Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 37
A763/08	OPINION OF LORD STEWART in the cause DAVID ROY SHERRIT Pursuer; against NHS GREATER GLASGOW AND CLYDE HEALTH BOARD Defenders ­­­­­­­­­­­­­­­­­________________

Pursuer: Logan; Drummond Miller LLP

Defenders: Fitzpatrick; NHS Scotland Central Legal Office

18 February 2011

[1] On 2 December 2010 this action for damages called before me on the Procedure Roll for a debate on parties' preliminary pleas. The action raises questions about the relationship between Article 5 of the European Convention on Human Rights (right to liberty and security) and sections 264-266 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13). Sections 264-266 of the 2003 Act bear to address the mischief of mentally disordered offenders "trapped" in conditions of excessive security in the State Hospital, Carstairs.

[2] The interpretative challenge lies in the fact that ss 264 and 265 seem to be laws without effect: if orders made under s 264(2)(b) to bring about the transfer of "trapped" patients are not complied with, nothing seems to happen, except that further orders can be made under s 265; and if orders made under s 265(3)(b)(ii) to bring about the transfer of "trapped" patients are not complied with, nothing seems to happen, except that further orders can be made under s 266.

[3] At one point during the debate the provisions were described as "window-dressing", enacted in the knowledge that medium security facilities for the number of patients that might require to be transferred to them were not available. The pursuer was one such patient. He claims to have been unlawfully detained in the State Hospital pending his eventual transfer. He seeks damages for his claimed unlawful detention.

Factual background

[4] On 24 February 2000, after trial at the High Court, Glasgow, the pursuer was convicted of attempted rape. The victim was a bedridden woman living in a sheltered housing complex. Following conviction the pursuer was made the subject of a Hospital Order with a Restriction Order in terms of the Criminal Procedure (Scotland) Act s 58 (now repealed and replaced) and s 59 (now amended). I was told at the debate that the warrant for the pursuer's compulsory treatment became a Compulsion Order in terms of the Criminal Procedure (Scotland) Act 1995 as amended s 57A. (When and how this happened was not explained.) The Restriction Order continued, though now regulated by Part 10 of the 2003 Act. The Hospital Order and subsequently the Compulsion Order authorised the pursuer's detention at the State Hospital, Carstairs, in conditions of special security.

[5] The pursuer avers that for some years before 2006 he did not require to be detained at the State Hospital: but he could do nothing about that until the 2003 Act came into force. The relevant provisions of 2003 Act came into force on 1 May 2006, the long-stop date for bringing the provisions into effect. Six weeks later, on 19 June 2006, the pursuer applied to the Mental Health Tribunal for Scotland ["the Tribunal"] in terms of the 2003 Act s 264 (first) for a declaration that he was being detained in conditions of excessive security and (second) for an order on the defenders to identify another hospital where the pursuer could be detained in conditions of appropriate security. Following a hearing on 11 September 2006 the Tribunal made a declaration that the pursuer was being detained in conditions of excessive security and specified a period of three months for performance by the defenders of their duties under s 264 to identify another hospital for the pursuer, etc. The last date for compliance was 10 December 2006.

[6] The defenders did not comply and the Tribunal arranged a further hearing. Following the further hearing on 9 January 2007 the Tribunal made a declaration that the pursuer was being detained in conditions of excessive security and specified a period of three months for performance by the defenders of their duties under s 265 to identify another hospital for the pursuer, etc. The last date for compliance was 8 April 2007.

[7] The defenders did not comply and the Tribunal arranged a further hearing. Following the further hearing on 20 April 2007 the Tribunal made a declaration that the pursuer was being detained in conditions of excessive security and specified a period of 28 days for performance by the defenders of their duties under s 266 to identify another hospital for the pursuer. The last date for compliance was 18 May 2007.

[8] The defenders did not comply. The pursuer remained in conditions of special security at the State Hospital, Carstairs, until 11 September 2007. On that date he was transferred to the newly-opened Rowanbank Clinic, a 74-bed, medium security, forensic mental health unit at Stobhill, Glasgow. Since transfer the pursuer has received appropriate treatment for his condition and has been able to undertake supervised visits into the community. He has visited public places such as museums, shops and restaurants with members of his family.

