Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 60

P1157/14

OPINION OF LORD TURNBULL

In the petition of

LS

Petitioner;

for

Judicial Review of the failure of the Scottish Ministers to draft and lay before the Scottish Parliament regulations under the Mental Health (Care and Treatment) (Scotland) Act 2003

Petitioner:  JJ Mitchell QC, Irvine;  Drummond Miller LLP

Respondent:  Wolffe QC, Dean of Faculty, Ross;  Scottish Government Legal Directorate 

21 May 2015

The petitioner’s circumstances
[1]        The petitioner LS is a 20-year-old young man who is presently detained in the Rowanbank Clinic by virtue of a compulsory treatment order granted in terms of section 64 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”).  He was first transferred to Rowanbank from Polmont Young Offenders Institution in May 2012 under an assessment order made in terms of section 52D of the Criminal Procedure (Scotland) Act 1995.  He was then made subject to a short‑term detention certificate in terms of section 44 of the 2003 Act before the compulsory treatment order was made in August 2012.  That order has subsequently been extended on a number of occasions.  No question as to the legality of any of these certificates, orders or decisions arises.

[2]        The Rowanbank Clinic is an inpatient psychiatric treatment facility which operates a medium level of security.  The petitioner wishes to challenge the level of security under which he remains detained but there is, as yet, no effective mechanism by which he can do so before the Mental Health Tribunal for Scotland (“the tribunal”).  The orders which the petitioner originally sought are set out in his petition as follows:

“3(i) Declarator that the continuing failure of the Scottish Ministers to draft and lay before the Scottish Parliament regulations under section 268 (11) and (12) of the 2003 Act, even if such regulations have only interim effect, is unlawful et separatim in violation of Article 5 et separatim Article 14 when taken with Article 5 of the European Convention on Human Rights and Fundamental Freedoms;

(ii) An order ordaining the Scottish Ministers to draft and lay before the Scottish Parliament regulations under section 268 (11) and (12) of the 2003 Act within 28 days or such other period as the Court considers appropriate;”

The legislative background
[3]        The parties to this action were agreed as to the content of the legislative background within which the petitioner’s argument was presented.

[4]        Chapter 3 of the 2003 Act provides a structure within which patients detained in a state hospital, or other hospitals, may raise before the tribunal the question of whether they are being detained in conditions of excessive security and permits the tribunal to make an order which has the effect of ensuring that the patient is transferred to a hospital in which he can be detained in appropriate conditions.  The 2003 Act deals separately within chapter 3 with, on the one hand, patients who are detained in a state hospital, and, on the other hand, patients who are detained elsewhere.  Section 264 of the 2003 Act permits a patient detained in a state hospital to apply to the tribunal to challenge the level of security with which he is being detained. That section of the Act was brought into force on 1 May 2006.

[5]        Section 268 of the 2003 Act is designed to give a similar right of challenge to patients who are detained in hospitals other than state hospitals.  It applies to “qualifying patients” who are detained in a “qualifying hospital.”  Before this section can have operative effect the two relevant terms require to be defined in regulations to be made by the Scottish Ministers. They have had power to do so since 6 January 2006.  Section 326 of the 2003 Act provides that any such regulations are to be made by statutory instrument a draft of which must be laid before the Scottish Parliament for approval.  No such regulations have yet been laid before Parliament and patients such as the petitioner who are detained other than in a state hospital have no ability to challenge the level of security within which they are detained before the tribunal.

[6]        In its decision in RM v Scottish Ministers 2013 SC (UKSC) 139 the Supreme Court decided that the failure by the Scottish Ministers to draft and lay such regulations before the Scottish Parliament prior to 1 May 2006 and the continued failure to do so since that date was and is unlawful.  The decision of the Supreme Court was issued on 28 November 2012. On 19 June 2014, the Mental Health (Scotland) Bill was introduced to the Scottish Parliament. This is the method by which the Scottish Ministers have sought to address the unlawfulness identified by the Supreme Court.  If enacted, this legislation will provide for amendments to the 2003 Act which will include amendments designed to address the application of section 268.  The Bill however still contemplates the definition of a “qualifying hospital” being provided by regulation.  On 24 April 2015 a draft set of regulations was prepared and presented to the Health and Sport Committee of the Scottish Parliament.  Those draft regulations identify three hospitals as falling within the definition of “qualifying hospital”, one of which is the Rowanbank Clinic.

