MC (fe/la) for Judicial Review (Court of Session)

Factual and Procedural Background

The Plaintiff is subject to a Compulsory Treatment Order ("CTO") under the Mental Health (Care and Treatment) (Scotland) Act 2003, detained in low secure conditions at The Hospital. The Plaintiff has applied for discharge of the CTO under section 100 of the 2003 Act, with the most recent application refused on 27 March 2024. The Plaintiff claims that community-based care is more appropriate than hospital detention. The first respondent is the Mental Health Tribunal for Scotland and the second respondent is the Lord Advocate. The Plaintiff seeks judicial review challenging aspects of the legislation governing her detention and available remedies.

Legal Issues Presented

1. Whether the relevant provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 infringe the Plaintiff’s rights under Article 14 of the European Convention on Human Rights by discriminating against her in the availability of remedies.
2. Whether the Plaintiff is entitled to an order allowing her to apply under Chapter 3 of Part 17 of the Act for a declaration that she is detained in inappropriate conditions and requiring the identification of community accommodation.
3. Whether the Plaintiff’s status as a "delayed discharge patient" is sufficient to engage Article 14 protections against discrimination.
4. The scope and applicability of Articles 5 and 8 ECHR in relation to the Plaintiff’s detention and conditions of detention.

Arguments of the Parties

Plaintiff's Arguments

• The 2003 Act discriminates by allowing patients detained under high or medium security to apply for declarations regarding excessive security conditions and require alternative accommodation, while the Plaintiff, detained in low security, cannot.
• The Plaintiff claims to be a "delayed discharge patient," fit for discharge but unable to leave due to lack of suitable accommodation, thus possessing a status relevant for Article 14.
• She seeks to be released from detention entirely, not merely to change conditions, and argues that the inability to apply under Part 17 constitutes discriminatory treatment.
• The difference in treatment lacks justification from the respondents, who have not provided a reasonable basis for the disparity.
• References were made to case law including Ghaidan v Godin-Mendoza, Clift v United Kingdom, and Marzari v Italy to support the argument that the Plaintiff’s rights under Articles 5, 8, and 14 are engaged.
• The United Nations Convention on the Rights of Persons with Disability was mentioned as relevant to interpretation, though ultimately not determinative.

Respondents' Arguments

• The Plaintiff does not meet the definition of "delayed discharge patient" as per the 2023 Public Health Scotland publication, since she is not clinically ready for discharge.
• The Plaintiff’s most recent CTO revocation application was refused, indicating she is not fit for discharge, undermining the basis of her claim.
• The Plaintiff has not exhausted available remedies, including appeals against refusals by the Tribunal and possible proceedings against the local authority for accommodation.
• Article 5 does not engage as the detention is lawful under the CTO and the Plaintiff’s complaint concerns conditions, not detention itself.
• Article 8 is not engaged as there is no complaint about the conditions or treatment at The Hospital.
• The Plaintiff’s status is insufficiently defined and the comparators (patients seeking changes in security levels) are not analogous because they seek changes in conditions, not release from detention.
• The legislative scheme justifies differential treatment by addressing different concerns proportionately for patients at various security levels.
• There is a material difference between seeking to vary detention conditions and seeking release, meaning no discrimination arises.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by clarifying the Plaintiff’s status, noting that she does not satisfy the clinical readiness criteria for a "delayed discharge patient" as defined in the Public Health Scotland publication. This undermined her claim to analogous status for Article 14 purposes. The court observed that the Plaintiff’s complaint is not about the conditions of her detention but about the fact of detention itself. Part 17 of the 2003 Act, which permits applications regarding excessive security conditions and mandates identification of alternative accommodation, is designed for patients detained under higher security levels seeking changes in conditions, not release from detention.

The Plaintiff’s remedy to seek revocation of the CTO under section 100 had been pursued and refused, and she failed to exhaust available appeals. The court found that the legislative scheme provides appropriate avenues for challenging detention and that the Plaintiff’s attempt to use Part 17 provisions for a different purpose does not align with the statutory framework.

Regarding the Article 14 claim, the court concluded that the Plaintiff’s situation is materially different from the comparators who seek changes in detention conditions rather than release. This difference justified the differential treatment. The court accepted that the Plaintiff’s detention is lawful and not arbitrary, thus engaging Article 5 only in the context of the right to challenge detention, which is provided for in the Act. Article 8 was not engaged as there was no complaint about conditions or treatment.

Consequently, the court found no breach of Article 14 or other ECHR rights in the legislative provisions at issue. The references to international conventions and case law informed the analysis but did not alter the outcome.

Holding and Implications

The court REFUSED the remedies sought by the Plaintiff, sustaining the pleas for the first and second respondents. It held that the Mental Health (Care and Treatment) (Scotland) Act 2003 does not breach the Plaintiff’s rights under Article 14 of the ECHR in the manner alleged.

The decision means that the Plaintiff cannot use Part 17 of the Act to seek a declarator regarding detention conditions as a means to effect release. The existing statutory remedies, including applications for revocation of the CTO and appeals, remain the appropriate routes. No new precedent was established beyond the application of established principles to the facts of this case.