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CHAPTER 4 |
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INTERPRETATION OF PART |
180 | Interpretation of Part |
| In this Part of this Act "relevant compulsion order" has the meaning given by section 137(1) of this Act. |
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PART 10 |
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COMPULSION ORDERS AND RESTRICTION ORDERS |
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CHAPTER 1 |
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PRELIMINARY |
181 | Mental health officer's duty to identify named person |
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(1) This section applies where a compulsion order and a restriction order are made in respect of a patient. |
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(2) The mental health officer shall, as soon as practicable after the compulsion order is made, take such steps as are reasonably practicable to ascertain the name and address of the patient's named person. |
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CHAPTER 2 |
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REVIEW OF ORDERS |
| Annual review of orders |
182 | Review of compulsion order and restriction order |
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(1) This section applies where a patient is subject to a compulsion order and a restriction order. |
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(2) The patient's responsible medical officer shall, during the period of 2 months ending with the relevant day, carry out a review in respect of both the compulsion order and restriction order by complying with the requirements set out in subsection (3) below. |
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(3) Those requirements are- |
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(i) carry out a medical examination of the patient; or
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(ii) make arrangements for an approved medical practitioner to carry out such a medical examination;
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(i) whether the conditions mentioned in subsection (4) below continue to apply in respect of the patient;
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(ii) whether, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment;
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(iii) whether it continues to be necessary for the patient to be subject to the compulsion order; and
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(iv) whether it continues to be necessary for the patient to be subject to the restriction order; and
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(c) to consult the mental health officer. |
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(4) Those conditions are- |
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(a) that the patient has a mental disorder; |
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(b) that medical treatment which would be likely to- |
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(i) prevent the mental disorder worsening; or
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(ii) alleviate any of the symptoms, or effects, of the disorder,
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is available for the patient; and |
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(c) that if the patient were not provided with such medical treatment there would be a significant risk- |
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(i) to the health, safety or welfare of the patient; or
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(ii) to the safety of any other person.
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(5) In subsection (2) above, the "relevant day" means- |
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(a) the day which falls 12 months after the day on which the compulsion order is made; or |
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(b) where that relevant day has passed, the day falling on the same day in every year thereafter. |
| Consequences of annual review |
183 | Responsible medical officer's report and recommendation following review of compulsion order and restriction order |
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(1) This section applies where a patient's responsible medical officer carries out a review under section 182(2) of this Act. |
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(2) The responsible medical officer shall, as soon as practicable after carrying out that review, submit a report in accordance with subsection (3) below to the Scottish Ministers. |
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(3) That report shall record the responsible medical officer's views as to- |
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(a) whether the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; |
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(b) whether, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; |
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(c) whether it continues to be necessary for the patient to be subject to the compulsion order; and |
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(d) whether it continues to be necessary for the patient to be subject to the restriction order. |
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(4) If, after having regard to any views expressed by the mental health officer, the responsible medical officer is not satisfied that the patient has a mental disorder, the responsible medical officer shall include in the report submitted to the Scottish Ministers under subsection (2) above a recommendation that the compulsion order be revoked. |
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(5) If, after having regard to any views expressed by the mental health officer, the responsible medical officer- |
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(a) is satisfied that the patient has a mental disorder; but |
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
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(ii) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient,
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the responsible medical officer shall include in the report submitted under subsection (2) above a recommendation that the compulsion order be revoked. |
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(6) If, after having regard to any views expressed by the mental health officer, the responsible medical officer- |
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(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
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(ii) that it continues to be necessary for the patient to be subject to the compulsion order; but
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
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(ii) that it continues to be necessary for the patient to be subject to the restriction order,
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the responsible medical officer shall include in the report submitted to the Scottish Ministers under subsection (2) above a recommendation that the restriction order be revoked. |
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(7) If, after having regard to any views expressed by the mental health officer, the responsible medical officer- |
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(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
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(ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but
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(b) is not satisfied that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment, |
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the responsible medical officer may include in the report submitted to the Scottish Ministers under subsection (2) above a recommendation that the patient be conditionally discharged. |
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(8) Where the responsible medical officer- |
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(a) submits a report under subsection (2) above that includes a recommendation under subsection (6) above; and |
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(b) is satisfied that the compulsion order should be varied by modifying the measures specified in it, |
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the responsible medical officer shall include in the report a recommendation that the compulsion order be varied in that way. |
| Responsible medical officer's duty to keep orders under review |
184 | Responsible medical officer's duty to keep compulsion order and restriction order under review |
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(1) This section applies where a patient is subject to a compulsion order and a restriction order. |
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(2) Without prejudice to the duty imposed on the patient's responsible medical officer by section 182(2) of this Act, the responsible medical officer shall from time to time consider- |
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(a) whether the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; |
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(b) whether, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; |
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(c) whether it continues to be necessary for the patient to be subject to the compulsion order; and |
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(d) whether it continues to be necessary for the patient to be subject to the restriction order. |
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(3) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the responsible medical officer is not satisfied that the patient has a mental disorder, the responsible medical officer shall, as soon as practicable after considering those matters, submit to the Scottish Ministers a report complying with the requirements set out in section 183(3) of this Act and including a recommendation that the compulsion order be revoked. |
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(4) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the responsible medical officer- |
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(a) is satisfied that the patient has a mental disorder; but |
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
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(ii) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient,
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the responsible medical officer shall, as soon as practicable after considering those matters, submit to the Scottish Ministers a report complying with the requirements set out in section 183(3) of this Act and including a recommendation that the compulsion order be revoked. |
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(5) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the responsible medical officer- |
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(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
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(ii) that it continues to be necessary for the patient to be subject to the compulsion order; but
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(b) is not satisfied that- |
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
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(ii) that it continues to be necessary for the patient to be subject to the restriction order,
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the responsible medical officer shall, as soon as practicable after considering those matters, submit to the Scottish Ministers a report complying with the requirements set out in section 183(3) of this Act and including a recommendation that the restriction order be revoked. |
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(6) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the responsible medical officer- |
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(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
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(ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but
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(b) is not satisfied that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment, |
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the responsible medical officer may submit to the Scottish Ministers a report complying with the requirements set out in section 183(3) of this Act and including a recommendation that the patient be conditionally discharged. |
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(7) Where the responsible medical officer- |
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(a) submits a report under subsection (5) above; and |
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(b) is satisfied that the compulsion order should be varied by modifying the measures specified in it, |
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the responsible medical officer shall include in the report a recommendation that the compulsion order be varied in that way. |
| Reference to Tribunal by Scottish Ministers |
185 | Duty of Scottish Ministers on receiving report from responsible medical officer |
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(1) Where a patient's responsible medical officer submits to the Scottish Ministers- |
