Man detained in secure Glasgow hospitals who claimed he should have been released earlier loses damages claim against health board

Daniel Boyle was detained in a hospital designated as a high secure unit from 2009 until 2014 before being moved to a medium secure unit hospital where he stayed until 2017 and then to the low security premises in which he remained. He argued that he was entitled to damages on account of being held in medium security premises longer than necessary, thus impeding his rehabilitation, treatment, and eventual discharge from hospital.

The case was heard by Sheriff Stuart Reid. Ms D Forbes, advocate, appeared for the pursuer and Ms J Cartwright, advocate, for the defender.

Lack of availability

In 2009, the pursuer was found unfit to stand trial because he suffered from paranoid schizophrenia and dissocial personality disorder. He was made subject to a compulsion order and a restriction order, and was detained in The State Hospital, Carstairs, until July 2014. After that, he spent just over three years at Rowanbank Clinic, Stobhill, before being transferred to Leverndale Hospital, Glasgow, a low secure unit hospital.

During his time at the medium secure Rowanbank Clinic, the pursuer was said to have made good progress in the treatment of his mental disorder. With the agreement of his responsible medical officer, he was placed on a waiting list for a bed at Leverndale in July 2016. After applying to the Mental Health Tribunal for Scotland for an order that he was detained in conditions of excessive security, the Tribunal ordered in November 2016 that he was to be transferred to a low secure unit within three months of the making of the order. A second order extending this deadline to 16 June 2017 was later made.

When the first deadline of 24 February 2017 expired, the pursuer was still at Rowanbank. On 28 February it was determined by the defender that the pursuer should be referred out-of-area to a newer clinic in Irvine, Woodland View, due to a projected lack of availability at Leverndale. The pursuer opposed this as his family would find it difficult to visit him there. He was eventually transferred to Leverndale in December 2017 after space became available.

Counsel for the pursuer submitted that, as a result of the delays, not only had the pursuer been in hospital longer than he should have been but his ultimate discharge was thwarted due to becoming “trapped” in hospital at the outset of the Covid-19 pandemic. His rights under Article 5 of the ECHR had been violated, and the defender had been in breach of its statutory duties under the Mental Health (Care and Treatment) (Scotland) Act 2003.

Voluntary decision

In his decision, Sheriff Reid said of the health board’s conduct: “The defender has allowed itself to be diverted by an irrelevant consideration, namely, Mr Boyle’s expressed preference as to the location of the hospital to which he wished to be transferred. By taking that irrelevant factor into account, the defender then failed to take the necessary steps that were open to it to discharge its duties under the [Tribunal’s] order. Specifically, it failed to procure that its referral of Mr Boyle for assessment was completed; it thereby failed to identify available accommodation at Woodland View.”

He continued: “According to the evidence, it was not until 11 October 2017 that any agreement ‘in principle’ was first reached between the defender and the Scottish Ministers for the transfer of the pursuer to Leverndale. Even then, still no bed had been identified as being available for the pursuer. Only by 6 December 2017, when Mr Boyle was finally transferred, can it be reasonably be concluded that all of the statutory duties under the order had by that date been performed.”

Addressing the causation of the defender’s breach of the duty, the sheriff went on to say: “But for Mr Boyle’s firm refusal, I am satisfied on the evidence that Mr Boyle would have been assessed as suitable for transfer; that accommodation would have been identified as available for him [at Woodland View]; that all the necessary notifications would have been effected; and, indeed, that Mr Boyle would in fact have been transferred by 16 June 2017.”

He concluded: “The effective cause of the pursuer’s continued detention in Rowanbank from 16 June 2017 to 6 December 2017, in conditions of excessive security, was his own voluntary decision – clear and unequivocal, persistent and unyielding – to reject the opportunity to transfer to the LSU at Woodlad View.”

For these reasons, the sheriff granted decree of absolvitor in favour of the defender.