Consultation in relation to section 268 appeals against conditions of excessive security

Background to the consultation

2. In November 2012, the Supreme Court heard the case of RM, a patient held in a low secure facility in Scotland. RM had raised a judicial review against the Scottish Ministers in respect of Ministers' alleged failure to introduce regulations to give a right of appeal under the Mental Health ( Care and Treatment) (Scotland ) Act 2003 (' the 2003 Act' ) to patients held in conditions of excessive security in hospitals other than the State Hospital.

3. The Court found in favour of RM stating that the relevant provisions of the 2003 Act created a statutory duty to make regulations under section 268 of the Act in time for the coming into force of that part of the Act in May 2006 and that Scottish Ministers' failure to bring forward regulations under section 268 of the 2003 Act by that date was and is unlawful. The Court however did not opine on whether any patient's rights were being infringed as a result of the failure to make regulations. The consultation paper set this decision in context and proposed options for legislative change.