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(a) a report under section 183(2) of this Act that includes a recommendation; or |
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(b) a report under section 184 of this Act, |
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the Scottish Ministers shall make a reference to the Tribunal in respect of the compulsion order and restriction order to which the patient is subject. |
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(2) Where a reference is made under subsection (1) above, the Scottish Ministers shall, as soon as practicable, give notice that a reference is to be made to- |
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(b) the patient's named person; |
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(c) any guardian of the patient; |
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(d) any welfare attorney of the patient; |
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(e) the patient's responsible medical officer; |
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(f) the mental health officer; and |
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(3) A reference under subsection (1) above shall state- |
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(a) the name and address of the patient; |
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(b) the name and address of the patient's named person; and |
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(c) the recommendation included in the report submitted by the responsible medical officer. |
186 | Commission's power to require Scottish Ministers to make reference to Tribunal |
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(1) This section applies where a patient is subject to a compulsion order and a restriction order. |
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(2) If it appears to the Commission that it is appropriate to do so, it may, by notice in writing to the Scottish Ministers, require them to make a reference to the Tribunal in respect of the compulsion order and the restriction order to which the patient is subject. |
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(3) Where, under subsection (2), the Commission gives notice to the Scottish Ministers, the Commission shall include in that notice its reasons for requiring the Scottish Ministers to make the reference. |
187 | Notice under section 186(2): reference to Tribunal |
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(1) This section applies where, under section 186(2) of this Act, the Commission gives notice to the Scottish Ministers. |
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(2) The Scottish Ministers shall, as soon as practicable after receiving notice under section 186(2) of this Act, make a reference to the Tribunal in respect of the compulsion order and restriction order to which the patient is subject. |
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(3) Where a reference is made under subsection (2) above, the Scottish Ministers shall, as soon as practicable, give notice that the reference is to be or, as the case may be, has been made to the persons mentioned in paragraphs (a) to (g) of section 185(2) of this Act. |
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(4) A reference under subsection (2) above shall state- |
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(a) the name and address of the patient; |
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(b) the name and address of the patient's named person; and |
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(c) the reason given by the Commission in the notice under section 186(2) of this Act for requiring the Scottish Ministers to make the reference. |
| Scottish Ministers' duty to keep orders under review |
188 | Duty of Scottish Ministers to keep compulsion order and restriction order under review |
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(1) This section applies where a patient is subject to a compulsion order and a restriction order. |
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(2) Without prejudice to the duties imposed on the Scottish Ministers by sections 185(1), 187(2) and 189(2) of this Act, the Scottish Ministers shall from time to time consider- |
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(a) whether the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; |
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(b) whether, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; |
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(c) whether it continues to be necessary for the patient to be subject to the compulsion order; and |
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(d) whether it continues to be necessary for the patient to be subject to the restriction order. |
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(3) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the Scottish Ministers are not satisfied that the patient has a mental disorder, they shall apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act revoking the compulsion order. |
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(4) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the Scottish Ministers- |
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(a) are satisfied that the patient has a mental disorder; but |
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
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(ii) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient,
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they shall, as soon as practicable after considering those matters, apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act revoking the compulsion order. |
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(5) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the Scottish Ministers- |
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(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
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(ii) that it continues to be necessary for the patient to be subject to the compulsion order; but
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
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(ii) that it continues to be necessary for the patient to be subject to the restriction order,
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they shall apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act revoking the restriction order. |
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(6) Where the Scottish Ministers- |
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(a) apply, by virtue of subsection (5) above, for an order revoking the restriction order; and |
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(b) are satisfied that the compulsion order should be varied by modifying the measures specified in it, |
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they shall apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act varying the compulsion order in that way. |
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(7) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the Scottish Ministers- |
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(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
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(ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but
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(b) are not satisfied that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment, |
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they may apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act conditionally discharging the patient. |
189 | Reference to Tribunal by Scottish Ministers |
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(1) This section applies where a patient is subject to a compulsion order and a restriction order. |
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(2) If- |
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(a) during the period of 2 years ending with the relevant day- |
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(i) no reference under section 185(1) or 187(2) of this Act has been made to the Tribunal; and
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(ii) no application under section 191 or 192(2) of this Act has been made to the Tribunal; and
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(b) during each period of 2 years ending with the anniversary, in every year thereafter, of the relevant day- |
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(i) no reference such as is mentioned in paragraph (a)(i) above or, subject to subsection (3) below, under this subsection has been made to the Tribunal; and
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(ii) no application such as is mentioned in paragraph (a)(ii) above has been made to the Tribunal,
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the Scottish Ministers shall make a reference to the Tribunal in respect of the compulsion order and restriction order to which the patient is subject. |
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(3) The Scottish Ministers shall, in considering, under subsection (2)(b)(i) above, whether a reference has been made to the Tribunal during any 2 year period, leave out of account any reference made under subsection (2) above during the first year of that 2 year period. |
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(4) Where a reference is made under subsection (2) above, the Scottish Ministers shall, as soon as practicable, give notice that a reference is to be or, as the case may be, has been made to the persons mentioned in paragraphs (a) to (g) of section 185(2) of this Act. |
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(5) A reference under subsection (2) above shall state- |
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(a) the name and address of the patient; |
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(b) the name and address of the patient's named person; and |
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(c) the reason for making the reference. |
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(6) In subsection (2) above, the "relevant day" means the day which falls 2 years after the day on which the compulsion order is made. |
190 | Application by Scottish Ministers: notification |
| Where, by virtue of section 188 of this Act, an application is to be made under section 191 of this Act, the Scottish Ministers shall, as soon as practicable after the duty to make the application arises, give notice to the persons mentioned in paragraphs (a) to (g) of section 185(2) of this Act that the application is to be or, as the case may be, has been made. |
191 | Application to Tribunal |
| An application under this section to the Tribunal by the Scottish Ministers for an order under section 193 of this Act- |
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(i) the name and address of the patient;
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(ii) the name and address of the patient's named person;
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(iii) the order (or orders) sought;
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(iv) the modification of the measures specified in the compulsion order that is proposed by the Scottish Ministers; and
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(v) the reasons for seeking that modification; and
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(b) shall be accompanied by such documents as may be prescribed by regulations. |
| Application by patient etc. |
192 | Application to Tribunal by patient and named person |
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(1) This section applies where a patient is subject to a compulsion order and a restriction order. |
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(2) Each of the persons mentioned in subsection (3) below may, subject to subsections (4) and (5) below, make an application under this section to the Tribunal for an order under section 193 of this Act- |
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(a) conditionally discharging the patient; |
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(b) revoking the restriction order to which the patient is subject; |
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(c) revoking the restriction order and varying the compulsion order by modifying the measures specified in it; or |
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(d) revoking the compulsion order to which the patient is subject. |
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(3) Those persons are- |
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(b) the patient's named person. |
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(4) An application under this section may not be made- |
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(a) during the period of 6 months beginning with the making of the compulsion order; |
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(b) during the period of 3 months beginning with- |
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(i) the making of an order in respect of the compulsion order made under section 193 of this Act; or
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(ii) the making, under section 193 of this Act, by the Tribunal of a decision to make no order under that section.
