G v Scottish Ministers and another (Scotland)

When determining whether a patient is detained under conditions of excessive security, the tribunal applies a two-stage process. It first decides whether the patient requires the special security available only in a state hospital. The availability of suitable accommodation elsewhere is irrelevant at that stage.

If the condition is satisfied, an order should ordinarily follow unless there is a good reason for refusal. The tribunal must apply the statutory principles, including maximum patient benefit, appropriate services and the minimum restriction on freedom necessary in the circumstances. Risk, comparative treatment provision and the restrictions likely in another hospital may be relevant. The discretion is not confined to exceptional circumstances.

The appellant was detained in the State Hospital at Carstairs under a compulsion order and restriction order. He applied to the Mental Health Tribunal for Scotland for an order under section 264(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003, declaring that he was detained under conditions of excessive security.

The tribunal found that he could be managed in a medium secure hospital, but refused an order in its discretion. It considered that treatment at the State Hospital would provide the maximum benefit, while an immediate transfer would create risks to women, require greater restrictions and risk harming his mental health.

The Inner House refused his statutory appeal: [2011] CSIH 55; 2012 SC 138. The Supreme Court considered the structure of section 264(2), the principles in section 1, and the relevance at the discretionary stage of risk, alternative accommodation and comparative treatment resources.

1. Appeal dismissed. Lord Reed delivered the principal judgment, with which Lord Wilson, Lord Sumption and Lord Hodge agreed. Lady Hale agreed, although with some reluctance.

2. Section 264(2) establishes two stages. First, the tribunal must decide whether the patient requires conditions of special security available only in a state hospital. This is a factual question about the security the patient requires. The availability of accommodation in another suitable hospital is irrelevant at that stage. Secondly, if the condition is satisfied, the tribunal must decide whether to exercise its discretion to make an order and, if it does, specify the applicable period.

3. The second-stage discretion must be exercised under section 1 and consistently with section 264's policy of preventing patients who no longer require state-hospital security from becoming entrapped there. An order should therefore be made unless there is a good reason for refusal. The discretion is nevertheless wide and is not confined to exceptional circumstances. Exceptionality cannot itself constitute a legal test.

4. Section 1 requires the tribunal first to consider the relevant matters in subsections (3), (5) and (6), together with all other relevant circumstances. Section 1(4) then governs the manner of decision: the tribunal must choose what appears to involve the minimum restriction on the patient's freedom that is necessary. Freedom is a broad concept. Conditions of security and restrictions on freedom are not synonymous, and section 1(4) does not automatically outweigh patient benefit, public protection or the safety of others.

5. The absence of an available medium-secure bed does not by itself preclude an order. Parliament provided staged enforcement precisely to allow arrangements to be made. Nevertheless, evidence that appropriate conditions cannot be provided elsewhere, that state-hospital treatment is clinically superior, or that no appropriate placement is conceivably available within a realistic period may constitute a good reason for refusal. The contrary view in Lothian Health Board v BM, 2007 SCLR 478, went too far.

6. Risk remains relevant at both stages, but for different purposes. At stage two the tribunal cannot contradict its stage-one finding by treating state-hospital security as necessary. It may, however, consider risks arising in another setting, the resulting restrictions on freedom, and consequences for the patient's health.

7. The tribunal lawfully concluded that the appellant's treatment needs were better met at the State Hospital and that transfer would entail greater restrictions and material risks. Its reasons addressed the critical issues sufficiently. It was unnecessary to recite every consideration in section 1 formulaically.

2. United Kingdom Supreme Court: Dismissed the appeal and affirmed the refusal of the application under section 264(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003.
3. Inner House of the Court of Session: Refused the statutory appeal from the tribunal: [2011] CSIH 55; 2012 SC 138.
4. Mental Health Tribunal for Scotland: Found that the appellant did not require state-hospital-only special security, but exercised its discretion to refuse an excessive-security order.