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On appeal from: [2011] CSIH 19

The appellant patient was compulsorily detained in a non-state hospital, and sought a declaration that he was being held in conditions of excessive security. Under the Mental Health (Care and Treatment) (Scotland) Act 2003, s 268 there were provisions for patients in non-state hospitals to apply to the Mental Health Tribunal for such declarations if they met the criteria of “qualifying patients” in “qualifying hospitals”. Although regulations defining other terms in the 2003 Act came into force on 1 May 2006, the terms “qualifying patients” and “qualifying hospitals” remain undefined, meaning s 268 was not in effective operation and so the appellant was unable to apply for a review of his detention conditions.

The Supreme Court unanimously allowed the appeal. The failure of the Scottish Ministers to draft and lay the regulations under s 268 of the 2003 Act prior to 1 May 2006, and their continued failure to do so, was and is unlawful. The respondent’s argument that s 268 was “in force” by 1 May 2006 but did not “operate” was held to be invalid – it was the intention of the Scottish Parliament that the rights of application under s 268 should be in effective operation by that date. Also, it was a basic principle of administrative law that a discretionary power must not be used to frustrate the object of an Act of Parliament, and the respondent’s failure to make the necessary regulations to give practical effect to s 268 was unlawful under that principle.

For judgment, please download: [2012] UKSC 58
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII