UKSC 79
On appeal from:  CSIH 55
G (AP) (Appellant) v Scottish Ministers and another (Respondents) (Scotland)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
18 December 2013
Heard on 7 and 8 October 2013
Joanna Cherry QC
(Instructed by McKennas)
Gerry Moynihan QC
Anna Poole QC
(Instructed by Scottish Government Legal Directorate Litigation Division)
Kenneth Campbell QC
(Instructed by The Mental Health Tribunal for Scotland)
LORD REED (with whom Lord Wilson, Lord Sumption and Lord Hodge agree)
The background to the Act
"82. We have received evidence from the State Hospital and the Mental Welfare Commission that there are significant numbers of 'entrapped patients'. These are patients who no longer require the level of security afforded by the State Hospital, but for whom appropriate local services are not available. The State Hospitals Board suggested that there is currently little incentive for local health boards and trusts to arrange secure psychiatric services. The local public is unlikely to welcome such services (indeed quite the reverse), and funding arrangements do not create incentives to develop such services. The Board strongly advocated that an explicit statutory duty be placed on health boards to commission local services to address the need for a range of medium and low security services for mentally disordered offenders.
83. We have considerable sympathy with the position of the State Hospital on this point. However, we have decided that, in terms of our core remit of reviewing the Mental Health (Scotland) Act 1984, it would be more appropriate for us to propose another means of addressing this problem, which is more directed at the rights of individual patients. This is that patients should have a continuing right to appeal against the level of security to which they are subjected.
84. It seems to us that to detain a patient unnecessarily in conditions of high security is inconsistent with respect for the patient's rights, and our general principle of Least restrictive alternative. Furthermore, the proposed development of medium secure units would seem to make it more likely that such an appeal right would be practicable."
"We therefore suggest that, should a patient successfully appeal to a tribunal against the level of security, it should set a time within which the necessary provision should be arranged by the responsible health board. The time limit might be of the order of three months. Should arrangements not be made at the expiry of that period, representatives of the health board should be required to appear before the tribunal to explain the position, and to confirm whether there is a prospect of a placement being found within a reasonable period. The tribunal should be able to extend the time limit for a further period of no more than three months. If, at the end of that period, no provision has been made, the tribunal could order that arrangements must be put in place to accommodate the patient within 14 days." (Chapter 27, para 89)
Section 1 of the Act
"(1) Subsections (2) to (4) below apply whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a patient who has attained the age of 18 years."
The tribunal does not fall within subsection (7). Subsections (2) to (4) therefore apply to the tribunal whenever it is discharging a function by virtue of the Act in relation to a patient who is over 18. One of the functions discharged by the tribunal under the Act, to which subsections (2) to (4) therefore apply, is that of taking decisions under section 264(2).
"(2) In discharging the function the person shall, subject to subsection (9) below, have regard to the matters mentioned in subsection (3) below in so far as they are relevant to the function being discharged."
Subsection (9) is not relevant to the present case, and need not be considered further. Subject only to that provision, the tribunal is under a statutory duty to have regard to the matters mentioned in subsection (3) so far as they are relevant to the function being discharged: such as, in the present case, the taking of decisions under section 264(2).
"(3) The matters referred to in subsection (2) above are -
(a) the present and past wishes and feelings of the patient which are relevant to the discharge of the function;
(b) the views of [the patient's named person, carer, guardian and welfare attorney, if any], which are relevant to the discharge of the function;
(c) the importance of the patient participating as fully as possible in the discharge of the function;
(d) the importance of providing such information and support to the patient as is necessary to enable the patient to participate in accordance with paragraph (c) above;
(e) the range of options available in the patient's case;
(f) the importance of providing the maximum benefit to the patient;
(g) the need to ensure that, unless it can be shown that it is justified in the circumstances, the patient is not treated in a way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation;
(h) the patient's abilities, background and characteristics, including, without prejudice to that generality, the patient's age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group."
"(5) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act (other than the making of a decision about medical treatment) in relation to a patient, the person shall have regard, in so far as it is reasonable and practicable to do so, to -
(a) the needs and circumstances of any carer of the patient which are relevant to the discharge of the function and of which the person is aware; and
(b) the importance of providing such information to any carer of the patient as might assist the carer to care for the patient."
As I have explained, the tribunal does not fall within subsection (7); and a decision under section 264(2) is not a decision about medical treatment. It is therefore a decision to which section 1(5) applies.
"(6) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a person who is, or has been, subject to -
(a) detention in hospital authorised by [an emergency detention certificate];
(b) detention in hospital authorised by a [short-term detention certificate];
(c) [a compulsory treatment order]; or
(d) [a compulsion order],
the person who is discharging the function shall have regard to the importance of the provision of appropriate services to the person who is, or has been, subject to the certificate or order concerned (including, without prejudice to that generality, the provision of continuing care when the person is no longer subject to the certificate or order)."
Since section 264 applies where a patient's detention in a state hospital is authorised by inter alia a compulsory treatment order or a compulsion order, it follows that section 1(6) can apply when the tribunal is taking a decision under section 264. It did so in the present case, the appellant being subject to a compulsion order.
"(4) After having regard to -
(a) the matters mentioned in subsection (3) above;
(b) if subsections (5) and (6) below apply, the matters mentioned there; and
(c) such other matters as are relevant in the circumstances,
the person shall discharge the function in the manner that appears to the person to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances."
Section 264 of the Act
"(2) On the application of any of the persons mentioned in subsection (6) below, 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 -
(a) declaring that the patient is being detained in conditions of excessive security; and
(b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed."
The patient is among the persons mentioned in subsection (6), and is therefore entitled to make such an application.
"(3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital—
(a) which is not a state hospital;
(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and
(c) in which accommodation is available for the patient."
Section 264(4) makes analogous provision in relation to patients who are not relevant patients. A "relevant patient" is defined by section 273 as one whose detention in hospital is authorised by a compulsion order and who is also subject to a restriction order, or one whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction. The appellant falls into the first of these categories and is therefore a relevant patient. Section 264(5) provides that, where the tribunal makes an order under subsection (2), the relevant health board shall, as soon as practicable after identifying a hospital under subsection (3) or (4), notify the managers of the state hospital of the name of the hospital so identified.
The present case
The challenge to the tribunal's decision
The width of the discretion exercised at stage two
The relevance of risk at stage two
The relevance of the quality of the resources available in medium secure hospitals
The tribunal's failure to refer to section 1(3)(a) and (g)
The relationship between section 1(3)(f) and section 1(4)