Valerie MaysSolicitor

Legal Secretary to theMental Health Tribunal for Scotland

“Tribunals – what we need to know”

SASW MHO Forum

Perth Concert Hall - Thursday 6 October 2011

Tribunal Statistics

From 1 August 2010 to 31 July 2011:

• the Tribunal held

– 4,255 hearings

– at 77 venues across Scotland

Role of the MHOin Tribunal proceedings

The MHO is• sometimes the applicant and therefore a party,

e.g. section 63 applications

• sometimes a witness, e.g. section 92 applications to extend and vary a CTO

What does the Tribunal need from the MHO?

• evidence

KM v Mental Health Tribunalfor Scotland - 2009 GWD 40-694

Issue: whether there was a permitted conflict of interest in the two mental health reports accompanying the CTO application in terms of the Mental Health (Conflict of Interest) (Scotland) (No.2) Regulations 2005(SSI 2005/380)

Sheriff Principal Sir Stephen Young BT QC, at para 16:

“At the end of the day it was for the second respondent [the MHO], whose application it was, to ensure that the necessary evidence was put before the tribunal to satisfy it, if such indeed was the case, that the condition had been met”.

JG v Mental Health Tribunalfor Scotland – 2010 GWD 40-817

Judgement of Sheriff Principal J A Taylor, 14 October 2010

Para 11:“It seems to me that a consideration of Lord Carswell’s speech

would lead one to the view that the provisions of section 60 with regard to notification are directory notwithstanding the use of the imperative “shall” in the Section… I come to the view that broadly speaking the purpose of the notification has been achieved.

In my opinion even if I am wrong in considering the notification provisions in Section 60 to be directory, I am of the opinion that the consequence of the failure to notify the patient on a second occasion that it was the intention to apply for a compulsory treatment order, when notification had been given some six days earlier than the duty arose, is not sufficient to render the subsequent proceedings invalid. I do not see the patient having suffered any prejudice”.

LBN v Fiona Borland and MHTS (unreported)

Judgement of Sheriff Principal B A Lockhart, 9 May 2011

Para 30:

“The application for a compulsory treatment order, the first respondent’s report, the care plan, the medical reports and the Tribunal's Full Findings and Reasons point conclusively to the fact that the appellant is in need of compulsory measures of care. Such a course is in both his and the public interest. It is inconceivable that the intention of Parliament was that such a course would be frustrated by the failure to observe a time limit by some 15 hours in a situation where there has clearly been no prejudice to the appellant.

Current issues

• In-house Conveners

• Case management

• Tribunal craft

• Doubled up hearings / triple hearings

• Rule 58 hearings