LM v MHTS (2010) ScotSC 150: Difference between revisions

Revision as of 22:13, 5 September 2010

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.

Notes

Interestingly, the burden of proof in a s291 application is upon the applicant, whereas this is not the case with respect to an application for a revocation of a STDC.

External link

Not on Bailii at time of writing.

Transcript on Scots Courts website

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-The appellant had been subject to a Short-Term Detention Certificate (STDC), followed by a purported, and unlawful, Extension Certificate, which was then followed by a subsequent STDC.  Section 44(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 prohibits the granting of a STDC following, inter alia, an Extension Certificate.   An Application was made to revoke the second STDC, the MHTS refused the Application.  This decision was subject to an Appeal to the Sheriff Principal who held that the appellant had, in fact, not been "subject to" the Extension Certificate, and thus the second STDC was valid.
+''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.''
 ==Notes==
-The Sheriff noted that the appellant could have made an application in terms of section 291 to challenge the lawfulness of their detention.  Interestingly, the burden of proof in such an application is upon the applicant, whereas this is not the case with respect to an application for a revocation of a STDC.
+Interestingly, the burden of proof in a s291 application is upon the applicant, whereas this is not the case with respect to an application for a revocation of a STDC.
 ==External link==