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(5) Neither of the persons mentioned in subsection (3) above may make more than one application under this section during- |
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(a) the period of 12 months beginning with the day on which the compulsion order was made; or |
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(b) any subsequent period of 12 months that begins with or with an anniversary of the expiry of the period of 12 months mentioned in paragraph (a) above. |
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(6) Where a patient's named person makes an application under subsection (2) above, the named person shall give notice to the patient of the making of the application. |
| Proceedings before Tribunal |
193 | Powers of Tribunal on reference under section 185(1), 187(2) or 189(2) or application under section 191 or 192(2) |
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(1) This section applies where- |
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(a) an application is made under section 191 or 192(2) of this Act; or |
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(b) a reference is made under section 185(1), 187(2) or 189(2) of this Act. |
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(2) If the Tribunal is satisfied- |
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(a) that the patient has a mental disorder; and |
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(b) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment, |
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it shall make no order under this section. |
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(3) If the Tribunal is not satisfied that the patient has a mental disorder, the Tribunal shall make an order revoking the compulsion order. |
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(4) If the Tribunal- |
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(a) is satisfied that the patient has a mental disorder; but |
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
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(ii) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient,
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it shall make an order revoking the compulsion order. |
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(5) If the Tribunal- |
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(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
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(ii) that it continues to be necessary for the patient to be subject to the compulsion order; but
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
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(ii) that it continues to be necessary for the patient to be subject to the restriction order,
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it shall make an order revoking the restriction order. |
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(6) If the Tribunal- |
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(a) makes an order, under subsection (5) above, revoking the restriction order; and |
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(b) is satisfied that the compulsion order should be varied by modifying the measures specified in it, |
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it shall make an order varying the compulsion order in that way. |
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(7) If the Tribunal- |
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(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and
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(ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
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(ii) that it is necessary for the patient to be detained in hospital,
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the Tribunal may make an order that the patient be conditionally discharged and impose such conditions on that discharge as it thinks fit. |
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(8) Before making a decision under this section the Tribunal shall- |
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(a) afford the persons mentioned in subsection (9) below the opportunity- |
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(i) of making representations (whether orally or in writing); and
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(ii) of leading, or producing, evidence; and
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(b) whether or not any such representations are made, hold a hearing. |
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(9) Those persons are- |
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(b) the patient's named person; |
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(c) the patient's primary carer; |
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(d) any guardian of the patient; |
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(e) any welfare attorney of the patient; |
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(f) any curator ad litem appointed by the Tribunal in respect of the patient; |
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(g) the Scottish Ministers; |
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(h) the patient's responsible medical officer; |
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(i) the mental health officer; and |
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(j) any other person appearing to the Tribunal to have an interest. |
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(10) Nothing in section 102 (state hospitals) of the National Health Service (Scotland) Act 1978 (c.29) prevents or restricts the detention of a patient in a state hospital as a result of a decision of the Tribunal not to make any order under this section. |
194 | Tribunal's powers etc. when varying compulsion order |
| Where the Tribunal makes an order under section 193(6) of this Act varying a compulsion order, the Tribunal shall specify in its order the modifications made by its order to the measures specified in the compulsion order. |
195 | Deferral of conditional discharge |
| Where the Tribunal makes an order under section 193(7) of this Act conditionally discharging a patient, it may defer that discharge until such arrangements as appear to the Tribunal to be necessary for that purpose have been made. |
| Effect of modification or revocation of orders |
196 | General effect of orders under section 193 |
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(1) Where the Tribunal makes an order under section 193 of this Act- |
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(a) revoking a compulsion order; |
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(b) revoking a restriction order; |
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(c) conditionally discharging a patient; or |
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(d) varying a compulsion order by modifying the measures specified in it, |
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the order shall not have effect until the occurrence of the first to occur of the events mentioned in subsection (2) below. |
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(2) Those events are- |
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(a) the expiry of the appeal period, no appeal having been lodged within that period; and |
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(b) where an appeal has been lodged within the appeal period- |
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(i) the receipt by both the Court of Session and the managers of the hospital specified in the compulsion order of notice from the Scottish Ministers that they do not intend to move the Court of Session to make an order under section 323 of this Act;
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(ii) the refusal by the Court of Session to make such an order; and
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(iii) the recall of any such order or the expiry of its effect.
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(3) In subsection (2) above- |
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"appeal" means an appeal under section 322 of this Act; and |
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"appeal period" means, in relation to an appeal, the period, prescribed by regulations made under section 324(7) of this Act, within which the appeal has to be lodged in order to be competent. |
197 | Effect of revocation of compulsion order |
| Where the Tribunal makes an order under section 193(3) or (4) of this Act revoking a compulsion order, the restriction order to which the patient is subject shall cease to have effect. |
198 | Effect of revocation of restriction order |
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(1) This section applies where the Tribunal- |
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(a) makes an order under subsection (5) of section 193 of this Act revoking the restriction order to which the patient is subject; but |
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(b) does not make an order under subsection (3) or (4) of that section revoking the compulsion order to which the patient is subject. |
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(2) Part 9 of this Act shall apply to the patient as if the compulsion order to which the patient is subject were a relevant compulsion order made on the day on which the Tribunal revoked the restriction order. |
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(3) In this section, "relevant compulsion order" has the meaning given by section 137(1) of this Act. |
| Meaning of "modify" |
199 | Meaning of "modify" |
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In this Chapter, any reference to modifying the measures specified in a compulsion order includes a reference to- |
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(a) amending those measures; |
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(b) removing from the order any measure; or |
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(c) adding to the order any measure. |
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| |
|
CHAPTER 3 |
|
CONDITIONAL DISCHARGE |
200 | Variation of conditions imposed on conditional discharge |
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(1) This section applies where- |
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(a) a patient has been conditionally discharged by the Tribunal under section 193(7) of this Act; and |
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(b) the Tribunal imposed conditions on that discharge under that section. |
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(2) The Scottish Ministers may, if satisfied that it is necessary, vary such of the conditions imposed by the Tribunal under section 193(7) of this Act as they think fit. |
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(3) Where the Scottish Ministers vary, under subsection (2) above, conditions imposed by the Tribunal under section 193(7) of this Act, the Scottish Ministers shall, as soon as practicable, give notice of that variation to- |
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(b) the patient's named person; |
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(c) the patient's responsible medical officer; and |
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(d) the mental health officer. |
201 | Appeal to Tribunal against variation of conditions imposed on conditional discharge |
|
(1) Where the Scottish Ministers vary, under section 200(2) of this Act, conditions imposed by the Tribunal under section 193(7) of this Act on a patient who has been conditionally discharged under that section, the persons mentioned in subsection (2) below may, before the expiry of the period of 28 days beginning with the day on which notice is given under section 200(3) of this Act, appeal against the variation of those conditions to the Tribunal. |
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(2) Those persons are- |
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|
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(b) the patient's named person. |
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(3) Where an appeal is made to the Tribunal under subsection (1) above, section 193 of this Act shall apply as if the patient had applied under section 192 of this Act for an order conditionally discharging the patient. |
202 | Recall of patients from conditional discharge |
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(1) This section applies to a patient conditionally discharged by the Tribunal under section 193(7) of this Act. |
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(2) If the Scottish Ministers are satisfied that it is necessary for the patient to be detained in hospital, they may, by warrant, recall the patient to hospital. |
203 | Effect of recall from conditional discharge |
| Where the Scottish Ministers recall a patient to hospital under section 202 of this Act, if the hospital specified in the warrant is not the hospital specified in the compulsion order to which the patient is subject, that order shall have effect as if the hospital specified in the warrant were the hospital specified in the order. |
204 | Appeal to Tribunal against recall from conditional discharge |
|
(1) Where a patient has been recalled to hospital under section 202 of this Act, each of the persons mentioned in subsection (2) below may, before the expiry of the period of 28 days beginning with the day on which the patient returns or is returned to hospital, appeal against that recall to the Tribunal. |
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(2) Those persons are- |
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(b) the patient's named person. |
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(3) Where an appeal is made to the Tribunal under subsection (1) above, section 193 of this Act shall apply as if the patient had applied under section 192 of this Act for an order conditionally discharging the patient. |
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| |
|
PART 11 |
|
HOSPITAL DIRECTIONS AND TRANSFER FOR TREATMENT DIRECTIONS |
| Preliminary |
205 | Mental health officer's duty to identify named person |
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(1) This section applies where- |
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(a) a hospital direction; or |
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(b) a transfer for treatment direction, |
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is made in respect of a patient. |
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(2) The mental health officer shall, as soon as practicable after the direction is made, take such steps as are reasonably practicable to ascertain the name and address of the patient's named person. |
| Review of directions |
206 | Review of hospital direction and transfer for treatment direction |
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(1) This section applies where a patient is subject to- |
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(a) a hospital direction; or |
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(b) a transfer for treatment direction. |
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(2) The patient's responsible medical officer shall, during the period of 2 months ending with the relevant day, carry out a review in respect of the direction by complying with the requirements set out in subsection (3) below. |
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(3) Those requirements are- |
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(i) carry out a medical examination of the patient; or
|
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(ii) make arrangements for an approved medical practitioner to carry out such a medical examination;
|
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(i) whether the conditions mentioned in subsection (4) below continue to apply in respect of the patient;
|
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(ii) whether, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
|
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(iii) whether it continues to be necessary for the patient to be subject to the direction; and
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(i) the mental health officer; and
|
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(ii) such other persons as the responsible medical officer considers appropriate.
