R.m. For Judicial Review V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Hardie,Lord Marnoch |
| Judgment Date | 15 March 2011 |
| Neutral Citation | [2011] CSIH 19 |
| Court | Court of Session |
| Published date | 15 March 2011 |
| Docket Number | P1019/08 |
| Date | 15 March 2011 |
Court of Session Inner House Extra Division
Lord Hardie, Lord Bonomy, Lord Marnoch
Statute - Statutory instrument - Whether statutory requirement to draft and lay regulations before Parliament - Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), sec 268(11), (12)
Section 268 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) makes provision, inter alia, for application by a patient in a hospital other than a state hospital to a tribunal for an order declaring that the patient is held in conditions of excessive security and that certain steps be taken. In terms of sec 268(11) thereof, a qualifying patient is defined as being such if the patient is of a description specified in regulations. Section 268(12) provides that a qualifying hospital is such if it is not a state hospital and is specified, or of a description specified in, regulations.
The petitioner brought a petition for judicial review of the failure of the Scottish Ministers to draft and lay regulations before Parliament under sec 268(11) and (12). The Lord Ordinary concluded following debate that the respondents were not obliged to draft and lay before Parliament such regulations and refused the prayer of the petition. The petitioner reclaimed against that decision.
Counsel for the reclaimer submitted that, as Parliament had enacted that the relevant chapter of the Act, including sec 268, should come into force by a certain date, and regulations were necessary to give effect to the various rights of appeal conferred by that chapter, Parliament must have intended that such regulations would be made prior to or simultaneously with the coming into force of the chapter, otherwise the provisions would not be capable of operation and would not have come into effect. By failing to draft and lay before Parliament the necessary regulations, the respondents had unlawfully defeated one of the aims of the legislation, to provide at least some patients in some non-state hospitals with a right of appeal against detention in conditions of excessive security.
Counsel for the respondents submitted that the act created no obligation on the respondents to make regulations under the section at any particular time or with any particular content. No specific appeal rights were conferred upon an identified class of persons by the section and the respondents had a discretion to determine what regulations to make in relation to non-state hospitals; when to make them; how, and by reference to what criteria, the concept of excessive security was to be identified; and whether circumstances were such as to render it appropriate that regulations should be made.
Held that sec 268 of the 2003 Act did not place a duty on the respondents to prepare and lay before Parliament regulations to enable persons, including the reclaimer, to make an application to a tribunal to determine whether they were being detained in conditions of excessive security nor provide a remedy (paras 10, 11); and reclaiming motion refused.
RM brought a petition for judicial review against the Scottish Ministers. Following a debate held on 9 July 2008, the Lord Ordinary (Carloway) dismissed the petition on 27 August 2008. The petitioner reclaimed against that decision to the Inner House.
Cases referred to:
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AGELRWLRUNK [1975] AC 591; [1975] 2 WLR 513; [1975] 1 All ER 810
Greater London Council v Secretary of State for the Environment sub nom R v Secretary of State for the Environment, ex p Greater London Council [1984] JPL 424; [1983] Times LR 713
Julius v Lord Bishop of OxfordELR (1880) 5 App Cas 214
Padfield v Minister of Agriculture, Fisheries and Food sub nom R v Minister of Agriculture and Fisheries, ex p PadfieldELRWLRUNK [1968] AC 997; [1968] 2 WLR 924; [1968] 1 All ER 694
Pepper (Inspector of Taxes) v HartELRWLRUNK [1993] AC 593; [1992] 3 WLR 1032; [1993] 1 All ER 42
R v JTB sub nom R v T; R v BUNKELRWLRUNK [2009] UKHL 20; [2009] 1 AC 1310; [2009] 2 WLR 1088; [2009] 3 All ER 1
R v Secretary of State for the Home Department, ex p Fire Brigades Union and orsELRWLRUNK [1995] 2 AC 513; [1995] 2 WLR 464; [1995] 2 All ER 244
Sharma v Registrar to the Integrity Commission and anrUNKWLR [2007] UKPC 42; [2007] 1 WLR 2849
Singh v Secretary of State for the Home Department sub nom Singh, PetrSCWLR 1993 SC (HL) 1; 1993 SLT 115; [1992] 1 WLR 1052
Wilson v First County Trust Ltd (No 2) sub nom Wilson v Secretary of State for Trade and IndustryUNKELRWLRUNK [2003] UKHL 40; [2004] 1 AC 816; [2003] 3 WLR 568; [2003] 4 All ER 97
Textbooks etc. referred to:
Forensic Mental Health Services Managed Care Network, Definition of Security Levels in Psychiatric Inpatient Facilities in Scotland (Forensic Network, 2004), para 2.8.1 (Online: http://www.forensicnetwork.scot.nhs.uk/documents/hdl/levelsofsecurityreport.pdf (6 April 2011))
Scottish Executive, New Directions: Report on the Review of the Mental Health (Scotland) Act 1984 (SE/2001/65) ("the Millan report") (TSO, Edinburgh, 2001), Ch 27, para 91
The cause called before an Extra Division, comprising Lord Hardie, Lord Bonomy and Lord Marnoch, for a hearing on the summar roll, on 11 and 12 January 2011.