The Pursuer's claim and the Defenders' preliminary defence

[9] The pursuer seeks declarator and damages. He asks the Court to declare that his Article 5(4) rights, European Convention of Human Rights [ECHR], were breached "by the acts and failures to act of the defenders as a result of which he was detained in conditions of excessive security at the State Hospital, Carstairs." The pursuer seeks damages for the fact that he was, he says, wrongly detained in conditions of excessive security "for at least an additional nine months".

[10] The nine month period is the period from the last date for compliance with the Tribunal's first order, 10 December 2006, to the date of the pursuer's eventual transfer, 11 September 2007. The pursuer avers that, while his detention at the State Hospital continued, he did not receive appropriate treatment for his condition, he was deprived of privacy, his movements were unnecessarily restricted, his possessions were unnecessarily controlled and his access to the outside world was impaired. He also claims consequential loss: because of the defenders' failures, he alleges, his ultimate release date will be delayed by six to twelve months. The sum sued for is £20,000 with interest.

[11] The pursuer does not, at this stage, claim that his continued detention at Carstairs after 10 December 2006 constituted a breach by the defenders (or anyone else) of their duties to him under the 2003 Act ss 264-266.

[12] The case came before me on the Procedure Roll for debate on parties' preliminary pleas. The defenders plead that the action is incompetent and should be dismissed and, separately, that the pursuer's averments are irrelevant and that the action should be dismissed for that reason also. The pursuer pleads that the defences are irrelevant and should be repelled. Pursuer's Counsel moved during the debate to amend the pursuer's case by adding a claim of breach of statutory duty. I refused the motion in hoc statu on the ground that it was not expedient to have a substantial new case added mid-debate. Parties were agreed that the case should be put out by Order in due course when the motion to amend might be renewed.

[13] Having heard submissions from counsel and made avizandum, I have reached the conclusion that the action as pled is not well founded in law.

Legislative framework

[14] The Human Rights Act 1998 (c. 42) s 1 and Sched 1 incorporates Article 5 of the European Convention on Human Rights, insofar as relevant to the present case, to the following effect:

"Article 5

Right to liberty and security

1. - Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

[...]

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

[...]

4. - Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. - Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

[15] The Mental Health (Care and Treatment) (Scotland) Act 2003, ss 264-267 provides that where a patient is detained in conditions of special security under one of the orders specified, which the pursuer was, application may be made by the patient to the Tribunal for review of the conditions of detention as follows:

"Part 17 Patient Representation etc

CHAPTER 3: DETENTION IN CONDITIONS OF EXCESSIVE SECURITY

State hospitals

264 Detention in conditions of excessive security: state hospitals

[...]

(2) On the application of [the patient], 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.

(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.

[...]

(5) Where the Tribunal makes an order under subsection (2) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (3)... above, give notice to the managers of the state hospital of the name of the hospital so identified.

[...]

265 Order under section 264: further provision

(1) This section applies where-

(a) an order is made under section 264 (2) of this Act in respect of a patient; and

(b) the order is not recalled under section 267 of this Act; ...

(2) If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the patient has been transferred to another hospital, there shall be a hearing before the Tribunal.

(3) Where such a hearing is held, 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-

(i) a period of 28 days; or

(ii) such longer period not exceeding 3 months as the Tribunal thinks fit, beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed.

(4) Where the Tribunal makes an order under subsection (3) 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.

[...]

(6) Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4)... above, give notice to the managers of the state hospital of the name of the hospital so identified.

[...]

266 Order under section 265: further provision

(1) This section applies where-

(a) an order is made under subsection (3) of section 265 of this Act in respect of a patient;

(b) the order specifies the period mentioned in paragraph (b)(ii) of that subsection; and

(c) the order is not recalled under section 267 of this Act; ...

(2) If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the patient has been transferred to another hospital, there shall be a hearing before the Tribunal.

(3) Where such a hearing is held, 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 the period of 28 days beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed.

(4) Where the Tribunal makes an order under subsection (3) 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.

[...]

(6) Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4)... above, give notice to the managers of the state hospital of the name of the hospital so identified.

[...]

