Appeal to the Court of Session by AB against a decision of the Mental Health Tribunal for Scotland (Court of Session)

Factual and Procedural Background

The Appellant, aged 80, is a patient receiving compulsory medical treatment under a Transfer for Treatment Direction ("TTD") due to a mental disorder. The TTD originated from a transfer made in December 1993 following a conviction in 1988 for rape and murder, and subsequent deterioration in mental health while serving a life sentence. The Appellant has been detained compulsorily in hospital since that time, with various consents for transfers between hospitals by the Scottish Ministers. In early 2023, a statutory review was conducted pursuant to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"). The Appellant’s responsible medical officer ("RMO") recommended revocation of the TTD, opining that the criteria for its continuation were no longer met. The Scottish Ministers disagreed, referring the matter to the Mental Health Tribunal for Scotland ("the Tribunal"). The Tribunal determined that the criteria for the TTD were not met and directed the Scottish Ministers to revoke it. The Appellant appeals this decision to the Court of Session.

Legal Issues Presented

1. Whether the Tribunal correctly determined that the criteria for continuation of the Transfer for Treatment Direction were no longer met, specifically whether compulsory treatment in hospital continued to be necessary.
2. Whether the Tribunal gave adequate reasons for its decision, including proper consideration of the statutory principles under section 1 of the 2003 Act.
3. Whether the Tribunal erred in law or acted unreasonably in its assessment of the evidence and application of legal principles.

Arguments of the Parties

Appellant's Arguments

• The Tribunal erred by focusing on whether treatment could be provided in prison rather than whether compulsory treatment in hospital was necessary.
• The Tribunal failed to consider adequately the risk of relapse and suicide if the Appellant returned to prison without a proper care plan.
• The Tribunal did not properly apply the section 1 principles, particularly the importance of providing maximum benefit to the patient.
• The Tribunal’s reasons were inadequate and left the reader in doubt as to why compulsory treatment was deemed unnecessary.
• The Tribunal made factual errors, including a mistaken view that the Appellant was segregated in hospital.
• The appeal sought to have the Tribunal’s decision set aside and the case remitted to a differently constituted Tribunal for reconsideration.

Respondent's Arguments

• The Tribunal is a specialist body whose decisions should be respected unless there is clear legal error.
• The Tribunal addressed the correct legal question and was entitled to find that compulsory treatment in hospital was no longer necessary.
• The Tribunal gave adequate reasons, properly weighed the evidence, and applied the statutory principles.
• The decision was reasonable and supported by the evidence, including preference for the RMO and Dr O'Shea’s evidence.

Scottish Ministers' Arguments

• While initially maintaining that the TTD was necessary, the Ministers adopted a neutral stance on appeal.
• They accepted that the Tribunal addressed the correct issues and did not err in law or act unreasonably.
• The Ministers emphasized that the TTD remains in place until revoked and that revocation requires appropriate planning consistent with patients’ rights.
• The Ministers noted the Tribunal’s misunderstanding regarding segregation but maintained that the Tribunal had regard to the section 1 principles.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court emphasized the importance of the Tribunal addressing the correct legal issue: whether compulsory treatment in hospital continued to be necessary under the statutory framework. The Court found that the Tribunal’s decision focused predominantly on whether treatment could be provided in prison rather than on the necessity of compulsory hospital treatment itself. This distinction was critical because the statutory criteria require an assessment of necessity, not merely feasibility of treatment elsewhere.

The Court noted that the Tribunal gave significant weight to the evidence of Dr O'Shea, who opined that treatment could be continued in prison despite acknowledging risks of non-compliance and deterioration. However, the Tribunal’s reasons did not sufficiently explain the basis for accepting this conclusion. The Court stressed that expert opinions must be reasoned and supported by explanation, not mere assertion. The absence of a clear explanation regarding the management of risks and the nature of "careful planning" left the informed reader in doubt.

The Court also found that the Tribunal’s factual understanding was flawed regarding the Appellant’s segregation status in hospital, which affected its application of the section 1 principle of providing maximum benefit. The Tribunal incorrectly concluded that the Appellant was effectively segregated, whereas evidence showed he had freedom of association and better conditions than would be expected in prison.

The Court rejected the Appellant’s submission that the Scottish Ministers were obliged to revoke the TTD immediately upon the Tribunal’s direction. Instead, the Court agreed with the Ministers that revocation must be consistent with human rights and allow for appropriate multidisciplinary planning for transition.

Given these serious deficiencies in the Tribunal’s reasoning and findings, the Court concluded that the decision was not adequately reasoned and could not stand.

Holding and Implications

The Court ALLOWED THE APPEAL, set aside the decision of the Mental Health Tribunal for Scotland, and remitted the case to the Tribunal for reconsideration with a direction that it be differently constituted.

The direct effect of this decision is that the Tribunal must reconsider the necessity of compulsory treatment in hospital for the Appellant, providing clear, reasoned findings addressing the statutory criteria and principles. The decision does not establish new precedent but reinforces the requirement for tribunals to provide intelligible reasons and to properly apply statutory principles and standards for expert evidence in mental health cases.