MH, APPEAL BY MH AGAINST THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND [2019] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MH, APPEAL BY MH AGAINST THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND [2019] ScotCS CSIH_28 (03 May 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_28.html Cite as: 2019 SLT 615, 2019 GWD 15-226, 2019 SCLR 930, [2019] CSIH 28, 2019 SC 527, [2019] ScotCS CSIH_28

in the Appeal under Section 321(1) of the Mental Health (Care and Treatment) (Scotland)

Respondents: Dunlop QC; Legal Secretary to the Mental Health Tribunal

[1] This is an appeal from an interlocutor of the Sheriff Principal at Kilmarnock which

refused an appeal from a decision of the Mental Health Tribunal for Scotland to grant an

application for a hospital-based interim compulsory treatment order (Mental Health (Care

[2] Notwithstanding the appellant’s attempts to move the argument to one involving

justice being seen to be done, the issue raised in the grounds of appeal is focused upon

whether the Tribunal was properly constituted in terms of rule 64 of the Mental Health

Tribunal for Scotland (Practice and Procedure) (No 2) Rules 2005. The convenor was not in

the same building as the other members of the Tribunal because of extreme adverse weather

conditions. He decided that the hearing could nevertheless proceed with his participation

[3] The Mental Health (Care and Treatment) (Scotland) Act 2003 regulates, inter alia, the

grounds upon which, and the manner whereby, a person may be subject to short term

detention in hospital. Section 44 permits such detention when a person is suffering from a

mental disorder which significantly impairs his or her ability to make decisions about

medical treatment. Detention may be authorised initially by an “approved medical

practitioner” on the ground that it is necessary to provide such treatment and failure to do

so would present a significant risk to the health, safety or welfare of the patient. The

maximum detention period is 28 days (s 44(5)(b)). The patient has a right to apply to the

Mental Health Tribunal to revoke the detention certificate (s 50).

[4] Section 57 of the 2003 Act requires the patient’s mental health officer to apply to the

Tribunal for a compulsory treatment order where two medical practitioners are satisfied that

the patient has a mental disorder, and requires medical treatment to prevent that disorder

worsening or to alleviate symptoms or effects of the disorder, and the disorder significantly

impairs the patient’s ability to make decisions about treatment. A CTO may be made ad

interim (s 65). This authorises detention for a maximum further period of 28 days; such

authorisation not being permitted to result in the patient being detained for more than

[5] The Mental Health Tribunal is established by the 2003 Act (s 21). Schedule 2

provides for the appointment of panels of legal, medical and general members from which

the individual three person tribunals are constituted; one member from each category with

the legal member acting as “convenor”. Where a decision is to be made by more than one

[6] The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005

(1) ... ‘hearing’ means a sitting of the Tribunal for the purpose of enabling the

Tribunal to take a decision on any matter relating to the case before it;

‘Tribunal’ means the Mental Health Tribunal for Scotland and ‘tribunal’ means a

tribunal constituted ... to discharge the functions of the Tribunal; ...

The overriding objective of these Rules is to secure that proceedings before the

Tribunal are handled as fairly, expeditiously and efficiently as possible.

(1) The Tribunal may ... consider and determine any interim or preliminary

matter in relation to the case including any matter for which specific provision is

(2) Any matter referred to in paragraph (1) may be considered by the Convenor

(1) Except as otherwise provide (sic) for in these Rules, the Tribunal may at any

time ... give such directions as the Tribunal considers necessary or desirable to

(1) Subject to the provisions of the Act and these Rules, the Tribunal may

or by using any other method of communication if the Tribunal is satisfied

(2) The Tribunal may, in accordance with the overriding objective, conduct the

(1) Except as provided for otherwise in these Rules, a tribunal shall not decide

any question unless all members are present and, if any member is absent, the case

(2) If a member of a tribunal ceases to be a member of the Tribunal or is

otherwise unable to act before that tribunal has commenced hearing the case, the

President may allocate the hearing of that case to a differently constituted tribunal.

