (a) of this Act -
(a) determine
whether an interim compulsory treatment order should be made; and
(b) if it
determines that an interim compulsory treatment order should not be made,
determine the application."
[8] Section
68 applied. The first respondents were,
accordingly, obliged to convene a hearing to determine whether or not an
interim compulsory treatment order should be made prior to midnight on 14 February
2006 and also determine that issue prior to that point in
time. They had no discretion as to
whether or not to fix such a hearing. The statutory requirement is clearly a
mandatory one.
Hearing on 15th February 2006
[9] The
petition called before me late in the morning of 15 February 2006.
It sought reduction of the first respondent's decision to refuse to
convene a tribunal hearing to determine the petitioner's application for a
compulsory treatment order in respect of P and an order under section 47(2) of
the Court of Session Act 1988 ordaining the first respondents to convene such a
tribunal.
[10] I was advised that doctors at Stratheden
Hospital had, conscious of the fact
that the STDC had expired at midnight
on 14 February 2006,
issued a fresh STDC although they were conscious of the fact that the validity
of that fresh certificate might not withstand scrutiny, given the terms of s.44(1) and (2) of the 2003 Act. They did, though, have the support of P's wife
and felt that there was, in the circumstances, no alternative but to proceed in
that way, an approach with which I have considerable sympathy.
[11] The first respondent had not lodged a caveat but the
petitioner's agents had, responsibly, intimated the petition to their office at
9 am on the day of the hearing. There had, however, been no response at all
from the first respondent and there was no appearance on their behalf when the
petition called in court. Such an
approach on the part of the first respondent was surprising in circumstances
where it was plain from the petition that the petitioner was seeking to draw
the court's attention to a failure on their part to perform an important
statutory duty.
[12] In the circumstance, I granted an order for intimation and
service of the petition on an induciae
of 24 hours and fixed 2 pm on 16 February
as the time and date for the First Hearing in the petition.
Hearing on 16th February 2006
[13] When the petition called before me on 16 February 2006, the first respondent was
represented. No satisfactory explanation
was tendered for the failure to take action in response to the petitioner's
intimation of the petition the previous day. No explanation for the failure to fix a
hearing prior to midnight on 14 February 2006 other than that
stated in the first respondents' letter, was advanced. I was advised that a
s.69 hearing had now been fixed, for Tuesday
21 February 2006.
Discussion :
[14] The first respondent clearly had an obligation to fix a s.69 hearing to take place prior to midnight on 14 February
2006. No adequate excuse for
the failure to do so was put forward. The
suggestion in the Chief Executive's letter that the failure was somehow
justified because the petitioner had not made the application at an earlier
date is quite wrong as is the theme of the letter that the first respondent
could be excused because it was not reasonably practicable for it to do as it
was obliged to do. The obligation is
straightforward and clear and not qualified by reference to reasonable
practicability. An STDC subsists for 28
days and it is clear from the statutory scheme that applications for compulsory
treatment orders may not only properly be made at a stage including the 28th
day of an STDC but that a mental health officer has duty to make such an
application under s.63 whenever the conditions set out in s.57 apply, even if
that happens to be on day 28. The clear
import of the statutory scheme is that the first respondent requires to be organised and administered so as to allow for
arranging tribunal hearings in respect of compulsory treatment order
applications at very short notice. The
terms of the letter of 10 January are such as to give a worrying
indication of there being a lack of the necessary fundamental understanding on
the part of the first respondent. Further and greater cause for concern is given
by the first respondent's failure to fix a hearing within the required
timescale, as they were obliged to do irrespective of it being difficult. It should have been obvious to the first
respondent that if they did not do so, there was a real possibility that, on
the expiry of the STDC on 14 February, a mentally ill patient who was a
danger to himself and to others and who, in the opinion of those responsible
for his care, required compulsory measures of treatment, would be released. The fact that, in the event, he was not, is neither here nor there. The doctors at Stratheden
Hospital should not have been put
in the difficult position of having to decide whether to release P or whether
to detain him further by issuing a certificate which was of doubtful validity.
Decision
[15] It was suggested by counsel on behalf of the first respondent
that since a date had now been fixed for the hearing, there was no need for any
order to be pronounced. The history was,
however, not such as to inspire confidence and it seemed to me to be
appropriate that there be a formal order. In the foregoing circumstances, I pronounced
an order requiring the first respondent, by close of business on 21 February 2006, to convene a
tribunal to determine, in respect of the petitioner's s.63 application, the
matters that required to be determined in terms of
s.69 of the 2003 Act.
