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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 123
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P1019/08
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OPINION OF LORD CARLOWAY
in the petition of
RM
Petitioner;
against
THE SCOTTISH
MINISTERS
Respondents:
ญญญญญญญญญญญญญญญญญ________________
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Act: J J
Mitchell, Q.C., D O'Carroll;
Balfour + Manson LLP
Alt: Mure,
Scottish Government Legal Directorate
27 August 2008
Facts
[1] The
petitioner suffers from a mental disorder. He is detained in Leverndale Hospital,
Glasgow, in terms of a compulsion
order under the Criminal Procedure (Scotland)
Act 1995 (c 46). This petition
challenges the effectiveness of the provisions of section 268 of the
Mental Health (Care and Treatment) (Scotland)
Act 2003 (asp 13). That
section is in Chapter 3 of Part 17 of the Act. It is concerned with the remedy available
when it is alleged that a patient in a hospital, other than a state hospital
(i.e. the State Hospital,
Carstairs), is being detained in conditions of
excessive security. The security level
of the petitioner's unit is rated as "low".
"High" and "medium" levels are appropriate respectively to patients
posing a grave and immediate danger to others if at large or at least a
serious, if less immediate, danger.
"Low" security essentially means that the measures taken "impede rather
than completely prevent absconsions (sic), with greater reliance on staffing
arrangements and less reliance on physical security measures" (Definition of
security levels etc. para 2.8.1, no 7/5 of
process). It will involve the patient
being kept, at times, in a locked ward.
[2] The
2003 Act established the Mental Health Tribunal (section 21). Section 164 provides that a person, who
is subject to a compulsion order, may apply to the Tribunal for an order
revoking the compulsion order or modifying the measures specified in it. Such measures may have included requirements
that the person: be detained in a specified hospital; receive medical
treatment; attend a particular place in order to do so; and reside in a certain
place. The petitioner made an application
to revoke his compulsion order on the basis that he did not need any medical
treatment. The Tribunal (Determination,
6/6) observed that the petitioner did not consider that he required to be kept
in conditions of security or, indeed, that he needed any form of supervision in
the community. The Tribunal rejected
these contentions and concluded that the petitioner required highly skilled
nursing care (medical treatment), which could not be provided in a community setting.
[3] The
petitioner now contends only that the level of security applied to him is
excessive. He avers that he wishes to
reside in an "open ward", thus improving the quality of his life and advancing
the prospects of his ultimate liberation.
His complaint is the lack of any formal mechanism to enable him to
challenge his conditions of security. In
that regard he seeks a declarator that the respondents have failed in their
statutory duty to lay before Parliament regulations in terms of sub-sections 268 (11)
and (12) of the 2003 Act; the existence of such regulations being
essential, the petitioner argues, for the practical operation of the section as
a whole.
Background to the
Legislation
[4] Chapter 3
of Part 17 of the Act is headed "Detention in conditions of excessive
security". The chapter divides its
attention between patients detained in a state hospital and persons placed in
other hospitals. Its provisions stem, at least in part, from
the concerns expressed about persons being "entrapped" in mental health
hospitals in the Report on the Review of the Mental Health (Scotland) Act 1984. This report (7/4), which was produced by the
(Bruce) Millan Committee, was laid before Parliament
in January 2001. It noted that a
patient transferred to the State Hospital from another hospital could
appeal the decision to transfer him to a Sheriff. A person sent to the State Hospital by a court could challenge
that order by an appeal against sentence.
The criteria for admission was that the person required special security
and could not be suitably cared for in another hospital "on account of his
dangerous, violent or criminal propensities" (Millan
Report, paras 67 and 79). The Report continued:
"81. ...It is likely that patients admitted to the State Hospital will meet the admission criteria at the time
of transfer. The Hospital faces
considerable pressure on resources, and is unlikely to admit patients
needlessly. However, the aim of the
Hospital is to provide effective treatment, so that patients may move on to
conditions of lower security in due course.
The problem is that the patient, should his or her condition improve,
has no legal right to move to lower security.
The current rights of appeal would only be relevant in the relatively
unusual situation that the patient is able successfully to argue for absolute
or conditional discharge.
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 had commented to the
Committee that there was little incentive upon local authorities to provide
such services and had suggested the imposition of a statutory duty upon them to
do so. The Committee thought that such a
recommendation was outwith their remit but reported
that:
"83. ...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
subject...
