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The function conferred upon the tribunal by section 264(2) therefore involves two distinct stages. Ratio |
First, the tribunal has to decide whether it is satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital: that is to say, whether the statutory condition for the admission of a patient to a state hospital (under, for example, sections ... |
If the tribunal is not so satisfied, then it will refuse the application. Ratio |
If on the other hand it is so satisfied, then it may make an order under the subsection. Ratio |
The second stage of the tribunals function is therefore to decide whether to exercise its discretion to make such an order. Ratio |
If it decides to do so, then it must also decide the length of the period within which the duties under subsections (3) to (5) are to be performed, subject to a maximum period of three months. Ratio |
The duties imposed by an order made under section 264(2) are set out in subsections (3) to (5). Ratio |
Section 264(3) provides: (3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital (a) which is not a state hospital; (b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospit... |
Section 264(4) makes analogous provision in relation to patients who are not relevant patients. Ratio |
A relevant patient is defined by section 273 as one whose detention in hospital is authorised by a compulsion order and who is also subject to a restriction order, or one whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction. Ratio |
The appellant falls into the first of these categories and is therefore a relevant patient. Ratio |
Section 264(5) provides that, where the tribunal makes an order under subsection (2), the relevant health board shall, as soon as practicable after identifying a hospital under subsection (3) or (4), notify the managers of the state hospital of the name of the hospital so identified. Ratio |
It is relevant to note the terms of sections 265 to 267 and 272. STA |
Section 265 provides an enforcement mechanism in relation to orders which have been made under section 264(2) and have not been recalled under section 267. STA |
In terms of section 265(2), if the health board fails, during the period specified in the order, to give notice to the tribunal that the patient has been transferred to another hospital, there must be a further hearing before the tribunal. STA |
If, following such a hearing, the tribunal remains satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it may then make a further order, under section 265(3), of a similar nature to the order originally made under section 264(2).... |
The order made under section 265(3) must specify either a further period of 28 days, or a longer period of up to three months, within which the health board must perform its duties. STA |
Section 266 provides a further enforcement mechanism in relation to orders made under section 265(3) which have allowed the health board a further period of more than 28 days to perform its duties, and have not been recalled under section 267. STA |
In terms of section 266(2), if the health board fails, during the period specified in the order, to give notice to the tribunal that the patient has been transferred to another hospital, there must be a further hearing before the tribunal. STA |
If, following such a hearing, the tribunal remains satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it may then make a further order under section 266(3) of a similar nature to the order originally made under section 264(2), s... |
Under section 267, an application can be made to the tribunal by the health board (and, in the case of a relevant patient, by the Scottish Ministers) for the recall of an order made under section 264(2), 265(3) or 266(3). STA |
The tribunal is required to recall the order if it is satisfied that the patient requires to be detained under conditions of special security that can be provided only in a state hospital, and also has a discretion to recall the order on any other grounds. STA |
Under section 272(1), an order made under section 264(2), or an order made under section 265(3) which allows the health board a period of more than 28 days to perform its duties, cannot be enforced by proceedings for specific performance. STA |
Such orders can therefore be enforced only by means of the procedures laid down in sections 265 and 266 respectively. STA |
On the other hand, under section 272(2), an order under section 265(3) which specifies a period of 28 days, and an order under section 266(3), are enforceable by proceedings for specific performance. STA |
One implication of these provisions is that orders made by the tribunal under section 264(2), and orders made under section 265(3) allowing the health board more than 28 days, are not enforceable. Ratio |
In particular, following the making of an order under section 264(2), the tribunal is required to review the position at one or possibly two further hearings before the health board can be compelled by civil proceedings to identify a suitable hospital and notify the managers of the state hospital. Ratio |
The period of time allowed to the health board to make suitable arrangements, before civil proceedings can be taken to compel it to do so, can therefore be substantial: up to three months in terms of the order made under section 264(2), a further three months in terms of the order made under section 265(3), and a furth... |
Further time will be required to deal with applications under each of those three sections, there being in each case a requirement to afford an opportunity of making representations and of leading evidence, and to hold a hearing. Ratio |
In the present case, an application under section 264 alone took more than 19 months to be decided by the tribunal. Ratio |
Returning to section 264(2), I have explained the two stages of the exercise which the tribunal has to carry out. Ratio |
At the first stage, it has to decide whether it is 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 |