|
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(4) Those conditions are- |
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(a) that the patient has a mental disorder; |
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(b) that medical treatment which would be likely to- |
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(i) prevent the mental disorder worsening; or
|
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(ii) alleviate any of the symptoms, or effects, of the disorder,
|
|
is available for the patient; and |
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(c) that if the patient were not provided with such medical treatment there would be a significant risk- |
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(i) to the health, safety or welfare of the patient; or
|
|
(ii) to the safety of any other person.
|
|
(5) In subsection (2) above, the "relevant day" means- |
|
(a) the day which falls 12 months after the day on which the direction is made; or |
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(b) where that relevant day has passed, the day falling on the same day in every year thereafter. |
| Consequences of review |
207 | Responsible medical officer's report following review of direction |
|
(1) This section applies where a patient's responsible medical officer carries out a review under section 206(2) of this Act. |
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(2) The responsible medical officer shall, as soon as practicable after carrying out that review, submit a report in accordance with subsection (3) below to the Scottish Ministers. |
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(3) That report shall record the responsible medical officer's views as to- |
|
(a) whether the conditions mentioned in section 206(4) of this Act continue to apply in respect of the patient; |
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(b) whether, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and |
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(c) whether it continues to be necessary for the patient to be subject to the direction. |
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(4) If, after having regard to any views expressed by persons consulted under section 206(3)(c) of this Act, the responsible medical officer is not satisfied that the patient has a mental disorder, the responsible medical officer shall include in the report submitted to the Scottish Ministers under subsection (2) above a recommendation that the direction be revoked. |
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(5) If, after having regard to any views expressed by persons consulted under section 206(3)(c) of this Act, the responsible medical officer- |
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(a) is satisfied that the patient has a mental disorder; but |
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
|
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(ii) that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,
|
|
the responsible medical officer shall include in the report submitted to the Scottish Ministers under subsection (2) above a recommendation that the direction be revoked. |
| Responsible medical officer's duty to keep directions under review |
208 | Responsible medical officer's duty to keep directions under review |
|
(1) This section applies where a patient is subject to- |
|
(a) a hospital direction; or |
|
(b) a transfer for treatment direction. |
|
(2) Without prejudice to the duty imposed on the patient's responsible medical officer by section 206(2) of this Act, the responsible medical officer shall from time to time consider- |
|
(a) whether the conditions mentioned in section 206(4) of this Act continue to apply in respect of the patient; |
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(b) whether, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and |
|
(c) whether it continues to be necessary for the patient to be subject to the direction. |
|
(3) If, having considered the matters mentioned in paragraphs (a) to (c) of subsection (2) above, the responsible medical officer is not satisfied that the patient has a mental disorder, the responsible medical officer shall, as soon as practicable after considering those matters, submit to the Scottish Ministers a report complying with the requirements set out in section 207(3) of this Act and including a recommendation that the direction be revoked. |
|
(4) If, having considered the matters mentioned in paragraphs (a) to (c) of subsection (2) above, the responsible medical officer- |
|
(a) is satisfied that the patient has a mental disorder; but |
|
|
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(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
|
|
(ii) that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,
|
|
the responsible medical officer shall, as soon as practicable after considering those matters, submit to the Scottish Ministers a report complying with the requirements set out in section 207(3) of this Act and including a recommendation that the direction be revoked. |
| Reference to Tribunal by Scottish Ministers |
209 | Commission's power to require Scottish Ministers to make reference to Tribunal |
|
(1) This section applies where a patient is subject to- |
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(a) a hospital direction; or |
|
(b) a transfer for treatment direction. |
|
(2) If it appears to the Commission that it is appropriate to do so, it may, by notice in writing to the Scottish Ministers, require them to make a reference to the Tribunal in respect of the direction to which the patient is subject. |
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(3) Where, under subsection (2), the Commission gives notice to the Scottish Ministers, the Commission shall include in that notice its reasons for requiring the Scottish Ministers to make the reference. |
210 | Duty of Scottish Ministers on receiving report from responsible medical officer |
|
(1) This section applies where a patient's responsible medical officer submits to the Scottish Ministers- |
|
(a) a report under section 207(2) of this Act that includes a recommendation; or |
|
(b) a report under section 208(3) or (4) of this Act. |
|
(2) If, having considered the matters mentioned in paragraphs (a) to (c) of section 212(2) of this Act, the Scottish Ministers- |
|
(a) are not satisfied that the patient has a mental disorder; or |
|
(b) are so satisfied but are not satisfied- |
|
(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
|
|
(ii) that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,
|
|
the Scottish Ministers shall revoke the direction to which the patient is subject. |
|
(3) Where the Scottish Ministers do not, under subsection (2) above, revoke the direction to which the patient is subject, they shall make a reference to the Tribunal in respect of the direction. |
|
(4) Where a reference is made under subsection (3) above, the Scottish Ministers shall, as soon as practicable, give notice that a reference is to be made to- |
|
|
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(b) the patient's named person; |
|
(c) any guardian of the patient; |
|
(d) any welfare attorney of the patient; |
|
(e) the patient's responsible medical officer; |
|
(f) the mental health officer; and |
|
|
|
(5) A reference under subsection (3) above shall state- |
|
(a) the name and address of the patient; |
|
(b) the name and address of the patient's named person; and |
|
(c) the recommendation made by the responsible medical officer. |
|
(6) Nothing in section 102 (state hospitals) of the National Health Service (Scotland) Act 1978 (c.29) prevents or restricts the detention of a patient in a state hospital as a result of a decision under this section by the Scottish Ministers not to revoke the direction to which the patient is subject. |
211 | Notice under section 209(2): reference to Tribunal |
|
(1) This section applies where, under section 209(2) of this Act, the Commission gives notice to the Scottish Ministers. |
|
(2) The Scottish Ministers shall, as soon as practicable after receiving notice under section 209(2) of this Act, make a reference to the Tribunal in respect of the direction to which the patient is subject. |
|
(3) Where a reference is made under subsection (2) above, the Scottish Ministers shall, as soon as practicable, give notice that a reference is to be made to the persons mentioned in paragraphs (a) to (g) of section 210(4) of this Act. |
|
(4) A reference under subsection (2) above shall state- |
|
(a) the name and address of the patient; |
|
(b) the name and address of the patient's named person; and |
|
(c) the reason given by the Commission in the notice under section 209(2) of this Act for requiring the Scottish Ministers to make the reference. |
| Scottish Ministers' duty to keep directions under review |
212 | Duty of Scottish Ministers to keep directions under review |
|
(1) This section applies where a patient is subject to- |
|
(a) a hospital direction; or |
|
(b) a transfer for treatment direction. |
|
(2) Without prejudice to the duties imposed on the Scottish Ministers by sections 210(2) and (3), 211(2) and 213(2) of this Act, the Scottish Ministers shall from time to time consider- |
|
(a) whether the conditions mentioned in section 206(4) of this Act continue to apply in respect of the patient; |
|
(b) whether, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and |
|
(c) whether it continues to be necessary for the patient to be subject to the direction. |
|
(3) If, having considered the matters mentioned in paragraphs (a) to (c) of subsection (2) above, the Scottish Ministers are not satisfied that the patient has a mental disorder, they shall revoke the direction. |
|
(4) If, having considered the matters mentioned in paragraphs (a) to (c) of subsection (2) above, the Scottish Ministers- |
|
(a) are satisfied that the patient has a mental disorder; but |
|
|
|
(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
|
|
(ii) that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,
|
|
they shall revoke the direction. |
|
