Mentally disordered offenders and the State Hospital

29 August 2011

In G v Scottish Ministers [2011] CSIH 55 the Inner House considered the powers of the Mental Health Tribunal for Scotland in relation to declarations of excessive security.   

The State Hospital in Carstairs treats a number of mentally disordered patients who have committed criminal offences.  The State Hospital is the maximum security hospital in Scotland.  Where a patient considers that they do not require the high security of Carstairs, but could be treated in hospitals with medium or low security, an application may be made to the Tribunal for a declaration that they are held in conditions of excessive security.  The application is made under Section 264 of the Mental Health (Care and Treatment) (Scotland) Act 2003.  There are then obligations for Health Boards to identify suitable lower security hospital places for the patient.

In G, the patient had not carried out sexual offending risk reduction treatment, despite it being available to him.  This treatment was necessary before he could safely return to the community.   The best resourced place for the treatment was the State hospital.  The Inner House upheld the decision of the Tribunal that, although the patient did not require the conditions of special security available only in the State Hospital, a declaration of excessive security should not be made. 

The decision of the Inner House contains useful guidance on the Tribunal's discretion to refuse to make a declaration of excessive security, and the role of the general principles in Section 1 of the 2003 Act in decision making by Tribunals. 

Anna Poole of Axiom Advocates acted on behalf of the Scottish Ministers.

http://www.scotcourts.gov.uk/opinions/2011CSIH55.html