7 August 2013
We were contacted by a solicitor who was
helping a man who wanted to appeal against a short-term detention
The patient had not seen the certificate. The Act does not
require that the patient is given the certificate. It does not even
require that he is informed of the grounds for it to be granted. He
may have needed to wait for hospital managers to grant a "subject
access request" to see his own records. Without knowing the grounds
for his detention, how could he mount an appeal?
rights legislation says that anyone deprived of liberty must be
able to appeal the detention (article five of the European
Convention on Human Rights) and that there must be a fair legal
process (article six). We agreed with the patient's solicitor that
it was unfair and possibly a breach of his human rights that he did
not at least know the grounds for his detention. We made the mental
health law team at the Scottish Government aware of this. They
agreed with us and are considering amending the Act.
Our interpretation of article six is that the patient must be
given an explanation of the grounds for detention in order that he
can challenge them. The best way to do this is to give the patient
the grounds in writing and explain them to him. He could be given
the full certificate but hospital mangers may need to check it
urgently for third party information (e.g. information from the
named person or a relative) that could be harmful.