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CHAPTER THIRTEEN - APPEALS
Introduction
13.1 This section deals with the various rights of appeal available to restricted patients under the Mental Health (Care & Treatment) (Scotland) Act 2003. There are two main routes:
(a) an appeal to the Mental Health Tribunal against a decision of Scottish Ministers; and
(b) an appeal to the Court of Session against a decision of the Mental Health Tribunal.
Appeals to the Mental Health Tribunal
13.2 Restricted patients may appeal to the Mental Health Tribunal against any decision by Scottish Ministers in respect of:
- a variation in the conditions imposed on conditional discharge;
- recall from conditional discharge;
- transfer to a hospital other than the State Hospital;
- transfer to the State Hospital; or
- transfer between jurisdictions (cross border transfer).
Against variation of the conditions imposed on conditional discharge
13.3 Section 200 of the 2003 Act gives Scottish Ministers the right to vary conditions set by the Mental Health Tribunal when conditionally discharging a patient under section 193(7) of the Act. In so doing, Scottish Ministers must give written notice to the patient, their named person, Responsible Medical Officer (RMO) and Mental Health Officer ( MHO).
13.4 Under section 201, the patient and their named person may appeal to the Mental Health Tribunal against any variation in conditions, within 28 days of receipt of the written notice of variation in terms of section 200(3) of the 2003 Act.
Against recall from conditional discharge
13.5 Under section 202 of the 2003 Act, Scottish Ministers may recall a patient from conditional discharge if they are satisfied it is necessary for the patient to be detained in hospital.
13.6 Under section 204, the patient and their named person, are entitled to appeal to the Mental Health Tribunal against this decision, within 28 days of their return to hospital.
Against transfer to a hospital other than the State Hospital
13.7 Under section 218 of the 2003 Act, a patient may be transferred between hospitals following the consent of Scottish Ministers and the agreement of the hospital managers. The patient and their named person should be given 7 days notice of the transfer. However, where this is not possible, transfer may still take place in urgent cases and notification completed afterwards. No notification is required if the patient consents to transfer.
13.8 Under section 219, a patient and their named person may appeal to the Mental Health Tribunal against the patient's proposed or actual transfer from the date of receipt of notice of transfer up to 28 days after the actual date of transfer. For the patient's named person this extends to 28 days after their receipt of written notice of transfer.
13.9 If, when the Mental Health Tribunal receives notice of an appeal, the transfer has not yet taken place, the managers of the hospital shall not transfer the patient as proposed. However, the Tribunal may, if satisfied that pending consideration of the appeal the patient should be transferred as proposed, make an order that the patient be so transferred.
Against transfer to the State Hospital
13.10 Under section 218 of the 2003 Act, a patient may be transferred to the State Hospital following the consent of Scottish Ministers and the agreement of the hospital managers. When considering such an appeal the Mental Health Tribunal will consider the test laid out in section 102(1) of the National Health Service (Scotland) Act 1978 which is the same as that contained in S29(4) of the 84 Act which has now been repealed. In general, transfers to the State Hospital, by their nature, take place at short notice. Under the 2003 Act, managers of the hospital need not give notice in advance of transfer where it is necessary that the patient be transferred urgently. This is covered in paragraph 13.7.
13.11 Under section 220, a patient or their named person may appeal to the Mental Health Tribunal against Scottish Ministers' decision to transfer them to the State Hospital. They may appeal from the date of receipt of notice of transfer (where given) up to a period of 12 weeks after the date of transfer. For the patient's named person this extends to 12 weeks after receipt of written notice of transfer.
13.12 Where an appeal is made to the Mental Health Tribunal under section 201, 204, 219 or 220, Scottish Ministers will be notified by the Tribunal Administration and will require to respond to them within 14 days indicating whether or not they intend to defend the appeal. In such cases, SEHD officials will seek the views of the Responsible Medical Officer and, where appropriate, the Mental Health Officer before responding on behalf of Scottish Ministers.
Against transfer to another jurisdiction (cross-border transfer)
13.13 Where notice is given by Scottish Ministers of their intention to transfer a restricted patient from Scotland, the patient may, during the period between the day on which the notice is given and the patient's removal from Scotland, appeal to the Mental Health Tribunal against the proposed removal. On receipt of such an appeal, the Mental Health tribunal may make or refuse to make and order that the proposed removal shall not take place.
13.14 Should the Mental Health Tribunal refuse the application, the patient may appeal this decision to the Court of Session, under section 322 of the 2003 Act. Where on appeal, the Mental Health Tribunal or Court of Session refuse to make an order that the proposed removal shall not take place, the proposed removal shall not take place within 21 days of the decision, except where the patient consents in writing to the removal.