What constitute such conditions will be a question of fact for the tribunal, the answer to which may vary from time to time. Ratio |
Having identified those conditions, the tribunal has to decide whether the patient requires to be detained under them. Ratio |
If he does not, then the decision at stage one will be favourable to him. Ratio |
It is to be noted that the tribunal is not concerned at stage one with the question whether accommodation is available for the patient in some other hospital in which he could be detained in appropriate conditions. Ratio |
If the tribunal is satisfied at stage one, it then has to perform its function at stage two: that is to say, it has to decide whether to exercise its discretion to make an order. Ratio |
As I have explained, the tribunals discharge of its function under section 264(2) falls within the scope of the general provisions set out in section 1 of the Act. Ratio |
The tribunal must therefore have regard to the matters to which it is required to have regard under that section, and to such other matters as are relevant in the circumstances, in accordance with section 1(4)(c). Ratio |
In the present case, for example, a relevant consideration was that the State Hospital had no female patients, whereas there were such patients in medium secure hospitals. Ratio |
Another was the risk posed by the appellant to the safety of women. Ratio |
As I have explained, the tribunal is required by section 1(4) to exercise its discretion at stage two in the manner that appears to [it] to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. Ratio |
That test employs a different concept from section 264(2): conditions of security are not synonymous with restrictions on freedom. Ratio |
For example, the security conditions at the State Hospital include a perimeter security fence which prevents patients from having uncontrolled access to the wider community. Ratio |
Within the perimeter, however, the movements and activities of a patient may be subject to relatively few restrictions. Ratio |
Medium secure hospitals on the other hand typically have less secure perimeters. Ratio |
In consequence, patients posing a risk to the public may require to be subject to relatively onerous restrictions on their movements and activities, which may not only prevent them from having uncontrolled access to the wider community but may also restrict their freedom within the hospital itself. Ratio |
For reasons such as these, it is possible that fewer restrictions on the freedom of a particular patient may be necessary under conditions of security that are available only in a state hospital than if the patient were detained elsewhere. Ratio |
Thus an analysis of the implications of an order under section 264(2) for the daily regime of the patient and for his progress through the system may, depending on the circumstances, result in the conclusion that the refusal of the order will result in the minimum restriction necessary in the circumstances. Ratio |
It is also possible that no clear conclusion will be reached as to whether the patient will be subject to greater restrictions on his freedom if he is detained in a state hospital or elsewhere. Ratio |
The tribunal should in any event exercise its discretion in such a way as to promote the policy and objects of the Act, and of section 264 in particular. Ratio |
As I have explained, the mischief which section 264 was intended to address is the entrapment of patients who no longer require the level of security afforded by the State Hospital. Ratio |
Given that intention, Parliament can be taken to have envisaged that if the tribunal were to conclude at stage one that the patient no longer required to be detained under conditions of special security that could be provided only in a state hospital, it would then make an order under section 264(2) unless it considere... |
In that regard, the unavailability of accommodation in a medium secure hospital in which the patient could be detained in appropriate conditions cannot have been intended to preclude the making of an order under section 264(2): otherwise, Parliaments intention in enacting section 264 could be frustrated by mere inertia... |
Those provisions take account of the potential practical difficulties identified by the Millan Committee, while also guarding against the connection between entrapment and the absence of incentives for health boards to address the problem. Ratio |
It is implicit in section 264(3), (4) and (5) that an order can be made by the tribunal under subsection (2) at a time when no hospital has been identified, other than a state hospital, in which the patient could be detained in appropriate conditions and in which accommodation is available for the patient. Ratio |
At the same time, the unavailability of accommodation in medium secure hospitals where the patient could be detained in conditions appropriate to his particular needs, including appropriate facilities for treatment, may in some circumstances be relevant to the tribunals performance of its duty to have regard to the imp... |
It may also be relevant to the tribunals duty to have regard to the importance of the provision of appropriate services to the patient, in accordance with section 1(6). Ratio |
To make an order under section 264(2) where medical or other evidence demonstrated that appropriate conditions were not available outside a state hospital, or where clinically superior conditions were available in a state hospital, might be incompatible with providing the maximum benefit to the particular patient. Rati... |
As I shall explain, the present case provides an example of such a situation. Ratio |
Furthermore, to make an order where the tribunal was satisfied that there was no conceivable possibility that the patient could be accommodated in a medium secure hospital in appropriate conditions within any realistic timescale, and where an application for recall could not therefore be refused, would be unreasonable.... |