272 Proceedings for specific performance of statutory duty

(1) The duties imposed by virtue of-

(a) an order under section 264(2) of this Act;

(b) an order under subsection (3) of section 265 of this Act which specifies the period mentioned in paragraph (b)(ii) of that subsection;

[...]

shall not be enforceable by proceedings for specific performance of a statutory duty under section 45(b) of the Court of Session Act 1988 (c. 36).

(2) Without prejudice to the rights of any other person, the duties imposed by virtue of-

(a) an order under subsection (3) of section 265 of this Act which specifies the period mentioned in paragraph (b)(i) of that subsection;

(b) an order under section 266(3) of this Act;

(c) an order under subsection (3) of section 269 of this Act which specifies the period mentioned in paragraph (b)(i) of that subsection; or

(d) an order under section 270(3) of this Act,

shall be enforceable by proceedings by the Commission for specific performance of a statutory duty under section 45(b) of that Act of 1988."

Background to the Mental Health (Care and Treatment) (Scotland) Act 2003

[16] In 2001 a report entitled Report on the Review of the Mental Health (Scotland) Act 1984 (SE/2001/56) was laid before the Scottish Parliament by the Committee chaired by the Rt Hon Bruce Millan. The report identified the problem that State Hospital patients had no legal right to transfer to conditions of lesser security. The result was that there were about 30 "entrapped" patients in the State Hospital. The report recommended that patients should have a continuing right of appeal against the level of security to which they were subject. The recommendation was the genesis of ss 264-266:

"86. The question arises as to what should happen if the necessary arrangements are not put in place to provide care at a lower level of security. Clearly it would be undesirable that a patient who is still assessed as requiring some degree of secure care should simply be discharged. On the other hand, such a right of appeal is meaningless, unless it is capable of being upheld.

87. A number of suggestions were made as to how such an appeal right might be enforced. The Faculty of Advocates suggested that a failure by a health board to comply with directions following an appeal could amount to contempt of court. However, Greater Glasgow Health Board pointed out that there could be practical difficulties in developing appropriate provisions, which may be outwith the control of the health board.

88. A number of respondents suggested that the body hearing the appeal should be able to set a time limit for provision of the appropriate service. After this period, it should have the right to require health boards, or even Ministers, to appear before it to explain any ongoing failure to meet the needs of the patient.

89. We agree that a staged approach is appropriate. 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."

The Millan Report also stated, at Ch 27, § 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."

[17] Further background to the legislation is helpfully set out by Lord Carloway in his Opinion in M v The Scottish Ministers 2008 SLT 928. When the Bill came before the Scottish Parliament for its stage 3 debate on 20 March 2003, the Deputy Minister for Health and Community Care introduced amendments which were to become the provisions with which this case is concerned. The Deputy Minister said:

"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 has 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 services. An appeal right is of little use if there is genuinely no bed available to meet the patient's needs."

[18] The first medium security, forensic mental health unit, the 50-bed Orchard Unit, Royal Edinburgh Hospital, was opened in 2000. The Rowanbank Clinic, Stobhill, Glasgow - to which the pursuer was eventually admitted - accepted its first patients in August 2007. It became fully operational by the end of 2008.

Submissions for the Defenders

[19] Mr Fitzpatrick, Counsel for the defenders, explained that a challenge to the competency of the proceedings had been tabled at a time when no substantive pleas were annexed to the Summons, contrary to RCS 13.2 (3): "... there shall be annexed to the Summons... appropriate pleas-in-law." The defect had since been cured by amendment - or possibly not: if the pursuer intended to make a distinct case of breach of statutory duty, there was no supporting plea-in-law and to that extent the claim was not in competent form. The averments were ambiguous on the point. (This point was effectively dealt with when Counsel for the pursuer moved to amend to add a breach of statutory duty case, as narrated above. The debate proceeded on the assumption that there was no such case.)

