Interim orders in mental health appeals

5 December 2011

The courts may impose compulsion orders (“CO”) and restriction orders (“RO”) on mentally ill offenders.  COs compel a patient to undergo treatment in a hospital or elsewhere.  ROs give an additional layer of protection in the public interest, so that there are additional checks in the decision making process before the patient is finally discharged.

In Scottish Ministers v Mental Health Tribunal [2011] CSIH 76 a patient suffering from paranoid schizophrenia had attempted to murder his father by hitting him over the head with a hammer in 1991.  He had been acquitted on grounds of insanity and the equivalent of a CORO imposed.  Since sentencing, he had been treated and conditionally discharged from hospital five times.  He had been recalled to hospital by the Scottish Ministers four times as a result of deteriorating health and behaviour.  He was currently living in the community on his fifth conditional discharge.

The Mental Health Tribunal revoked the RO to which the patient was subject.  The Scottish Ministers appealed.  The Inner House required to determine whether they had power to grant an interim order with the effect that the RO continued pending determination of the appeal.  Section 323 of the Mental Health (Care and Treatment) (Scotland) Act 2003 provides for suspension of the Tribunal’s decision pending determination of certain appeals.  It was argued on behalf of the patient that because section 323 of the 2003 Act extended only to orders that a patient “continue to be detained” that it could not apply to a patient on conditional discharge, because he was not detained in hospital.

The court found it had powers to grant an order: because detention under Section 323 was a flexible concept and could cover conditionally discharged patients;  Section 323 was intended to give interim powers in all appeals relating to restricted patients; and that if the court was wrong about either of those matters the common law rule would apply that an appeal has the effect of suspending the operation of the decision appealed against.  It had little hesitation in making an order so that the RO continued to have effect pending final determination of the appeal in the circumstances of the case. 

Anna Poole of Axiom Advocates acted on behalf of the Scottish Ministers.

http://www.scotcourts.gov.uk/opinions/2011CSOI76.html