Mental Health( Care and Treatment)(Scotland) Act 2003 Consultation in relation to section 268 appeals against conditions of excessive security

A consultation seeking views on the way forward in respect of appeals against excessive security for mental health patients following the Supreme Court decision of M v Scottish Ministers


4. Section 264 of the 2003 Act provides for a right of appeal against levels of excessive security for persons detained within the State Hospital. The reason for an appeal against levels of excessive security was to address the issue of entrapped patients within the State Hospital.

5. At the time of publication of the Millan report, the independent report on which the 2003 Act was based, the issue of entrapped patients was significant. The Millan Report described an entrapped patient as a patient who was detained in the State Hospital, but who no longer required the level of security provided by the State Hospital but for whom appropriate local services were no longer available. The concern was that persons may meet the security criteria at the time of admission, but not necessarily throughout the duration of his or her stay in hospital. There was however no option other than to appeal for a discharge which was quite a leap from high security.

6. Millan recommended there should be a right of appeal against a level of security for those persons detained in the State Hospital. This recommendation resulted in sections 264 to 267 of the 2003 Act (Chapter 3 of Part 17) which provide for appeals against detention in conditions of excessive security, and were commenced on 5th October 2005 when the 2003 Act came into force.

7. The Millan report was clear that the issue at the time was with patients entrapped in the State Hospital but also stated -

'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'

8. This resulted in sections 268 to 274 of the 2003 Act - creating in principle a right of appeal from places other than the State Hospital, but given there was no evidence at that time of entrapment at lower levels of security, a regulation making power was created to provide for appeals against levels of security in hospitals other than the state hospital. This power to date has not been used .Ministers were of the view that Parliament had given them the discretion to make regulations should that be necessary. The judgement of the Supreme Court, in declaring that Ministers' failure to bring forward regulations was unlawful, has changed this position.



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