K.M. v. MENTAL HEALTH TRIBUNAL & MRS. JACKIE STUART [2009] ScotSC 139 (21 August 2009)

K.M. v. MENTAL HEALTH TRIBUNAL & MRS. JACKIE STUART [2009] ScotSC 139 (21 August 2009)

The Tribunal erred in law by applying a subjective test and failing to make findings of fact necessary to establish that failure to carry out the second medical examination would have resulted in delay involving serious risk to the appellant or others. As a result, the statutory requirements for a valid application for a compulsory treatment order were not met, and the application should have been refused.

Citation
[2009] ScotSC 139
Parties
Appellant: KM; First Respondent: Mental Health Tribunal for Scotland; Second Respondent: Mrs Jackie Stuart; Minuter: Dr Pauline Larmour
Jurisdiction
Scotland
Judgment Date
21 August 2009
Procedural Posture
Appeal Under Section 320(2) of the Mental Health (care and Treatment) (scotland) Act 2003 / Judgment on Appeal
Outcome
appeal allowed; Tribunal's decision set aside; application for compulsory treatment order refused
Legal Topics
Compulsory Treatment Orders, Conflict of Interest in Medical Examinations, Statutory Interpretation, Procedural Fairness
Mental Health Law Administrative Law Compulsory Treatment Orders Conflict of Interest in Medical Examinations Statutory Interpretation Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

KM

Appellant

Mental Health Tribunal for Scotland

First Respondent

Mrs Jackie Stuart

Second Respondent

Dr Pauline Larmour

Minuter

Procedural Posture

Appeal Under Section 320(2) of the Mental Health (care and Treatment) (scotland) Act 2003 / Judgment on Appeal

Legal Issues

  1. 1 Whether the Tribunal erred in law in determining that the condition in regulation 5(1)(b) of the Mental Health (Conflict of Interest) (Scotland) (No.2) Regulations 2005 was met
  2. 2 Whether the application for a compulsory treatment order was competent given the alleged conflict of interest

Ratio Decidendi

The Tribunal erred in law by applying a subjective test and failing to make findings of fact necessary to establish that failure to carry out the second medical examination would have resulted in delay involving serious risk to the appellant or others. As a result, the statutory requirements for a valid application for a compulsory treatment order were not met, and the application should have been refused.

Court Disposition

appeal allowed; Tribunal's decision set aside; application for compulsory treatment order refused

Orders

  • The appeal is allowed.
  • The decision of the Mental Health Tribunal for Scotland dated 13 February 2009 is set aside.