Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 58
P1268/13	OPINION OF LORD GLENNIE in the Petition of MARGARET DICKSON Petitioner; for Judicial Review of a purported decision of Joe Morrow, President of the Mental Health Tribunal for Scotland dated 4 December 2013 ________________

Petitioner: Campbell QC, ADLP Solicitors

Respondent: Truscott QC; Simpson & Marwick

26 March 2014

Introduction

[1] The petitioner is a Legal Panel member of the Mental Health Tribunal for Scotland ("the Tribunal"). The first respondent ("the respondent") is Dr Morrow, the President of the Tribunal. By letter dated 4 December 2013, in which he referred to a number of incidents demonstrating the petitioner's "unsatisfactory performance", as he saw it, Dr Morrow notified the petitioner in the following terms:

"In light of the ongoing issues in relation to your performance as a Convener, I have decided that I must now remove you from any scheduled sittings and you will not be allocated any further sittings."

He followed that, in the final paragraph, by saying that before he could allocate cases to her again she would be required to repeat the training provided to new Convenors and thereafter be observed and monitored for at least three sittings. He asked the petitioner to make contact with someone within the organisation to make the necessary practical arrangements for that training to take place.

[2] The petitioner contends that this amounts de facto to a suspension. Mr Truscott, who appeared for the respondent in this matter, candidly (and correctly) accepted that this was so. The petitioner contends that the President of the Tribunal has no power to suspend a member of the Tribunal from office. This can only be done by a disciplinary committee investigating a complaint at the request of the Scottish Ministers, and then only as an interim measure during the investigation. No complaint against the petitioner has been referred to the disciplinary committee. In those circumstances the petitioner seeks reduction of the respondent's decision contained in the letter.

The facts in outline

[3] The material facts necessary for a disposal of this petition at a first hearing were not seriously in dispute. They can be taken from the petition and answers and from the documents lodged in process.

[4] The petitioner has been a Legal Panel member of the Tribunal for some years. Her most recent appointment came by way of a letter dated 24 February 2010 from the Scottish Government inviting her to serve for a further 5 year period with effect from 1 March 2010. As set out in that letter, the terms of her reappointment included a commitment on her part (i) to participate in required training by the Tribunal of no less than 1 day per year and (ii) to participate in the Tribunal's appraisal scheme. Annex B to the letter, referred to in the context of the required participation, added nothing of significance to the generality of those requirements. In addition, the petitioner was required to make herself available as a Member of the Tribunal to sit not less than 24 days per year.

[5] It is averred by the respondent that from early to mid-2010 there have been a number of concerns raised in relation to the petitioner's competence while convening Tribunal hearings and producing decisions. Para 7(3) of Schedule 2 to the 1983 Act provides that the convener (i.e. the chair) of any particular Tribunal constituted to deal with a particular matter shall be either the President or a member selected from the legally qualified members of the Tribunal; hence the concerns expressed about the petitioner in her role as convenor. The respondent avers that he met with the petitioner on 23 June 2010 in consequence of a report presented to him about delays by the petitioner in reaching decisions after hearings on 27 May, 28 May, 1 June and 3 June 2010. He avers that it was agreed (presumably with the petitioner) that he would continue to monitor the petitioner's activities. He avers that MD, a legal member of the Tribunal and an In-house (or duty) Convener, met with the petitioner in November 2011 in order to discuss concerns raised by panel members regarding a hearing on 28 September 2011, which did not conclude until 21:30 hours. Documents lodged in process suggest that this late sitting was caused by repeated adjournments at the instance of or granted by the petitioner as convenor of the hearing. Separately, the respondent received a letter of concern from a Responsible Medical Officer, Dr A, relating to a hearing on 13 September 2012. His concern was about the interpretation which the petitioner applied to certain statutory criteria in the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act") and the manner and conduct of the petitioner at the hearing. The respondent avers that, after investigating the matter, he wrote to the petitioner on 27 November 2012 offering her guidance on the matter of statutory interpretation and highlighting some concerns at her manner and conduct of the hearing. He avers that the petitioner "was considered" (presumably by him, after investigating the matter) to have restricted Dr A's responses and to have failed to permit him to make submissions.