[20] Counsel submitted that the action as framed was irrelevant and ought to be dismissed. The 2003 Act ss 264 and 265 might contain the language of obligation but nowhere do the provisions impose an enforceable duty on the defenders. In any event the duty referred to is only to identify a hospital; and the duty to notify is subject to the qualification "as soon as practicable." If there is no suitable hospital then it cannot be practicable for the defenders to notify a suitable hospital. Section 266 might impose an enforceable obligation in terms of s 272, but non-compliance is not a breach of the Convention. As regards the Convention, Counsel for the defenders submitted that Article 5 ECHR was aimed at the mischief of arbitrary detention. Article 5 was concerned with the fact of detention and whether it was lawfully authorised, not with the conditions of detention. The pursuer's complaint was about the conditions of his detention. It was plain that the alternative envisaged by Article 5(4) was release from detention, not a change in the conditions of detention, as sought by the pursuer. There was ample authority to this effect: A v Scottish Ministers 2001 SC 1 at 21, § 55, 22, § 58, per the Lord President and 2002 SC (PC) 63 at 72, §§ 28-29, per Lord Hope of Craighead; Winterwerp v The Netherlands Series A, No 33 (1979), 2 EHRR 387, at §§ 10, 36-39, 51, 55-57, 62; Ashingdane v United Kingdom Series A, No 93 (1985), 7 EHRR 528, at §§ 10-15, 44-49; Aerts v Belgium Reports etc 1998-V (1998), 29 EHRR 50, at §§ 8-14, 17-18, 42-43, 45-56; R (Mackenzie) v Secretary of State for Justice 2010 1 PLR 107, §§ 5-7. I have since read another case which broadly supports the defenders' position, Munjaz v Mersey Care National Health Service Trust & Ors [2003] EWCA Civ 1036 (16 July 2003); [2005] UKHL 58 (13 October 2005); Munjaz v United Kingdom 32913/06 [2008] ECHR 215 (20 March 2008.)

Submissions for the Pursuer

[21] Mr Logan, Counsel for the pursuer, told me that the pursuer's was a test case. Twenty-nine individuals were in the same predicament. The number was small: but the problem was serious, as the Scottish Parliament had recognised [M v The Scottish Ministers 2008 SLT 928.] Continued detention in the State Hospital meant, for the pursuer, depriving him of the necessary treatment, which was not available in the State Hospital; and it also meant an unnecessary restriction on his liberty. Compliance with domestic law was one of the requirements of Article 5 ECHR [A v Scottish Ministers 2001 SC 1 at 22-23, § 56 per the Lord President.] The lawfulness of detention for the purposes of Article 5(1)(e) presupposes conformity with domestic law [A v Scottish Ministers 2002 SC (PC) 63 at 70, § 22, per Lord Hope of Craighead.] In failing to comply with three orders of the Tribunal, the defenders had failed to comply with domestic law.

[22] Counsel submitted that Article 5(1) ECHR should be read to mean that no one should be deprived of his or her liberty "except to the extent necessary" [R (IH) v (1) Home Secretary (2) Secretary of State for Health [2004] 1 MHLR 51 at 62-63, § 26, per Lord Bingham of Cornhill.] Article 5(4) required domestic law to provide for periodical review to ensure that the criteria for lawful detention continue to be satisfied [Aerts supra § 54; Kolanis v United Kingdom (2006) 42 EHRR 12, 206 at 228 § 80.] For Article 5(4) purposes a situation in which periodical reviews were ineffectual, as in the pursuer's case, was the same as a situation in which there was inadequate provision for review, as in Kolanis. Either way leaving a mental patient in limbo for a period of months or more was incompatible with Article 5(4) [Kolanis supra at 221-223 (citing R (IH) [2002] 1 MHLR 87 and [2004] 1 MHLR 51) and 228.]

[23] The pursuer's detention was lawful until the Tribunal declared that he was being detained in conditions of excessive security. There were parallels with the case of R (Walker) v Secretary of State for Justice [2009] 2 WLR 1149 at 1149-1150, at 1153 § 6, 1154-1157 §§ 11-18 per Lord Hope of Craighead: but in Walker breaches of domestic law were not in issue. In terms of the Human Rights Act 1998 s 3, the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) must be read and given effect to, so far as it is possible to do so, in a way which is compatible with Convention Rights. The pursuer was entitled to have the matter resolved promptly in terms of Article 5(4) ECHR. The decision in Mackenzie cited by Counsel for the Defenders had been reversed on appeal: R (Mackenzie) v Secretary of State for Justice [2009] EWCA Civ 669 (09 July 2009). The defences were irrelevant.

