Failure to Exercise a Discretionary Power

RM v. Scottish Ministers, [2012] UKSC 58 was a relatively straightforward case for the UK Supreme Court. The applicant/appellant is currently detained in a mental health facility under a compulsion order and wishes to apply to the Mental Health Tribunal for an order declaring that he is being held in conditions of excessive security.

The problem is that although the legislation in issue provides for such applications, they are contingent on the patient and his hospital being 'qualified' under the Mental Health (Care and Treatment) (Scotland) Act, 2003. Unfortunately, no regulations have been passed identifying the "qualifying patients" and "qualifying hospitals" for the purposes of such applications. This situation is not likely to last much longer, however.