Anderson and Others v Scottish Ministers and Another
| Jurisdiction | Scotland |
| Judgment Date | 16 June 2000 |
| Docket Number | No 1 |
| Date | 16 June 2000 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Practice—Mental health—Restricted patient—Grounds for refusal of discharge—Whether statutory test compatible with European Convention on Human Rights—Whether appeal procedures compatible with European Convention on Human Rights—Mental Health (Scotland) Act 1984 (cap 36), secs 64 and 68—Mental Health (Public Safety and Appeals) (Scotland) Act 1999 (asp 1), sec 1—European Convention on Human Rights, art 51
Practice—Mental health—Restricted patient—Grounds for refusal of discharge amended by retrospective legislation—Whether compatible with European Convention on Human Rights—Mental Health (Scotland) Act 1984 (cap 36), secs 64 and 68—Mental Health (Public Safety and Appeals) (Scotland) Act 1999 (asp 1), sec 1—European Convention on Human Rights, art 5
Constitutional law—Scottish Parliament—Legislative competence—Whether Act of Scottish Parliament outwith legislative competence—Whether act incompatible with European Convention on Human Rights—Scotland Act 1998 (cap 46)—European Convention on Human Rights, art 5
Section 59 of the Criminal Procedure (Scotland) Act 1995 provides that where a court has made a hospital order in relation to an offender and is satisfied that to do so is necessary for the protection of the public from serious harm, it may make a restriction order, in which case the patient is liable to be detained until an order is made for his absolute discharge by the Scottish Ministers or the sheriff on appeal. Section 68 of the Mental Health (Scotland) Act 1984 imposes on the Scottish Ministers a duty to review such detention and to discharge any patient who does not meet the criteria for detention. Section 17 of the 1984 Act allows detention in certain circumstances if treatment is likely to alleviate or prevent deterioration of a person's condition and it is necessary for the health and safety of that person or the protection of others that he should receive such treatment and it cannot be provided unless he is detained. Section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 introduced various amendments to the Mental Health (Scotland) Act 1984 to the effect the Scottish Ministers are not to exercise their power to discharge a restricted patient if they are satisfied that he is suffering from a mental disorder the effect of which is such that it is necessary for the protection of the public from serious harm that he continue to be detained in a hospital, whether for medical treatment or not.
Article 5(1) of the European Convention on Human Rights provides that everyone has the right to liberty and security of person and that no-one shall be deprived of this liberty save in certain cases (including the lawful detention of persons of unsound mind (art 5(1)(e)) and in accordance with a procedure prescribed by law. Article 5(4) provides that everyone who is deprived of his liberty by arrest or detention is entitled to take proceedings by which the lawfulness of the detention is to be decided speedily by a court and his release ordered if the detention is not lawful.
The applicants were being held at the state hospital as restricted patients following convictions for homicide. A and R were suffering from personality disorders and D was suffering from mental handicap. The applicants appealed to the sheriff under sec 63 of the Mental Health (Scotland) Act 1984. A and R sought discharge, and D sought return to prison. In all three cases, the sheriff referred the following question to the Court of Session: “Is section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 a provision which is, in whole or in part, outwith the legislative competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act 1998 and, accordingly, not law in terms of section 29(1) thereof?”
A, D and R argued that (1) the provisions of the 1999 Act amending sec 64 of the 1984 Act were incompatible with their rights under art 5(1); (2) the detention of the applicants on the basis of the “serious harm test” in sec 59 of the 1995 Act constituted a form of preventative detention which could not be justified in terms of art 5(1)(e); (3) even if the test for the original detention did not violate art 5, a different test was applied for discharge, thus giving rise to an objectionable “lobster-pot” effect in that it was harder for a patient to obtain his discharge than it was for him to avoid being admitted in the first place and there could cease to be any relationship between the conditions of the patient's detention and the purpose for which it was being continued. A and D, who had lodged their appeals to the sheriff before the 1999 Act had been passed, also argued that the amendment in the 1999 Act was beyond the legislative powers of the Scottish Parliament, in so far as it was given retrospective effect and consequently constituted an interference with the judicial process inconsistent with the applicant's right to equality of arms.