(3) If, after the commencement of any hearing, a member other than the

Convener is absent, the case may, with the consent of the parties, be heard by the

other two members and, in that event, the tribunal shall be deemed to be properly

[7] On 29 January 2018 the appellant was compulsorily detained for 28 days under a

short term detention certificate in terms of section 44 of the 2003 Act. The appellant’s mental

health officer applied to the Tribunal for an interim CTO under section 65, which would last

for a further 28 days. That application extended the remaining period of the original 28 days

by a further 5 days (s 68) during which the Tribunal were bound to reach a decision (s 69).

A hearing was fixed for 2 March 2018 at the Ayrshire Central Hospital, Irvine.

[8] Immediately prior to the hearing, there had been an unprecedented snowfall. Red

weather warnings had been issued for the west of Scotland encouraging people not to travel.

Public transport was at a standstill. As a result, the convenor was unable to reach the

Hospital, where the medical and general members had attended along with the appellant

and her law agent. The convenor was able to, and did, communicate with those at the

Hospital by conference telephone call; that is he could hear and be heard. He was able to

respond to matters arising accordingly. The appellant’s law agent raised the matter of the

convenor’s participation as a preliminary issue. He argued that the hearing had not been

properly constituted in terms of rule 64 and should not proceed. There were alternative

[9] After an adjournment to consider the matter in terms of rule 43(2), the convener

determined that the Tribunal would be properly constituted. He reasoned that he could

undertake all aspects of his role, including: participation in pre-hearing discussions with the

other members; introducing matters at the start of the hearing; determining procedural

matters; hearing all the evidence; upholding the overriding objective; questioning witnesses;

and considering the evidence along with the other members before reaching a decision. No

prejudice would be caused to the appellant by the convenor not being in the same room as

the other members (R v Soneji [2006] 1 AC 340) and none was suggested. There was a

pressing need to consider the application; that is, prior to the expiry of the STDC at

midnight. It was specifically recorded that no substitute convenor could be found upon

enquiry with the Tribunal’s headquarters. In any event, the convenor had already carried

out all the necessary preparatory work. The written evidence suggested that potentially

catastrophic consequences could occur to the patient should the matter not be determined.

[10] The Tribunal had concurring written and oral evidence from the appellant’s MHO

and the responsible health officer (who also contributed by telephone). This included the

views of the original approved medical practitioner. The appellant suffered from anorexia

nervosa and a learning disability. Upon admission to hospital, she had been severely

underweight and malnourished. Without treatment, there was a significant risk to her

health, safety and welfare. She was not capable of making informed decisions about her

treatment. She did not see any need to gain weight; viewing 6 stone as the ideal. There was

a six month prediction of death in the absence of treatment. Before reaching a decision, the

views of the appellant and her understanding were conveyed orally to the Tribunal

members by her law agent and in writing by her advocacy worker. These were that the

appellant did not have any mental health issues or an eating disorder. Although accepting

that her views were genuinely held, the Tribunal preferred the evidence of the three

[11] The appellant appealed to the Sheriff Principal (2003 Act, s 320(1)(c)) on the basis that

the absence of the convener meant that the Tribunal was not properly constituted in terms of

rule 64. The sheriff principal’s attention was drawn to Article 5 of the European Convention

on Human Rights and the need to avoid arbitrary detention (Winterwerp v Netherlands (1979)

2 EHRR 387). The sheriff principal did not accept a submission, which was made under

reference to R (Byndloss) v Secretary of State for the Home Department [2017] 1 WLR 2380, that a

live oral hearing was necessary in all detention cases. The convenor had been entitled to

determine the matter as a preliminary issue. There was provision in the rules to enable

hearings to take place without all members being in the same room. The wide and flexible

case management powers entitled the Tribunal to proceed as it did. There had been no

suggestion of any unfairness. The appeal was refused on 5 July 2018.

[12] A further ICTO had been made on 26 March 2018 by a Tribunal at which all

members were in attendance. A CTO was imposed by a Tribunal, also involving all

members being in attendance, on 20 April 2018. These orders were not challenged.

[13] The enumerated grounds of appeal identify 15 separate errors on the part of the

sheriff principal; four of which (5, 7, 8 and 11) have respectively 3, 2, 4 and 4 sub-grounds.

