RM V The Scottish Ministers (2012)

We have represented thousands of patients and their Named Persons in Mental Health cases since 1999 and have developed a national profile in the field of Mental Health Law. One of our most significant successes was at the Supreme Court, London.

As a direct result of this case, legislation was introduced extending patient’s’ appeal rights across Scotland.

The Case

The appellant was a patient who had been compulsorily detained since 1995.The patient believed that their detention was in conditions of excessive security, which affected his quality of life, liberty and prospects for release. He wished to be transferred to an open ward where his quality of life would be greatly improved.

Section 264 of the Mental Health (Care and Treatment)(Scotland) Act 2003 gives patients who are detained in hospitals under certain types of orders the right to apply to the Mental Health Tribunal for a change in their security.

However, as key terms in Section 264, remained undefined by the Scottish Government since 1 May 2006, section 268 was not in effective operation and therefore the patient could not apply to the Tribunal and remained detained in conditions of excessive security.

The Ruling

The argument was that the inference drawn from the part of the act in question should have been in effective operation by 1 May 2006. This was supported by the fact that there were other sections of the Act which Parliament had set no deadline for their coming into force.

The counter-argument from the Respondent was that the sections were “in force” but did not yet “operate”. Operation would not occur unless or until the necessary regulations were decided upon, and the failure to do so did not change the intentions of the Scottish Parliament.

The Supreme Court unanimously allowed the appeal. The Court found that the failure by Scottish Ministers to draft and lay the regulations before the Scottish Parliament prior to May 1st 2006, and their continued failure to do so, was unlawful.

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