Held that (1) the principles to be derived from the authorities on art 5(1)(e) were that the admission and detention of a person of unsound mind must be in conformity with the procedure laid down in domestic law which must conform to three criteria: a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of the continued detention depends on the persistence of such a disorder (pp 24F, 39E, 41I–42B and 49E–F); (2) art 5(1)(e) does not require that detention of persons of unsound mind be for the purpose of treatment, and such detention is justified where it is necessary to serve a legitimate social purpose, which may be protection of the public (pp 24G–H, 41I–42C and 49B–G); (3) the new “serious harm” test introduced by the 1999 Act was introduced to avoid any situation where the respondents might be under pressure to avoid danger to the public by continuing to detain patients for whose detention there was no longer any statutory warrant because the alleviating treatment test could no longer be met, and was not arbitrary (pp 24I–25B, 42B–C and 49B–F); (4) the new system introduced by the 1999 Act conformed to the criteria referred to above and did not constitute a form of preventive detention (pp 25C–F, 42C and 49H–50B); (5) it was not unlawful to detain a patient on the basis of a different condition or handicap from that for which he was initially admitted because at both stages the essential question was the same: whether the patient was suffering from a mental disorder of a kind or degree warranting compulsory confinement (p 28F, 42F–G and 43A–B); (6) art 5 being concerned with liberty rather than with a particular place of lawful detention, detention of a person of unsound mind for the protection of the public could lawfully take place in a hospital (p 28H–29B, 42E–F and 51D–E); (7) the amendments to sec 64, far from depriving the patient of his right under art 5(4) to a review of the continuing lawfulness of his detention, added an additional form of review to allow a full scrutiny of the legality of any decision by the Scottish Ministers not to discharge the patient (pp 31H–32D, 43H–44B and 52E–F); and (8) retrospective application of the amendments in the 1999 Act to pending proceedings did not violate the applicant's Convention right to equality of arms in terms of art 5(4). While the principle of the rule of law and the notion of a fair hearing would generally preclude any interference with the sheriff's conduct of an appeal, such interference could be justified on compelling grounds of general interest provided that it was proportionate to the public interest which it sought to secure. In the circumstances, the need to avoid danger to the safety of members of the public was an important public interest which justified the measure of retrospection as aproportionate means of achieving the protection of the public (pp 35C–D, 35G–H, 45B and 53A–B); and the question in each of the references answered in the negative.
Observed, per the Lord President (Rodger): (1) the abstract question asked by the sheriff as to whether sec 1 of the 1999 Act was within the powers of the parliament must be seen in the context of actual proceedings where both parties have treated it as a live issue and it is accordingly proper to resolve at that stage (pp 18H–19B); (2) as the applicants would all be “victims” for the purposes of art 34 of the Convention if proceedings were brought in the European Court of Human Rights, the applicants are able to rely on their rights under art 5 of the Convention in the current proceedings (p 19B–19C); (3) the issue to be decided was whether, even though the members of parliament were conscious of the need to have regard to the human rights of the patients, the parliament nonetheless failed to maintain the necessary fair balance by giving too much weight to the perceived danger to members of the public and too little weight to the requirements of the protection of the patients' right to freedom and their Convention rights. In determining that issue, it was right that the court should give due deference the assessments which the democratically elected legislature had made of the policy issues involved (p 21C).
Observed, per Lady Cosgrove that these references represent a significant milestone in the history of Scots law: for the first time in its history the Court of Session was asked to strike down the Act of a legislature, the power to do so having been conferred on it by sec 29(1) of the Scotland Act (p 36A).
Guzzardi v ItalyHRC Series A, No 39 (1980) 3 EHRR 333,applied. R v Secretary of State for ScotlandSC1999 SC (HL) 17, distinguished. Winterwerp v The NetherlandsHRC Series A, No 33 (1979); 2 EHRR 387,followed.
A, D and R appealed to the sheriff against their detention as restricted patients...
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