The petitioner, a detained mental patient challenged the validity of orders made by the Mental Health Tribunal established under the 2003 Act. He said that, the respondents having not passed regulations providing complete processes for the tribunals, those tribunals could not provide a fair process for him. In particular there was no appeal mechanism.
Held: Petition for judicial review was refused. The court accepted that a duty to make Regulations, and to do so within a particular period, could be imposed by implication. If legislation vested a person or class of persons with a right which could only be exercised if regulations governing that exercise were in force, it would be assumed that Parliament intended that the person delegated with the relevant power should make regulations so as to activate the right in practice. However section 268 did not confer any rights on any person or class of persons but permitted the identification of such persons by regulation. It was only once such regulations were made that any right could arise. Section 268 was to be contrasted with section 264, under which no further legislative action was required for the provisions to have effect once the chapter came into force
Judges:
Lord Carloway
Citations:
[2008] ScotCS CSOH – 123
Links:
Statutes:
Mental Health (Care and Treatment) (Scotland) Act 2003 268
Cited by:
At Outer House – RM, Re Judicial Review SCS 21-Mar-2012
The applicant was detained in a mental hospital. After losing a challenge to being moved to a higher security section he found that he was unable to appeal because the Scottish Parliament had not passed Regulations proving the structure for an . .
Outer House – RM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .
Lists of cited by and citing cases may be incomplete.
Scotland, Constitutional
Updated: 19 July 2022; Ref: scu.272864