Fennell, Letts and Wilson, Mental Health Tribunals (Law Society 2013):
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Category:Scottish cases

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The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page.
Page and summaryDate added to siteCategories
G v Scottish Ministers sub nom G v MHTS (2013) UKSC 79, (2013) MHLO 117 — This appeal relates to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The tribunal's decision to make no order was lawful. The Supreme Court took the opportunity to clarify the nature of decision-making under section 264(2) Mental Health (Care and Treatment) (Scotland) Act 2003, and the factors which are relevant to the proper application of that section and of other provisions of the Act. 2013-12-182013 cases, Brief summary, Scottish cases, Transcript
Re CM (Judicial Review) (2013) CSOH 143, (2013) MHLO 84 — "The petitioner asks the court to declare that the respondents' 'policy of a complete smoking ban and prohibition of possession of tobacco products by patients at the State Hospital' is unlawful; and also to declare that the respondents' policy has breached the petitioner's human rights, specifically article 8 of the European Convention on Human Rights (right to respect for private life and home) as a stand‑alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination) and the first protocol, article 1 ECHR (right not to be deprived of property) as a stand-alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination). ... I have come to the view, though with reluctance, that the decision to compel the petitioner to stop smoking was flawed in every possible way. In that it relied on compulsion, the decision was contrary to the national policy which it purported to implement. The decision should ..→2013-08-302013 cases, No summary, Scottish cases, Transcript
RM v Scottish Ministers (2012) UKSC 58, (2012) MHLO 133 — "This appeal raises a question as to the effect of a commencement provision in a statute which provides that provisions "shall come into force" on a specified date, and a consequential question as to the effect of a provision conferring upon Ministers the power to make regulations, where the provisions which are subject to the commencement provision cannot come into effective operation unless such regulations have been made. ... These questions arise in relation to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"). The relevant substantive provisions are contained in Chapter 3 of Part 17, comprising sections 264 to 273. That Chapter is concerned with the detention of patients in conditions of excessive security." [Detailed summary available.] 2012-12-192012 cases, Detailed summary, Miscellaneous, Scottish cases, Transcript
RM v Scottish Ministers (2011) CSIH 19 — Unsuccessful challenge relating to effectiveness of Scottish "conditions of excessive security" legislation. [Summary required.] 2012-12-192011 cases, Miscellaneous, No summary, Scottish cases, Transcript
JB v MHTS (2012) MHLO 17 (ScotSC) — The MHTS declared under section 257 Mental Health (Care and Treatment) (Scotland) Act 2003 that JB was no longer to be the named person on the basis that it was inappropriate for her to continue as such. The decision was made by a Convenor (legal member) sitting alone, but should have been made by a full panel: the tribunal was faced with an important substantive decision; there was no emergency; even if there had been extant proceedings, this was not a 'preliminary' or 'interim' decision within the rules. The tribunal was therefore improperly constituted, and the appeal was allowed. 2012-03-052012 cases, Brief summary, Scottish cases, Transcript
Black v MHTS (2011) CSIH 83 — 'What remedy, if any, is available to a curator ad litem appointed to represent the interests of a patient in proceedings before the Mental Health Tribunal for Scotland, in the event that the Tribunal acts unlawfully or unfairly or exercises its discretion in an unreasonable manner? That is the question which lies at the heart of the present appeal, which was remitted to this court by the Sheriff Principal of Grampian, Highlands and Islands.' [Summary required.] 2011-12-102011 cases, No summary, Scottish cases, Transcript
Scottish Ministers v MHTS (2011) CSIH 76 — The Scottish Ministers challenged revocation by a Mental Health Tribunal of a restriction order affecting a patient suffering from paranoid schizophrenia and living in the community, and successfully argued that the compulsion order and restriction order should remain in force until the final hearing. 2011-12-102011 cases, Brief summary, Scottish cases, Transcript
Re DC (Judicial Review) (2011) CSOH 193 — Various questions of Scots law arose in this judicial review claim for damages for unlawful detention. [Summary required.] 2011-11-262011 cases, No summary, Scottish cases, Transcript
AB v MHTS (2011) ScotSC B694/11 — Unsuccessful challenge to MHTS decision. [Summary required.] 2011-11-262011 cases, No summary, Scottish cases, Transcript
