Bryan-Heaney-0005_prvThere are five Scottish cases set down for this term. This is the first and it was heard yesterday and today. The decision appealed from is reported at [2001] CSIH 55, [2012] SC 138. Although the Tribunal will be represented in the Supreme Court, as it was in the Inner House, the true contradictors in the case are the Scottish Ministers.

The Scottish mental health system was for many years blighted by the lack of medium-secure facilities. That meant that patients who did not need conditions of special security, but who could not be placed in low-security conditions, were detained at the State Hospital in Carstairs. The State Hospital is a national facility for high-security mental health patients from Scotland. It also takes patients from Northern Ireland. The hospital is located in a fairly remote part of South Lanarkshire.

Things changed in the early part of the century with medium-secure facilities being set up in Edinburgh and Glasgow. Latterly another unit has been created in Perth. Part of the intention of setting up medium-secure facilities was to allow patients whose conditions improved to move from the State Hospital, and conditions of special security, to facilities closer to home which still met the patient’s needs and those of the public.

Alongside that physical change, the legal structure altered with the enactment of the Mental Health (Care and Treatment) (Scotland) Act 2003. It also set up the Mental Health Tribunal for Scotland. A key provision of the 2003 Act is s 264. It provides the structure under which patients’ applications to move from conditions of special security are considered.

S 264(2) provides that 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” which compels the relevant health authority to make arrangements to transfer the patient. The Act gives the health authority the right to apply to the Tribunal to recall the declaration if appropriate accommodation cannot be found.

Like many modern Acts of Parliament, the 2003 Act begins by setting out a number of principles to be considered by those making decisions under the Act. It declares that the powers are to be in such a way as to impose the minimum restriction on the freedom of the patient as is necessary in the circumstances. The principles apply to the Tribunal’s decision making.

In this case, the Tribunal decided that the patient did not require the conditions of special security in the State Hospital but it did not make a declaration triggering the relevant health authority’s obligation to make appropriate arrangements. It decided not to do so because, even though equivalent treatment would be available in the medium-secure unit, the provision would not be as good as that in the State Hospital. There were also some facilities at the State Hospital, not least the extensive grounds, to which the patient had full access, which made it a more congenial environment than that in the alternative medium-secure unit. There was a concern that the patient would become entrapped in the medium-secure unit because he would not be able to be moved down to low-security conditions.

The patient appealed from the Tribunal to the Inner House of the Court of Session. The Second Division refused the appeal. There was no presumption in favour of moving a patient down through the security regime if it was better for the patient, his treatment and thus long-term public safety, for him to stay where he was. That he did not require to be held in conditions of special security was only one aspect of the decision about whether he should be moved. When the patient decided not to accept advice that it would be better for him to stay in the State Hospital he could not be considered to be in same position as a person of full mental capacity making a “bad” choice about treatment.

On appeal to the Supreme Court the patient is to argue that the Tribunal’s discretion not to make a declaration is only to be used in exceptional cases. To do use it otherwise runs against the grain of the statute. The intention of the statute, argues the patient, is to move patients into the lowest security environment appropriate to their risk to themselves and the public. The better treatment resources at the State Hospital were an irrelevant consideration. That the medium-secure accommodation might, in the long-term, be less congenial was also irrelevant. His decision to receive the treatment in the medium-secure conditions should have been respected even if it was a bad decision on his part. The Court of Session had been wrong about his mental capacity. His decision making was not significantly impaired. Overall the Tribunal’s decision was wrong because it failed to respect the obligation to discharge the functions under the Act in a manner that involved the minimum necessary restriction on the patient’s freedom.

The Scottish Ministers will argue that there is no issue of law. The Tribunal was given a broad discretion and, as an expert tribunal, its decision on how to exercise the discretion ought not to be interfered with. The section 1 principles were properly considered. The Ministers argue that the statutory language, even taken with the legislative background, does not restrict the discretion to exceptional cases. That would be an unwarranted gloss on the plain statutory language.

I am obliged to counsel for the appellant and counsel for the Scottish Ministers for giving me access to their written arguments and the statement of facts and issues.