Woman detained in hospital under mental health legislation unsuccessful in petition for discharge

About this case:

• Citation:
  [2024] CSOH 107
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Tyre

Petitioner MC, who was detained in low secure conditions in hospital, sought an order requiring the relevant parts of the Mental Health (Care and Treatment) (Scotland) Act 2003 to be read in a way allowing her to apply for a declaration she was being detained in inappropriate conditions. The Mental Health Tribunal for Scotland and the Lord Advocate Dorothy Bain KC appeared as respondents to the petition

The petition was heard by Lord Lake. Leighton, advocate, appeared for the petitioner, McGuire, advocate, for the first respondent, and MacPherson, advocate, for the second respondent.

Difference in treatment

It was the petitioner’s position that the most appropriate place for her to be treated was outwith hospital and that she required care consistent with being in the community. All parties accepted that, while there was no way to read the 2003 Act in a way that would produce the desired result without going against the grain of the legislation, the issue of the case was whether the 2003 Act infringed Article 14 ECHR.

Counsel for the petitioner submitted that the 2003 Act discriminated against her. She pointed to the fact that patients wishing to move to a different level of secure conditions within hospital could apply to the Tribunal for a declaration that they were detained in conditions of excessive security. The petitioner, already at the lowest security level, could not make such an application.

The petitioner averred that she had been a delayed discharge patient since January 2003. During the hearing, it was clarified that, while she was not fit to be returned home, she was fit to be discharged. The onus to justify the difference in treatment between her and other patients lay on the respondents and that they had not suggested any justification for the different treatment of the petitioner.

For the respondents it was submitted that in her last application to discharge the CTO it was noted that not only had the Tribunal not revoked the order, but they had also not agreed to a submission that they should note a recorded matter putting a timeline for finding alternative accommodation as a pathway to discharge. This decision indicated that the petitioner was not in fact fit to be discharged and that this fundamentally undermined the basis of the petition.

Not same position

In his decision, Lord Lake began by noting: “The petitioner wishes to be in a position to take advantage of the provisions in Chapter 3 of Part 17 of the 2003 Act to obtain a declarator that she is being detained in inappropriate conditions. As was clear from the submissions, however, the petitioner does not seek to challenge those conditions. She has not made any complaint about the conditions in which she is detained. Her complaint is that she should not be detained at all. In this situation, it appears that the petition seeks a remedy which does not address the claimed problem.”

He continued: “That the petitioner’s objective does not accord with the purpose of Part 17 also undermines the attempt to identify a comparator analogous to her situation. Patients who are detained under high or medium security conditions who make an application under Part 17 are in a situation which is different in a material way in that they are not seeking to be released from detention. Parties in the petitioner’s position who wish to be released from detention, can seek an order under section 100 of the Act for revocation of the CTO. The petitioner has pursued this route and her application was rejected.”

Turning to the Article 14 challenge, Lord Lake said: “The petitioner has not established that she is in the same position as her comparators and had therefore not established than any difference in the remedies available to her is discrimination which is prohibited by that Article. Patients detained under high or medium security and who make an application for variation of the conditions to one of lesser security are not in a similar situation to the petitioner.”

He concluded: “A review of the conditions of detention against the background that the applicant will remain subject to detention, raises different issues of narrower scope than bringing that detention to an end. In this situation, the requirement for justification does not arise. If however, the identified alternatives were comparators, the differences in the intended outcome in the two situations would be sufficient to justify the differences in treatment of the two classes.”

The court therefore refused to grant the petitioner the remedies she sought.