Advocates Library Parliament House Edinburgh EH1 1RF
Hastie Stable member David Leighton has successfully acted for a patient in a claim for unlawful detention under the Mental Health (Care and Treatment)(Scotland) Act 2003.
The underlying facts were fairly complex. A patient had been granted leave out of hospital into the community (suspension of detention) for lengthy periods, in breach of a statutory time limit (“the nine month rule”). A Mental Health Tribunal considering the case arrived at the view that this breach caused the order to lapse. The doctor in charge made an application to another Tribunal who considered that the first Tribunal was wrong and that the breach did not cause the order to lapse.
It was argued for the patient that the decision of the first Tribunal was correct or at least binding in the absence of challenge to it by way of judicial review. It was also argued in the alternative that if the time limit was breached the absconding provisions applied, which carried a three month time bar and, because of the timings of the certificates, the CTO had lapsed by passage of time.
In relation to the first argument, Lord Stewart held that a breach of the time limit did not cause the underlying CTO to lapse. However, the court did accept the alternative argument that because of the timings involved the patient had in fact been subject to the absconding provisions for more than three months and so the CTO had lapsed. In relation to res judicata, Lord Stewart agreed that res judicata could properly apply to decisions of the Mental Health Tribunal for Scotland and that there were no special reasons for why it was not applicable to that forum. The extent to which res judicata does apply to Tribunal proceedings is perhaps unclear but there will be at least some circumstances when it does apply. One would expect its application to be limited.
A second hearing has now been fixed for later in the year to consider any entitlement to and quantum of damages.
For those interested in this area, it is worth noticing that suspension of detention was one of the areas that was the subject of recent consultation (the “McManus review”). Various carefully considered proposals were submitted from a variety of sources and recommendations were made. In relation to suspension of detention, the Scottish Government’s response was not to accept the recommendations of the review but simply to propose a removal of any time restrictions on suspension of detention, a step which might well be viewed as a retrograde one.
A report of the decision can be found here: http://www.scotcourts.gov.uk/opinions/2011CSOH193.html
Information on the McManus review can be found here: http://www.scotland.gov.uk/Topics/Health/health/mental-health/mhlaw/mhareview