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Appeal Against Compulsion Order Refused

HMA v FD 2018

A man accused of assaulting a nurse had his plea of not guilty accepted by the Crown in July 2017 on the basis that he was incapable by reason of mental disorder to appreciate the wrongfulness of his conduct. However he recently has had an appeal against a sheriff’s decision to impose a compulsion order refused.

The man put a male nurse in had headed and repeatedly punched him. Prior to imposing the order the sheriff ordered reports form two doctors treating the offender. An order was imposed under section 57A of the 1995 Act at Lanark Sheriff Court. However the appellant argued that the sheriff erred in concluding that the statutory criteria for the order to be imposed was met.

The counsel for the appellant argued that the doctors did not state that this order was necessary and there was not enough information available to the sheriff to allow him to make the decision at the time that he did. However, the sheriff had gone on to take the view that the decision was not a medical one, and had himself considered the question of necessity in the light of all the circumstances of the case. This was argued to be flawed reasoning.

Refusing the appeal, the court held that in the circumstances the sheriff was “entitled” to conclude that the relevant statutory criteria had been met and that there was no reasoning at all to prevent this decision.

Sheriff Braid said: “The fact that the question of necessity is essentially a medical question means that, in our view, the medical practitioners are entitled to disregard the existence of a compulsory treatment order.

The existence of another order is a matter which bears upon appropriateness rather than necessity. Indeed, were the medical practitioners to express a view that an order was not necessary because of the existence of another order, such as a compulsory treatment order, that would arguably be usurping the role of the sheriff.”

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