SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

B694/11

 

JUDGEMENT   of   SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC   in the cause   AB   Appellant   against   MENTAL HEALTH TRIBUNAL FOR SCOTLAND   First Respondent     MS MARGARET COOPER   Second Respondent   and   DR SALLY WINNING   Third Respondent

 

 

 

Act: Ms J F Cartwright, advocate, instructed by Woodward Lawson, Aberdeen

Alt: (1) Mr R G Hunter, solicitor, Mental Health Tribunal for Scotland

(2) No appearance

(3) Ms L J Gillespie, advocate, instructed by Central Legal Office, NHS Scotland

 

 

 

Aberdeen: 17 November 2011

The sheriff principal, having resumed consideration of the cause and seen the note dated 8 November 2011 by the convener of the Tribunal who presided at the hearing on 8 July 2011 in respect of the appellant, sustains the first plea in law for each of the first and third respondents, repels the pleas in law for the appellant and refuses the appeal; finds the appellant liable to the first and third respondents in the expenses of the appeal but modifies his liability therefor as an assistant person to nil; certifies the appeal as suitable for the employment by the appellant and the third respondent of junior counsel.

 

 

 

 

 

Note

 

[1] This note should be read in conjunction with the note appended to my interlocutor dated 24 October 2011. I have now seen the note dated 8 November 2011 by the convener of the Tribunal who presided at the hearing on 8 July 2011 in respect of the appellant. In it she records that she had considered the terms of both my interlocutor dated 24 October 2011 and the note appended thereto and had provided copies of these documents to her fellow members of the Tribunal. She then states:

 

It is the clear recollection of the three members of the Tribunal that before making the compulsory treatment order referred to, consideration was given to the question whether it was necessary that the appellant should be detained in hospital and given medical treatment in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 after 21 July 2011.

 

The answer given to the question was in the affirmative.

 

In view of the evidence presented to us in relation to the severity of his mental disorder, we were left in no doubt that the appellant would require to be detained and provided with treatment for a longer period than the remainder of the section 44 certificate would allow, even if extended in terms of section 68 of the Act.

 

In the event of a significant improvement in the appellant's mental health, we were also mindful of the power available to (the third respondent) to suspend, revoke or vary the compulsory treatment order at any time before its expiry.

 

[2] In light of these comments I am quite satisfied that the Tribunal did not err in law in granting a compulsory treatment order in respect of the appellant. And I might add here that I am satisfied too that there was sufficient evidence before the Tribunal in the two mental health reports by the third respondent and the appellant's general practitioner respectively and the report by the second respondent, as amplified at the hearing itself by the oral evidence of the second and third respondents, to entitle the Tribunal to conclude that the making of a compulsory treatment order in respect of the appellant was necessary and that the greater restriction on the appellant's freedom which the order implied, as compared with the restriction implied by the short-term detention certificate and section 68, was necessary in the circumstances. I have therefore refused the appeal.

 

[3] It was not in dispute that in this event I should find the appellant liable to the first and third respondents in the expenses of the appeal but should modify his liability therefor as an assistant person to nil, and also that I should certify the appeal as suitable for the employment of junior counsel. I am satisfied that this is appropriate in the circumstances.

 

[4] For the sake of completeness it may be of interest to mention that after copies of my interlocutor and note dated 24 October 2011 had been issued to the parties the appellant's solicitor asked to address the court. This I allowed him to do at a hearing that I was able to arrange at short notice on 27 October 2011. The solicitor for the first respondent also appeared at this hearing. The third respondent was not represented, her solicitor having previously indicated that he had no objection to the procedure outlined in the note appended to my earlier interlocutor and that the third respondent was content not to be present or represented at the forthcoming hearing.

 

[5] Before this hearing I was under the impression that the question for consideration would be whether on the one hand only a copy of my interlocutor dated 24 October 2011 should be sent to the convener of the Tribunal or whether on the other hand copies of both the interlocutor and the note appended thereto should be sent to her. I had gained this impression in light of an exchange of e-mails, the salient parts of which were as set out in the following paragraph.

 

[6] On 25 October 2011 the appellant's solicitor (Mr Woodward-Nutt) sent my secretary an e-mail in which he stated, inter alia:

 

There is some doubt as to how matters should proceed with regards to further communications with the convenor of the tribunal who made the decision forming the subject matter of this appeal. Are you able to clarify with the Sheriff Principal whether it is simply the interlocutor or both the interlocutor and the note that is to be put to the convenor? My feeling was that the Sheriff Principal intended simply for the interlocutor containing the two questions to be intimated, presumably so as to ensure there is no possibility that the response to the questions could be influenced by the details contained within the note ....... I believe that Mr Hunter may take a contrary view to my own. 

 

Could you please seek clarification from the Sheriff Principal and thereafter revert to myself and Mr Hunter? Mr Hunter has kindly undertaken to hold off intimation to the convenor until we hear from you further.

