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Appealing against short term detention

7 August 2013

We were contacted by a solicitor who was helping a man who wanted to appeal against a short-term detention certificate.

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?

Human 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.