The petitioner’s case

[7]        On behalf of the petitioner, Mr Mitchell QC presented his common law case relying upon the declarator of unlawfulness pronounced by the Supreme Court in RM.  He pointed out that it had been decided in that case that the Scottish Ministers were under a duty to exercise their power to make the necessary regulations no later than 1 May 2006.  He observed that by letter dated 10 December 2012, the solicitor for the respondents stated that they accepted the ruling that the Scottish Ministers acted unlawfully and that they were now taking steps to address that situation.  A year and a half passed before the 2014 Bill was introduced and, on 27 March 2015, nearly a further year later, the respondents stated to Parliament that they were developing regulations and said:

“this is a very technical and complex matter and it is important that sufficient and full consideration is given to precisely how the regulations are shaped.”

That having been said, Mr Mitchell observed that the draft regulations presented to the Health and Sport Committee of the Scottish Parliament on 24 April 2014 were in fact remarkably concise, consisting of little more than a few lines of text. This he suggested demonstrated that appropriate regulations under the 2003 Act could now be drafted very easily and very quickly.

[8]        The petitioner submitted that the respondents must abide by the decision of the Supreme Court and a failure to do so would be a denial of the rule of law which brought the system of justice itself into disrepute.  The executive does not obey the law as matter of grace and is under the same duty of obedience to the law as it stands at any given time as is any citizen – R (Evans ) v Attorney General [2015] UKSC 21, Alleyne v Attorney General of Trinidad and Tobago [2015] UKPC 3, M v Home Office [1994] 1 AC 377.  The duty of the respondents was to take steps to remedy the unlawful conduct identified by the Supreme Court in RM and to do so within the “minimum period of time”.  Support for the “minimum period of time” formulation could be found in the analysis undertaken by the Supreme Court of Canada in the Reference by the Governor in Counsel concerning language rights under the Manitoba Act reported at [1985]1 SCR 721.

[9]        In light of the history founded upon by Mr Mitchell he contended that it was not strictly necessary for the court to grant the declarator which he sought in paragraph 3(i) of this petition.  The failure of the respondents to comply with the decision of the Supreme Court already entitled him to an order for implement at common law.  He submitted that, consistent with the duties identified in the authorities mentioned, it would be reasonable to expect the respondents to be able to draft regulations in terms of the 2003 Act immediately.  All that would be necessary would be a minor adjustment to the terminology already embodied in the draft regulations produced on 24 April.  There would be ample time to lay these new draft regulations before the Health and Sport Committee of the Scottish Parliament at its meeting of either 19 or 26 May.  That committee could report to Parliament shortly thereafter and Parliamentary approval of the regulations could be obtained before the recess scheduled for 27 June.  The regulations could then be in force within a matter of days thereafter.  Accordingly, he invited me to make an order for implement in terms of paragraph 3(ii) of his petition.

[10]      Mr Mitchell also submitted that the respondents’ failure to make regulations under the 2003 Act was incompatible with his rights in terms of the Convention.  However, this aspect of his case seemed to me to be presented as a secondary, or fall back proposition.  Whilst the case as contained within the petition included an argument to the effect that the petitioner’s article 5 rights had been infringed this was not insisted on during the course of the oral argument.  Mr Mitchell invited me, if granting declarator, to do so under deletion of the words in paragraph 3(i) “Article 5 et separatim”, the effect being to leave only his argument that the petitioner’s article 14 rights had been infringed.

[11]      He advanced two contentions in support of this proposition.  First, that it was beyond question that the petitioner’s detention fell within the ambit of article 5, and second, that the failure to provide a right to a patient detained in Rowanbank Clinic to challenge the conditions of his detention before the tribunal, when such a right was available to a patient detained in the state hospital at Carstairs, was discrimination on the basis of status contrary to article 14.

The respondents’ case
[12]      On behalf of the respondents, the Dean of Faculty emphasised that the Scottish Ministers accepted the ruling of the Supreme Court in RM, they had made this plain in their answers to the present petition.  It was though necessary to understand how matters had unfolded. It had been conceded by the petitioner in RM, as noted at paragraph 21 of the decision, that:

“the court could not appropriately make an order requiring the Ministers to lay regulations before the Scottish Parliament, since the Ministers could alternatively invite the parliament to repeal or amend the relevant provisions of the 2003 Act”

[13]      The respondents had a discretion as to how to address the deficiency identified by the Supreme Court and questions of policy were raised which required to be appropriately considered.  Following upon a process of consultation, which involved the Mental Welfare Commission for Scotland and the tribunal, amongst other parties, the respondents decided that they should proceed by amendment to the principal legislation and promulgate regulations under the 2003 Act as amended, rather than proceed with regulations under the Act as it stood.  As a consequence the 2014 Bill had been introduced.  It was important he said to appreciate that the Bill contained two filters concerning the application of section 268 of the 2003 Act.  The first was that an application could only be made by patients detained in a qualifying hospital and the second, introduced by suggested amendment of the Bill, was that any such application needed to be supported by a report from an approved medical practitioner.  The respondents’ anticipation was that the Bill would be heard at stage 3 debate on 16 and 17 June of this year, that the Act would receive the royal assent in the summer, and that the regulations now prepared in draft would be laid after the summer recess.