At advising, on 15 March 2011, the opinion of the Court was delivered by Lord Hardie-
Opinion of the Court-
[1] The reclaimer suffers from a mental disorder and is detained in Leverndale Hospital, Glasgow in terms of a compulsion order under the Criminal Procedure (Scotland) Act 1995 (cap 46). The respondents are the Scottish Ministers. The reclaimer seeks judicial review of the failure by the respondents to draft and lay regulations under sec 268(11) and (12) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ('the 2003 Act') before the Scottish Parliament. On 27 August 2008 the Lord Ordinary concluded that the respondents were not obliged to draft and lay before Parliament such regulations and he refused the prayer of the petition. The reclaimer has reclaimed against that decision of the Lord Ordinary.
[2] This case relates to the proper construction of sec 268 of the 2003 Act. That section is in Ch 3 of Pt 17 of the Act and is concerned with the remedy available when it is alleged that a patient in a hospital, other than a state hospital, is being detained in conditions of excessive security. The reclaimer avers that he is a patient in the White House, a unit within Leverndale Hospital (a mental hospital) in which patients may be detained in conditions of low security. He avers that he is detained there under conditions of low security and has been receiving treatment for his mental disorder there. In his opinion, the Lord Ordinary refers to the definition of 'low security' contained within the report entitled Definition of Security Levels in Psychiatric Inpatient Facilities in Scotland. At para 2.8.1 of that report, the definition of low security includes the following:
'Security measures are intended to impede rather than completely prevent absconsions [sic], with greater reliance on staffing arrangements and less reliance on physical security measures'.
Low security might involve a patient being kept at times in a locked ward.
[3] Section 21 of the Act established the Mental Health Tribunal ('the tribunal'). Section 164 enables a patient, who is subject to a compulsion order, or his representative to apply to the tribunal for an order under sec 167 revoking the compulsion order or varying it by modifying the measures specified in it. The reclaimer made an application to the tribunal to revoke his compulsion order on the basis that he did not need any medical treatment. The tribunal rejected that application and concluded that the reclaimer required highly skilled nursing care (medical treatment), which could not be provided in a community setting.
[4] The reclaimer now contends that the level of security applied to him is excessive. He is detained in a locked ward but he wishes to be detained under conditions of lesser security, which would involve detention in an open ward. He avers that if he were in an open ward, his quality of life would be improved and it is likely that his eventual liberation from detention would be advanced. There is no formal mechanism to enable the reclaimer to challenge his conditions of security. Accordingly he seeks a declarator that the respondents have failed in their statutory duty to lay before Parliament regulations in terms of sec 268(11) and (12) of the Act.
[5] Part 17 of the 2003 Act is entitled 'Patient representation etc'. This part of the Act is subdivided into three chapters each dealing with the distinct issues of named persons, advocacy and detention in conditions of excessive security. The issue in this case is concerned with the provisions in Ch 3 (secs 264-273 inclusive) relating to detention in conditions of excessive security. Chapter 3 is subdivided into provisions relating to state hospitals (secs 264-267 inclusive) and provisions relating to hospitals other than state hospitals (secs 268-272 inclusive). Section 273 is an interpretation section for Ch 3. For present purposes the relevant sections in Ch 3 are secs 264, 268 and 273. These sections are in the following terms:
'Detention in conditions of excessive security: state hospitals
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264.-(1) This section applies where a patient's detention in a state hospital is authorised by-
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(a) a compulsory treatment order;
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(b) a compulsion order;
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(c) a hospital direction; or
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(d) a transfer for treatment direction;
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and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.
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(2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the...
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