G v MHTS (2011) CSIH 55 — This appeal relates to the circumstances in which it may be appropriate for the Mental Health Tribunal for Scotland to make no order for arrangements to be made for transfer from the State Hospital to conditions of lesser security following a finding that the patient is being detained in conditions of excessive security. The appellant unsuccessfully challenged the decision to make no order. 2011-08-232011 cases, Brief summary, Scottish cases, Transcript
Re JM (Variation and renewal of orders for guardianship made under provisions with minute to vary) (2011) ScotSC 8/6/11 — Judgment including guidance on Scots guardianship orders. [Summary required.] 2011-08-032011 cases, No summary, Scottish cases, Transcript
LA v MHTS (2011) ScotSC 20/7/11 — Unsuccessful appeal against Mental Health Tribunal for Scotland. [Summary required.] 2011-08-022011 cases, No summary, Scottish cases, Transcript
JG v MHTS (2011) ScotSC 17/6/11 — Unsuccessful appeal against Tribunal decision. [Summary required.] 2011-07-202011 cases, No summary, Scottish cases, Transcript
LBN v Borland (Mental Health Officer) (2011) ScotSC 9/5/11 — The failure to submit the required medical evidence within the time limit did not vitiate the application. 2011-05-262011 cases, Brief summary, Scottish cases, Transcript
Re JG (Estate Planning for Adults who have lost Capacity) (2009) ScotSC 77 — Scottish case. [Summary required.] 2010-11-282009 cases, No summary, Scottish cases, Transcript
JG v MHTS (2010) ScotSC 14/10/10 — Challenge to Mental Health Tribunal for Scotland decision. [Summary required.] 2010-11-262010 cases, No summary, Scottish cases, Transcript
Re HP (Remuneration of a Financial Guardian under Section 68 of the Adults with Incapacity (Scotland) Act 2000) (2010) ScotSC 21/7/10 — This appeal concerns a decision of the Public Guardian regarding the question of the remuneration payable to a financial guardian in respect of the work undertaken by him in connection with the applications he submitted for renewal of the guardianship. Following an application to the Public Guardian for remuneration in connection with the renewal process, it was decided that additional remuneration was appropriate, but the proposed payment was at a level the guardian did not regard as adequate. The court held that this case was an exceptional circumstance in which the Public Guardian should authorise payment on a time and trouble basis. 2010-10-302010 cases, Brief summary, Scottish cases, Transcript
Re LC (2005) ScotSC 19/5/05 — A sheriff may dispense with intimation, or notification, of an application for Guardianship where such intimation "would be likely to pose a serious risk to the health of the adult". It was held that it was insufficient for the medical practitioners to simply repeat the words which appear in the statute and that concise and articulate reasons should be given in order that the court has proper information on which to form a view. 2010-10-302005 cases, No summary, Scottish cases, Transcript
Re FB (Incapacity Application) (2005) ScotSC 26 — An application for guardianship was sought and granted. The court held that the first question it was to consider was whether the respondent was incapable in relation to decisions about, or of acting to safeguard his interests in, his personal welfare, as a consequence of the mental disorder, and whether this was likely to continue to be so. It was held that this meant much more than just being incapable of making decisions but also being incapable of understanding decisions in relation to his interests in his personal welfare or of acting to safeguard or promote those interests. The next question to consider was whether there was any other means provided by or under the Act which would be sufficient to enable the respondent's interests in his personal welfare to be safeguarded. Finally, the court held that the next question to be considered was whether the interests could be safeguarded otherwise than by guardianship order. 2010-10-292005 cases, Brief summary, Scottish cases, Transcript
Re DC (Dispensing with Service of Applications under the Adults with Incapacity (Scotland) Act 2000 on the Adult) (2010) ScotSC 6 — An application for Financial and Welfare Guardianship was accompanied by a form purporting to justify dispensing with intimation of the application on the adult. The Sheriff referred to his earlier decision in Re LC (2005) ScotSC 19/5/05 and held that the words in the application that "He is too disturbed and mentally ill" were insufficient to demonstrate that intimation of the application itself would be likely to pose a serious risk to the health of the adult. 2010-10-272010 cases, Brief summary, Scottish cases, Transcript
City of Edinburgh Council v D (2010) ScotSC 30/9/10 — An Intervention Order was sought, and granted, to allow the applicant to instruct solicitors, on the adult's behalf, to negotiate for settlement with respect to an outstanding compensation claim, to receive funds and invest same for the benefit of the adult, and to instruct solicitors to apply to have the applicant confirmed as executor to the adult's father's estate, in order that his estate could then be wound up and disbursed. 2010-10-182010 cases, Brief summary, Scottish cases, Transcript
