On appeal from: [2011] CSIH 55.

The appellant, detained in a state hospital under a ‘compulsion order’ and ‘restriction order’ following his acquittal for rape, assault and breach of the peace on the ground of insanity, applied for an order declaring that he was held in conditions of excessive security under the Mental Health (Care and Treatment) (Scotland) Act 2003, s 264. His application was refused. At the first stage of its analysis the Tribunal found that the appellant did not need to be detained under conditions of special security that could only be provided at the hospital, but that the psychology department of the hospital was best placed to deliver the treatment he required in order to manage his risk of sexual violence towards women. Also, the risk he posed meant he would need to be subjected to greater restrictions on his movement in a medium secure hospital than he was subject to in the current hospital.

The Supreme Court unanimously dismissed the appeal. Although it was not readily apparent that the Tribunal understood the structure of s 1 relating to the importance of providing maximum benefit and the principle of finding the least restrictive alternative arrangement, on the facts of this case it cannot have affected its decision. The Tribunal was entitled to exercise its discretion having regard to all relevant matters, including the presence of female patients at medium secure hospitals which would require greater restrictions on the appellant.

It was also noted that although it would be unreasonable to make a s 264 order where there is no conceivable possibility of a bed being found elsewhere, it is a conclusion that a tribunal should be slow to reach. Although the unavailability of accommodation does not preclude the granting of an application, it does not mean the comparative quality of treatment at other hospitals is irrelevant.

For judgment, please download: [2013] UKSC 79
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