[14]      The Dean of Faculty’s submission was that in practical terms the order sought by the petitioner would be of no advantage.  The procedures which were in place to address the admitted state of unlawfulness would provide him with the outcome which he desired within a timescale which had been set out. That timescale was no more uncertain than that involved in the process which the petitioner suggested.  If an order requiring the respondents to lay regulations under the present terms of the 2003 Act was made it could be complied with quickly but the matter would then be out of the hands of the respondents.  The Health and Sport Committee might decline to give approval to any such regulations given the fact that a Bill was before Parliament.  Equally, they might decide to remit matters to the Delegated Powers Committee. It was unlikely that the Delegated Powers Committee would approve of a requirement for support from a medical practitioner being introduced by way of subordinate legislation. The Scottish Ministers had acknowledged their responsibilities and were in the process of addressing the matter.  The court had a discretion in determining whether or not to grant the orders sought and should decline to exercise it in favour of the petitioner – McGeoch v Lord President of the Council 2014 SC (UKSC) 25 (per Lord Mance at paragraph 39) and Walton v Scottish Ministers 2013 SC (UKSC) 67 (at paragraphs 95, 131 to 133 and 156).

[15]      The Dean of Faculty also submitted that if it was not necessary to make an order for declarator and an order for implement under the common law, then neither would it be necessary to make such orders under the Convention.  Replying generally to the petitioner’s case based on the Convention he pointed out that the petitioner’s detention was according to law, but that he was detained for therapeutic benefit.  The question of the level of security within which he was detained was not related to any therapeutic consideration but to the level of risk which he posed.  A distinction had to be drawn between detention in prison and detention in a psychiatric treatment facility. In the context of the petitioner’s case the scope of article 5 was restricted to a consideration of whether or not he was detained in an institution which was appropriate for the purpose of his detention, namely treatment, rather than the conditions of security within that institution.  It could not be said that the petitioner was detained in an inappropriate institution relative to the ground upon which he was detained and article 5 was not engaged.  Reliance was placed on the cases of R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 and Ashingdane v United Kingdom (1985) 7 EHRR 528.

[16]      In any event, it was submitted that there was no distinction based on status.  Any distinction such as existed was based on the place within the overall therapeutic estate where the petitioner was detained.

Intervention by the Commission for Equality and Human Rights
[17]      On 19 March 2015 the Commission for Equality and Human Rights was granted leave to intervene and to lodge a written submission.  That submission was before me at the hearing but the Commission was not represented and I heard no oral submissions on their behalf.

Discussion
[18]      It was accepted by the respondents that the state of unlawfulness identified by the Supreme Court in RM has not yet been cured, since regulations under the 2003 Act have still not been laid and the proposed amendments contained in the 2014 Bill have not yet passed into law.  Nevertheless, steps have been taken. I accept, of course, the proposition that the Scottish Ministers require to respect and be bound by the law as much as anyone else.  However, in the context of what steps the court can, or should, take in order to enforce compliance with the law, the analogy between steps to be required of an individual and those to be required of government is perhaps of limited value.  The Scottish Ministers have responsibility for the development of policy and, in the context of making legislation, require to respect the relationship between government and Parliament.

[19]      It was accepted on behalf of the petitioner that he could not seek an order regarding the content of any regulations, since policy was for the government.  A similar concession was made in RM when it was acknowledged that the Scottish Ministers had a discretion as to the steps which they took to remedy the deficiency.  Up until receiving the decision of the Supreme Court the respondents were entitled to consider that they were acting within the law.  The challenge based upon a failure to provide a mechanism for patients such as the petitioner to appeal to the tribunal had been unsuccessful, both in the Outer House and in the Inner House.  The criticisms of the speed with which matters progressed after November 2012 might well be valid, but it cannot be said that nothing has been done.

[20]      The question of whether there is any proper purpose to be served by granting the orders which the petitioner seeks therefore has to be considered in light of the circumstances as they presently stand.  There is no purpose to be served by declaring again that the respondent’s failure to draft and lay regulations under the 2003 Act is unlawful.  Counsel for the petitioner recognised this.  A parliamentary process has been initiated by the respondents with the purpose of addressing the deficiency identified in RM.  It is true that no undertaking has been given as to the timescale within which this will be achieved nor, strictly speaking, is the matter within the complete control of the respondents.  They have however outlined their anticipation of how matters will proceed.  As set against that, the petitioner’s suggested remedy carries no greater certainty of outcome or of timescale.  As Mr Mitchell acknowledged, all that the court can do is to order that suitable regulations be drafted and placed before the Health and Sport Committee of the Scottish Parliament within a certain time period.  Neither the court, the petitioner nor the respondents can control what happens thereafter.

