Scottish Ministers v Mental Health Tribunal for Scotland and MM [2009] CSIH 66

29 July 2009

This case is a further example of decisions of the Mental Health Tribunal for Scotland being set aside for being inadequately reasoned. 

MM had committed an offence.  He was mentally ill, so instead of being sent to prison, he was made subject to compulsion and restriction orders and detained in a mental hospital.  Some time later, the Mental Health Tribunal had to consider whether the compulsion and restriction orders should be revoked.  If both were revoked, MM would be at liberty.  Whether a mentally disordered offender should be at liberty is a matter of importance not only to the offender himself, but also to the public, who may be at risk if there is any further offending.  Mental Health Tribunals are required by statute to provide a 'full statement of facts and reasons' for their decisions, presumably because of the importance of the issues before them.  On an appeal by the Scottish Ministers against the decision of the Mental Health Tribunal, the Inner House found the Mental Health Tribunal's decision did not meet the required standard. 

The Inner House's decision is also of interest because of the obiter comments on the interpretation of Section 193 of the Mental Health (Care and Treatment) (Scotland) Act 2003.  The court is critical of the statutory drafting, and suggests various questions which may require to be decided in future appeals.

David Johnston QC and Anna Poole of Axiom Advocates acted for the successful Scottish Ministers.     

http://www.scotcourts.gov.uk/opinions/2009CSIH66.html