L.M. v. MENTAL HEALTH TRIBUNAL FOR SCOTLAND

The Sheriff Principal, having resumed consideration of the cause, Refuses the appeal; Finds the appellant liable to the respondents and first interested party in the expenses of the appeal procedure as these might be taxed; Allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report; Certifies the appeal as suitable for the employment of junior counsel.

[1] This is an appeal under Section 320(1)(a) of the Mental Health (Care and Treatment) ( Scotland ) Act 2003 (hereinafter "the Act"), against the Mental Health Tribunal's decision of 5 March 2010 refusing the appellant's application to revoke a short-term detention certificate dated 25 February 2010 . The appellant moved me to set aside the decision of the Tribunal using my powers under Section 324(5) of the Act and to revoke the short-term detention certificate.

"The patient falls within this sub-section if, immediately before the medical examination mentioned in sub-section (1)(a) above is carried out, the patient is subject to

[4] The appellant's position was that notwithstanding that the Section 47 extension certificate was unlawfully granted, the appellant was de facto detained under the terms of a certificate which was ex facie valid. She was detained first under the extension certificate and thereafter by virtue of Section 68 of the Act.

[5] Unfortunately the appellant's counsel, when preparing her written submission, had not been aware that Section 44 of the 2003 Act had been amended by the Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005/465 (Scottish SI) Schedule 1, paragraph 32(4). As originally enacted Section 44(2) was in the following terms:-