Precedents Cited

The Judgment references several key cases and legislative provisions to underpin its reasoning:

• Glass v United Kingdom [2004] ECHR 103: Established that compulsory detention and treatment in mental health contexts constitute interference with Articles 5 (Right to Liberty) and 8 (Right to Respect for Private and Family Life) of the ECHR.
• Clift v United Kingdom [2010] ECHR 1106: Clarified the "analogous position" requirement under Article 14, indicating that exact similarity is not necessary for discrimination claims.
• Christian Institute v Lord Advocate [2017] SC (UKSC) 29: Outlined the standard approach to proportionality in assessing human rights interference.
• Ghaidan v Godin-Mendoza [2004] 2 AC 557: Discussed the limitations of interpreting legislation under Section 3 of the Human Rights Act 1998.
• Bank Mellat v HM Treasury (No 2) [2014] AC 700: Warned against courts making less restrictive alternatives without legislative backing.

Additionally, references were made to reports by the Mental Welfare Commission for Scotland (MWCS) and the Scottish Mental Health and Incapacity Law Review (SMHLR), highlighting practical implications and legislative intent.

Legal Reasoning

Lord Harrower's legal reasoning pivoted on several critical points:

1. Differential Powers: The Mental Health (Care and Treatment) (Scotland) Act 2003 distinguishes between forensic and civil patients in terms of the Tribunal's powers. Specifically, while the Tribunal can specify recorded matters in compulsory treatment orders for civil patients, it lacks this authority for forensic patients under compulsion orders.
2. Article 14 ECHR Compliance: The court assessed whether this distinction constituted discrimination under Article 14, which prohibits discrimination in the enjoyment of Convention rights. The analysis confirmed that both compulsion and compulsory treatment orders fall under Article 5 and 8, and the differential treatment based on patient status (forensic vs. civil) engaged Article 14's non-discrimination clause.
3. Analogous Position: The petitioner demonstrated that despite procedural differences, forensic and civil patients share sufficiently similar circumstances concerning the need for appropriate care and treatment, making the differential treatment unjustifiable.
4. Proportionality and Justification: The Lord Advocate failed to justify the legislative distinction adequately. The court found no substantial reason why the absence of specifying recorded matters for forensic patients would be necessary, thereby deeming the difference disproportionate and unjustified.

Furthermore, Lord Harrower emphasized that legislative schemes should not be undermined by judicial interpretation, particularly when it comes to fundamental distinctions established by Parliament.

Impact

The Judgment has profound implications for mental health law and human rights protections in Scotland:

• Legislative Reforms: The ruling necessitates amendments to the Mental Health (Care and Treatment) (Scotland) Act 2003 to afford the Tribunal the power to specify recorded matters for forensic patients, ensuring parity with civil patients.
• Enhanced Patient Protections: Forensic patients will benefit from more tailored and transparent care plans, potentially improving their treatment outcomes and safeguarding their rights.
• Human Rights Compliance: This case reinforces the judiciary's role in upholding ECHR standards within domestic law, prompting a reassessment of other potential discriminatory provisions.
• Precedential Value: Future cases involving discrimination within health and legal frameworks can draw upon this Judgment as a key reference point.

Compulsion Orders vs. Compulsory Treatment Orders

Compulsion Orders apply to individuals involved in criminal proceedings (forensic patients). If a person is acquitted due to their inability to comprehend their actions because of a mental disorder, a compulsion order can mandate their detention and treatment. These orders are issued by courts and consider the individual's offense and associated risks.

Compulsory Treatment Orders apply to individuals not involved in criminal proceedings (civil patients) who have impaired decision-making abilities regarding their treatment. These orders are issued by the Tribunal and focus solely on the patient's mental health needs without considering criminal conduct.

Recorded Matters

Recorded Matters refer to specific treatments, care services, or conditions that the Tribunal can mandate as part of a compulsory treatment order. These serve to ensure that the patient's treatment plan is detailed, appropriate, and enforceable.

In the context of this Judgment, forensic patients under compulsion orders were unable to have recorded matters specified, unlike their civil counterparts under compulsory treatment orders. This disparity was central to the claim of unlawful discrimination.

Article 14 of the ECHR

Article 14 prohibits discrimination in the enjoyment of the rights and freedoms set forth in the ECHR. However, it is not a standalone provision; it requires that there be a difference in treatment regarding the Convention rights, the grounds for discrimination must be among those listed (e.g., race, sex, disability), and the comparator groups must be in analogous positions.

In this case, the petitioner argued that forensic patients were discriminated against based on their status (a protected ground), lacking the ability to have recorded matters specified, unlike civil patients.