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Hearing rap for new tribunal

21 March 2006

The Mental Health Tribunal for Scotland failed in its duty by not setting a date for a hearing before a patient's detention order lapsed, a judge has ruled.

Lady Smith in the Court of Session granted a petition for judicial review brought by John Smith, mental health officer for Fife Council over the case of a patient referred to as P.

P had been compulsorily detained on 10 January under a short term certificate which expired on 7 February. On 7 February Mr Smith made an application for a compulsory treatment order. This meant that P couild be further detained until 14 February, but no hearing had been arranged by that date.

The tribunal claimed in a letter that a big rise in the number of applications made in the last few days of the time available and the lack of suitable venues had meant that a hearing could not be arranged in time in this case. It admitted that there had been "a handful" of such cases.

To cover the situation P's doctors, with the support of P's wife, had issued a further short term detention certificate even though they doubted it was legally valid. A hearing eventually took place on 21 February.

No adequate excuse

Lady Smith said that no adequate excuse had been given for the failure to hold a hearing in time. It was wrong to suggest that the failure was somehow justified because the petitioner had not made the application at an earlier date, nor could it be an excuse that it was not reasonably practicable. "The obligation is straightforward and clear and not qualified by reference to reasonable practicability."

Lady Smith added: "The clear import of the statutory scheme is that the first respondent requires to be organised and administered so as to allow for arranging tribunal hearings in respect of compulsory treatment order applications at very short notice." The tribunal's letter gave "a worrying indication of there being a lack of the necessary fundamental understanding" of its duties.

It should have been obvious, she said, that there was a real possibility that on the expiry of the detention certificate on 14 February, a mentally ill patient who was a danger to himself and to others would be released. "The doctors at Stratheden Hospital should not have been put in the difficult position of having to decide whether to release P or whether to detain him further by issuing a certificate which was of doubtful validity."

Lady Smith's opinion can be read at http://www.scotcourts.gov.uk/opinions/2006CSOH44.html .