Smith v MHTS (2006) CSOH 44 — A Mental Health Officer sought Judicial Review of the Mental Health Tribunal for Scotland's decision not to convene a Tribunal before the end of the 5-day STDC extension period. The Tribunal had cited the limited availability of venues and the lateness of the compulsory treatment order application as reasons; these were irrelevant as the obligation is straightforward and clear and not qualified by reference to reasonable practicability. An order was pronounced requiring the Tribunal administration to schedule a hearing within 5 days of the judicial review hearing. 2010-09-092006 cases, Brief summary, Scottish cases, Transcript
Laurie v MHTS (2007) GWD 32-555 — An application was made for revocation/variation of a Compulsory Treatment Order by the patient's Named Person. Two competing arguments were before the Mental Health Tribunal - one regarding a community option, the other a move to a specialist unit. A report prepared on behalf of the specialist unit was before the Tribunal. The Sheriff concluded that there will be many cases where proceeding on the basis of a report, without requiring the author to speak to it, was entirely proper and satisfactory but that it was not adequate in the circumstances of this case given the importance attached to that report. Whilst no party had requested an opportunity to cross-examine the author of the report, the Sheriff held that the Tribunal is not purely adversarial but there is an inquisitorial element in the approach required to be adopted by the Tribunal in its reaching decisions. The failure to consider whether to require the author to give evidence and the failure to consider the weight ..→2010-09-092007 cases, Brief summary, Scottish cases, Transcript
Di Mascio v MHTS (2008) GWD 37-559 — The Mental Health Officer appealed against the decision by the Mental Health Tribunal for Scotland to vary the conditions of a Compulsory Treatment Order from a hospital based order to a community based one. The variation provided that the patient should reside with his mother. The appeal was refused. It was held that he Tribunal should have regard to the principles set out in section 1 of the Mental Health (Care & Treatment) (Scotland) Act 2003 when determining what compulsory measures should be authorised; and that a significant risk to the safety of others did not determine that detention in hospital must be authorised. 2010-09-092008 cases, Brief summary, Scottish cases, Transcript
AB v MHTS (2008) GWD 36-543 — During the course of a Mental Health Tribunal the Convenor curtailed the appellant's solicitor's repetitive cross-examination. An interim Compulsory Treatment Order (CTO) was granted. A subsequent Tribunal granted a CTO. This decision was subject to appeal. The Sheriff concluded there had been no procedural impropriety in the conduct of the hearing, nor was there a requirement for the Responsible Medical Officer to formally adopt their mental health report; the Tribunal could consider the evidence read as a whole in conjunction with the earlier mental health reports. 2010-09-092008 cases, Brief summary, Scottish cases, Transcript
LM v MHTS (2010) ScotSC x — The appellant had been subject to a Short-Term Detention Certificate (STDC), which was followed by an (unlawful) Extension Certificate, which was then followed by a subsequent STDC. Section 44(2) Mental Health (Care and Treatment) (Scotland) Act 2003 prohibits the granting of a STDC when the patient is subject to an Extension Certificate. An application under s50 was made to revoke the second STDC; the MHTS considered the detention criteria and refused the application. This decision was subject to an appeal to the Sheriff Principal who held that as the appellant had not been "subject to" the Extension Certificate (it being unlawful) the second STDC was valid. The Sheriff noted that the appellant could have made an application in terms of section 291 to challenge the lawfulness of his detention; this option met Article 5 requirements and would have been more appropriate as the detaining party would have been the respondent. 2010-09-042010 cases, Brief summary, Scottish cases, Transcript
WS v MHTS (2010) CSIH 74 — WS had been transferred from an English medium secure unit to the state hospital at Carstairs in Scotland under s80 MHA 1983. (1) His appeal to the MHTS under s220 Mental Health (Care and Treatment) (Scotland) Act 2003 ("Appeal to Tribunal against transfer under section 218 to state hospital") was misconceived because he had not been transferred under s218. (2) The appropriate remedies would have been (a) a judicial review in England of the English s80 decision or (b) an appeal under the Scottish s264 ("Detention in conditions of excessive security: state hospitals"). (3) An order under s264 would oblige the Health Board to search for suitable accommodation in England if necessary. 2010-08-222010 cases, Brief summary, Scottish cases, Transcript