(5) Nothing in section 102 (state hospitals) of the National Health Service (Scotland) Act 1978 (c.29) prevents or restricts the detention of a patient in a state hospital as a result of a decision under this section by the Scottish Ministers not to revoke the direction to which the patient is subject. |
213 | Reference to Tribunal by Scottish Ministers |
|
(1) This section applies where a patient is subject to- |
|
(a) a hospital direction; or |
|
(b) a transfer for treatment direction. |
|
(2) If- |
|
(a) during the period of 2 years ending with the relevant day- |
|
(i) no reference under section 210(3) or 211(2) of this Act has been made to the Tribunal; and
|
|
(ii) no application under section 214(2) of this Act has been made to the Tribunal; and
|
|
(b) during each period of 2 years ending with the anniversary, in every year thereafter, of the relevant day- |
|
(i) no reference such as is mentioned in paragraph (a)(i) above or, subject to subsection (3) below, under this subsection has been made to the Tribunal; and
|
|
(ii) no application such as is mentioned in paragraph (a)(ii) above has been made to the Tribunal,
|
|
the Scottish Ministers shall make a reference to the Tribunal in respect of the direction to which the patient is subject. |
|
(3) The Scottish Ministers shall, in considering, under subsection (2)(b)(i) above, whether a reference has been made to the Tribunal during any 2 year period, leave out of account any reference made under subsection (2) above during the first year of that 2 year period. |
|
(4) Where a reference is made under subsection (2) above, the Scottish Ministers shall, as soon as practicable, give notice that a reference is to be made to the persons mentioned in paragraphs (a) to (g) of section 210(4) of this Act. |
|
(5) A reference under subsection (2) above shall state- |
|
(a) the name and address of the patient; |
|
(b) the name and address of the patient's named person; and |
|
(c) the reason for making the reference. |
|
(6) In subsection (2) above, the "relevant day" means the day which falls 2 years after the day on which the direction is made. |
| Application by patient etc. |
214 | Application to Tribunal by patient and named person |
|
(1) This section applies where a patient is subject to- |
|
(a) a hospital direction; or |
|
(b) a transfer for treatment direction. |
|
(2) Each of the persons mentioned in subsection (3) below may, subject to subsections (4) to (6) below, make an application under this section to the Tribunal for the revocation of the direction to which the patient is subject. |
|
(3) Those persons are- |
|
|
|
(b) the patient's named person. |
|
(4) Where a patient is subject to a hospital direction, an application under this section may not be made before the expiry of the period of 6 months beginning with the day on which the direction was made. |
|
(5) Where a patient is subject to a transfer for treatment direction, an application under this section- |
|
(a) may be made during the period of 12 weeks beginning with the day on which the direction is made; but |
|
(b) otherwise may not be made before the expiry of the period of 6 months beginning with the day on which the direction was made. |
|
(6) Neither of the persons mentioned in subsection (3) above may make more than one application under this section during- |
|
(a) the period of 12 months beginning with the day on which the direction was made; or |
|
(b) any subsequent period of 12 months that begins with or with an anniversary of the expiry of the period of 12 months mentioned in paragraph (a) above. |
|
(7) Where a patient's named person makes an application under subsection (2) above, the named person shall give notice to the patient of the making of the application. |
| Proceedings before Tribunal |
215 | Powers of Tribunal on reference under section 210(3), 211(2) or 213(2) or on application under section 214(2) |
|
(1) This section applies where- |
|
(a) a reference is made under section 210(3), 211(2) or 213(2) of this Act; or |
|
(b) an application is made under section 214(2) of this Act. |
|
(2) If the Tribunal is satisfied- |
|
(a) that the patient has a mental disorder; and |
|
(b) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment, |
|
it shall make no direction to the Scottish Ministers under this section. |
|
(3) If the Tribunal is not satisfied that the patient has a mental disorder, it shall direct the Scottish Ministers to revoke the direction to which the patient is subject. |
|
(4) If the Tribunal- |
|
(a) is satisfied that the patient has a mental disorder; but |
|
|
|
(i) that, as a result of the patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and
|
|
(ii) that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,
|
|
the Tribunal shall direct the Scottish Ministers to revoke the direction to which the patient is subject. |
|
(5) The Scottish Ministers shall, if directed to do so by the Tribunal under subsection (3) or (4) above, revoke the direction to which the patient is subject. |
|
(6) Before making a decision under this section, the Tribunal shall- |
|
(a) afford the persons mentioned in subsection (7) below the opportunity- |
|
(i) of making representations (whether orally or in writing); and
|
|
(ii) of leading, or producing, evidence; and
|
|
(b) whether or not any such representations are made, hold a hearing. |
|
(7) Those persons are- |
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|
|
(b) the patient's named person; |
|
(c) the patient's primary carer; |
|
(d) any guardian of the patient; |
|
(e) any welfare attorney of the patient; |
|
(f) any curator ad litem appointed in respect of the patient by the Tribunal; |
|
(g) the Scottish Ministers; |
|
(h) the patient's responsible medical officer; |
|
(i) the mental health officer; and |
|
(j) any other person appearing to the Tribunal to have an interest. |
|
(8) Nothing in section 102 (state hospitals) of the National Health Service (Scotland) Act 1978 (c.29) prevents or restricts the detention of a patient in a state hospital as a result of a decision under this section by the Tribunal not to direct the Scottish Ministers to revoke the direction to which the patient is subject. |
| Effect of revocation of direction |
216 | Effect of revocation of direction |
|
(1) This section applies where, under section 210(2), 212(3) or (4) or 215(5) of this Act, the Scottish Ministers revoke- |
|
(a) a hospital direction; or |
|
(b) a transfer for treatment direction. |
|
(2) Where the Scottish Ministers revoke a direction they shall direct that the patient be admitted to a prison, institution or other place in which the patient might have been detained had the patient not been detained in hospital by virtue of the direction. |
|
(3) The direction shall cease to have effect on the patient's admission to the prison, institution or place to which the patient is admitted by virtue of the direction under subsection (2) above. |
| Termination of direction on release of patient |
217 | Termination of hospital direction on release of patient |
|
(1) This section applies where a patient is subject to- |
|
(a) a hospital direction; or |
|
(b) a transfer for treatment direction. |
|
(2) Where a patient is released under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9) or otherwise the direction to which the patient is subject shall cease to have effect. |
|
| |
|
PART 12 |
|
PARTS 10 AND 11: TRANSFERS |
218 | Transfer of patients between hospitals |
|
(1) This section applies where a patient is subject to- |
|
(a) a compulsion order and a restriction order; |
|
(b) a hospital direction; or |
|
(c) a transfer for treatment direction. |
|
(2) The managers of the hospital in which the patient is detained may, where the conditions mentioned in subsection (3) below are satisfied, transfer the patient to another hospital. |
|
(3) Those conditions are- |
|
(a) that the managers of the hospital to which it is proposed to transfer the patient; and |
|
(b) the Scottish Ministers, |
|
consent to the transfer. |
|
(4) Where the managers of a hospital propose to transfer a patient under subsection (2) above, they shall, subject to subsections (5) and (7) below, give the persons mentioned in subsection (8) below at least 7 days' notice of the transfer. |
|
(5) The managers of a hospital need not give notice under subsection (4) above where it is necessary that the patient be transferred urgently. |
|
(6) Where, by virtue of subsection (5) above, no notice is given under subsection (4) above, the managers of the hospital shall, subject to subsection (7) below, give the persons mentioned in subsection (8) below notice- |
|
(a) where the proposed transfer has not taken place, of the proposed transfer; or |
|
(b) where the transfer has taken place, of the transfer, |
|
as soon as practicable before, on or, as the case may be, after the transfer. |
|
(7) The managers of the hospital need not give notice under subsection (4) or (6) above to the patient where the patient consents to the transfer. |
|
(8) The persons referred to in subsections (4) and (6) above and (10)(b) below are- |
|
|
|
(b) the patient's named person. |
|
(9) Where- |
|
(a) notice is given under subsection (4) or (6)(a) above of a proposed transfer under subsection (2) above; and |
|
(b) the proposed transfer does not take place before the end of the period of 3 months beginning with the day on which notice is given, |
|
the managers of the hospital may transfer the patient as proposed only if subsection (10) below applies. |
|
(10) This subsection applies where- |
|
(a) the conditions mentioned in subsection (3) above continue to be satisfied; and |
|
(b) the persons mentioned in subsection (8) above are given at least 7 days' notice of the proposed transfer. |
|
(11) Subsections (5) to (7) above shall apply to the giving of notice under subsection (10)(b) above as they apply to the giving of notice under subsection (4) above. |
|
(12) Where the patient is transferred under subsection (2) above, the managers of the hospital from which the patient is transferred shall, before the expiry of the period of 7 days beginning with the transfer, give notice to the Commission of the matters mentioned in subsection (13) below. |
|
(13) Those matters are- |
|
(a) the date on which the patient was transferred; |
|
(b) the hospital to which the patient was transferred; |