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".
The Committee's focus was primarily
on patients in the State Hospital. The Report recommended the introduction of a
staged appeal process whereby, should a state hospital patient appeal
successfully against the level of his security, the Tribunal could set a time
limit for the local health authority to comply with directions instructing a
lower level (para 90). Further measures could be considered if there
were no compliance within the period set.
[5] The
Report dealt very briefly with non state hospital patients as follows:
"91. Although the current
concern relates to patients entrapped in the State
Hospital, it is possible that the
same difficulties could arise in future in respect of patients in medium secure
services, who are not able to move to low security settings.
We have addressed this in our
recommendations...
Recommendation 27.19
Patients should have a right of
appeal to be transferred from the State
Hospital, or a medium secure
facility, to conditions of lower security".
There was no discussion about appeals from a low security
setting.
[6] The issue of appeals against
detention in conditions of excessive security came before the Health and
Community Care Committee of the Parliament on 5 February 2003 when Stage 2 of what
was then the Mental Health (Scotland) Bill was debated (Official
Report, 7/1). The Bill, which had
been introduced on 16 September 2002, had not contained any
provisions dealing with such appeals (see Policy Memorandum, paras 187-9). Shona Robison (Scottish National Party), who was not
then, of course, in government, proposed Amendments 804 (state hospital
patients) and 805 (non state hospital patients). Ultimately, only Amendment 804 was
moved. Ms Robison said (Col 3804) that the
amendments were:
"directed
largely at addressing the situation of patients who become entrapped at the
state hospital. Some patients no longer
meet the criteria for admission to the state hospital but cannot be transferred
as a result of the inadequate provision of medium-secure and other psychiatric
facilities and services in Scotland...
I accept that patients and others can apply to the tribunal to have a
compulsory treatment order varied, but the relevant provisions lack a clear
indication of the tribunal's powers if it is established that a patient is
contained in conditions of excessive security.
In addition, the importance of the issue from a human rights perspective
would be better expressed in a direct right of appeal".
[7] Mary Scanlon
(Conservative) supported the main amendment (804) but commented (Col 3807) that:
"...the right of appeal against conditions of excessive security will be
of no benefit unless medium-secure units are in place.
The latest figures that I have received from Carstairs
show that 29 people are, in effect, bed-blocking. Their discharge has been delayed because of a
lack of medium-secure units. We found
the same problem when we visited the Orchard Clinic, where people were held in
conditions of excessive security because of a lack of provision in the community".
[8] As a
result of the debate, the Deputy Minister for Health and Community Care
(Mrs Mary Mulligan) announced that the Scottish Executive (as it then
was) were unable to accept the amendments as they stood because of a number of
practical and legal difficulties. She
explained (Col 3809-10) that:
"We also wish to consider whether an appeal right should apply only to
patients at the state hospital, or more widely.
The main focus of concern is on patients at the state hospital and there
would be a number of difficulties in broadening that right to a wider group".
She stated that it was the Executive's intention to
introduce a suitable amendment at a later stage in the progress of the Bill,
once certain legal and practical issues had been "worked through". She confirmed that it was the Executive's
intention:
"to put into the bill a provision that will give patients in
the state hospital the right to appeal against the level of security at which
they are held. If the tribunal
establishes that a patient is being held in conditions of excessive security,
there will be a legal obligation for a specified health board to arrange for
the patient to be accommodated at an appropriate level of security.
However, I must be frank with the committee
and say that, as Mary Scanlon mentioned, we are not sure that such an
appeal right will be workable until local forensic services are better
developed. It might be, therefore, that
such a right could not be brought into effect until later than the other
provisions in the bill, but we are committed to the development of those
services and to the introduction of the right as soon as is feasible".
Standing the assurances given, the Amendment moved was
withdrawn. The focus had remained very
much on the State Hospital patients and the practical
concern centred on the absence of medium security units to which such patients
could be transferred. However, the
prospect of a right of appeal for those in medium security non state hospitals
was at least in contemplation.
