RM, Re Judicial Review v The Scottish Ministers [2011] ScotCS CSIH_19 (15 March 2011)

RM, Re Judicial Review v The Scottish Ministers [2011] ScotCS CSIH_19 (15 March 2011)

Section 268 of the 2003 Act does not impose a duty on the Scottish Ministers to make regulations specifying qualifying patients and hospitals, as the statute does not itself identify the class of persons to benefit from such regulations. The power to make regulations is discretionary, not mandatory, and the legislative scheme provides Ministers with flexibility to introduce rights of appeal for designated patients in designated hospitals as appropriate. The reclaiming motion is therefore refused.

Citation
[2011] ScotCS CSIH_19
Parties
Petitioner & Reclaimer: RM; Respondents: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
15 March 2011
Procedural Posture
Judicial Review / Appeal (reclaiming Motion) From Lord Ordinary's Decision
Outcome
Reclaiming motion refused; petition dismissed.
Legal Topics
Statutory Duty to Make Regulations, Mental Health (care and Treatment) (scotland) Act 2003, Detention in Conditions of Excessive Security, Judicial Review of Ministerial Discretion
Administrative Law Mental Health Law Statutory Interpretation Statutory Duty to Make Regulations Mental Health (care and Treatment) (scotland) Act 2003 Detention in Conditions of Excessive Security Judicial Review of Ministerial Discretion

Case Brief

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Parties

RM

Petitioner & Reclaimer

The Scottish Ministers

Respondents

Procedural Posture

Judicial Review / Appeal (reclaiming Motion) From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether the Scottish Ministers were under a statutory duty to draft and lay regulations under sections 268(11) and (12) of the Mental Health (Care and Treatment) (Scotland) Act 2003 before the Scottish Parliament to enable appeals by patients detained in non-state hospitals in conditions of excessive security.

Ratio Decidendi

Section 268 of the 2003 Act does not impose a duty on the Scottish Ministers to make regulations specifying qualifying patients and hospitals, as the statute does not itself identify the class of persons to benefit from such regulations. The power to make regulations is discretionary, not mandatory, and the legislative scheme provides Ministers with flexibility to introduce rights of appeal for designated patients in designated hospitals as appropriate. The reclaiming motion is therefore refused.

Court Disposition

Reclaiming motion refused; petition dismissed.