|
|
|
(i) notice was given under subsection (4) above; or
|
|
(ii) if no such notice was given, the reasons why it was necessary that the patient be transferred urgently; and
|
|
(d) whether notice was given under subsection (6) or (10)(b) above. |
|
(14) Where a patient is transferred under subsection (2) above, the compulsion order, hospital direction or, as the case may be, transfer for treatment direction to which the patient is subject shall, for the purposes of this Act (other than sections 219 and 220), be taken to specify the hospital to which the patient is transferred. |
219 | Appeal to Tribunal against transfer under section 218 to hospital other than state hospital |
|
(1) This section applies where- |
|
|
|
(i) receives notice under subsection (4), (6)(a) or (10)(b) of section 218 of this Act that it is proposed to transfer the patient; or
|
|
(ii) is transferred under subsection (2) of that section,
|
|
to any hospital other than a state hospital; and |
|
(b) the hospital to which the patient is, or is proposed to be, transferred is not specified in the compulsion order, hospital direction or, as the case may be, transfer for treatment direction to which the patient is subject. |
|
(2) The patient, or the patient's named person, may, during the period mentioned in subsection (3) below, appeal to the Tribunal against the proposed transfer or, as the case may be, the transfer. |
|
(3) That period is- |
|
(a) in the case of the patient- |
|
(i) where notice is given to the patient before the proposed transfer, the period beginning with the day on which notice is given and ending 28 days after the transfer;
|
|
(ii) where notice is given to the patient on or after the transfer, the period beginning with the day on which the patient is transferred and ending 28 days after the day on which notice is given; or
|
|
(iii) where notice is not given to the patient, the period of 28 days beginning with the day on which the patient is transferred;
|
|
(b) in the case of the patient's named person- |
|
(i) where notice is given to the patient's named person before the proposed transfer, the period beginning with the day on which notice is given and ending 28 days after the transfer; or
|
|
(ii) where notice is given to the patient's named person on or after the transfer, the period of 28 days beginning with the day on which notice is given.
|
|
(4) If, when an appeal under subsection (2) above against a proposed transfer is made to the Tribunal, the proposed transfer has not taken place- |
|
(a) the managers of the hospital shall not transfer the patient as proposed; but |
|
(b) the Tribunal may, if satisfied that, pending the determination of the appeal, the patient should be transferred as proposed, make an order that the patient be so transferred. |
|
(5) On an appeal under subsection (2) above, the Tribunal may make an order that the proposed transfer not take place or, as the case may be, that the patient be returned to the hospital from which the patient was transferred. |
220 | Appeal to Tribunal against transfer under section 218 to state hospital |
|
(1) This section applies where- |
|
|
|
(i) receives notice under subsection (4), (6)(a) or (10)(b) of section 218 of this Act that it is proposed to transfer the patient; or
|
|
(ii) is transferred under subsection (2) of that section,
|
|
|
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(b) the state hospital to which the patient is, or is proposed to be, transferred is not specified in the compulsion order, hospital direction or, as the case may be, transfer for treatment direction to which the patient is subject. |
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(2) The patient, or the patient's named person, may, during the period mentioned in subsection (3) below, appeal to the Tribunal against the proposed transfer or, as the case may be, the transfer. |
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(3) That period is- |
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(a) in the case of the patient- |
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(i) where notice is given to the patient before the proposed transfer, the period beginning with the day on which notice is given and ending 12 weeks after the transfer;
|
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(ii) where notice is given to the patient on or after the transfer, the period beginning with the day on which the patient is transferred and ending 12 weeks after the day on which notice is given; or
|
|
(iii) where notice is not given to the patient, the period of 12 weeks beginning with the day on which the patient is transferred;
|
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(b) in the case of the patient's named person- |
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(i) where notice is given to the patient's named person before the proposed transfer, the period beginning with the day on which notice is given and ending 12 weeks after the transfer; or
|
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(ii) where notice is given to the patient's named person on or after the transfer, the period of 12 weeks beginning with the day on which notice is given.
|
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(4) If, when an appeal under subsection (2) above against a proposed transfer is made to the Tribunal, the proposed transfer has not taken place- |
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(a) the managers of the hospital shall not transfer the patient as proposed; but |
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(b) the Tribunal may, if satisfied that, pending determination of the appeal, the patient should be transferred as proposed, make an order that the patient be so transferred. |
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(5) On an appeal under subsection (2) above, the Tribunal may, if not satisfied as to the matter mentioned in subsection (6) below, make an order that the proposed transfer not take place or, as the case may be, that the patient be returned to the hospital from which the patient was transferred. |
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(6) That matter is- |
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(a) that the patient requires to be detained in hospital under conditions of special security; and |
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(b) that those conditions of special security can be provided only in a state hospital. |
|
| |
|
PART 13 |
|
PARTS 8, 10 AND 11: SUSPENSION |
| Assessment orders |
221 | Assessment order: suspension of measure authorising detention |
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(1) This section applies where a patient is subject to an assessment order. |
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(2) Subject to subsection (3) below, where the patient's responsible medical officer grants a certificate specifying a period during which the assessment order to which the patient is subject shall not authorise the detention of the patient in hospital, the order does not authorise that detention during that period. |
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(3) The patient's responsible medical officer may grant a certificate under subsection (2) above only with the consent of the Scottish Ministers. |
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(4) A period specified in a certificate under subsection (2) above may be expressed as- |
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|
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(ii) a series of events; or
|
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|
|
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and any associated travel. |
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(5) If the responsible medical officer considers that it is necessary- |
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(a) in the interests of the patient; or |
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(b) for the protection of any other person, |
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a certificate under subsection (2) above may include conditions such as are mentioned in subsection (6) below; and any such conditions shall have effect. |
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(6) Those conditions are- |
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(a) that, during the period specified in the certificate, the patient be kept in the charge of a person authorised in writing for the purpose by the patient's responsible medical officer; and |
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(b) such other conditions as may be specified by the patient's responsible medical officer. |
222 | Certificate under section 221: revocation by responsible medical officer |
|
(1) Subsection (2) below applies where a certificate is granted under section 221(2) of this Act. |
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(2) If the patient's responsible medical officer is satisfied that it is necessary- |
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(a) in the interests of the patient; or |
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(b) for the protection of any other person, |
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that the certificate be revoked, the responsible medical officer may revoke the certificate. |
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(3) Where, under subsection (2) above, the responsible medical officer revokes a certificate, the responsible medical officer shall, as soon as practicable after the revocation, give notice of it to- |
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|
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(b) where a person is authorised for the purposes of section 221(6)(a) of this Act, that person; and |
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(c) the Scottish Ministers. |
223 | Certificate under section 221: revocation by Scottish Ministers |
|
(1) Subsection (2) below applies where a certificate is granted under section 221(2) of this Act. |
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(2) If the Scottish Ministers are satisfied that it is necessary- |