[9] The
Bill came before the Parliament for its Stage 3 debate on 20 March 2003 (Official
Report, 7/2). The Deputy Minister
introduced Amendments 681 and 685-8 which, in broad terms, were to become
respectively sections 264 and 268 of the 2003 Act. She said (Col 19741-4) that:
"We have faced many difficult issues during the bill's passage, but one
of the most difficult concerns patients who are detained at an excessive level
of security, in particular those in the state hospital who are ready to move on
but have not been found places in local services. That issue is, rightly, of great concern.
...We have always recognised that it was wholly wrong that some patients
should spend prolonged periods at the state hospital after their condition had
improved to the extent that they could be safely treated in a less secure and
more local environment. However, when we
first considered the Millan recommendations, it
seemed to us that the real problem was the lack of appropriate local
services. An appeal right is of little
use if there is genuinely no bed available that can meet the patient's needs.
We now accept that an appeal provision is not only an important
protection for the individual patient, but should act as a spur for the
development of the local forensic services, which are a key component in our
strategy for mentally disturbed offenders.
We recognise that if the amendments are to achieve their objective,
they have to be backed up by the Executive intensifying the pressure on boards
and local authorities to agree and implement plans that will address any
remaining shortcomings against the assessed need. We need to build on the progress made with
the development of the Orchard Clinic here in Edinburgh and with the new facility at Stobhill in Glasgow by ensuring that the west, north and
north-east of Scotland produce proposals that will secure local
services for those areas.
...Amendment 681 sets out the right of patients who are detained in
the state hospital to apply to the tribunal for an order declaring that the
patient is held in conditions of excessive security...
...At the moment, the problem of entrapped patients particularly concerns
the state hospital, but it is possible that similar problems might arise in
other secure facilities in future.
Amendments 685 to 688 allow for regulations to grant similar rights
in future to patients detained in hospitals other than the state hospital...
...We are happy to accept amendments 740 and 741...That will provide
that the new rights will be brought into force no later than May 2006".
Once more, the focus was on the entrapment of patients
in the State Hospital and the need for the
provision of a broader range of facilities for those no longer requiring the
type of security available at Carstairs. What was being said was that there was the
possibility of "similar problems" arising in other secure facilities "in
future". It was because of the different
levels of problem perceived that the Chapter, in its final form, distinguishes
between state hospital and non state hospital patients.
The Legislation and
its aftermath
[10] In relation to state hospital
patients, section 264 provides that:
"(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...during which the
duties under subsections (3) to (5)
below shall be performed".
Subsections (3) to (5) relate
to the identification of a non state hospital in which the patient can be
detained in "appropriate conditions".
Subsection (6) includes "the patient" as one of the "persons"
referred to in subsection (2).
Thus, section 264 gives a patient at a state hospital a remedy if
he considers that the conditions of his security are excessive.
[11] The provisions relative to patients in non state hospitals are
very different. They are contained
primarily in section 268, which applies "(1) ...where a qualifying patient's
detention in a qualifying hospital is authorised by" a compulsion (or other
similar) order. A "qualifying patient",
amongst others, can apply to the Tribunal, in a manner similar to a state
hospital patient, complaining of excessive security and seeking a reduction in
the level of that security. The critical feature of this section, and that which differentiates
it from section 264, is the requirement for both the patient and the
hospital to be "qualifying". It
continues:
"(11) A
patient is a 'qualifying patient'...if the patient is of a description specified
in regulations.
(12) A hospital is a 'qualifying hospital'...if
-
(a) it is not a state
hospital; and
(b)
it is specified, or of a description specified, in
regulations.
(13) Regulations under subsection
(11) or (12) above may in particular have the effect -
(a)
that "qualifying patient" means a patient;
(b)
that "qualifying hospital" means -
(i) a hospital other than a state
hospital; or
(ii)
part of a hospital".
For the section to be operative
therefore, there have to be regulations specifying who qualifies as a patient
and what qualifies as a hospital.
[12] Section 333, dealing with the commencement of the Act,
states:
"(2) Chapter 3 of Part 17 of this Act shall come into
force on 1 May 2006
or such earlier day as the Scottish Ministers may by order appoint".
The provisions relating to both
state and non state hospital patients were therefore programmed to commence by
the same date. Section 333(3)
provided that the remaining provisions of the Act, other than
sections 325, 326, 330 and 332, were to come into force on such day as the
respondents might appoint.