Henderson v MHTS (2010) ScotSC x — A Curator ad litem appointed by the Mental Health Tribunal for Scotland is appointed to protect and safeguard the interests of the patient during particular proceedings before the Tribunal and has no standing to appeal that Tribunal's decision to the Sheriff Principal. 2010-08-012010 cases, Brief summary, Scottish cases, Transcript
Eba, Petitioner (2010) CSOH 45 — The petitioner sought judicial review of the Upper Tribunal's refusal of permission to appeal against a decision of the Social Security Appeal Tribunal. (1) The UT decision in the present case is subject to review only in exceptional circumstances, i.e. on pre-Anisminic grounds (excess of jurisdiction in the narrow sense) or because there has been a breakdown of fair procedure. (2) This case was not within that restricted right of review so the petition was dismissed. 2010-05-022010 cases, Brief summary, Other Tribunal cases, Scottish cases, Transcript
MJJAB v Scottish Ministers (2010) CSIH 31 — Consideration of the serious harm test in Section 64(A1) Mental Health (Scotland) Act 1984 and standard of proof. [Summary required.] 2010-04-112010 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
Law Hospital NHS Trust v Lord Advocate (1996) ScotCS CSIH 2 — "The purpose of these proceedings is to obtain the sanction of the court to the termination of nutrition and hydration and all other life sustaining treatment to a patient at Law Hospital." [Summary required.] 2009-11-301996 cases, Best interests, No summary, Scottish cases, Transcript
Her Majesty's Advocate v S (1999) ScotHC 183 — Fitness to plead. [Summary required.] 2009-11-301999 cases, No summary, Scottish cases, Transcript, Unfitness and insanity cases
Re Robertson (Application for Judicial Review of a decision of Fife Council) (2001) ScotCS 94 — "This case concerns the controversial subject of the provision of and payment for nursing home care for the elderly and infirm." [Summary required.] 2009-11-302001 cases, Community care, No summary, Scottish cases, Transcript
Kim Louise Scarsbrook or Galbraith v Her Majesty's Advocate (2001) ScotHC 45 — Diminished responsibility. [Summary required.] 2009-11-302001 cases, Diminished responsibility cases, No summary, Scottish cases, Transcript
Re Maughland (Determination Into the Death of) (2003) ScotSC 10 — [Summary required.] 2009-11-302003 cases, Inquests, No summary, Scottish cases, Transcript
Re McDougall or Muldoon (Guardianship Order) (2005) ScotSC 6 — "This is an application under the Adults with Incapacity (Scotland) Act 2000, in which the Applicant, Paul Muldoon, seeks an order under section 57 of the Act appointing him as guardian with powers relating to both the welfare of, and the property and financial affairs of, his mother, Mrs Mona McDougall or Muldoon (hereafter, "the adult"). The welfare powers sought are (a) to decide where the adult should live, (b) to have access to confidential documents, and (c) to consent to, or withhold consent to, medical treatment." [Summary required.] 2009-11-302005 cases, No summary, Other capacity cases, Scottish cases, Transcript
Yung v Procurator Fiscal, Edinburgh (2006) ScotHC HCJAC 70 — Appeal against against a finding acquitting the Y of three charges of assault on the ground that he was insane at the time of commission of the offences. [Summary required.] 2009-11-302006 cases, No summary, Other criminal law cases, Scottish cases, Transcript
Wilkinson v Secretary of State for Scotland (1999) ScotCS 49 — Paedophilia alone did not justify detention, as it is a sexual deviancy; but on the facts there was a mental disorder. If there is a mental disorder that manifests itself in paedophile conduct, that can be within the definition of mental disorder. [MHLR.] 2009-11-011999 cases, Brief summary, Scottish cases, Transcript, Treatability test and psychopathic disorder
Robbins v Mitchell and MHTS (2007) ScotSC 19 — Unsuccessful challenge to MHTS decision. [Summary required.] 2009-11-012007 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
Ruddle v Secretary of State for Scotland (1999) ScotSC 24 — Whilst a structured hospital environment could amount to treatment, it did not on the facts, but was mere containment; and as an anti-social personality disorder was not on the facts alleviated or prevented from deterioration as a result of any treatment interventions, it was untreatable; and as there was no need for recall, an absolute discharge followed. [MHLR.] 2009-11-011999 cases, Brief summary, Other Tribunal cases, Scottish cases, Transcript
RM v Scottish Ministers (2008) CSOH 123 — Unsuccessful challenge relating to effectiveness of Scottish "conditions of excessive security" legislation. [Summary required.] 2009-11-012008 cases, Miscellaneous, No summary, Scottish cases, Transcript
Paterson v Kent (2006) ScotSC 48 — Successful appeal against MHTS decision. [Summary required.] 2009-11-012006 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
McGlynn v Mental Health Tribunal for Scotland (2006) ScotSC 18 — Successful appeal against MHTS decision. [Summary required.] 2009-11-012006 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
Lothian Health Board v Martin and MHTS (2007) — Unsuccessful appeal against MHTS decision. [Summary required.] 2009-11-012007 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