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(a) in the interests of the patient; or |
|
(b) for the protection of any other person, |
|
that the certificate be revoked, the Scottish Ministers may revoke the certificate. |
|
(3) Where, under subsection (2) above, the Scottish Ministers revoke a certificate, they shall, as soon as practicable after the revocation, give notice of it to- |
|
|
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(b) the patient's responsible medical officer; and |
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(c) where a person is authorised for the purposes of section 221(6)(a) of this Act, that person. |
| Certain other orders and directions |
224 | Patients subject to certain other orders and directions: suspension of measure authorising detention |
|
(1) This section applies where a patient is subject to- |
|
|
|
(b) an interim compulsion order; |
|
(c) a compulsion order and a restriction order; |
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(d) a hospital direction; or |
|
(e) a transfer for treatment direction. |
|
(2) Subject to subsections (3) and (4) below, where the patient's responsible medical officer grants a certificate specifying a period not exceeding 3 months during which the order or direction to which the patient is subject shall not authorise the detention of the patient in hospital, the order or direction does not authorise that detention during that period. |
|
(3) The patient's responsible medical officer may grant a certificate under subsection (2) above only with the consent of the Scottish Ministers. |
|
(4) If the sum of- |
|
(a) the period that the responsible medical officer proposes to specify in a certificate under subsection (2) above; and |
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(b) the period specified in any other certificate granted under that subsection in respect of the same patient, |
|
would exceed 9 months in the period of 12 months ending with the expiry of the period mentioned in paragraph (a) above, the responsible medical officer may not grant a certificate under that subsection. |
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(5) A period specified in a certificate under subsection (2) above may be expressed as- |
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|
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(ii) a series of events; or
|
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|
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and any associated travel. |
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(6) If the responsible medical officer considers that it is necessary- |
|
(a) in the interests of the patient; or |
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(b) for the protection of any other person, |
|
a certificate under subsection (2) above may include conditions such as are mentioned in subsection (7) below; and any such conditions shall have effect. |
|
(7) Those conditions are- |
|
(a) that, during the period specified in the certificate, the patient be kept in the charge of a person authorised in writing for the purpose by the patient's responsible medical officer; and |
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(b) such other conditions as may be specified by the patient's responsible medical officer. |
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(8) Where a patient's responsible medical officer proposes to grant a certificate under subsection (2) above specifying- |
|
(a) a period of more than 28 days; or |
|
(b) a period which, when taken together with the period specified in any other certificate granted under that subsection, would exceed 28 days, |
|
the responsible medical officer shall, before granting such a certificate, give notice of the proposal to the persons mentioned in subsection (9) below. |
|
(9) Those persons are- |
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|
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(b) the patient's named person; |
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(c) the patient's general medical practitioner; and |
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(d) the mental health officer. |
|
(10) Where a certificate is granted under subsection (2) above specifying a period of more than 28 days, the patient's responsible medical officer shall, before the expiry of the period of 14 days beginning with the day on which the certificate is granted, give notice of the granting of the certificate to the Commission. |
225 | Certificate under section 224: revocation by responsible medical officer |
|
(1) Subsection (2) below applies where a certificate is granted under 224(2) of this Act. |
|
(2) If the patient's responsible medical officer is satisfied that it is necessary- |
|
(a) in the interests of the patient; or |
|
(b) for the protection of any other person, |
|
that the certificate be revoked, the responsible medical officer may revoke the certificate. |
|
(3) Where, under subsection (2) above, the responsible medical officer revokes a certificate, the responsible medical officer shall, as soon as practicable after the revocation, give notice of it to- |
|
|
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(b) the patient's named person; |
|
(c) in a case where the certificate specified a period of more than 28 days, the patient's general medical practitioner; |
|
(d) where a person is authorised for the purposes of section 224(7)(a) of this Act, that person; |
|
(e) the mental health officer; and |
|
(f) the Scottish Ministers. |
|
(4) Where, under subsection (2) above, the responsible medical officer revokes a certificate granted under section 224(2) of this Act that specified a period of more than 28 days, the responsible medical officer shall, before the expiry of the period of 14 days beginning with the day on which the certificate is revoked, give notice of the revocation to the Commission. |
226 | Certificate under section 224: revocation by Scottish Ministers |
|
(1) Subsection (2) below applies where a certificate is granted under section 224(2) of this Act. |
|
(2) If the Scottish Ministers are satisfied that it is necessary- |
|
(a) in the interests of the patient; or |
|
(b) for the protection of any other person, |
|
that the certificate be revoked, the Scottish Ministers may revoke the certificate. |
|
(3) Where, under subsection (2) above, the Scottish Ministers revoke a certificate, they shall, as soon as practicable after the revocation, give notice of it to- |
|
|
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(b) the patient's named person; |
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(c) in a case where the certificate specified a period of more than 28 days, the patient's general medical practitioner; |
|
(d) the patient's responsible medical officer; |
|
(e) the mental health officer; and |
|
(f) where a person is authorised for the purposes of section 224(7)(a) of this Act, that person. |
|
(4) Where, under subsection (2) above, the Scottish Ministers revoke a certificate granted under section 224(2) of this Act that specified a period of more than 28 days, they shall, before the expiry of the period of 14 days beginning with the day on which the certificate is revoked, give notice of the revocation to the Commission. |
|
| |
|
PART 14 |
|
ASSESSMENT OF NEEDS |
227 | Assessment of needs for community care services etc. |
|
(1) Where- |
|
(a) a patient is a person for whom a local authority are under a duty or have a power to provide, or secure the provision of, community care services; |
|
(b) it appears to the mental health officer that, for the purposes of this Act or the 1995 Act, the patient should be assessed under subsection (1)(a) of section 12A of the Social Work (Scotland) Act 1968 (c.49); and |
|
(c) the mental health officer notifies the local authority that the patient may be in need of community care services, |
|
the patient shall for the purposes of that section be deemed to appear to the local authority to be a person who may be in need of any such services. |
|
(2) In section 23(3) of the Children (Scotland) Act 1995 (c.36) (local authority's duty to carry out, in response to request by parent or guardian, assessment of needs of child)- |
|
(a) after "by", where it first occurs, there shall be inserted "- |
| |
|
(b) after "guardian", there shall be inserted "; or |
|
|
(b) a mental health officer (as defined in section 329 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)) who- |
|
(i) has responsibility under that Act or the Criminal Procedure (Scotland) Act 1995 (c.46) for a child's case; and
|
|
(ii) makes the request for the purposes of either of those Acts,".
|
|
228 | Request for assessment of needs: duty on local authorities and Health Boards |
|
(1) Where- |
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|
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(i) local authority receive a request in writing for the needs of a person to be assessed under section 12A(1)(a) of the Social Work (Scotland) Act 1968 (c.49); or
|
|
(ii) Health Board receives a request in writing for the needs of a person for services which are provided by Health Boards in respect of mentally disordered persons to be assessed; and
|
|
(b) any of the circumstances mentioned in paragraphs (a) to (c) of subsection (2) below apply, |
|
the authority or, as the case may be, the Board shall comply with the requirement in subsection (3) below. |
|
(2) The circumstances referred to in subsection (1)(b) above are- |
|
(a) that the request bears- |
|
(i) to be made by a mentally disordered person; and
|
|
(ii) to be a request for the needs of that person to be assessed;
|
|
(b) that the request bears- |
|
(i) to be made by the primary carer, or named person, of a mentally disordered person; and
|
|
(ii) to be a request for the needs of the mentally disordered person to be assessed; and
|
|
(c) though the request does not bear to be made as mentioned in paragraph (a) or (b) above, it appears to the local authority or, as the case may be, the Health Board that the request- |
|
(i) is a request for the needs of a mentally disordered person to be assessed; and
|
|
(ii) is made by that person, or by that person's primary carer or named person.