Discussion: liability

[24] Counsel for the Defenders seemed to have the better argument on the existing case law. Counsel for the Pursuer submitted that the existing jurisprudence has to be qualified in light of the changes to domestic law that have been introduced by the 2003 Act. On reflection it appears to me that counsel were talking to some extent at cross purposes: Counsel for the Defenders put emphasis on autonomous Convention principles, while Counsel for the Pursuer focussed on the rules of domestic law.

[25] The pursuer founds specifically on Article 5(4) ECHR. This provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

A straightforward interpretation envisages detention on the one hand and release from detention on the other as strict alternatives: it does not envisage modification of the conditions of detention.

[26] The response to Article 5(4), so interpreted, for patients like the pursuer, lies in the 2003 Act Part 10 ss 192-193. These provisions give the Tribunal power, on the patient's application, to review the patient's detention and to release the patient by revoking restriction and compulsion orders or by discharging the patient conditionally. This is what the Convention requires to happen where detention is "unlawful" in the sense of being wholly unwarranted.

[27] Can "release" be read as extending to "release from conditions of excessive security"? I agree with Counsel for the Defenders that "release" cannot be read in this way.

[28] What about situations in which the "lawfulness of detention" includes more than just the fact of detention? Such situations must arise if or as the law concerns itself with managing the details of mental health detentions. It seems to me that in such situations a more nuanced reading of Article 5(4) may be called for.

[29] Between "lawful" on the one hand and "not lawful", in the sense of wholly unwarranted, on the other, there is scope in the review of "lawfulness" for a finding that the detention is "in certain respects" unlawful. If that is the finding, the patient does not have to be released; other orders may be made; and compensation may be payable for default [cf. Aerts supra §§ 17-19, 25-27, 55; Article 5(5) ECHR].

[30] Assuming in the pursuer's favour that Article 5(4) does call for a procedure for reviewing the lawfulness of detention in all respects, then the 2003 Act ss 264-266 in my opinion satisfies that requirement as regards a procedure for reviewing the lawfulness of detentions in conditions of special security at the State Hospital. Accordingly, I do not accept that there has been an infringement of Article 5(4) in the pursuer's case. This conclusion is in accordance with the reasoning in Walker [supra at 1150 C-D etc] and with the result arrived at by the Strasbourg Court in Aerts [supra].

[31] In Aerts the Strasbourg Court stated at § 54:

"The Court reiterates that the available domestic remedy must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of a person of unsound mind is to be regarded as 'lawful' for the purposes of [Article 5 (1) (e) ECHR]..."

The Court held that the availability of injunction proceedings satisfied the requirements of Article 5(4) even though Mr Aerts' own injunction application failed to secure his transfer to the alternative place of detention that had been designated for him [§§ 51-56].

[32] Aerts decided that there was, however, a violation of Article 5(1)(e) ECHR by virtue of the patient's continued confinement in the original, provisional place of detention following the designation in terms of a procedure prescribed by law of a place of detention more appropriate for his long-term treatment.

[33] Article 5 ECHR refers to "lawful detention", the "lawfulness of detention" and detention in accordance with "a procedure prescribed by law". In Winterwerp [supra] the Strasbourg Court stated:

"46... Whilst it is not normally the [Strasbourg] Court's task to review the observance of domestic law by the national authorities (see the Ringeisen judgment of 16 July 1971, Series A no. 13, p 40, para 97), it is otherwise in relation to matters where, as here, the Convention refers directly back to that law; for, in such matters, disregard of the domestic law entails breach of the Convention..."

[34] Domestic law is the primary determinant of whether detention is Article 5 ECHR compliant [Baranowski v Poland 28358/95 ECHR (28 Mar 2000) at § 51.] This is well illustrated by two of the Strasbourg cases cited by Counsel for the Defenders, Ashingdane and Aerts.

[35] Ashingdane is the nearer to the instant case on its facts. Ashingdane was about a long-delayed transfer from conditions of special security at Broadmoor to "an ordinary psychiatric hospital". The claim failed. The legal point of distinction is that in Ashingdane the Strasbourg Court had "no cause for finding that the applicant's deprivation of liberty as a person of unsound mind during the contested period was 'unlawful' in the sense of not being in accordance with the relevant domestic law" [Ashingdane supra at § 45].