Section 326 deals with the mode of making orders and regulations
under the Act. The Mental Health (Care
and Treatment) (Scotland) Act 2003 (Commencement No 4)
Order 2005 (SSI No 161) provided that almost all of the provisions of
the Act, other that Chapter 3 of Part 17, were to come into force on
5 October 2005. Sections
permitting the making of regulations were generally brought into force on 21 March 2005. In terms of paragraph 4,
section 268 was brought into force on 6 January 2006, but only for the purpose of
making regulations. Thus, the power to
make regulations specifying who were to be qualifying patients and what were to
be the qualifying hospitals existed for some four months before the general
commencement date for section 268.
[13] A
guidance note issued in April 2006 by the Directorate of Health Care
Policy and Strategy, a limb of the Scottish Executive's Health Department,
stated that the main provisions of the Act "came into effect" on
5 October 2005, but that those in Chapter 3 of Part 17 in
relation to excessive security were required by the Act to "come into effect"
by 1 May 2006. The note
continues:
"2. The provisions in Part 17 will therefore come into effect on 1 May 2006.
These provisions relate to appeals by patients in the State Hospital. No
regulations have been made under s268 to specify qualifying patients or
hospitals to which the provisions in s268 to 270 apply. In effect these sections will not come into
force on 1 May 2006. Further consideration is being
given to whether and if so how these provisions might be extended to other
hospitals and patients".
[14] The
provisions of the Act relative to state hospital patients are in force and
operating. The respondents' position
relative to their failure to render operative the non state hospital provisions
is essentially that they are keeping matters under review having regard,
amongst other things, to: the workload
of the Tribunal; the building and
staffing of mental health units; the
extension and development of local and national forensic mental health
services; evidence of entrapment in
particular hospitals; clinical care issues; and the availability of other
remedies under the Act (see the averments in answer to the thirteenth statement
of fact). A paper from the Executive's
Health Department Directorate for Service Policy and Planning dated 28 July 2006 (7/6) sets out in
broad terms the work being done by the Forensic Mental Health Managed Care
Network established to advise on policy and service
development. A paper called "Configuration
of Forensic Mental Health Services" (7/7) describes the progress made over
the years 1999 to 2005 and highlights the need to create medium and low
security facilities.
[15] A
consultation document on forensic mental services from the Directorate of
Health Care Policy and Planning, Mental Health Division, dated
July 2007 (7/8) describes the progress made relative to the dispersal
of state hospital patients, where the numbers have been reduced from 240 to
185. It analyses the need for places of
high, medium and low security. The
impact of the establishment of non state hospital units at the Orchard Clinic
and (only since 2007) the Rowanbank
Clinic (Stobhill) was assessed along with that
of a proposed unit for the North of Scotland.
Views on the appropriateness of the existing and projected facilities
were sought by September 2007. A
letter from Shona Robison, then and now the
Minister for Public Health, dated 25 June 2007 (6/1), to the
petitioner's law agents does make it clear that the respondents' view then was
that:
"There is currently no evidence to show that
patients in medium secure or low secure units are entrapped. Moreover these patients do have other rights
of appeal to the Tribunal in the event they are unhappy with their care and treatment. Nevertheless we will continue to monitor the
position and will review this decision in spring 2008".
There was little information produced by the
respondents on what has occurred since then, but it seems reasonable to
conclude that there remains at least an apparent lack of enthusiasm for
bringing the provisions of section 268 into effective operation.
Submissions
(a) PETITIONER
[16] The petitioner maintained that
the respondents were under a duty to draft and lay before Parliament, in
advance of 1 May 2006, regulations which would make section 268 operative. The guidance note had correctly identified
Parliament's intention that the provisions of Chapter 3 of Part 17
were to "come into effect" on 1 May; meaning that they were to "come into
force" on that day. In failing to ensure
that this had occurred, the respondents had misused their powers. They did not have a
discretion to exercise.
Parliament's intention had been that those detained in conditions of
excessive security would be able, by 1 May at the latest, to challenge
these conditions before the Tribunal. In
order to give effect to that intention, the respondents were bound to draft and
present relevant regulations in advance of that date.
[17] Where a
section of an Act is intended to create a right of appeal against a decision of
a public authority and regulations are needed to make that right operable, it
followed that Parliament must have intended that the party, on whom the duty
lay, would make the regulations.