Against conditions of excessive security
13.15 From 1st May 2006, under sections 264 and 268 of the 2003 Act, the patient, their named person, any guardian, any welfare attorney and the Mental Welfare Commission, may make an application to the Mental Health Tribunal stating that the patient is being held in conditions of excessive security. [The appeal may not take place within the first 6 months from the date of the order being made or the first 6 months in a particular hospital.] If satisfied, the Mental Health Tribunal may make an order declaring that the patient is being held in conditions of excessive security and, in making that order, it gives the relevant Health Board a period not exceeding 3 months to identify an appropriate hospital in which the patient could be suitably detained.
13.16 If, within the specified period, the Mental Health Tribunal does not receive notification from the Health Board that the patient has been transferred to an appropriate hospital, the Mental Health Tribunal must hold a hearing. At this hearing, the Mental Health Tribunal may grant the Health Board a further period, again not exceeding 3 months. If the patient is still not transferred within this period, the Mental Health Tribunal will hold a final hearing under section 266 or 269 of the 2003 Act at which they may make a final order to the effect that the Health Board has 28 days to find a suitable place for the patient.
13.17 Should the Health Board fail to comply with a final order of the Mental Health Tribunal, the Mental Welfare Commission may, under section 45(b) of the Court of Session Act 1988, take the Health Board to court for failure to perform their statutory duty. However, this legal action could not be taken until the Mental Health Tribunal process had been exhausted. This is without prejudice to any rights that the patient has to raise an action under section 45(b).
Appeals to the Court of Session
13.18 Under section 322(2) of the 2003 Act, any relevant party ( i.e. the patient, their named person, guardian or attorney, or Scottish Ministers) may appeal to the Court of Session against a decision of the Mental Health Tribunal. Although the Act also confers a right of appeal to the Sheriff Principal in certain circumstances (under section 320), all restricted patient appeals will be heard by the Court of Session.
13.19 An appeal can be made on a point of law; that there was procedural impropriety in the conduct of a hearing relating to the application or reference; that the Tribunal acted unreasonably in exercising its discretion; or that the Tribunal's decision was not supported by the facts found to be established.
13.20 In allowing an appeal under section 322(2), the Court of Session may remit the case to the Mental Health Tribunal for consideration anew. The Court of Session can direct that the Mental Health Tribunal be differently constituted from when it made its original decision; and can issue other directions to the Tribunal for its consideration of the case, as it deems appropriate. The Court of Session can also substitute it's own decision for that of the Mental Health Tribunal.
13.21 The patient may not be discharged until (a) the expiry of the appeal period or (b) in the event of an appeal being lodged and intimation received that Scottish Ministers do not intend to appeal; or the Court of Session refuse to make an order; or the recall of any such order. However in those cases where Scottish Ministers have not contested conditional discharge and do not intend to appeal SEHD officials will write to the Court of Session confirming we do not intend to appeal and copy the letter to the Tribunal and the patient's Responsible Medical Officer. It will then be open to the RMO to consider recommending that the patient should be authorised suspension of detention until the final warrant of conditional discharge can be issued by the Mental Health Tribunal.
Preparation of reports and attendance at hearings
13.22 The Office of the Solicitor to the Scottish Executive ( OSSE) will act on behalf of Scottish Ministers in all appeals by restricted patients. Counsel will be instructed by OSSE for all Court of Session hearings and they may also be required for Mental Health Tribunal appeals. (Appeals by non-restricted patients are handled by Central Legal Office, the legal advisers to the NHS.)
13.23 On receipt of papers indicating an appeal to the Mental Health Tribunal, the SEHD will write to the RMO requesting a report containing their view of the patient's mental disorder, detainability and any other aspect of their case which is relevant to the appeal.
13.24 Appeals to the Court of Session will be heard on the basis of evidence previously presented to the Mental Health Tribunal. No additional reports or oral evidence will be admitted. Where the court decides to remit the case back to the Mental Health Tribunal for further consideration, it may also issue directions to the Mental Health Tribunal about the consideration of the case as it deems appropriate.
13.25 In cases where Scottish Ministers intend defending an appeal to the Mental Health Tribunal, the SEHD may instruct a second medical report on the patient from a consultant psychiatrist with appropriate experience relating to the patient's mental disorder. It should also be noted that the SEHD Psychiatric Adviser will examine, and thereafter give an opinion on the patient's case and that will be factored in to Scottish Ministers' position in relation to the appeal.
13.26 SEHD officials will keep the RMO appraised of all matters including any decision to defend the appeal and of the general progress of the case. In particular, the SEHD will inform the RMO of date(s) for any hearing and whether the RMO will be required to attend as a witness as soon as those date(s) are known.
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