[6] The respondent met with the petitioner on 5 December 2012 and told her that matters had been drawn to his attention on four or five occasions during the year, including the issue referred to above, which were of concern in relation to the management of tribunals and her competency in relation to interpretation of certain parts of the 2003 Act. The respondent avers that it was agreed that the petitioner would undergo an appraisal on 7 December 2012 and that she would participate in private mentoring sessions with MD.

[7] The first mentoring session took place on 4 January 2013 and feedback was provided in a letter of the same date from MD to the petitioner. The second session was scheduled to take place on 28 January 2013 but in fact took place on 1 February 2013. Feedback on this session was given in a letter of the same date from MD to the petitioner. MD submitted a mentoring report to the respondent dated 7 February in which she made seven recommendations. Those recommendations were discussed with the petitioner on 15 February and a note of that meeting was sent to her on 27 February 2013. The respondent wrote to the petitioner on 1 March 2013 setting out proposals amended in the light of the discussion on 15 February. In the course of further correspondence, the proposals were further adjusted. The petitioner met with the respondent on 21 May 2013, again to discuss further proposals aimed at effecting an improvement in her performance as a convener. A note of that meeting was provided to the petitioner and a letter reflecting the respondent's position was sent to her on 3 June 2013. MD held a further mentoring meeting with the petitioner on 31 July 2013 and provided her with a note of feedback. A further mentoring meeting was scheduled for 14 November but was cancelled by the petitioner because she said she was upset by the response of MD to complaints raised against her by a patient and his solicitor. That complaint related to a hearing convened by the petitioner on 7 August 2013. An investigation was held (it was delayed because the petitioner suffered a bereavement). The result of that investigation, in which concerns were raised with the petitioner about her conduct of the hearing which was considered to have caused the patient unnecessary distress, was conveyed to the petitioner in November 2013. The respondent avers that a further concern had been raised on 4 July 2013 by a clerk from the Tribunal's Administration regarding the conduct of a hearing convened by the petitioner on that date.

[8] I should emphasise that these are averments only. They have not yet been answered by the petitioner and have not been the subject of any investigation in this process. They represent the basis upon which the respondent seeks to justify his actions. In order to determine whether the petition can be disposed of in the petitioner's favour at a first hearing, the court must assume (without deciding the point) that the respondent will be able to prove those averments; and, on that basis, whether the respondent's suspension of the petitioner can be justified.

Observations

[9] I should note that much of what the respondent says amounts to no more than a narration of concerns expressed to him by others. The respondent does claim to have investigated matters reported by Dr A relating to the hearing on 13 September 2012. It appears that as a result of his investigation he concluded that the petitioner had indeed restricted Dr A's responses during the hearing and had failed to permit him to make submissions. There was a further investigation, either by the respondent or MD or possibly both, relating to the complaint arising from a hearing on 7 August 2013, as a result of which it was considered that the petitioner had caused the patient in question unnecessary distress. These are the only two investigations averred in the Answers to have taken place, but the documents lodged in process by the respondent suggest that there has been a more extensive investigation into this type of concern about the petitioner's conduct of hearings.

[10] The remainder of the concerns, which have not been investigated (at least on the averments in the answers), cover a number of matters in May and June 2010, concerns about two hearings in September 2011 and complaints about two hearings in July and August 2013. Although any complaint about the conduct of hearings is of concern, it does not appear from the averments in the answers that they form part of a continuing problem. There is no averment in the answers that the concerns about delays in reaching decisions, raised in relation to hearings over a period of seven or eight days in May and June 2010 have continued thereafter. The later complaints are of a different nature. And, while the complaint relating to the hearing on 13 September 2012 was in part a concern about the petitioner's conduct of the hearing in restricting the opportunities for Dr A to speak, it was coupled with a concern about the petitioner's interpretation of certain statutory criteria in the 2003 Act. The former is a matter of legitimate concern, but I have some doubts as to whether any particular interpretation of the relevant statute is properly a matter of internal complaint or concern as opposed to judicial supervision. Nevertheless, I shall treat the averments as raising concerns generally about the petitioner's conduct of hearings throughout the period in question; and I shall assume that those concerns are justified.