[21]      On the information I have there is no basis to permit me to conclude, or to assume, that making an order in the petitioner’s favour would be of any advantage or serve any proper purpose.  On the basis of the cases relied on by the Dean of Faculty I accept that I have a discretion as to whether to make any order or not.  In the whole circumstances it is not, in my view, necessary or appropriate to make any order in favour of the petitioner arising out of his arguments based on common law.

[22]      The petitioner’s argument under the Convention was, as I have indicated, presented as something in the nature of a fall-back position and the anticipated submission that his article 5 rights had been infringed did not materialise. In this context it is perhaps important to appreciate that the Supreme Court’s decision in RM did not concern Convention rights.  Nevertheless, Mr Mitchell did ask me to take account of the written submissions presented on behalf of the intervener.  The introduction to those written submissions includes the comment that:

“…the petition raises complex issues in relation to Article 5 and Article 14 of the European Convention on Human Rights (“ECHR”) in the context of mental health law.”

[23]      The written submissions go on to address the import of article 5 for patients such as the petitioner in some detail, but include the following comments:

“11.  The traditional approach to Article 5 ECHR is to limit the application of the protections to the legality of the detention itself and to exclude issues arising in relation to the conditions of detention from the ambit of Article 5 (Ashingdane v UK (1985) 7 EHRR 528).

12.   If such a rigid approach were adopted in the present case, then Article 5 would not be engaged. The Petitioner has been detained under the 2003 Act in a medium secure mental health facility.             Accordingly, the issue of whether there is a more appropriate facility for the Petitioner to be housed would be outwith the ambit of Article 5 ECHR.”

Having made these concessions, the submissions for the intervener go on to argue that such a rigid demarcation between the legality of detention and the conditions of detention is inappropriate (my emphasis) and is not an accurate statement of contemporary law.  The eventual proposition advanced is that both articles 5 and 14 are engaged in the circumstances relied upon by the petitioner, and that in the absence of the relevant regulations under the 2003 Act, his article 5 and article 14 rights have been breached.

[24]      In so far as relevant to the present action article 5(1) provides:

“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:

...

(e) the lawful detention … of persons of unsound mind ….;”

            Article 5(4) 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.”

[25]      In giving the decision of the Court of Appeal in R (Munjaz) Lady Justice Hale (as she then was) explained that article 5 is concerned that deprivation of liberty should be properly imposed, its lawfulness open to challenge so that a person unlawfully detained may be set free, and that the place of detention conforms to the purpose for which it is imposed.  She explained that beyond that it was not concerned with the conditions of detention.  Her observations were supported by what was by said when the case reached the House of Lords by Lord Bingham of Cornhill (at paragraph 30), by Lord Hope of Craighead (at paragraph 85) by Lord Scott of Foscote (at paragraph 101) and by Lord Brown of Eaton‑Under‑Heywood (at paragraph 111).  Each reflected the view of the European Court of Human Rights in Ashingdane v United Kingdom, when that court stated that in principle the detention of a person as a mental health patient will only be lawful for the purposes of article 5(1)(e) if effected in a hospital, clinic or other appropriate institution authorised for that purpose but that otherwise article 5 was not concerned with suitable treatment or conditions.

[26]      The case of R(Munjaz) concerned the circumstances in which a patient who was detained in a mental health hospital came to be subjected to periods of seclusion within that facility in terms of a policy developed by the hospital which was inconsistent with a Code of Practice issued by the Secretary of State for Health giving guidance on the use of seclusion for detained psychiatric patients.  In giving his opinion at paragraph 85, Lord Hope of Craighead observed that a person who is of unsound mind must be detained in a place which is appropriate for that purpose, that article 5(1)(e) is not concerned with the patient’s treatment or the conditions of his detention, and noted the ECHR decision in Bollan v United Kingdom, in which it was stated that disciplinary steps imposed on a prisoner which have an effect on conditions of detention within a prison fall to be viewed as modifications of the conditions of detention and fall outwith the scope of article 5(1).  He then went on to state:

“86. In my opinion the seclusion of a patient who is lawfully detained at Ashworth under the conditions laid down in the policy does not amount to a separate deprivation of liberty which engages article 5.”

