Date lodged: 6 December 2016
To ask the Scottish Government whether a failure by a mental health tribunal to test the evidence that a patient lacked the ability to make a decision about their treatment could provide grounds for appeal to the sheriff principal.
Answered by: Maureen Watt 14 December 2016
The Mental Health Tribunal Scotland is an independent organisation and was established by the Mental Health (Care and Treatment) (Scotland) Act 2003 to make decisions on the care and treatment of people who are subject to the Act. The aim of the Tribunal is to provide a responsive, accessible, independent and impartial service when making decisions on the compulsory care and treatment of people with mental disorders.
The rules under which the Tribunal operates are set out in the Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005.
There is a right under the Mental Health (Care and Treatment) (Scotland) Act 2003 to appeal to the Sheriff Principal (with a further appeal right to the Court of Session). Sections 320 - 322 make such provisions and detail the time limits for bringing in an appeal and the grounds on which an appeal may be brought. The majority of appeals against decisions of the Tribunal are made to the Sheriff Principal under section 320(2). However complex cases, where an appeal is made under section 320(2), may be remitted by the sheriff principal, or on the motion of any party to the appeal, to the Court of Session.
It would be for the sheriff principal and then the Court of Session to review a decision made by the Tribunal. The Court may set aside the decision of the Tribunal and can also substitute its own decision.