The Mental Health Tribunal for Scotland, in terminating a restiction order of a detained patient, had erred in law: (1) The threshold requirements in section 193(2) (that the patient has a mental disorder and that it is necessary for the patient to be detained in order to protect any other person from serious harm) must be considered and found wanting before considering the rest of the section including, under s193(5), whether to terminate the restriction order; (2) the criteria in s193(5)(b) (that the serious harm test is satisfied and that the restriction order is a continuing necessity) are disjunctive and must be separately considered. Obiter, there was a failure to deal with large parts of the evidence, in particular the RMO's evidence that the serious risk test was met.
Before: Lord Wheatley, Lord Clarke, Lady Cosgrove
For the Appellants: Johnstone QC, Poole; Scottish Government Legal Directorate
Respondents: Dunlop QC, K Campbell, Solicitor to the Mental Health Tribunal
Interested Party (JK): O'Carroll: Balfour + Manson LLP