[36] The claim in the other case, Aerts, succeeded. The claim succeeded primarily because the detention "had been unlawful on account of the failure to execute the domestic decisions and to comply with domestic law" [Aerts supra at § 43]. The secondary ground of success in Aerts - "furthermore" - was infringement of the autonomous Convention principle that detention of a mental health patient "will only be 'lawful' for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution" [§ 46].

[37] The springboard for the Aerts decision was the dissenting opinion in Ashingdane of French judge L-E Pettiti. In Ashingdane Judge Pettiti asked:

"does the designation of the [original] institution as an 'appropriate institution' by the responsible authorities in accordance with the domestic law suffice to allow the maintenance in detention to be considered as 'lawful' within the meaning of the autonomous interpretation that the Court gives to Article 5 para. 1?"

Judge Pettiti noted that the patient's transfer to the ordinary regime was "necessary on medical grounds". This was an undisputed fact. He answered his own question by saying:

"The purpose of commitment of mental patients is to treat them with a view to curing them as well as to protect others against patients who are genuinely dangerous. The task and duty of the executive are thus, above all else, to co-operate in the medical treatment and to strive after the means most likely to bring about a cure... This is why I am of the view that for a period of a few months the applicant's continued detention at Broadmoor ceased to be 'lawful' within the meaning of Article 5 para. 1..."

Judge Pettiti was also a member of the chamber that decided Aerts; in that case domestic law provided an answer around which it was possible to gather unanimity - and there was no dissent.

[38] The Aerts violation consisted of failure by the authorities to comply with the designation of an alternative place of detention by the Mental Health Board. For "designation" of the place of detention in the Belgian Social Protection Act 1964, one might possibly read "identification" in the Scottish 2003 Act. In the instant case the authorities failed on three occasions to fulfil their duty in domestic law under the 2003 Act ss 264-266 to identify an alternative place of detention within the timescales specified by the Tribunal.

[39] On this analysis it seems to me that the instant case is capable of engaging Article 5 ECHR, specifically Art 5(1)(e). None of the case law cited excludes the possibility that, where protection for mental health detainees in domestic law goes beyond the basic guarantees provided by autonomous Convention principles, non-compliance with domestic law can, for the reason that the Convention "refers back" to domestic law, entail a breach of the Convention.

[40] I emphasise "in domestic law". The decision that committed the pursuer to the State Hospital was not an administrative or a clinical decision; it was a court order made within a certain statutory framework. The same was true of the decisions that sought to, and eventually did, effect the release of the pursuer from the State Hospital. Compare Ashingdane where the unimplemented decisions were of a clinical and administrative character.

[41] The orders which the defenders' failed to implement in the pursuer's case were orders of the Tribunal. Both counsel proceeded on the basis that the Tribunal is a "court" for the purposes of Article 5(4) ECHR notwithstanding its lack of coercive powers [cf. R (IH) v (1) Home Secretary (2) Secretary of State for Health [2004] 1 MHLR 51 at 62-63, § 26, per Lord Bingham of Cornhill.] In this context significance must be attached to the fact that the Tribunal has power to impose "duties" on the relevant Health Board.

[42] From this starting point I can see that the submission for the pursuer is plausible, if considered, in the context of Article 5(1) (e) ECHR, as an allegation that the treatment of the pursuer amounted as in Aerts to a case of "failure to execute domestic decisions and to comply with domestic law". There are a number of aspects of the claim that make it, in my opinion, one which is more about the "lawfulness of detention" than about the "conditions of detention".

[43] Given that I have already found the case as pled to be unfounded in law it would not be appropriate for me to enlarge on these matters. Only two points demand further comment in light of the submissions by counsel.

[44] In connection with the question of how detention in the State Hospital becomes unlawful, I should deal with the proposition advanced by Counsel for the pursuer that a "proportionality" qualification ought, as a matter of principle, be read into Article 5 ECHR. The case law offers little support for the proposition in the sense which counsel intended, viz that the conditions of detention should be no more intrusive or restrictive than necessary.

