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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 duti... |
His application was refused. RLC |
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). RLC |
He now appeals to this court. RLC |
For the reasons I shall explain, the appeal must be dismissed. Ratio |
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. Ratio |
The background to the Act Ratio |
It may be helpful to begin by considering the general background to the Act. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
A third development was an increasing recognition of the desirability of eliminating the stigma which had long been associated with mental illness. Ratio |
All these developments, and others, necessitated a fundamental review of Scottish mental health law. Ratio |
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. Ratio |
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. Ratio |
We have received evidence from the State Hospital and the Mental Welfare Commission that there are significant numbers of entrapped patients. Ratio |
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. Ratio |
The State Hospitals Board suggested that there is currently little incentive for local health boards and trusts to arrange secure psychiatric services. Ratio |
The local public is unlikely to welcome such services (indeed quite the reverse), and funding arrangements do not create incentives to develop such services. Ratio |
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. Ratio |
83. Ratio |
We have considerable sympathy with the position of the State Hospital on this point. Ratio |
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. Ratio |
This is that patients should have a continuing right to appeal against the level of security to which they are subjected. Ratio |
84. Ratio |
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. Ratio |
Furthermore, the proposed development of medium secure units would seem to make it more likely that such an appeal right would be practicable. Ratio |
The Committee discussed how such a right of appeal might be made effective. Ratio |
In order to provide care at a lower level of security, arrangements would have to be made by the responsible health board. Ratio |
The provision of such arrangements could involve practical difficulties which might be beyond the health boards control. Ratio |
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. Ratio |
On the other hand, the proposed right of appeal would be meaningless unless it led to an order which was capable of being enforced. Ratio |
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. Ratio |
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. Ratio |
The tribunal should be able to extend the time limit for a further period of no more than three months. Ratio |
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. Ratio |
(Chapter 27, para 89) Ratio |
In a subsequent White Paper, Renewing Mental Health Law Policy Statement (2001), the Scottish Executive broadly accepted the Committees recommendations as the framework for a future Bill, although rejecting or modifying some of the recommendations concerned with mentally disordered offenders. Ratio |
As introduced, the Bill did not contain any provision reflecting the recommendations in relation to appeals against levels of security. Ratio |
There was at that time only one specialist medium secure unit in Scotland, namely the Orchard Clinic in Edinburgh. Ratio |
The provisions which became sections 264 to 273, giving effect to the Committees recommendations, were however introduced by amendment during the passage of the Bill through Parliament. Ratio |
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. Ratio |
Section 1 of the Act STA |
Section 1 of the Act is a provision of particular importance. STA |
It sets out principles to be applied by persons discharging certain functions under the Act. STA |
The principles are set out in, or incorporated into, subsections (2) to (4). STA |
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. STA |
The tribunal does not fall within subsection (7). STA |
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. STA |
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). STA |
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. STA |
Subsection (9) is not relevant to the present case, and need not be considered further. STA |
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). STA |
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 patients named person, carer, guardian and welfare attorney, if any], which are relevant to the discharg... |
Paragraphs (a), (c) and (d) reflect the importance of respect for the patients autonomy and the consequent need to enable the patient to participate in the exercise of functions concerning him or her, so far as possible. STA |
The Millan Committee had identified in its discussion of general principles (Chapter 3, para 13) a need to broaden the extent to which those principles were reflected in mental health law. STA |
Paragraph (b) is similar in purpose to paragraph (a), and applies the same general principle to carers and others closely involved with the patient. STA |
Paragraphs (e) and (f) reflect the importance of ensuring that functions exercised under the Act should be discharged in the most beneficial way possible for the patient. STA |
As the Committee had noted, that principle was reflected in the older legislation concerned with children and with adults with incapacity, but not in mental health law generally. STA |
Paragraph (g) gives expression to the principle of non-discrimination in relation to persons with mental disorders: the term patient is defined by section 329(1) of the Act as meaning a person who has, or appears to have, a mental disorder. STA |
The Committee had noted that this concept of equality had come to the fore in recent years. STA |
Paragraph (h) reflects the principle of respect for diversity. STA |