[11] I should add that a number of documents were lodged in process by the respondent relating to the matters referred to in the Answers to the petition. They include: a report prepared for the respondent in respect of the petitioner, giving a chronology of events leading to record a concerns for the period 2010 to 2012; various letters and minutes dealing with some of the particular matters of concern; and a report prepared by MD on 7 February 2013 following completion of the mentoring process. These documents supplement and flesh out some of the averments in the answers. I need not go into great detail. Two matters of interest appear from the report giving a chronology of events in 2010 to 2012. The first is an explanation of what is meant by a "concern" in the context of concerns have been expressed about the petitioner's conduct of hearings, to be contrasted with formal complaints. It states that:

"A 'concern' is intended to describe when a person has written to the President, or contacted the President's Office, to express concern in relation to the conduct or behaviour of the Convener. The expression of concern is not lodged as a formal complaint.

No formal complaints have been made in respect of the identified Convener."

That report ends by summarising "themes of concern". It notes a history of some delays in decision-making; lengthy and numerous adjournments in one particular hearing leading to a lengthy late evening conclusion; and the petitioner's manner and conduct in a hearing on a matter of statutory interpretation. It goes on to note that the petitioner has, at times, "needed clarification, guidance and support on matters of statutory interpretation and tribunal procedure, which include most recently, the interpretation of the risk and earlier, an understanding of the application of the provisions relative to interim orders and adjournments ...".

The letter of 4 December 2013

[12] These various concerns form the background to the letter of 4 December 2013. I should set out some parts of that letter in full. It begins by referring to the fact that the petitioner had cancelled her mentoring meeting scheduled to take place on 15 November 2013. The respondent explains that he understood that the petitioner had telephoned FQ to inform her that she was "upset by the letter of response from [MD] to the complaints raised by the patient". This relates, as I understand it, to the complaint about the hearing of 7 August 2013. He understood that the petitioner told FQ that she required to see her GP before attending the next mentoring meeting. He noted that the petitioner had also e-mailed MD asking for a seven day postponement of the meeting, stating that she had not been provided with notice that that complaint would be addressed at the meeting. He commented that MD had told the petitioner in an e-mail of 23 October 2013 that that complaint and a further concern in relation to the hearing on 4 July 2013 would be raised at that mentoring meeting and that the petitioner was told that she could listen to the recording of the hearing in advance of the meeting. That paragraph concluded with the comment that: "As no mentoring meeting has taken place, there has been no opportunity to discuss these matters with you."

[13] I set out verbatim the remainder of that letter. It reads as follows:

"You have been observed on two occasions under the support mechanisms in place. You were unhappy with the findings of the first observer and these were to be discussed with you at your mentoring meeting. [MD] provided you with a copy of the full note prepared by the observer after your response to the observer's summary note. Your second observation took place on 22 November 2013 and a copy of the observations summary has been sent to you under separate cover. I have been provided with a copy of the observation notes.

I have to record my disquiet that matters of complaint and/or concern continue to be raised despite the support which I have provided to you and which have been in place since December 2012. After a period of absence following your recent bereavement in September 2013 you returned to sittings in October 2013. You stated to [MD] on 10 October 2013 that you wished a period of respite from the current process to allow you to get things in order in your life and to access psychological support via your GP. I was of the view that while you sit as a Convener it remains important that you continue to be provided with support. [MD] thereafter adjusted the mechanisms of support by suspending the planned second observation until after your mentoring meeting with her on 15 November 2013. After your request that this meeting be postponed [MD] advised you that she would re-arrange the mentoring meeting after you had seen your GP and advised her accordingly. I note that there has been no further update from you in this regard.