In essence, however, they all complain of a failure to find that rule 64 required the physical

presence of the convenor in the hearing room. In the absence of the convenor, the President

of the Tribunal required to re-allocate the hearing. Rule 43 did not apply. It was a breach of

natural justice for the convenor to determine a matter related to his own absence. An

alternative convenor had been available and the sheriff principal had been made aware of

this. Rule 52(2)(c) could not apply as it required a decision of all three members. The

convenor’s remote participation had compromised the privacy of the hearing (rule 66) and

this breached Article 8 of the Convention (right to respect for private life). The appellant did

not need to demonstrate actual unfairness. The proper purpose of rule 64(1) involved a

right to a hearing and effective participation in it. This included seeing and considering the

conduct of the convenor to confirm that he was acting in a judicial manner. The appellant’s

“common law right” for the convenor to be in her presence had been breached. This was

also a right under both Articles 5 and 6 of the Convention. The proceedings were

adversarial. The sheriff principal had erred in having regard to the risks to the appellant if

[14] A written Note of Argument followed in due course, as did a response to that. At a

relatively late stage in the appeal, the appellant was permitted to lodge a “substitute” Note

of Argument. It did not initially appear to involve any significant departure from the

expansive grounds of appeal. Once more, the focus was on the proper construction of

rule 64 and whether it required the physical presence of the convenor in the hearing room.

However, within its terms and in oral submissions, stress was placed on the principle that

justice must be seen to be done “in a quite literal sense”; a matter not referred to at all in the

grounds of appeal. Emphasis on the vulnerability of the appellant became a focus. A

hearing required to be conducted on the basis that each party, and his or her law agent,

“sees and hears” all the evidence and argument. This was an aspect of the cardinal

requirement that a trial process be seen to be fair. There was a right to see the judge

(Shtukaturov v Russia (2012) 54 EHRR 27 at para 73; AN v Lithuania (2017) 65 EHRR 23) “to

witness his or her reactions to evidence and legal submissions”. The appellant could not be

assured that the convenor was listening and paying full attention (see Elys v Marks and

Spencer [2014] ICR 1091 at paras 16-17). The test of the well informed observer could not be

used because the convenor had been shielded from view. In terms of the Convention

jurisprudence, there had to be sufficient protection from arbitrary deprivation of liberty

(Winterwerp v Netherlands (supra)). The appellant had been prejudiced in that an ICTO was

[15] The respondents countered that the overall objective of the Rules was to secure that

proceedings before the Tribunal were handled as fairly, expeditiously and efficiently as

possible. There had to be a balance between the appellant’s right to personal autonomy and

the need, in terms of the purpose of the 2003 Act, to protect her health and life (see R v Soneji

(supra); M v Murray, unreported, Sheriff Principal Lockhart, 17 April 2009). “Present” in rule

64 could apply to a member participating by telephone (cf M Harris 1956 SC 207). All three

members had to take the substantive decision for it to be valid. A member participating in

the hearing by telephone, in accordance with rule 52, was present in terms of rule 64.

Rule 52(2)(c) allowed the Tribunal to hold a hearing remotely, subject to an overarching test

[16] In any event, any irregularity did not destroy the Tribunal’s jurisdiction. Rule 64

came into play after the appellant had been given an opportunity to make representations.

Article 6 of the Convention did not guarantee the right to personal presence before a civil

court but a more general right to present one’s case effectively to the court and to enjoy

equality of arms (Insanov v Azerbaijan, unreported, European Court of Human Rights, App

no. 16133/08, 14 March 2013). It was of note that what was under consideration was not a

final determination but an interim decision (cf Storck v Germany (2006) 43 EHRR 6; VK v

[17] This appeal was lodged, as it had been to the sheriff principal, on the basis that the

Tribunal had erred in its construction of the Mental Health Tribunal for Scotland (Practice

and Procedure) (No. 2) Rules 2005, notably rule 64. It was not advanced, as was ultimately

the main thrust of the oral submission, on the basis that justice had not been seen to be done

simply because the appellant could not see the convenor. The reference to Articles 5 and 6

of the Convention to the appeal was one en passant as a tool to guide the construction of the

2005 Rules (see sub-grounds of appeal 11(iii) and (iv)). It was not contended in the grounds

that the Rules themselves breached the Convention, even if there were hints at such a

proposition, should the court determine the matter in the respondents’ favour.

