Appeals against Tribunal Decisions
The outcomes of Tribunal hearings are published on a monthly basis. All decisions are anonymised, but details of the case reference and outcome can be accessed at "Tribunal Hearing Outcomes".
Right of Appeal
There is a right under the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) to appeal to the Sheriff Principal (with a further appeal right to the Court of Session) or, in restricted patient cases, direct to the Court of Session.
The Tribunal cannot provide advice to any person considering appealing against a Tribunal decision. If you think that you may have grounds to appeal against a Tribunal decision, you may wish to consult a solicitor or a Citizens’ Advice Bureau. Some information on the right of appeal is provided below. To view judgements in cases where a decision of the Tribunal has been appealed and a written judgement has been issued by the Court, go to Legislation and Caselaw. There you will also find a link to the Tribunal's Case Digest, which summarises and comments on appeals and judicial reviews concerning Tribunal decisions.
Where the patient is subject to a compulsory treatment order or to a compulsion order the decisions against which it is competent to appeal to the Sheriff Principal are specified in section 320 of the 2003 Act and include, for example, a decision to refuse an application for revocation of a short term detention certificate; a decision to make or refuse to make a CTO; a decision to make an interim CTO; a decision to make an order confirming the determination of a patient’s RMO extending a CTO etc. The individual decisions which can be appealed against are specified in section 320(1) of the 2003 Act. There is a further right of appeal to the Court of Session against decisions of the Sheriff Principal (see section 321 of the 2003 Act). Only certain persons may appeal to the Sheriff Principal or to the Court of Session against a decision. The right of appeal applies to a “relevant party” to proceedings before the Tribunal. A “relevant party” is defined in section 320(5) (read with section 320(6) to (9)) of the 2003 Act and has different meaning, depending on the particular decision being appealed, but generally includes the patient, the patient’s named person, any guardian of the patient, any welfare attorney of the patient, the mental health officer and the patient’s responsible medical officer.
Restricted patient cases
Where the patient is subject to a compulsion order and a restriction order, a hospital direction or a transfer for treatment direction, there is a direct right of appeal to the Court of Session against certain decisions of the Tribunal. Those decisions are specified in section 322 of the 2003 Act and include a decision to make an order revoking a compulsion order; a decision to make an order revoking a restriction order; a decision to make an order varying a compulsion order; a decision to make an order conditionally discharging a patient; and a decision under section 193 of the 2003 Act to make no order. The individual decisions which can be appealed against are specified in section 322(1) of the 2003 Act. Again, only a relevant party may appeal to the Court of Session, and that term is defined in section 322(3) (read with section 322(4)) of the 2003 Act and includes the patient, the patient’s named person, any guardian of the patient, any welfare attorney of the patient and the Scottish Ministers.
Grounds of appeal
Section 324 of the 2003 Act specifies the grounds upon which an appeal may be made to the Sheriff Principal or the Court of Session. The grounds of appeal are:
- that the Tribunal 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.
It should be noted that section 324(3) of the 2003 Act provides that the Tribunal may be a party to an appeal. What this means is that the Tribunal may enter the appeal proceedings and lodge answers to the appeal (i.e. defences to the appeal) and appear before the court and make legal submissions in relation to the grounds of appeal.
Powers of the Court
Section 324 of the 2003 Act sets out the powers of the court when considering an appeal against a decision of the Tribunal. If the court allows the appeal, then the court must set aside the decision of the Tribunal and shall––
- if it considers that it can properly do so on the facts found to be established by the Tribunal, substitute its own decision; or
- remit the case to the Tribunal for consideration anew.
If the court remits the case to the Tribunal for consideration anew, then the court may direct that the Tribunal be differently constituted from when it made the decision; and may issue such other directions to the Tribunal about the consideration of the case as it considers appropriate.
Time within which an appeal must be made
Where a patient is subject to a compulsory treatment order or a compulsion order, then the appeal must be made within 21 days of the date on which the decision was intimated to the patient (see rule 2(6) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (SI 1999/929). Where the patient is a restricted patient, i.e. subject to a compulsion order and a restriction order, the period for appeal is set out in the Mental Health (Period for Appeal) (Scotland) (No. 2) Regulations 2005 (SSI 2005/441) and essentially specifies a period of 21 days which is linked either to the date on which the party is informed of the decision or, where the party has requested a copy of the document containing a full statement of the facts found and the reasons for the decision, within 7 days of being informed of the decision, the date of receipt of that document.