You will be aware that in terms of paragraph 3(2)(a) of schedule 2 to the 2003 Act as President I preside over the discharge of the Tribunal's functions. In terms of paragraph 7(3) of schedule 2 it falls to me to select members to form Tribunal's. In terms of paragraph 7(5) of schedule 2 I am required to "secure that the functions of the Tribunal are discharged efficiently and effectively". In discharging my functions I must take into account the nature of the Tribunal's work and the vulnerable nature of our client group. In light of the ongoing issues in relation to your performance as a Convener, I have decided that I must now remove you from any scheduled sittings and you will not be allocated any further sittings.

Given your unsatisfactory performance, before I can allocate cases to you again you will be required to repeat the training provided to new Convenors and thereafter be observed and monitored for at least three sittings. This training will require to be tailored for you and I would be grateful if you would contact [MD] to make the necessary practical arrangements for this. In addition to this and in order to provide you with the appropriate supports I will require to make a referral to occupational health."

This letter fills in some of the gaps in the averments in the Answers. It makes it clear that, in addition to the incidents in respect of which concerns were expressed or complaints made, the petitioner's conduct of hearings had been the subject of observation as part of the support mechanisms put in place in December 2012. So although the complaints cover no more than a few incidents, the concern about the petitioner's conduct of hearings has remained a continuing concern based upon reports received from observers. A second observation was planned for after the mentoring meeting which should have taken place on 15 November 2013. It apparently took place on 22 November 2013. There are no averments as to the success or otherwise of that observation.

The relevant statutory provisions

[14] The Tribunal is a statutory body established in 2005 by virtue of section 21 of the 2003 Act.

[15] Schedule 2 to that Act sets out a number of matters in relation to the Tribunal. Part 1 deals with the question of membership. The members are appointed by the Scottish Ministers. The Scottish ministers also appoint the President of the Tribunal. His functions are described briefly in para 3(2): he shall preside over the discharge of the Tribunal's functions and he may serve as a convener of the Tribunal.

[16] Part 2 of Schedule 2 deals with the "Organisation and Administration of the Tribunal". Para 7 provides that the functions of the Tribunal shall be discharged by such number of tribunals as may be determined from time to time by the President. The Tribunal shall sit at such times and in such places as the President may determine. Sub-para (3) states that a tribunal constituted under para 7 shall consist of (a) a convener, who shall either be the President or a member selected by the President from the panel of people with legal qualifications, training and experience mentioned in para 1 of the Schedule and (b) a member selected by the President from each of the other two panels mentioned in para 1 of the Schedule (comprising respectively people with medical qualifications, training and experience and those with qualifications, training and experience in caring for or providing services to persons having a mental disorder).

[17] The above provisions show the important role played by the President in appointment of members to any particular tribunal. Paras 7(5) and (6) of Schedule 2 go on to set out the general powers and responsibilities of the President. Since these were central to the respondent's argument before me, I should set out in those two sub-paras in full:

"(5) Subject to the provisions of this Act, regulations made under section 21 of this Act and rules made under paragraph 10 below, the President shall secure that the functions of the Tribunal are discharged efficiently and effectively.

(6) The President may -

(a) give such directions; and

(b) issue such guidance,

about the administration of the Tribunal as appear to the President to be necessary or expedient for the purpose of securing that the functions of the Tribunal are discharged efficiently and effectively."

[18] Paras 4-6 of Schedule 2 deal with "Terms of office etc.". Para 4 provides that, subject inter alia to the power of removal from office, to which I shall refer shortly, each member of the Tribunal shall hold office in accordance with the terms of his or her instrument of appointment; and the appointment shall last for five years.

[19] Para 5 of Schedule 2 deals with the question of removal of a member from office by order of the disciplinary committee. I shall set out the material part in full:

"5(1) A member of the Tribunal may be removed from office only by order of the disciplinary committee constituted under sub-paragraph (3) below.

(2) The disciplinary committee may order the removal from office of a member of the Tribunal only if, after investigation carried out at the request of the Scottish Ministers, it finds that the member is unfit for office by reason of inability, neglect of duty or misbehaviour."