[18] It is nevertheless instructive to observe that the context of the case is the deprivation

of the appellant’s liberty; albeit for an interim period. This undoubtedly engages Article 5,

notably 5.1(e) “the lawful detention ... of persons of unsound mind”. Any deprivation of

liberty has to be “in accordance with a procedure prescribed by law”. This necessitates a

“fair and proper procedure” whereby “any measure ... should issue from and be executed

by an appropriate authority and should not be arbitrary” (Winterwerp v Netherlands (1979) 2

EHRR 387 at para 45). Particular care must be taken to protect the rights of what is a

vulnerable group (VK v Russia [2018] MHLR 75 at para 30). In terms of Article 5.4, the

appellant must have a means of taking “proceedings by which the lawfulness of [her]

detention shall be decided speedily by a court and [her] release ordered if the detention is

not lawful”. Although these proceedings “need not ... always be attended by the same

guarantees as those required under Article 6(1) for civil or criminal litigation” there must be

“access to the court and the opportunity to be heard either in person or, where necessary,

through some form of representation” (ibid para 60). The person affected must have a “clear,

practical and effective opportunity to have access to court” (AN v Lithuania (2017) 65 EHRR

23 at para 105). In determining whether the particular procedure provides adequate

guarantees, “regard must be had to the particular nature of the circumstances in which such

[19] In certain cases (such as one involving a physical assessment by the court itself), it

may be necessary for a judge “to have at least brief visual contact with [the patient], and

preferably question him to form a personal opinion about his mental capacity” (AN v

Lithuania (supra) at para 96; Shtukaturov v Russia (2012) 54 EHRR 27 at para 72). That does

not mean that such contact is either necessary or desirable in every case. It will depend

[20] As was explained in Insanov v Azerbaijan, unreported, European Court of Human

Rights, App no. 16133/08 (at para 142), in the criminal context, Article 6 does not expressly

provide a right to be heard in person but this is implied in the general notion that a fair trial

normally requires the presence of the accused. In the civil sphere, there is no right to

personal presence but one to present the party’s case effectively and to enjoy equality of

arms. There is no issue of these rights, which are no doubt capable of being interpreted as

being applicable procedural safeguards when protecting Article 5 or 8 rights, being breached

in this case. It was not suggested that there was any failure to allow the appellant to be

heard at the hearing. There was no need for the convenor to make a personal assessment of

the appellant, who elected not to give evidence but whose case was presented orally by her

law agent, and thus heard by the convenor, and in writing by her advocacy worker, and

thus read by him. The medical and general members were able to view the appellant, but

nothing turned on this. The case is thus in sharp contrast to Winterwerp, AN and

Shtukaturov, in which the persons involved had no effective opportunity to present their

cases (see also Storck v Germany (2006) 43 EHRR 6), the effect of the decisions taken had long

[21] The provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 were

enacted in part to ensure continued compliance of the domestic law with Articles 5, and

quantum valeat, 8, by putting in place a strict regime which not only entitles the person

detained to challenge any detention rapidly before an independent Mental Health Tribunal,

but also requires those responsible for the care of the person to take active steps to ensure

that the patient’s case is reviewed quickly, and, if advised, repeatedly by the Tribunal. This

detailed and complex regime, which covers many different aspects of a person’s detention in

hospital, is not challenged as ultra vires. It is designed to ensure that a person has an

effective remedy should he or she have grounds upon which to challenge his or her

[22] Access to the Tribunal is thus provided in the 2003 Act and the 2005 Rules.