[27]      As the Dean of Faculty suggested, the various footnote references to Ashingdane in the recent Grand Chamber case of Stanev v Bulgaria (2012) 55 EHRR 22 support the proposition that the law still remains the same under the Convention.

[28]      In light of these observations the argument that the law had moved on from what was said in Ashingdane can be seen to be challenging and contentious.  Given that Mr Mitchell did not seek to argue that the petitioner’s article 5 rights had been breached I am left to assess this proposition as presented by the intervener.

[29]      Perhaps the first point to acknowledge is that the petitioner is detained in accordance with a procedure prescribed by law.  The statutory provisions underpinning his detention have been identified above and there is no suggestion of any irregularity or unlawfulness in the making of any of the relevant orders.  

[30]      At paragraphs 16 to 29 of the written submissions an argument is advanced concerning the concepts of arbitrariness and proportionality. These of course are familiar concepts in the context of Convention jurisprudence and were taken account of by the European Court of Human Rights in giving its decision in Ashingdane.  Reliance is placed on a number of cases which do not concern the detention of patients in appropriate and authorised psychiatric institutions.  None of these cases contain any criticism of the decisions in Ashingdane or R(Munjaz).  In particular, nothing is said which undermines the proposition that a patient lawfully detained in a mental health facility is not deprived of his liberty on account of being placed in more restrictive conditions. Nothing is said which undermines the proposition that article 5 cannot found a complaint directed to the category of institution within an appropriate system. All of the cases relied upon concern circumstances which are quite different from the petitioner’s.

[32]      The intervener’s starting point is to recognise that if Ashingdane correctly reflects the legal position for a patient lawfully detained in a psychiatric hospital for therapeutic purposes, then article 5 is not engaged. The cases relied upon do not seem to me to bear upon the decision in Ashingdane. Just as importantly, nothing is said in the written submissions about the views expressed by the majority in the House of Lords in R(Munjaz). In these circumstances I cannot accept the proposition that the demarcation identified in Ashingdane between the legality of detention in an appropriate type of institution and conditions of detention no longer reflects contemporary law.

[32]      The argument which arose under the Convention, and which was insisted upon by the petitioner, was that his rights in terms of article 14 had been infringed.  The submission was that the application of article 14 does not presuppose the violation of one of the substantive rights guaranteed by the Convention.  All that was necessary for consideration to be given to the article 14 argument was that the facts of the case fell within the ambit of, in this case, article 5– Hode and Abdi v United Kingdom (2013) 56 EHRR 27, Adami v Malta (2007) 44 EHRR 3.

[33]      The argument that patients detained in one psychiatric hospital should have the same rights of access to the tribunal as possessed by patients detained in another is of course an attractive one.  At least so far as patients held in a medium secure facility are concerned, it is what the 2014 Bill sets out to achieve.  The Dean of Faculty did not suggest that any present difference as could be pointed to was justified.  His point was that article 14 only has any application to the petitioner’s circumstances if it can be shown that there has been discrimination in the manner in which his article 5 rights have been secured or enjoyed.  In other words, it is a question which only arises if the petitioner’s circumstances come within the general ambit of article 5 for article 14 purposes.  The Dean of Faculty’s submission was that the petitioner’s case raised questions of conditions and procedures for addressing those conditions.  On this analysis article 5 was simply not engaged to any extent.

[34]      As was recognised by the intervener in paragraphs 11. and 12. of the written submissions (as quoted in paragraph [23] above), if the decision in Ashingdane properly reflects the law then the circumstances of the petitioner’s detention fall outwith the ambit of article 5.  In light of the decisions in Ashingdane and R (Munjaz), and what I have said about them already, in my opinion, the Dean of Faculty was correct in his submission that article 5 was not engaged to any extent.

[35]      In arriving at this decision I have not overlooked the views expressed by Lord Stewart in Sherrit v NHS Greater Glasgow and Clyde Health Board 2011 SLT 480, a case brought to my attention by the Dean of Faculty.  I note that in that case Lord Stewart expressed the tentative view that article 5(1)(e) might be engaged in the case of a patient detained under the provisions of the 2003 Act.  The factual circumstances which lay behind this action for declarator were different from those of the present petition and I note that at paragraph 42 Lord Stewart expressed the following view:

“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.’”

As I understand his decision, Lord Stewart concluded that the case as pled before him was, for other reasons, unfounded in law and he therefore decided that it was unnecessary for him to develop his tentative conclusions any further.

[36]      For the reasons given above, I will repel the first and second pleas‑in‑law for the petitioner and I will uphold the third, fourth and sixth pleas‑in‑law for the respondents; and reserve the question of expenses meantime.