The disciplinary committee consists of a Senator of the College of Justice or a sheriff principal, a solicitor or advocate of at least 10 years standing, and one other person, all appointed by the Lord President of the Court of Session: see sub-para (3). Para 5(4) provides as follows:

"(4) Regulations -

(a) may make provision -

(i) enabling the disciplinary committee, at any time during an investigation, to suspend a member of the Tribunal from office; and

(ii) as to the effect and duration of such suspension; and

(b) shall make such further provision as respects the disciplinary committee ... as the Scottish Ministers consider necessary or appropriate."

[20] As anticipated by the provisions of para 5(4) of Schedule 2, set out above, regulations were made making provision regarding the disciplinary committee. These are the Mental Health Tribunal for Scotland (Disciplinary Committee) Regulations 2004 (SSI 2004 No.402). Regulation 5 deals with the question of suspension during an investigation carried out under para 5(2) of Schedule 2 to the Act (see above). It provides as follows:

"5(1) At any time during an investigation, the disciplinary committee may suspend the member of the Tribunal from office.

(2) A suspension imposed under paragraph (1) shall terminate -

(a) on the disciplinary committee deciding not to order the removal of the member of the Tribunal from office; or

(b) before then, on the disciplinary committee deciding to bring the suspension to an end.

(3) if the disciplinary committee so directs, a member of the Tribunal suspended under this regulation may remain in force as a member of the Tribunal but only for the purpose of continuing to deal with proceedings of the Tribunal commenced prior to the suspension taking effect."

Submissions

[21] Mr John Campbell QC appeared for the petitioner. His submissions were short and to the point. The President had no power to suspend a member. That was, in effect, what he did. But it was something which could only be done by the disciplinary committee during the course of an investigation. The decision to suspend being outwith the powers of the President, it fell to be reduced.

[22] For the respondent, Mr Truscott QC accepted that what was done amounted in effect to a temporary suspension. But he submitted that it was within the powers of the respondent to take this step. The respondent was faced with a problem. He has a duty in terms of para 7 of Schedule 2 to the 2003 Act to secure that the functions of the Tribunal are discharged efficiently and effectively. To that end, he may give directions and guidance about the administration of the Tribunal for the purpose of securing that the functions of the Tribunal are discharged efficiently and effectively. If there are concerns about a particular member of the Tribunal and his or her conduct of tribunal hearings, that causes a problem which the President of the Tribunal requires to address. Mr Truscott submitted that it was within the power of the President, exercising his functions under para 7 of Schedule 2 to, in effect, suspend a member for a period until he or she had satisfactorily undergone such further training or mentoring or the like as was necessary to enable him or her properly to conduct hearings. This was not removal from office, which could only be done by the disciplinary committee after an investigation carried out at the request of the Scottish Ministers. This was a mere temporary suspension. The President was properly concerned not to take a heavy handed approach to the petitioner. He did not wish to commence disciplinary proceedings or, more accurately, recommend that the Scottish Ministers commence such proceedings. He sought to handle the matter in a more constructive fashion. This was a "low level of difficulty" which he wanted to deal with at a low level. It was within the power of the President to require a particular member to participate in training and in the Tribunal's appraisal scheme; and commitment to participation in training provided by the Tribunal and in the Tribunal's appraisal scheme was one of the terms of the petitioner's appointment.

[23] In addition, Mr Truscott raised a wholly different matter. He argued that the respondent's act in temporarily preventing the petitioner from convening tribunals attracted judicial immunity. He referred me to a number of authorities and commentaries, namely: Stair Memorial Encyclopaedia, volume 4, Constitutional Law (Reissue), at para 601, which was concerned with the immunity of judges from suit; Primrose v Waterston (1902) 4F 783 at 790; Clyde and Edwards, Judicial Review, at para 4.24; Garnett v Ferrand (1827) 6 B&C 611 at 625; Sirros v Moore [1975] QB 118 at 132D-E; O'Brien v Ministry of Justice [2010] UKSC 34 at para 26; and Engel v Joint Committee for Parking and Traffic Regulation outside London [2013] ICR 1086. He argued that the petition should be refused on this basis.

