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

BACKGROUND

1. 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 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' )^[2] to patients held in conditions of excessive security in hospitals other than the State Hospital.

2. 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. A full summary of the case is attached in an annex to the consultation.

3. This consultation paper will set this decision in context and propose options for legislative change. References to sections within legislation are to be read as references to sections of the 2003 Act unless stated otherwise.