Woman detained under mental health act loses appeal against transfer to Holland

Sheriff Principal Derek Pyle (pictured) heard that the appellant “K” was detained in April 2014 within New Craigs Hospital, Inverness, under a compulsory treatment order in terms of section 66(1)(a) and (b) of the Mental Health (Care and Treatment) (Scotland) Act 2003 and a warrant for her removal to a hospital in the Netherlands was subsequently authorised by the Scottish Ministers.

The appellant appealed to the Mental Health Tribunal for Scotland against that decision on the grounds that, first, the treatment she received in Scotland would be less restrictive than the equivalent treatment in the Netherlands, and, secondly, she wished to reside in Scotland, she having no family connections in the Netherlands.

After hearing evidence and considering the written information before it, the tribunal decided that the appellant’s treating consultant in the Dutch hospital was prepared to accept her as a patient and that the medical treatment was corresponding or similar to that which she was receiving in Inverness.

The Tribunal took into account the appellant’s preference that she remain in the UK, but considered that it was clearly in her “best interests” that she be transferred to the Netherlands where she could have a period of stability and planning for future rehabilitation which, largely for financial reasons, could not take place in the UK.

The first ground was that the Tribunal erred in law by failing to apply the correct test in order to satisfy itself of the existence in the Dutch hospital of arrangements which would secure for the appellant measures, treatment, care and services corresponding or similar to those to which the appellant was subject or was receiving.

At the first hearing the tribunal made an order that the appellant’s responsible medical officer (RMO) or clinical director of New Craigs Hospital was to provide a written report detailing the proposed care arrangements for the transfer.

But by the time of the second hearing the appellant’s RMO had changed, and she submitted a report which addressed only the physical arrangements for undertaking the transfer and not the care regime which it was proposed she would receive in the Dutch hospital.

The tribunal also had before it a social circumstances report, a letter from the Dutch hospital, a number of webpages from the hospital’s web site and the application for the warrant.

The tribunal went on to find in fact that the appellant “has been accepted by her psychiatrist for treatment in the hospital. She will be admitted as an in-patient and will receive care and treatment corresponding or similar to that which she is currently receiving”.

Counsel for the appellant submitted that the tribunal had erred in concluding that it had evidence before it to make that finding in fact. It was bound to take account of relevant and material considerations and not to take into account irrelevant ones, but it took into account irrelevant considerations. It therefore followed that it could not reasonably conclude that the granting of the warrant was in the appellant’s best interests, it was argued.

However, the court refused this ground of appeal. In a written judgement, Sheriff Principal Pyle said: “There is, in my view, a proper evidential basis for the tribunal’s finding in fact and it has provided adequate reasons for its decision.

“It would obviously have been preferable that the full report as ordered by the earlier tribunal had been available, but it was clear from the evidence before the tribunal that the Dutch hospital could offer the same care as the appellant was receiving in Inverness.”

The second ground of appeal was that under reference to Article 8 of theEuropean Convention on Human Rights, the decision of the tribunal did not determine whether refusing to uphold the warrant was a “proportionate act” in the context of a person with a mental disorder who by definition has a particular vulnerability which requires protection under the Convention.

The solicitor for the tribunal accepted that the tribunal did not directly address the Convention issue in their decision, but it was not raised before them. It was also submitted that the tribunal did take it into account, as it well knew that as a public authority it had to apply its mind to Convention rights before reaching its decision.

The sheriff principal concluded: “In my opinion, this ground of appeal also must fail. It is one thing to remind the court of its duty to consider Convention rights; it is quite another to raise them in only the very general manner in which counsel did. The correct forum for facts to be proved is the tribunal. It is not appropriate to do so before an appellate court.”