Discussion

[24] I deal first, albeit briefly, with the submission that the respondent's acts attract judicial immunity. That might well be so if it were sought to make him personally liable for acts carried out by him in the course of his duties as President of the Tribunal. I do not need to decide this. But this petition does not seek to do any such thing. It simply seeks reduction of his decision on the ground that that decision is, in effect, ultra vires. If the argument on judicial immunity from suit applied in a case such as this, it would surely apply in every case where it is sought to challenge a decision of an inferior tribunal. There would be no scope for judicial review. There is no merit in this point.

[25] Turning to deal with the real question at issue here, it is clear both from para 5 of Schedule 2 to the Act and from Regulation 5 of the Regulations that removal from office and suspension are serious matters. Para 5(1) of Schedule 2 provides that a member may be removed from office only by order of the disciplinary committee; and it may only order removal from office if it finds that the member is unfit for office by reason of inability, neglect of duty or misbehaviour. The disciplinary committee is given the power of suspension only in the context of its investigation into the conduct of a member carried out at the request of the Scottish Ministers. Suspension can only be ordered during an investigation and must terminate if it is found that an order for removal is, for whatever reason, not made. It follows that suspension is a power ancillary to an investigation which might lead to removal of a member from office; and, if removal from office can only occur by order of the disciplinary committee, so also suspension can only be at the hand of the disciplinary committee and, what is more, can only be justified in circumstances where removal from office remains a possibility.

[26] The restricted circumstances in which a member can be removed, which apply also in my view to suspension, suggests that security of tenure of members of the Tribunal is regarded as fundamental to their independence in the performance of their duties. That security of tenure stands comparison with the security given to judges and sheriffs. It is not lightly to be whittled away. The argument presented by the respondent, namely that it was within the power of the President, in seeking to secure that the functions of the Tribunal were discharged efficiently and effectively, and in giving directions and guidance generally about the administration of the Tribunal for that purpose, effectively to suspend a member whose performance was the subject of concerns or who, for whatever reason, was perceived by him not to be up to the job without further training, would run counter to the whole principle underlying the restricted circumstances in which a member can be suspended. It is, of course, open to the President to choose members of a tribunal for any particular case (see para 7(3) of Schedule 2); and it may well be appropriate, though that does not arise for decision, for him, in specific circumstances, to choose members who are particularly qualified for the pending hearing. But it is quite another thing to take a decision, unrelated to the selection of any particular tribunal for any particular proceedings, that a particular member of the Tribunal will not be selected for any tribunal for a particular period or until he or she has undertaken further training. It may sometimes be difficult to draw the line between the two situations. However, there is no doubt in my mind that the President, by effectively suspending the petitioner from her membership of the Tribunal until she has undertaken further training, has overstepped the mark. His decision is legally incompetent and falls to be reduced.

[27] That is not to say that I have no sympathy for the difficulty in which the respondent, as President of the Tribunal, finds himself. It is, as Mr Truscott submitted, a "low level of difficulty". It is perfectly understandable that he wants to deal with it at a low level. To recommend the commencement of disciplinary proceedings is a very significant step. It may be that the respondent has formed the view that the nature of the concerns expressed about the petitioner's conduct of hearings would not justify the raising of a complaint or investigation by the disciplinary committee. The grounds of removal are limited to unfitness for office by reason of inability, neglect of duty or misbehaviour. It is not for this court on this application for judicial review to determine whether the petitioner's alleged failings fall within any of these categories. But the respondent's reluctance to request the Scottish Ministers to initiate disciplinary proceedings in respect of the matters of concern summarised in the letter of 4 December 2013 is understandable. It may be that there is a lacuna in the provisions of Schedule 2 which ought to be filled to allow him, in certain circumstances, to act in the way he has in this case. I cannot say. It might in any event be difficult to draft a suitable provision, given the countervailing need to preserve the independence of appointed members of the Tribunal. But as matters stand, I am satisfied that there is no power contained in the provisions of Schedule 2 entitling the respondent temporarily to suspend the petitioner.

Disposal

[28] I shall therefore grant the petition and grant decree of reduction of the purported decision contained in the letter dated 4 December 2013.