G v Scottish Ministers and another (Scotland)

This appeal concerns the interpretation and application of the Mental Health (Care and Treatment) (Scotland) Act 2003, in particular section 264(2) and the statutory principles in section 1. The Supreme Court affirmed that the tribunal’s decision under section 264(2) involves a two-stage process: (1) a factual determination whether the patient requires detention under conditions of special security that can be provided only in a state hospital; and (2) a discretionary decision whether to make an order, exercising the discretion in accordance with the matters to which section 1 requires regard and the requirement in section 1(4) to adopt the minimum restriction on the patient’s freedom that is necessary.

The Court held that the availability of alternative accommodation is not decisive at stage one and need not preclude the making of an order at stage two, but the quality and availability of appropriate treatment outside the state hospital, and the implications for risk and the patient’s mental health, are relevant considerations under section 1(3)(f) and section 1(6). Risk remains relevant at both stages in different respects. The tribunal’s refusal of the patient’s application was not unlawful: it had been entitled to conclude at stage one that the patient could be managed in a medium secure hospital but, at stage two, to refuse the order because remaining in the state hospital better promoted the patient’s therapeutic interests and avoided greater restrictions on his freedom outside the state hospital.

Background and procedural history

The appellant was a patient detained at the State Hospital at Carstairs under orders that are now treated as a compulsion order and restriction order. He applied to the Mental Health Tribunal for Scotland under section 264(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 for an order declaring he was detained in conditions of excessive security and specifying a period during which the duties in subsections (3) to (5) should be performed. The tribunal refused the application in 2009. An appeal to the Court of Session was dismissed ([2011] CSIH 55; 2012 SC 138). The appellant appealed to the Supreme Court.

Nature of the application and issues

• The application sought an order under section 264(2) declaring excessive security and triggering duties on the health board to identify alternative accommodation.
• The principal issues before the Court were: the proper construction of section 264(2) and the two-stage decision-making it requires; the application of the statutory principles in section 1 (including subsections (3), (4), (5) and (6)); whether availability or quality of alternative accommodation and treatment is relevant at stage one or stage two; the role of risk in each stage; and whether the tribunal gave adequate reasons and applied the correct legal test.

Court’s reasoning

The Court explained that section 264(2) requires first a factual finding whether the patient requires to be detained under conditions of special security that can be provided only in a state hospital. If the tribunal is satisfied that the statutory threshold is not met, it remains required to exercise a discretion whether to make an order. That discretionary exercise falls within the scope of section 1: the tribunal must have regard to the matters listed in section 1(3), (5) and (6) so far as relevant and then discharge the function in the manner that appears to involve the minimum restriction on the freedom of the patient that is necessary (section 1(4)).

The Court held that (i) the unavailability of accommodation outside the state hospital does not automatically preclude making an order; (ii) the quality and suitability of treatment and services available elsewhere may be relevant to the exercise of the discretion because they affect the importance of providing maximum benefit (section 1(3)(f)) and the provision of appropriate services (section 1(6)) and may change the necessary restrictions on the patient’s freedom; (iii) risk is relevant at both stages, but in different ways; and (iv) the tribunal’s reasons in this case were sufficient and its approach lawful and not unreasonable given the evidence that the State Hospital could offer more appropriate psychological treatment and that transfer might expose the patient to greater movement restrictions and risk to his mental health. The appeal was dismissed.

Appeal dismissed. The Court held that section 264(2) involves a two-stage decision: (1) whether the patient requires conditions of special security available only in a state hospital; and, if not, (2) a discretionary decision whether to make an order, exercised in accordance with the matters in section 1 and the requirement in section 1(4) to adopt the minimum necessary restriction on the patient’s freedom. Availability of alternative accommodation is not decisive, but the quality and suitability of treatment and the implications for risk and the patient’s welfare are relevant considerations. The tribunal acted within its lawful discretion and gave sufficient reasons.

The tribunal refused the appellant's application in 2009. The appellant's appeal to the Court of Session was dismissed ([2011] CSIH 55; 2012 SC 138). The appellant then appealed to the Supreme Court, which dismissed the appeal ([2013] UKSC 79).