[45] However, as recommended by the Millan Committee [supra, recommendation 3.3, Principle (8)], a similar qualification is now part of domestic law in terms of the 2003 Act s 1 (4). The expression "lawful" in Article 5 ECHR, as the Article applies to "persons of unsound mind" detained in Scotland, has to be understood accordingly.

[46] In relation to the status and effect in law of the "duties" imposed by the Tribunal on the defenders in terms of ss 264, 265 and 266 of the 2003 Act, a matter put in issue by Counsel for the Defenders, I conclude that these are legal duties in the fullest sense conferring on the patient rights to enforce them and to be compensated for non-performance, except insofar as such rights are excluded by the legislation.

[47] I say this, first, because there is a definite expectation connected with the use of the word "duty" in a legal context; secondly, because the implication of restricting enforceability, as s 272 does, is that the duties would otherwise be enforceable; and, thirdly, because, to the extent that proceedings for specific performance are permitted, giving title and interest to the Mental Welfare Commission "without prejudice to the rights of any other person", as s 272 does, implies that patients and their representatives do indeed have rights correlative to the duties.

[48] The fact that the statute excludes proceedings for specific performance of duties imposed on the defenders does not, in my view, mean that other remedies and in particular damages for breach are also excluded. Indeed on the hypothesis that the pursuer's continued detention in conditions of special security was "unlawful" in violation of Article 5(1)(e) ECHR, there must be a right to compensation in terms of Article 5(5). There is nothing in the statutory provisions under consideration that requires the provisions to be incompatible with Article 5 (5) ECHR by excluding the remedy of damages.

Discussion: causation

[49] The pursuer claims damages from the expiry of the first three-month period specified by the Tribunal. Questions might arise as to whether the making of subsequent orders by the Tribunal extended the period of grace and absolved the defenders from the need to comply with earlier orders, or discharged their liability for non-compliance. I do not intend to try and answer these questions now.

[50] Counsel did not address me on these matters nor did they make submissions on the Convention jurisprudence as to what the reasonable period of grace might be in a situation where there is a "structural problem" in relation to the provision of alternative services. In the case of Brand v The Netherlands, 49902/99 [2004] ECHR 196 (11 May 2004), a case where the order by the criminal court consisted of a period of imprisonment followed by a period of compulsory treatment, the Strasbourg Court stated at § 64 "it would be unrealistic and too rigid an approach to expect the authorities to ensure that a place is immediately available in the selected custodial clinic."

[51] On the other hand the Court seems to have had concerns that a delay in admission might result in a delay in ultimate discharge, something that is part of the pursuer's claim in the instant case. On the worst view for the pursuer he has a relevant claim, so far as causation goes, for being confined in the State Hospital for four months or so beyond the final deadline for his transfer.

[52] There is a factual dispute about causation revolving around whether "out of area placement" might have been available for the pursuer at units in England; and, if so, whether the pursuer was willing to be accommodated in a unit outside Scotland.

Decision

[53] The causation issue is one that cannot be resolved without proof - it might transpire that the defenders have a complete answer to the claim on causation. This is an additional reason for repelling the pursuer's plea to the relevancy of the defences. The plea must in any event be repelled because there is a sound defence in law to the liability aspect as currently pled.

[54] The defenders' plea to the competency is directed against defects in the pursuer's shadowy case apparently based on breach of statutory duty. This plea also falls to be repelled for the reason that it became clear during the debate that the present pleadings are not intended to support a free-standing claim for breach of statutory duty.

[55] As regards the claim that is insisted on, the problem for the pursuer is that his claim for a remedy "under Article 5(4) of the Convention" is not well-founded in law. Both the declaratory conclusion and the supporting plea are particularised by reference to Article 5(4) ECHR. Article 5(4) is also referred to in the condescendence, Article 3, at pages 19D-E, and article 6, at page 24D. The references in the condescendence would not by themselves compromise a claim, which I think could be relevant, under Article 5(1)(e): but such a claim cannot come within the case as currently pled given the terms of the first conclusion and the first plea-in-law.

[56] Accordingly, I shall repel the pursuer's first plea-in-law. I shall repel the defenders' first plea-in-law. As agreed by parties I shall put the case out by Order to discuss the question of amendment and further procedure and also to hear submissions on the expenses of the debate.