L.M. v. MENTAL HEALTH TRIBUNAL FOR SCOTLAND [2010] ScotSC 150 (31 August 2010)

L.M. v. MENTAL HEALTH TRIBUNAL FOR SCOTLAND [2010] ScotSC 150 (31 August 2010)

The Tribunal did not have power under Section 50(4) of the 2003 Act to revoke the second short-term detention certificate on the basis of its alleged invalidity, as its powers are limited to the statutory grounds. The statutory scheme, specifically Section 291, provides a Convention-compliant mechanism for challenging unlawful detention, satisfying Article 5 ECHR. There is no need to read additional words into Section 44 to achieve compliance.

Citation
[2010] ScotSC 150
Parties
Appellant: L M; Respondents: Mental Health Tribunal for Scotland; First Interested Party: Dr Julie Gibbons
Jurisdiction
Scotland
Judgment Date
31 August 2010
Procedural Posture
Appeal Under Section 320(1)(a) of the Mental Health (care and Treatment) (scotland) Act 2003 / Judgment on Appeal
Outcome
appeal refused
Legal Topics
Short Term Detention Certificates, Unlawful Detention, Statutory Interpretation, Article 5 ECHR, Powers of Mental Health Tribunal, Judicial Review of Detention
Mental Health Law Public Law Human Rights Law Short Term Detention Certificates Unlawful Detention Statutory Interpretation Article 5 ECHR Powers of Mental Health Tribunal +1 more

Case Brief

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Parties

L M

Appellant

Mental Health Tribunal for Scotland

Respondents

Dr Julie Gibbons

First Interested Party

Procedural Posture

Appeal Under Section 320(1)(a) of the Mental Health (care and Treatment) (scotland) Act 2003 / Judgment on Appeal

Legal Issues

  1. 1 Whether the Mental Health Tribunal had power to revoke a short-term detention certificate allegedly granted unlawfully
  2. 2 Whether the statutory scheme provides a Convention-compliant mechanism for challenging unlawful detention under Article 5 ECHR
  3. 3 Whether Section 44 of the 2003 Act should be read to include 'purported' detention

Ratio Decidendi

The Tribunal did not have power under Section 50(4) of the 2003 Act to revoke the second short-term detention certificate on the basis of its alleged invalidity, as its powers are limited to the statutory grounds. The statutory scheme, specifically Section 291, provides a Convention-compliant mechanism for challenging unlawful detention, satisfying Article 5 ECHR. There is no need to read additional words into Section 44 to achieve compliance.

Court Disposition

appeal refused

Orders

  • Appellant found liable to respondents and first interested party in expenses of the appeal procedure as taxed
  • Account of expenses to be lodged and remitted to auditor of court to tax and report