Legal tests to be applied by Mental Health Tribunals

12 February 2009

If an offender suffers from a mental disorder, in addition to a compulsion order authorising detention in a mental hospital, a restriction order may be imposed by the sentencing court.  The purpose of restriction orders is to provide additional safeguards in the decision making process concerned with the management and possible release of a restricted patient, in the public interest.  Mental Health Tribunals were given a new power by the Mental Health (Care and Treatment) (Scotland) Act 2003 to revoke restriction orders in circumstances specified in Section 193. 

Scottish Ministers v Mental Health Tribunal for Scotland and JK [2009] CSIH 9 is an important decision of the Inner House on the statutory tests to be applied by Mental Health Tribunals when reviewing cases concerning patients subject to restriction orders.  The Mental Health Tribunal had revoked the restriction order to which the patient was subject.  Its decision was overturned by the Inner House on appeal by the Scottish Ministers.  The Inner House took the opportunity to set out the approach which should be taken by all Mental Health Tribunals to Section 193 of the 2003 Act, in particular in relation to the sequential nature of the statutory provisions, the serious harm test, and the continued necessity of a restriction order. 

The successful Scottish Ministers were represented by David Johnston QC and Anna Poole of Axiom Advocates.

http://www.scotcourts.gov.uk/opinions/2009CSIH9.html