G Appellant Against Scottish Ministers and Another Respondents

JudgeLord Reed,Lord Wilson,Lord Sumption,Lord Hodge,Lady Hale
Judgment Date18 December 2013
Neutral Citation[2013] UKSC 79
CourtSupreme Court (Scotland)
Docket NumberNo 5
Date18 December 2013

[2013] UKSC 79


Michaelmas Term

On appeal from: [2011] CSIH 55


Lady Hale, Deputy President

Lord Wilson

Lord Sumption

Lord Reed

Lord Hodge

G (AP)
Scottish Ministers and another
(Respondents) (Scotland)


Joanna Cherry QC

David Leighton

(Instructed by McKennas)


Gerry Moynihan QC

Anna Poole QC

(Instructed by Scottish Government Legal Directorate Litigation Division)


Kenneth Campbell QC

John MacGregor

(Instructed by The Mental Health Tribunal for Scotland)

Heard on 7 and 8 October 2013

Lord Reed (with whom Lord Wilson, Lord SumptionandLord Hodgeagree)


This appeal concerns the interpretation and application of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Act"). The appellant is a patient detained in the State Hospital at Carstairs who made an application to the Mental Health Tribunal for Scotland ("the tribunal") for an order under section 264(2) of the Act, declaring that he was being detained under conditions of excessive security and specifying a period during which the duties under section 264(3) and (5) should be performed. His application was refused. An appeal to the Court of Session against that decision, under section 322 of the Act, was also refused ( [2011] CSIH 55; 2012 SC 138). He now appeals to this court.


For the reasons I shall explain, the appeal must be dismissed. It has however provided an opportunity to clarify the nature of decision-making under section 264(2), and the factors which are relevant to the proper application of that section and of other provisions of the Act.

The background to the Act

It may be helpful to begin by considering the general background to the Act. Until its enactment, the statutory framework for the treatment in Scotland of persons suffering from mental disorders was contained in the Mental Health (Scotland) Act 1984, a consolidation Act which drew together a body of older legislation. That legislation had become increasingly out of step with current thinking about the treatment of mental disorders, the rights of patients, and the relationship between patients and the wider community.


One important development was the influence of the European Convention on Human Rights, particularly after it was given effect in domestic law by the Scotland Act 1998 and the Human Rights Act 1998. In particular, the Convention necessitated a more robust system of judicial protection of the rights of patients than had previously existed, and greater involvement of patients and their families and carers in decisions concerning treatment. Another important development concerned the treatment of the mentally ill, with many more patients being treated outside hospitals, fewer patients requiring long-term hospital care, and a marked reduction in the number of hospital beds available for the treatment of mental illness. A third development was an increasing recognition of the desirability of eliminating the stigma which had long been associated with mental illness. All these developments, and others, necessitated a fundamental review of Scottish mental health law.


That review was carried out by a committee chaired by the Rt Hon Bruce Millan, a former Secretary of State for Scotland. Its recommendations were published in its report, New Directions: Report on the Review of the Mental Health (Scotland) Act 1984, which was laid before the Scottish Parliament in 2001.


The Committee stated in the report that it was fundamental to its approach that a new Act should be based on principles stated on the face of the Act itself (Introduction, para 3): as I shall explain, that is reflected in section 1 of the Act.


A particular problem identified by the Committee, which in due course section 264 of the Act sought to address, was discussed in Chapter 27:

"82. We have received evidence from the State Hospital and the Mental Welfare Commission that there are significant numbers of 'entrapped patients'. These are patients who no longer require the level of security afforded by the State Hospital, but for whom appropriate local services are not available. The State Hospitals Board suggested that there is currently little incentive for local health boards and trusts to arrange secure psychiatric services. The local public is unlikely to welcome such services (indeed quite the reverse), and funding arrangements do not create incentives to develop such services. The Board strongly advocated that an explicit statutory duty be placed on health boards to commission local services to address the need for a range of medium and low security services for mentally disordered offenders.