 

My secretary forwarded this e-mail to me and I responded inter alia as follows:

 

I had envisaged that both the interlocutor and note would be intimated to the convener. It seems to me that she is entitled to an explanation why the questions are being asked. But they are quite straightforward questions of fact, and I take it that Mr W-N is not suggesting that she would give anything other than honest answers to them or that she would compromise her integrity by allowing her answers to be influenced by what she reads in the note. I am not sure whether, as a MHTS convener, she has to take the judicial oath. But I would certainly expect her to adhere to the standards to be expected of any judicial office-holder when she is acting as a convener.

 

If Mr W-N is not happy about both the interlocutor and note being intimated to the convener, I should be willing to hear him and the other parties ......

 

By all means copy this response to everyone please.

 

My secretary duly copied my response to the parties' solicitors and shortly afterwards the first respondent's solicitor sent an e-mail to my secretary as follows:

 

It may be helpful for Mr Woodward-Nutt, in considering the Sheriff Principal's remarks ..... , to be aware that members of the Tribunal are covered by the Statement of Principles of Judicial Ethics for the Scottish Judiciary.

 

http://www.scotland-judiciary.org.uk/Upload/Documents/Principles.pdf

 

I trust that this will be sufficient to satisfy Mr Woodward-Nutt and thus avoid the effort and expense of a hearing to determine this matter. 

 

But this was evidently not enough to satisfy the appellant's solicitor for he then sent an e-mail to my secretary saying that he would be very grateful to have the opportunity to be heard by myself on the point.

 

[7] In the event at the hearing on 27 October 2011 the appellant's solicitor moved that I should recall my interlocutor dated 24 October 2011 and proceed without further ado to dispose of the appeal or alternatively that I should remit the appeal to the Court of Session. In short he submitted under reference to Harper of Oban (Engineering) Ltd v Henderson 1988 JC 103 that it was wrong that the Tribunal should get a second bite of the cherry, so to speak. He pointed out that the Tribunal was a party to the appeal, but emphasised that he was not suggesting that the members of the Tribunal would in fact deal inappropriately with the matter in response to my interlocutor of 24 October 2011. But he reminded me that the members of the Tribunal were not required to take the judicial oath and he submitted that an informed observer, looking at the matter objectively, might conclude that justice would not be done if the course of action outlined in my interlocutor were to be followed. He drew attention to the statement in paragraph [17] of my earlier note in which I had explained that it had been pointed out that, if I were to allow the appeal and set aside the decision of the Tribunal to make a compulsory treatment order in respect of the appellant, the basis upon which he could be required to submit to compulsory treatment would immediately fall notwithstanding that it might be in his interests that he should continue to be subject to such treatment. He suggested with reference to section 324(5)(a) of the Act that Parliament must have been aware that an inevitable consequence of allowing an appeal in a case such as this would be to remove the basis upon which a patient could be required to submit to compulsory treatment, and he submitted that the procedure outlined in my interlocutor of 24 October 2011 constituted an attempt on my part to circumnavigate the intentions of Parliament.

 

[8] In response the solicitor for the first respondent submitted in short that I should refuse both the appellant's motions. He referred here to T v Mental Health Tribunal for Scotland (Airdrie Sheriff Court, 28 July 2008, unreported) and the decision of an Extra Division of the Court of Session in what is described in an e-mailed transcript (which I was shown) of the opinion of the court as an "Appeal to the Court of Session by the Scottish Ministers under section 322 of the 2003 Act against a decision of the Mental Health Tribunal for Scotland in the case of M" (M's full name is stated in the e-mail but not the date of the opinion or the precise name of the case).

 

[9] I had no difficulty in deciding to refuse both the motions for the appellant - and in saying this I am assuming for the moment that it would actually have been competent for me to have recalled my interlocutor of 24 October 2011. It might have been a different matter if I had suggested in my earlier note how the convener of the Tribunal should answer the questions which had been posed in this interlocutor. But I had not done this. I had put to her two straightforward questions of fact, and it seemed to me to be wrong to suggest, to borrow the language of the Lord Justice Clerk (Ross) in the final paragraph of the opinion of the court in Harper of Oban (Engineering) Ltd v Henderson, that the circumstances were such as to create in the mind of a reasonable man a suspicion that the convener would not answer these questions honestly and impartially, uninfluenced by the terms of my note.

 

[10] In addition to refusing both the appellant's motions in the interlocutor which I pronounced at the end of the hearing on 27 October 2011, I directed for the avoidance of doubt that copies of both the interlocutor dated 24 October 2011 and the note appended thereto should be transmitted to the convener of the Tribunal who had presided at the hearing on 8 July 2011 in respect of the appellant. I also refused the motion which was made by his solicitor for leave to appeal to the Court of Session. At that stage of course I did not know how the convener would answer the questions which had been put to her. It seemed to me in the circumstances that it would be much more sensible that I should receive her answers and dispose of the appeal in light of them. Thereafter, if the appeal were to be refused, the appellant would be free to appeal against my decision to the Court of Session without leave in terms of section 321(1) of the Act. If, on the other hand, I were to allow the appeal in light of the convener's answers, there would be no need for the appellant to appeal to the Court of Session in any event.