RM v The Scottish Ministers [2008] ScotCS CSOH_123 (27 August 2008)

RM v The Scottish Ministers [2008] ScotCS CSOH_123 (27 August 2008)

Section 268 of the Mental Health (Care and Treatment) (Scotland) Act 2003 does not impose a legal duty on the Scottish Ministers to make and lay regulations specifying qualifying patients and hospitals by any particular date. The section permits, but does not require, the Ministers to make such regulations at their discretion. There is no unlawfulness in the respondents' failure to make the regulations by 1 May 2006 or thereafter.

Citation
[2008] ScotCS CSOH_123
Parties
Petitioner: RM; Respondents: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
27 August 2008
Procedural Posture
Judicial Review Petition / Final Judgment at First Instance
Outcome
petition refused
Legal Topics
Statutory Interpretation, Regulations Under Mental Health (care and Treatment) (scotland) Act 2003, Ministerial Duties, Rights of Appeal for Detained Patients
Public Law Mental Health Law Administrative Law Statutory Interpretation Regulations Under Mental Health (care and Treatment) (scotland) Act 2003 Ministerial Duties Rights of Appeal for Detained Patients

Case Brief

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Parties

RM

Petitioner

The Scottish Ministers

Respondents

Procedural Posture

Judicial Review Petition / Final Judgment at First Instance

Legal Issues

  1. 1 Whether the Scottish Ministers are under a legal duty to make and lay before Parliament regulations under section 268 of the Mental Health (Care and Treatment) (Scotland) Act 2003 by a specified date to enable appeals by non-state hospital patients against conditions of excessive security.
  2. 2 Whether the failure to make such regulations by 1 May 2006 is unlawful.

Ratio Decidendi

Section 268 of the Mental Health (Care and Treatment) (Scotland) Act 2003 does not impose a legal duty on the Scottish Ministers to make and lay regulations specifying qualifying patients and hospitals by any particular date. The section permits, but does not require, the Ministers to make such regulations at their discretion. There is no unlawfulness in the respondents' failure to make the regulations by 1 May 2006 or thereafter.

Court Disposition

petition refused

Orders

  • Respondents' second plea-in-law sustained.
  • Petitioner's plea-in-law repelled.