Restriction orders and mentally disordered offenders
28 February 2012
Scottish Ministers v Mental Health Tribunal (JMcK)  CSIH 18 is a further case working out the practical application of Section 193 of the Mental Health (Care and Treatment) (Scotland) Act 2003.
In this case, the Tribunal’s decision was quashed because it had not considered what conditions required to be in a compulsion order if a restriction order was revoked but the compulsion order was not. The decision had also been appealed on the basis that the restriction order should not have been revoked in the first place, but the Inner House considered the Tribunal were entitled to make that finding.
As well as confirming that Tribunals require to apply a sequential approach to Section 193, considering all of the various tests in it, the decision is of interest in that:
(i) The court found that Tribunals must state their reasons for findings under the various tests in the written decision, and cannot advance them first in answer to an appeal.
(ii) The court considered it appropriate to quash the decision and remit the whole case for reconsideration, including on the issue of revocation of the restriction order. The patient and Tribunal had argued that there should have been a direction limiting the reconsideration of the Tribunal only to Section 193(6), but the court considered that in these types of matters, involving consideration of the interests of the patient and the public, it would not be appropriate to limit the Tribunal in its reconsideration of the case.
Anna Poole of Axiom acted on behalf of the Scottish Ministers, and John MacGregor of Axiom acted on behalf of the Mental Health Tribunal.
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