Legislation and Caselaw

Primary Legislation

The Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act")

The "Latest available (Revised)" version of the 2003 Act which is published on the UK legislation website incorporates all changes to the 2003 Act to date.

The legislative provisions regarding the making of compulsion and restriction orders are contained in Part 6 of the Criminal Procedure (Scotland) Act 1995. This is available here https://www.legislation.gov.uk/ukpga/1995/46/part/VI

Provisions concerning the rights of victims are contained in Part 2 of the Criminal Justice (Scotland) Act 2003. This is available here https://www.legislation.gov.uk/asp/2003/7/part/2

The 2003 Act was amended by the Mental Health (Scotland) Act 2015 ("the 2015 Act"). Most of the provisions of the 2015 Act, and new regulations, came into force on 30 June 2017.

Sections 40 to 45 of Part 2 of the 2015 Act amending the Criminal Procedure (Scotland) Act 1995 and Part 3 (sections 54 to 60) amending the Criminal Justice (Scotland) Act 2003 relating to victims’ rights came into force on 30 September 2017.

With regard to section 1 of the 2015 Act (amending sections 64 and 65 of the 2003 Act), the commencement date has still to be appointed.

Click on the following link to access a Note on key provisions of the 2015 Act affecting the 2003 Act.

Note on key provisions of the 2015 Act

Click on the link below to access a document providing links to all recent mental health legislation (including Policy Notes), and also links to Scottish Government webpages with guidance on the implementation of the 2015 Act and the new regulations.

Recent mental health legislation including links to Scottish Government guidance on the 2015 Act

Secondary Legislation

The detailed rules for how the Tribunal operates are contained in secondary legislation, namely a series of Scottish Statutory Instruments (‘SSIs’). These have been made by Ministers under various sections of the Act. The most important SSI contains the Rules of Procedure. The Rules as published on the UK legislation website incorporate all changes to date.

The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005 ("the Rules")

Other SSIs, which relate to the Tribunal and its operation, are listed in this table.

Case law

Case Digest Volume 1, published in 2011, and Case Digest Volume 2, published in 2022, both summarise and comment on appeals and judicial reviews concerning Tribunal decisions where a written judgement has been issued by the court. It is hoped that professionals, patients and carers involved in proceedings before mental health tribunals will find these Case Digests of use and of interest.

Listed below are written judgments of the courts in cases where an appeal or Petition for Judicial Review has been brought against a decision of the Tribunal.

Also listed is the Opinion of Lord Maclean in the case of R v Lothian Health Board, 27 November 1992 (and reported in 1993 SLT 1021) decided under the Mental Health (Scotland) Act 1984, and concerning successive short term detention certificates.

Click on a case name to access the full text of the relevant court judgement.

MHTS Decisions

Below is a table containing decisions which have been made by The Mental Health Tribunal for Scotland. Using the heading in each column you can filter decisions in several ways to make it easier to find what you may be looking for. You can filter by 'Application Section', 'Decision Section' or 'Description'. The table is updated regularly with new decisions.