The Committee had observed that such a principle added to the principle of equality by making a positive statement of the requirement to reflect individual needs. STA |
Before considering section 1(4), it is necessary to consider section 1(5) and (6), which list further matters to which regard must be had in particular circumstances. STA |
Section 1(5) provides: (5) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act (other than the making of a decision about medical treatment) in relation to a patient, the person shall have regard, in so far as it is reasonable and practicable to do so, to - (a... |
As I have explained, the tribunal does not fall within subsection (7); and a decision under section 264(2) is not a decision about medical treatment. STA |
It is therefore a decision to which section 1(5) applies. STA |
Section 1(6) provides: (6) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a person who is, or has been, subject to - (a) detention in hospital authorised by [an emergency detention certificate]; (b) detention in hospital authorised by a [sh... |
Since section 264 applies where a patients detention in a state hospital is authorised by inter alia a compulsory treatment order or a compulsion order, it follows that section 1(6) can apply when the tribunal is taking a decision under section 264. STA |
It did so in the present case, the appellant being subject to a compulsion order. STA |
Returning to section 1(4), it provides: (4) After having regard to - (a) the matters mentioned in subsection (3) above; (b) if subsections (5) and (6) below apply, the matters mentioned there; and (c) such other matters as are relevant in the circumstances, the person shall discharge the function in the manner that app... |
Section 1(4) is of a different nature from subsections (3), (5) and (6). STA |
It does not specify matters to which the person in question must have regard. STA |
It applies after the person has had regard to all the matters to which he or she is required to have regard, including, under paragraph (c), the residual category of such other matters as are relevant in the circumstances. STA |
It requires the person then to discharge the function in a particular manner, namely the manner which appears to the person to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances. STA |
This broadly but not precisely reflects the Millan Committees general principle of the least restrictive alternative (Chapter 3, para 13), and Principle 9.1 of the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, adopted by the UN General Assembly on 17 Decembe... |
The concept of restriction on freedom is not defined, and must be considered broadly. Ratio |
A persons freedom has many aspects, and can be restricted in many different ways. Ratio |
To some extent, whether a particular aspect or effect of the detention of a patient is regarded as a restriction of his freedom may depend on the characteristics of the patient. Ratio |
There may be room for debate as to whether one course of action will involve greater restriction of a patients freedom than another. Ratio |
One course of action may, for example, involve relatively greater restriction on freedom than another for a period of time, but relatively less restriction subsequently. Ratio |
One course of action may involve one kind of restriction on freedom, while another may involve a different type of restriction. Ratio |
For all these reasons, the person discharging the function must have a wide power of judgment in making his or her assessment under section 1(4), and may not be able to reach any clear conclusion. Ratio |
Section 1(4) does not prioritise the freedom of the patient over other considerations, such as the importance of providing the maximum benefit to the patient or, where relevant, the protection of the public, or the safety of other patients: it requires the minimum restriction on the freedom of the patient that is neces... |
The judgment of what is necessary in the circumstances is to be made by the person discharging the function. Ratio |
Section 1 thus sets out an overarching approach to the discharge of functions under the Act. Ratio |
The person discharging the function must have regard to the matters specified in subsection (3), so far as relevant, to the matters specified in subsections (5) and (6) where applicable, and to such other matters as may be relevant in the particular circumstances. Ratio |
The person must then discharge the function in the manner that appears to him or her to involve the minimum restriction on the freedom of the patient that is necessary in those circumstances. Ratio |
Section 1(4) will not however be determinative of all the decisions falling within its scope. Ratio |
Some functions discharged under the Act do not impinge upon the freedom of patients. Ratio |
In other cases, there may be a number of ways in which the function might be discharged, none of which appears to the person in question to impose a greater restriction on the freedom of the patient than is necessary in the circumstances. Ratio |
Section 264 of the Act STA |
Section 264 applies, in terms of subsection (1), where a patients detention in a state hospital is authorised by any of a number of specified orders and directions, including a compulsion order. STA |
As I have explained, the appellants detention in the State Hospital is authorised by such an order, and therefore comes within the scope of section 264. STA |
Section 264(2) provides: (2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order - (a) declaring that the patient is b... |
The patient is among the persons mentioned in subsection (6), and is therefore entitled to make such an application. STA |
Section 264(2) confers a discretion (the Tribunal may make an order), subject to a pre-condition (if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital). Ratio |
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