The view expressed in Lothian Health Board v BM 2007 SCLR 478, that the availability of accommodation in a medium secure hospital where the patient could be detained in appropriate conditions, including appropriate facilities for treatment, can never be relevant to the question whether an order should be made under sec... |
The present case FAC |
In 1998 the appellant appeared before the High Court of Justiciary on charges of rape, assault and breach of the peace. FAC |
He was acquitted on the ground of insanity and made the subject of orders under which he was detained at the State Hospital. FAC |
Although those orders were made under earlier legislation, they are now deemed to be a compulsion order and a restriction order within the meaning of the Criminal Procedure (Scotland) Act 1995 as amended. FAC |
In 2008 the appellant applied for an order under section 264(2) of the Act. STA |
In 2009 the tribunal issued its decision, refusing the application. RLC |
In its decision, the tribunal described the security conditions at the State Hospital, and explained how they differed from those in hospitals of lesser security. FAC |
It found that the appellant had in recent times been subject to the lowest level of security in the State Hospital. FAC |
He continued to pose some risk of sexual violence. FAC |
The best way of managing that risk could only be determined following his undertaking and completing satisfactorily a course of psychological treatment for sexual offending. FAC |
The tribunal found that the appellant had in the past been offered such treatment at the State Hospital, on a group basis, but had declined to take part. FAC |
He had recently indicated his willingness to engage in such treatment on a one to one or one to two basis. FAC |
After a delay for which there was no satisfactory explanation, the provision of appropriate treatment for him was currently under consideration by the clinical psychologists at the State Hospital. FAC |
The psychology department there was the best resourced in any secure hospital in Scotland. FAC |
It was capable of providing appropriate treatment in a variety of forms, including one to one or one to two. FAC |
It had assessed the appellant and was best placed to decide how to meet his needs. FAC |
There was uncertainty as to the time scale for undertaking such treatment in a medium secure hospital. FAC |
The tribunal correctly identified that decision-making under section 264(2) involved two stages, and it correctly understood what those stages were. FAC |
At the first stage, it concluded that the appellant did not require to be detained under conditions of special security that could be provided only in a state hospital. FAC |
On the facts which it had found, it was entitled to reach that conclusion: it found that the appellant could be managed within a medium secure hospital, although only subject to considerable restrictions until he had completed a course of treatment for sexual violence. FAC |
If the appellant could be detained elsewhere in appropriate conditions of security, then he did not require to be detained under conditions of special security that could be provided only in a state hospital. FAC |
At the second stage of its decision, the tribunal had regard to section 1 of the Act. FAC |
It referred in particular to the importance of providing the maximum benefit to the patient (section 1(3)(f)), and to the least restrictive option (section 1(4)). FAC |
It made no express mention of the other provisions of section 1(3), (5) or (6). FAC |
In reaching its decision at the second stage, the tribunal noted the medical witnesses agreement that the appellant had to undertake an appropriate course of treatment before he could be allowed greater contact with women. FAC |
If transferred to a medium secure hospital, he would have greater contact with women: although this was not explained by the tribunal, we were informed that the State Hospital has no female patients, whereas medium secure hospitals have patients of both sexes. FAC |
If transferred before completing such treatment, he would pose a risk to any woman with whom he formed a relationship, in the event that he felt rejected or came under the influence of alcohol or drugs. FAC |
The tribunal also shared the concern expressed by certain of the medical witnesses that the appellant was less likely to engage in such treatment in a medium secure hospital. FAC |
There was therefore a significant risk that he would become entrapped in the medium secure system: although this was not explained by the tribunal, we were informed that this was because the progression of patients to lower levels of security depends on assessments of risk, and one of the purposes of such treatment is ... |
Because of the risk he posed to women, he would require to be subject to restrictions on his movements in a medium secure hospital which were much greater than those to which he was subject in the State Hospital, unless and until he successfully completed such treatment. FAC |
There was a significant risk of consequential problems for his mental health. FAC |
In relation to the least restrictive alternative, the tribunal stated that if the appellant moved to a medium secure hospital then he would have to endure greater restrictions on his movements than currently experienced at the State Hospital, until a treatment course was satisfactorily completed. FAC |
Such a course could take 12 to 18 months. Ratio |
The tribunal concluded that it was of maximum benefit to the appellant that he should remain at the State Hospital and undertake appropriate treatment there. RLC |
It stated that accordingly in the exercise of its discretion, the application should be refused. RLC |
The challenge to the tribunals decision FAC |
On behalf of the appellant, it was submitted to this court that the tribunals decision was vitiated by a number of errors. ARG |
In the first place, it was argued that the tribunal had failed to exercise its discretion in accordance with the purpose of section 264. ARG |
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