Mental Health (care and treatment) (Scotland) Act 2003: Code of Practice Volume 1

Chapter 13: Appeals

Introduction

This chapter provides an overview of the provisions relating to appeals against decisions of the Mental Health Tribunal for Scotland to the sheriff principal or the Court of Session under sections 320(2) and 322(2) of the Act; and appeals to the Court of Session against decisions of sheriff principal under section 321(2) of the Act.

In particular it discusses:

• the appropriate sheriff principal to whom an appeal is to be made;

• the time limits for bringing an appeal;

• the grounds on which an appeal may be brought.

The chapter concludes with a summary of the powers that the court may exercise where a decision of the Tribunal is set aside.

Appeal against a decision of the Mental Health Tribunal for Scotland and sheriff principal

Part 22 - Appeals

An appeal made under section 320(2)

01 The majority of appeals against decisions of the Tribunal are made to the sheriff principal under section 320(2). The decisions of the Tribunal to which section 320 applies are set out in section 320(1). Complex cases, where an appeal is made under section 320(2), may be remitted by the sheriff principal on his own initiative, or on the motion of any party to the appeal, to the Court of Session.

02 Section 320(3) makes provision about which sheriff principal an appeal under section 320(2) is to be made. Section 320(3) states-

• The appeal should be made to the sheriff principal of the sheriffdom in which the patient resides at the time the appeal is lodged;

• Where the patient is detained in hospital at the time the appeal is lodged the appeal should be made to the sheriff principal of the sheriffdom in which the hospital is situated; and

• In any other case the appeal may be made to the sheriff principal of any sheriffdom.

03 Section 320(5) to (9) makes provision about the persons who have a right of appeal in particular cases.

04 The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (Statutory Instrument 1999 No. 929 (S.65)) lays out the form of application to the sheriff principal under section 320(2).

05 In terms of paragraph 2.6 of those Rules an appeal to the sheriff principal under section 320(2) must be lodged with the sheriff clerk within 21 days of the party being informed by the Tribunal of its decision.

An appeal made under section 321(1)

06 Section 321(1) provides a right of appeal against the decision of the sheriff principal on an appeal under section 320(2), to the Court of Session.

07 The Rules of the Court of Session lay out the form of application to the Court of Session under section 321(1).

08 Paragraph 40.4 of the Rules of the Court of Session provides that an appeal to the Court of Session against the decision of the sheriff principal must be made within 21 days after:-

• the date on which the decision being appealed was given to the party;

• where the sheriff principal issued written reasons for his decision later than the date on which the decision being appealed was given, the date on which the written reasons were issued to the party; or

• where leave to appeal was granted by the sheriff principal or application for leave to appeal was made to the sheriff principal, the date on which leave was granted by the sheriff principal to the party.

An appeal made under section 322(2)

09 The decisions made by the Tribunal in relation to orders or directions made in the context of criminal proceedings listed in section 322(1) must be appealed directly to the Court of Session under section 322(2). Section 322(3) and (4) makes provision about the persons who have a right of appeal in particular cases.

10 The Rules of the Court of Session lay out the form of application to the Court of Session under section 322(2).

11 The Mental Health (Care and Treatment) (Scotland) Act 2003 (Period for Appeal) Regulations 2005 provides that an appeal to the Court of Session against a decision of the Tribunal under section 322(2) must be made within 21 days after the date on which the party was informed of the decision appealed against; or if the party has requested a copy of the document mentioned in paragraph 13(3) of Schedule 2 to the Act within 7 days of being informed of that decision, the date on which the party received that document.

Grounds of appeal under section 320(2) or 322(2)

12 An appeal from the Tribunal to the sheriff principal or the Court of Session under section 320(2) or 322(2) can only be made on one or more of the following grounds:-

• that the Tribunal's decision was based on an error of law;

• that there has been a procedural impropriety in the conduct of any hearing by the Tribunal on the application;

• that the Tribunal has acted unreasonably in the exercise of its discretion;

• that the Tribunal's decision was not supported by the facts found to be established by the Tribunal.

Appeal allowed under section 320(2), 321(1) or 322(2)

13 If an appeal is successful, the court upholding the appeal must set aside the decision of the Tribunal and will then either substitute its own decision for that of the Tribunal (where it is possible on the established facts to do so) or remit the case back to the Tribunal to consider afresh. Where a case is remitted to the Tribunal, the court can make directions that the Tribunal must be differently constituted from the original Tribunal that made the decision. The court can also issue directions about the consideration of the case as it considers appropriate.