83. We have considerable sympathy with the position of the State Hospital on this point. However, we have decided that, in terms of our core remit of reviewing the Mental Health (Scotland) Act 1984, it would be more appropriate for us to propose another means of addressing this problem, which is more directed at the rights of individual patients. This is that patients should have a continuing right to appeal against the level of security to which they are subjected.

84. It seems to us that to detain a patient unnecessarily in conditions of high security is inconsistent with respect for the patient's rights, and our general principle of Least restrictive alternative.Furthermore, the proposed development of medium secure units would seem to make it more likely that such an appeal right would be practicable."


The Committee discussed how such a right of appeal might be made effective. In order to provide care at a lower level of security, arrangements would have to be made by the responsible health board. The provision of such arrangements could involve practical difficulties which might be beyond the health board's control. If the necessary arrangements were not put in place, it would be undesirable that a patient who was still assessed as requiring some degree of secure care should simply be discharged. On the other hand, the proposed right of appeal would be meaningless unless it led to an order which was capable of being enforced.


Following consultation on this issue, the Committee concluded that a staged approach was appropriate:

"We therefore suggest that, should a patient successfully appeal to a tribunal against the level of security, it should set a time within which the necessary provision should be arranged by the responsible health board. The time limit might be of the order of three months. Should arrangements not be made at the expiry of that period, representatives of the health board should be required to appear before the tribunal to explain the position, and to confirm whether there is a prospect of a placement being found within a reasonable period. The tribunal should be able to extend the time limit for a further period of no more than three months. If, at the end of that period, no provision has been made, the tribunal could order that arrangements must be put in place to accommodate the patient within 14 days." (Chapter 27, para 89)


In a subsequent White Paper, Renewing Mental Health Law — Policy Statement (2001), the Scottish Executive broadly accepted the Committee's recommendations as the framework for a future Bill, although rejecting or modifying some of the recommendations concerned with mentally disordered offenders.


As introduced, the Bill did not contain any provision reflecting the recommendations in relation to appeals against levels of security. There was at that time only one specialist medium secure unit in Scotland, namely the Orchard Clinic in Edinburgh. The provisions which became sections 264 to 273, giving effect to the Committee's recommendations, were however introduced by amendment during the passage of the Bill through Parliament. Commencement provisions in section 333(2) allowed the entry into force of sections 264 to 273 to be delayed until 1 May 2006, so as to allow sufficient time for additional facilities for affected patients to be commissioned.

Section 1 of the Act

Section 1 of the Act is a provision of particular importance. It sets out principles to be applied by persons discharging certain functions under the Act. The principles are set out in, or incorporated into, subsections (2) to (4). The circumstances in which they apply are defined by subsection (1), which provides:

"(1) Subsections (2) to (4) below apply whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a patient who has attained the age of 18 years."

The tribunal does not fall within subsection (7). Subsections (2) to (4) therefore apply to the tribunal whenever it is discharging a function by virtue of the Act in relation to a patient who is over 18. One of the functions discharged by the tribunal under the Act, to which subsections (2) to (4) therefore apply, is that of taking decisions under section 264(2).


Section 1(2) provides:

"(2) In discharging the function the person shall, subject to subsection (9) below, have regard to the matters mentioned in subsection (3) below in so far as they are relevant to the function being discharged."

Subsection (9) is not relevant to the present case, and need not be considered further. Subject only to that provision, the tribunal is under a statutory duty to have regard to the matters mentioned in subsection (3) so far as they are relevant to the function being discharged: such as, in the present case, the taking of decisions under section 264(2).


Section 1(3) provides:

"(3) The matters referred to in subsection (2) above are —

(a) the present and past wishes and feelings of the patient which are relevant to the discharge of the function;

(b) the views of [the patient's named person, carer, guardian and welfare attorney, if any], which are relevant...

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