Hughes v Mental Health Tribunal for Scotland (2006) ScotSC 56 — Funding for representation at MHTS. [Summary required.] 2009-11-012006 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
Ferguson v State Hospital Management Committee (1999) ScotSC 10 — In considering discharge, it was not necessary to consider the hypothetical question of whether the sentencing court would impose a hospital order on the basis of present knowledge of the patient’s condition; the requirement of treatability in relation to a personality disorder was satisfied by the structured setting that made F more settled and stable and cognitive behavioural therapy and counselling. [MHLR.] 2009-11-011999 cases, Brief summary, Other Tribunal cases, Scottish cases, Transcript
Byrne v Mental Health Tribunal for Scotland (2006) ScotSC 29 — MHTS decision set aside. [Summary required.] 2009-11-012006 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
Beattie v Dunbar (Mental Health Officer) (2006) ScotSC 108 — Challenge to MHTS decision to grant compulsory treatment order. [Summary required.] 2009-11-012006 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
AL v Mental Health Tribunal for Scotland (2007) ScotSC 44 — Successful challenge to MHTS decision. [Summary required.] 2009-10-242007 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
AG v Mental Health Tribunal for Scotland (2006) ScotSC 113 — Challenge to MHTS decision not to adjourn. [Summary required.] 2009-10-242006 cases, No summary, Other Tribunal cases, Scottish cases, Transcript
KM v MHTS (2009) case B186/09 — (1) In granting a Community Treatment Order, the Mental Health Tribunal for Scotland misdirected itself in law, so its decision was set aside: in considering Regulation 5 (permitted conflicts of interest between the two recommending doctors) the Tribunal applied a subjective test of what was in the RMO's mind, rather than objectively considering whether "failure to carry out the [independent second] medical examination would result in delay which would involve serious risk to the health, safety or welfare of the patient or to the safety of other persons" (Reg 5(1)(b)). (2) No facts were found by the Tribunal which could have justified a CTO so, rather than remitting the case to the Tribunal, the application for a CTO was refused. 2009-08-312009 cases, Brief summary, Reasons, Scottish cases, Transcript
Scottish Ministers v MHTS, re MM (2009) CSIH 66 — (1) Tribunal decision set aside for want of adequate reasons. (2) Discussion on interpretation of s193 Mental Health (Care and Treatment) (Scotland) Act 2003, the convoluted Tribunal discharge procedure and criteria which differ from the admission criteria. 2009-07-292009 cases, Brief summary, Scottish cases, Transcript
Scottish Ministers v MHTS, re NG and PF (2009) CSIH 33 — The Mental Health Tribunal for Scotland has no power to vary the conditions of a patient who had been conditionally discharged, as the power to set conditions only arises at the time of discharge. 2009-06-142009 cases, Brief summary, Powers, Scottish cases, Transcript
M v Murray (Mental Health Officer) (2009) ScotSC 8 — The appellant patient argued that the mental health officer's application to the Mental Health Tribunal for Scotland was misconceived because the second medical report which accompanied the application did not meet the requirements of the Mental Health (Care and Treatment) (Scotland) Act 2003; taken as a whole and in the circumstances (that the application is made in the interests of the patient and the Tribunal also hear oral evidence) the report did meet the requirements. 2009-04-262009 cases, Brief summary, Scottish cases, Transcript
Scottish Ministers v MHTS, re JK (2009) CSIH 9 — The Mental Health Tribunal for Scotland, in terminating a restiction order of a detained patient, had erred in law: (1) The threshold requirements in section 193(2) (that the patient has a mental disorder and that it is necessary for the patient to be detained in order to protect any other person from serious harm) must be considered and found wanting before considering the rest of the section including, under s193(5), whether to terminate the restriction order; (2) the criteria in s193(5)(b) (that the serious harm test is satisfied and that the restriction order is a continuing necessity) are disjunctive and must be separately considered. Obiter, there was a failure to deal with large parts of the evidence, in particular the RMO's evidence that the serious risk test was met. 2009-02-202009 cases, Brief summary, Reasons, Scottish cases, Transcript
Reid v Secretary of State for Scotland (1998) UKHL 43 — (1) Treatability test is part of admission criteria for psychopathic disorder, so entitled to discharge when it is not met; definition of treatment is wide and can include treatment only for symptoms rather than underlying disorder, e.g. anger management. (2) Decision not to discharge not irrational. 2006-04-151998 cases, Absolute or conditional discharge, Detailed summary, Scottish cases, Transcript, Treatability test and psychopathic disorder

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