"In the attached paper I emphasise that the lack of effective safeguards in the 2003 Act taken in conjunction with recent judgments of the European Court of Human Rights opens up the possibility that any involuntary mental health patient could raise a court action with a reasonable chance of success on the grounds that one or more of his or her human rights had been breached. Given what happened when a prisoner's court action led to the finding that being forced to "slop out" constituted degrading treatment and hence breached Article 3 ECHR it would be nigh certain that one successful court action by an involuntary mental health patient would be followed by many more, something that could result in the NHS paying out vast sums in compensation.
As I have observed previously, in the period from January 2016 to August 2016 only 1.8% of the applications for a Compulsory Treatment Order were refused by the Tribunal. This paper provides information which should help to explain why that figure is so low. It quotes from three tribunal transcripts which are in my possession. These transcripts demonstrate that the level of proof at those particular tribunals was far too low. This is mainly because tribunal members consider psychiatrists and MHOs to be credible witnesses and are prepared to accept as fact any of their testimony. In my opinion, not only are tribunal members failing in their duty by not properly testing the evidence but they are demonstrating a measure of gullibility by being prepared to accept as gospel whatever evidence that is presented to them by a health professional. Sometimes the health professional might honestly believe what he is saying to the Tribunal even though it is untrue. On other occasions the health professional will deliberately be attempting to mislead the Tribunal in an attempt to persuade it to grant the sought for Compulsory Treatment Order. That happened on several occasions in the hearings for which I have the transcripts though I have only indicated one place in one transcript where a witness knowingly gave false evidence. In my comments on the transcripts I am also critical of the performance of the solicitor representing the mental health patient. There was a woeful failure on her part to attempt to test the evidence. No doubt the same criticism could be made of other solicitors should other tribunal transcripts become available for analysis.
There has been a reluctance on the part of the Scottish Government to accept that the 2003 Act is not being implemented as Parliament had intended. I trust that the attached paper will be sufficient to persuade the Government that mental health tribunals are not effective safeguards against mental health patients being improperly deprived of their liberty and of being subjected to forced treatment which breaches their right to respect for private life or even their right not to be subjected to inhuman or degrading treatment. If the Government is persuaded of this then obviously the Government should take steps to address these serious issues.
I and others look forward to seeing the report on the scoping study related to the forthcoming review of Scottish mental health and incapacity legislation. I cannot believe that it will fail to draw attention to the need for significant changes in order to address important human rights issues.
5 October 2014 Scottish Sunday Express: HOSPITAL HORRORS: Patient locked in cell with no toilet, food or water