Mental health in the Supreme Court: principles and declarations of excessive security
18 December 2013
G v Scottish Ministers  UKSC 79 is a case about a patient detained in the State Hospital, Carstairs, who wished to move to a less secure hospital. The patient was detained under legislation governing mentally disordered offenders, having been acquitted on grounds of insanity of various offences including rape.
The patient applied to the Mental Health Tribunal for Scotland, but it refused to grant a declaration that he was held in conditions of excessive security. The Inner House upheld the Tribunal’s decision. The patient then appealed to the Supreme Court. In essence, the patient considered it wrong that the Tribunal should have refused to grant a declaration that he was held in conditions of excessive security in the exercise of its discretion, when it had found that he did not require the conditions of special security available only in the State Hospital.
The Supreme Court found against the patient and in favour of the Scottish Ministers and the Mental Health Tribunal for Scotland. It found that if a patient has been found not to require conditions of special security available only in the State Hospital, the Tribunal should ordinarily make a declaration, unless there is some good reason not to do so. In G’s case, there was good reason, due to his treatment needs and the risk he posed to women, and his appeal failed.
The case is relevant to all people discharging functions under the Mental Health (Care and Treatment) (Scotland) Act 2003, because the Supreme Court set out guidance on the correct approach to the principles in Section 1 of the Act. It also clarified the approach to applications for declarations of excessive security. In doing so, it partially overruled the finding in Lothian Health Board v BM 2007 SCLR 478 that the availability of accommodation in a medium secure hospital could never be relevant to an application for a declaration of excessive security.
From Axiom, Gerry Moynihan QC and Anna Poole QC appeared for the Scottish Ministers, and John McGregor for the Mental Health Tribunal for Scotland.
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