Otherwise the section could be seen as a trick on the citizen conferring
a right of appeal which was practically inoperable (Singh v Secretary of State
for the Home Department 1993 SC (HL) 1, Lord Jauncey of Tullichettle at 10; R v
Secretary of State for the Home Office, ex parte Fire
Brigades Union [1995] 2 AC 513,
Lord Browne-Wilkinson at 549-550, Lord Nicholls of Birkenhead
at 574-575, rejecting the argument of the Lord Advocate
(Lord Rodger of Earlsferry QC
at 541)). Where Parliament enacts a
provision, which does not give an option to ministers to select a date for its
commencement, it intends that provision to come into force, in the sense of it
being in effect or in operation, on the date specified. The key to the interpretation of
section 268 was the distinction Parliament had made between the terms of
sub-sections 333 (2) and (3).
It was legitimate to look at the terms of the debates in order to
ascertain Parliamentary intention.
In 2003, Parliament had, after lengthy debate, imposed, by specific
amendment, a date upon which Chapter 3 of Part 17 was to come into
force. That date did not apply only to
the state hospital provisions.
[18] The
date selected by Parliament at the time was some three years into the
future. Now, two years after that
date had passed, there was no indication from the respondents about what was to
be done. There was nothing in the
material produced by the respondents to suggest that anything was being done to
bring the appeal provisions into operation.
In these circumstances the Court should declare the failure of the
respondents to draft and lay regulations before Parliament to be unlawful and
should make an order requiring them to do so within twenty eight days. In that regard, the regulations would not be
complex and, in any event, the respondents had had ample warning of the
petitioner's position in correspondence since June 2007.
[19] There
was no separate argument beyond the above concerning the reasonableness of the
respondents' actings or explanations, nor was there
any submission upon construing the legislation having regard to article 5
of the European Convention on Human Rights and Fundamental Freedoms (cf the averments in the thirteenth statement of fact).
(b) RESPONDENTS
[20] The respondents contended that
there was no duty on them to make regulations under section 268 at any
particular time or with any particular content. The practical problem which had
arisen was that the provisions presumed the existence of a network of hospital
units having varying levels of security.
There was no such network. It had
to be developed. The respondents were
monitoring and establishing the relevant estate. They had not refused to make regulations.
[21] A
distinction existed between a situation where a person had a right vested in
him by legislation and regulations were required to make that right effective (Singh v Secretary of State for the Home Department (supra), Lord Jauncey at 10; Greater London Council v Secretary of State for the Environment 1984 JPL 424,
Hodgson J at 426-7, sub nom. R v Secretary of State for the Environment ex parte Greater London Council (1983)
Times LR 713; Padfield v
Minister of Agriculture, Fisheries and Food [1968] AC 997,
Lord Morris of Borth-y-Gest (dissenting)
at 1039) and a situation where no such right existed, such as in the
petitioner's case. Section 268 did
not confer a right on any person. R v
Secretary of State for the Home Office, ex parte Fire
Brigades Union (supra) was
concerned with whether there was a duty to bring legislation, in the form of a specific
statutory scheme, into force at some point in the future
(Lord Browne-Wilkinson at 551).
That was not the position here, where there was a discretion conferred
upon the respondents regarding the content of any regulations. There had been, in that case, a "duty to
consider" when to bring the scheme into force (Lord Nicholls
at 575). The respondents here had
continued to carry out such consideration on when to introduce any regulations
and what their content should be.
[22] Parliament
had been aware of the provisions of section 268 when it enacted
sub-section 333(2). It was not
forcing the respondents to make regulations in advance of the commencement date
of 1 May. No such regulations could
have been made until section 268 was in force to some extent. Section 268 contained no obligatory
language about the making of regulations and the identification of both
patients and hospitals was left to the respondents to determine. Parliament had been aware of the requirement
to build the relevant mental health units and it was unlikely therefore that it
had intended that the respondents should make regulations before any particular
date. As had been commented upon in the
debates, there was no point in having a right of appeal if there were no
facilities to give a successful appeal some practical effect.
[23] If
there were a duty on the respondents to make regulations then the case ought to
be put out By-Order to determine a number of practical issues including timing.