Returning then to the real question in the appeal, and it is the one which formed the basis

for the original challenge to the Tribunal and the appeal to the sheriff principal and this

court: did what happened comply with the Rules and, if not, what might the consequences

be? The purpose of rule 64 is not to oblige each member of the Tribunal to be “present” in

the sense of them all sitting in the same room at the time of the hearing. Such a literal

interpretation, if complied with, would achieve nothing in practical terms. The purpose is to

ensure that the proceedings are conducted before all the members of the Tribunal and that

each member participates in the decision-making process. This does not require that all the

members be in one room, along with the parties, even if that may, in most cases, be the most

convenient way of proceeding. The rules specifically provide (rule 52(2)(c)) that hearings

can involve communication by telephone, by video link, or by using any other method that

[23] In the modern era, where technology permits, hearings are regularly conducted

remotely; whether by the decision-maker being at a remote location or the party or witness

being remotely linked. This can be advantageous to everyone involved in terms of cost and

time in certain circumstances. It may be a necessity in others, and that seems to have been

[24] There remained an overarching requirement of fairness in rule 52(2)(c). That would

have existed in any event and would have necessitated ensuring that the appellant, and the

Tribunal, were able to consider all the evidence and arguments, both oral and written. It

would require providing the appellant with an opportunity to be heard. All of this was

done in the appellant’s case. There was no discernible unfairness. None was advanced at

[25] In terms of rule 43(1) and (2) the convenor was entitled to decide what had been

raised by the appellant’s law agent as a preliminary matter, by using the remote link of the

conference call. Indeed, he was asked to do this. In deciding whether the hearing should

proceed in the manner it did, the convenor was bound to have regard to the overriding

objective (rule 4) of ensuring that proceedings were handled as fairly, expeditiously and

efficiently as possible. In determining that matter, the convenor could have regard to the

urgency and seriousness of the situation, the effects of the weather and the absence, as he

understood it from Tribunal headquarters, of any alternative. He had considered the papers

and would be able to participate with the other members in accordance with the spirit of

rule 64 in the decision-making process. The challenge to the decision to proceed in this

manner, on the central basis that it did not comply with the rules, accordingly fails.

[26] Although it will continue to be the norm for all persons actively involved in a

hearing to be able to observe each other, that privilege, which does have certain advantages

in seeing that the members of the Tribunal are alert and focused, may have to be modified

where a compelling reason, such as inclement weather, dictates otherwise. The fact that the

appellant was unable to see the convenor caused no unfairness. There was no hint in the

proceedings, or in the written judgment subsequently issued by the convenor, that there was

[27] As indicated above, the appellant’s oral submission, which reflected the subtle

change produced in the amended Note of Argument, attempted to raise a general question

of whether justice was seen to be done. The test of whether justice has been seen to be done

must be an objective one, thus judged by the perception of the fictitious yet ubiquitous fair

minded and informed observer. In the appellant’s case, the observer would have been

aware of several important factors. First, it was important that, in terms of the statute and in

the appellant’s own interests, a decision on the ICTO be made on the day of the hearing. If a

decision could not be made, there would be no ICTO and the appellant might suffer serious

adverse consequences to her health should she be released from in-patient care. Secondly,

all of the Tribunal members had considered the written material, notably the medical

reports, in advance of the hearing. They would, by the time of the hearing, be aware of the

issues involved. They would be in a position to question the medical witnesses, notably the

MHO and the RMO, if necessary. Thirdly, although the convenor was not physically in the

room, he was participating in the hearing as convenor. He could be heard and could hear.

If there were any real, as distinct from speculative, concerns about his level of participation,

these would become apparent from the nature of that participation, the ultimate decision

and the written reasons for it. Fourthly, the other two members were present and they

could be observed and had the opportunity to observe the appellant. Fifthly, nothing turned

upon the convenor’s visual inspection of the appellant or the appellant’s viewing of the

convenor. There was, in particular, no reason to suppose that any trust which the appellant

may have placed in the convenor would have been undermined by her not being able to see

him. Sixthly, the appellant had been seen by three psychiatrists, two of whom were

available for questioning. Seventhly, the appellant was legally represented at the hearing

and her law agent had a full opportunity, which he took, to present the appellant’s case

orally as had her advocacy worker in writing. Eighthly, if any significant procedural or

other defect in the decision making process had occurred, there was a right of appeal.

Ninthly, the decision being made was one with relatively short term effects. Set against this

background, there was no appearance of any unfairness to the appellant. Justice was done

[28] The appeal is accordingly refused.

Scottish Court of Session Decisions