Sherrit v NHS Greater Glasgow & Clyde Health Board [2011] ScotCS CSOH_37 (18 February 2011)

Sherrit v NHS Greater Glasgow & Clyde Health Board [2011] ScotCS CSOH_37 (18 February 2011)

The pursuer's claim for a remedy under Article 5(4) ECHR is not well-founded in law, as Article 5(4) does not extend to modification of conditions of detention but only to release; the relevant domestic law provides procedures for review, and no breach of Article 5(4) occurred. The pleadings do not support a claim under Article 5(1)(e) or for breach of statutory duty as currently framed.

Citation
[2011] ScotCS CSOH_37
Parties
Pursuer: David Roy Sherrit; Defenders: NHS Greater Glasgow and Clyde Health Board
Jurisdiction
Scotland
Judgment Date
18 February 2011
Procedural Posture
Civil Action for Damages / Procedure Roll Debate on Preliminary Pleas
Outcome
Pursuer's first plea-in-law repelled; defenders' first plea-in-law repelled; case put out by Order for amendment and further procedure.
Legal Topics
Article 5 ECHR, Detention in Conditions of Excessive Security, Mental Health (care and Treatment) (scotland) Act 2003, Breach of Statutory Duty, Compensation for Unlawful Detention
Human Rights Mental Health Law Administrative Law Article 5 ECHR Detention in Conditions of Excessive Security Mental Health (care and Treatment) (scotland) Act 2003 Breach of Statutory Duty Compensation for Unlawful Detention

Case Brief

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Parties

David Roy Sherrit

Pursuer

NHS Greater Glasgow and Clyde Health Board

Defenders

Procedural Posture

Civil Action for Damages / Procedure Roll Debate on Preliminary Pleas

Legal Issues

  1. 1 Whether continued detention in conditions of excessive security breached Article 5(4) ECHR
  2. 2 Whether failure to comply with Tribunal orders under ss 264-266 of the 2003 Act constitutes breach of statutory duty
  3. 3 Whether damages are recoverable for breach of Article 5 ECHR

Ratio Decidendi

The pursuer's claim for a remedy under Article 5(4) ECHR is not well-founded in law, as Article 5(4) does not extend to modification of conditions of detention but only to release; the relevant domestic law provides procedures for review, and no breach of Article 5(4) occurred. The pleadings do not support a claim under Article 5(1)(e) or for breach of statutory duty as currently framed.

Court Disposition

Pursuer's first plea-in-law repelled; defenders' first plea-in-law repelled; case put out by Order for amendment and further procedure.

Orders

  • Case put out by Order to discuss amendment and further procedure.
  • Submissions on expenses of the debate to be heard.