Patient at psychiatric clinic who sought to challenge detention has judicial review petition dismissed

The UK Supreme Court ruled in 2012 that the failure by the Scottish Ministers to draft and lay such regulations before the Scottish Parliament was “unlawful”, but a judge in the Court of Session held that there was “no purpose” in making another ruling to that effect as they had sought to remedy the deficiency.

Lord Turnbull heard that the petitioner “LS”, 20, was presently detained in the medium security Rowanbank Clinic in Glasgow by virtue of a compulsory treatment order granted in terms of section 64 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

He was first transferred to Rowanbank from Polmont Young Offenders Institution and was then made subject to a short‑term detention certificate before the compulsory treatment order was made in August 2012 – an order which had subsequently been extended on a number of occasions.

Although no question as to the legality of any of the certificates, orders or decisions had arisen, the petitioner wished to challenge the level of security under which he remained detained, but there was as yet no effective mechanism by which he could do so before the Mental Health Tribunal for Scotland.

The petitioner sought declarator that the continuing failure of the Scottish Ministers to draft and lay regulations before the Scottish Parliament, even if such regulations had only interim effect, was “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.

He also sought 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 considered appropriate.

In its decision in the case of RM v Scottish Ministers, the UK Supreme Court held that the failure by the Scottish Ministers to draft and lay such regulations prior to 1 May 2006 and the continued failure to do so since that date was and is “unlawful”.

The Scottish Ministers sought to address the unlawfulness identified by introducing the Mental Health (Scotland) Bill to the Scottish Parliament in June 2014, but the bill is not expected to receive royal assent until this summer, with the regulations that have prepared in draft to be laid after the summer recess.

The petitioner submitted that the failure of the respondents to abide by the decision of the Supreme Court was “a denial of the rule of law” which brought the system of justice into “disrepute”.

It was contended that it was not strictly necessary for the court to grant the declarator sought in the petition, as the respondents’ failure to comply with the Supreme Court decision “already entitled him to an order for implement at common law”.

It was submitted that it would be reasonable to expect the respondents to be able to draft regulations in terms of the 2003 Act “immediately”.

The secondary proposition was that the respondents’ failure to make regulations under the 2003 Act was “incompatible” with his rights in terms of the European Convention.

Firstly, it was said that it was “beyond question” that the petitioner’s detention fell within the ambit of article 5, and secondly, 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 Scottish Ministers accepted the ruling of the Supreme Court in RM, but they had a “discretion” as to how to address the deficiency identified and questions of policy were raised which required to be “appropriately considered”.

It was submitted that in practical terms the order sought by the petitioner would be of “no advantage” as the procedures which were in place to address the unlawfulness would provide him with the outcome which he desired within the timescale set out.

It was also argued 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.

The judge refused the petition after observing that a parliamentary process had been initiated by the respondents with the purpose of addressing the deficiency identified in RM.

In a written opinion, Lord Turnbull said: “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…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…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.”

On the petitioner’s argument under the European Convention, the judge also agreed with the submission for the respondents that article 14 only had any application to the petitioner’s circumstances if it could be shown that there had been discrimination in the manner in which his article 5 rights had been secured or enjoyed, and that article 5 was “not engaged to any extent”.