Decision
[24] As a generality, if Parliament wishes to
impose a duty on a person to do something, it can do so expressly. In particular, if it wishes to compel a
Minister to make regulations, and to do so within a particular period, it has
the power to make that clear in any legislation it passes (R v Secretary of State for
the Home Office, ex parte Fire Brigades Union (supra), Lord Browne-Wilkinson
at 550). However, if legislation
vests a person or class of persons with a right and that right can only be
exercised if regulations governing that exercise are in force, it will be
assumed (i.e. without express provision) that Parliament intended that the
person, who is delegated with the relative power, make regulations so as to
activate the right in practice (Singh v Secretary of State for the Home Department (supra) Lord Jauncey
at 10). That is not the position
here. Section 268 does not confer
any rights upon any person or class of persons.
What it does do is permit the identification of such persons or class of
person by regulation. The regulations
are those which might be made by the respondents (sub-section 329(1)) and
approved by Parliament (sub-section 326(4)). It is only once such regulations are made and
given legal effect that any right can arise.
Parliament did require that section 268 came into force on
1 May, at the latest. It was
brought into force earlier by the respondents' order only for the purpose of
making regulations. But the fact that
the section had partial and then total legal effect on the dates specified did not
carry with it an obligation to make regulations under it either in advance or
thereafter.
[25] If
Chapter 3 of Part 17 is looked at as a whole and in conjunction with
the commencement provision in section 333(2), the contrast between what
Parliament intended as between state hospital and non state hospital patients
is reasonably clear. The intention was
for the state hospital patients' provisions to have effect in a practical sense
once the Chapter came into force. No
further legislative action was required.
On the other hand, for non state hospital patients, further action was
needed in the form of regulations which would define the extent of
applicability of the appeal provisions for such patients. It was envisaged that there might be a
blanket application to all patients at all non state hospitals (s 268(13))
or that only certain patients in certain hospitals might be afforded appeal
rights. Parliament laid down no criteria
in that regard and, most importantly, it laid down no time scale for the making
of any regulations. Section 268,
when contrasted with section 264, carries with it an implication that any
regulations would be made as and when the respondents thought it appropriate to
do so, having regard to such relevant considerations as may have occurred to
them over time. Looking at the
legislation on its own, therefore, there appears to be no legal obligation
imposed upon the respondents other than to consider whether regulations are
required and, if so, when.
[26] It was
not disputed that it was legitimate to look at all of the background material
in order to determine the intention of Parliament in enacting
Chapter 3. When this is done, it is
equally clear that, whereas the intention was to introduce appeals for state
hospital patients immediately upon the specified commencement date, it was only
to permit the respondents a discretion on whether and
when to introduce the similar provisions for non state hospital patients. That clarity arises from the focus apparent
upon entrapped patients in the State Hospital identified in the Millan Report right through to the Stage 3 debate
when the Deputy Minister stated that the amendments would permit "regulations
to grant similar rights in future to patients detained in hospitals other than
the state hospital". The background
material demonstrates that Parliament was aware that there were immediate
difficulties with patients at the State Hospital and it decided to force the
pace on that matter by imposing a deadline by which time, or thereby, local
health authorities would have to have gone some way towards providing mental
health facilities for those whom the Tribunal did not consider should be
detained in the State Hospital. It also
shows that, in relation to non state hospital patients, Parliament was
satisfied only that a problem might arise in that area in the future. There is no material indicating that what was
perceived in the latter sector was a problem so acute that Parliament required to take the slightly unusual step of setting a deadline in
primary legislation. Rather, it was
apparent that practical considerations remained at the forefront of
Parliamentary thinking. Whereas medium
secure units were being developed at the Orchard and Rowanbank
Clinics, which were designed to accommodate some of those no longer requiring
state hospital detention, lesser forensic mental health services at a community
level remained, and probably remain, in relative infancy. Against that background, it would have been
surprising if Parliament had sought to impose a deadline for the making of
regulations or indeed had decided to set a template for the qualifying criteria
which the regulations would specify.
But, of course, should Parliament wish to do so now, it has that power
to impose both deadline and template.
That power does not rest with the courts.
[27] In all
these circumstances, the conclusion is that there is no duty of the type
contended for by the petitioner and no unlawfulness in the actings
of the respondents. The respondents'
second plea-in-law will be sustained, the petitioner's plea-in-law repelled and
the prayer of the petition, which is contained in the third statement of fact,
will be refused.