|
|
(3) The requirement referred to in subsection (1) above is to give notice, before the expiry of the period of 14 days beginning with the day on which the request is received, to the person who made the request- |
|
|
|
(i) the local authority intend; or
|
|
(ii) the Health Board intends,
|
|
to undertake the assessment; and |
|
(b) if the intention is not to undertake the assessment, of the reason why that is the case. |
|
| |
|
PART 15 |
|
PRELIMINARY DUTIES ON MAKING OF ORDERS ETC. |
| Designation of mental health officer |
229 | Designation of mental health officer responsible for patient's case |
|
(1) The relevant local authority- |
|
(a) shall, as soon as is reasonably practicable after a relevant event occurs in respect of a patient, ensure that a mental health officer is designated as the mental health officer having responsibility for the patient's case; and |
|
(b) shall ensure that, so long as the patient is subject to a certificate, order or direction mentioned in section 232 of this Act, a mental health officer is designated as such mental health officer. |
|
(2) The relevant local authority having responsibility under subsection (1) above may at any time designate- |
|
|
|
(b) for a particular purpose or for particular circumstances, |
|
a mental health officer in place of the mental health officer designated under that subsection. |
|
(3) In this section, "relevant local authority" means- |
|
(a) as respects the making of an order mentioned in section 232 of this Act which does not authorise the detention of the patient in hospital, the local authority for the area in which the patient resides; |
|
(b) as respects the granting of a certificate or the making of a direction mentioned in that section, or the making of an order mentioned in that section which authorises the detention of the patient in hospital- |
|
(i) the local authority for the area in which the patient was resident immediately before the relevant event occurred; or
|
|
(ii) where the patient was not resident in Scotland immediately before the relevant event occurred, the local authority for the area in which the hospital is situated.
|
| Patient's responsible medical officer |
230 | Appointment of patient's responsible medical officer |
|
(1) As soon as is reasonably practicable after the occurrence of an appropriate act in relation to a patient, the relevant managers shall appoint an approved medical practitioner to be the patient's responsible medical officer. |
|
(2) Where, immediately before the occurrence of an appropriate act, a patient has a responsible medical officer, the person appointed under subsection (1) above may be that person. |
|
(3) The relevant managers having responsibility under subsection (1) above may at any time- |
|
(a) appoint an approved medical practitioner to be the patient's responsible medical officer in place of the existing responsible medical officer; |
|
(b) authorise an approved medical practitioner to act (whether for a particular purpose or in particular circumstances) in place of the patient's responsible medical officer. |
|
(4) In this section- |
|
|
|
|
|
(b) the granting of an emergency detention certificate;
|
|
(c) the making of a temporary compulsion order under section 54(1)(c) of the 1995 Act;
|
|
|
|
(i) a compulsory treatment order; or
|
|
|
|
(e) transfer to another hospital under section 124(2), 125(4)(b), 126(4), 218(2), 219(4)(b) or 220(4)(b) of this Act;
|
|
(f) return to a hospital under section 125(5), 126(5), 219(5) or 220(5) of this Act; and
|
|
"relevant managers" means- |
|
(a) in a case where the appropriate act falls within any of paragraphs (a) to (c) of the definition of that expression above, the managers of the hospital in which the patient is detained or, as the case may be, which is specified in the order;
|
|
(b) in a case where the appropriate act falls within paragraph (d) of that definition, the managers of the hospital specified in the order following modification under section 102, 103, 104, 106, 166, 167, 169, 171 or, as the case may be, 193(6) of this Act;
|
|
(c) in a case where the appropriate act falls within paragraph (e) of that definition, the managers of the hospital to which the patient is transferred under any of the provisions mentioned in that paragraph; and
|
|
(d) in a case where the appropriate act falls within paragraph (f) of that definition, the managers of the hospital to which the patient is returned under any of the provisions mentioned in that paragraph.
|
| Social circumstances reports |
231 | Social circumstances report: mental health officer's duties |
|
(1) Subject to subsection (2) below, where a relevant event occurs in respect of a patient, the mental health officer shall, before the expiry of the period of 21 days beginning with the day on which the event occurs- |
|
(a) prepare in respect of the patient a social circumstances report; and |
|
(b) send a copy of the report to- |
|
(i) the patient's responsible medical officer; and
|
|
|
|
(2) If in any case the mental health officer considers that a social circumstances report would serve little, or no, practical purpose, the mental health officer- |
|
(a) need not comply with subsection (1) above; but |
|
(b) shall, before the expiry of the period mentioned in that subsection- |
|
(i) record the reasons for deciding that any such report would serve little, or no, practical purpose; and
|
|
(ii) send a statement of those reasons to the patient's responsible medical officer and to the Commission.
|
|
(3) In this section, "social circumstances report" means a report setting out such information as may be prescribed by regulations. |
| Meaning of "relevant event" |
232 | Meaning of "relevant event" |
|
In this Part of this Act, "relevant event" means- |
|
(a) the granting of a short-term detention certificate; |
|
|
|
(i) an interim compulsory treatment order;
|
|
(ii) a compulsory treatment order;
|
|
(iii) an assessment order;
|
|
|
|
(v) an interim compulsion order;
|
|
|
|
(vii) a hospital direction; or
|
|
(viii) a transfer for treatment direction.
|
|
| |
|
PART 16 |
|
MEDICAL TREATMENT |
| Designated medical practitioners |
233 | Designated medical practitioners |
|
(1) The Commission shall compile and maintain a list of medical practitioners who appear to the Commission to have such- |
|
|
|
|
|
as the Commission considers appropriate for the purposes of discharging the functions conferred on designated medical practitioners by virtue of this Part of this Act. |
|
(2) A medical practitioner included for the time being in the list mentioned in subsection (1) above is referred to in this Act as a "designated medical practitioner". |
|
(3) The Commission shall ensure that the list mentioned in subsection (1) above includes child specialists. |
|
(4) A designated medical practitioner may, for the purposes of discharging any functions conferred by virtue of this Part of this Act- |
|
(a) interview a patient at any reasonable time and require any such interview to be conducted in private; |
|
(b) carry out a medical examination of a patient in private at any reasonable time; and |
|
(c) require any person holding medical records of a patient to produce such records for inspection by the designated medical practitioner. |
|
(5) A designated medical practitioner shall undertake such training as the Commission may require. |
|
(6) The Commission shall pay to designated medical practitioners for or in connection with the discharge of the functions conferred on them by virtue of this Part of this Act such fees, expenses and allowances as may be prescribed by regulations. |
| Safeguards for certain surgical operations etc. |
234 | Certain surgical operations etc. |
|
(1) The types of medical treatment mentioned in subsection (2) below may be given to a patient only in accordance with section 235 or 236 of this Act. |
|
(2) The types of medical treatment referred to in subsection (1) above are- |
|
(a) any surgical operation for destroying- |
|
|
|
(ii) the functioning of brain tissue; and
|
|
(b) such other types of medical treatment as may be specified in regulations for the purposes of this section. |
|
(3) Before making regulations under subsection (2)(b) above the Scottish Ministers shall consult such persons as they consider appropriate. |
235 | Treatment mentioned in section 234(2): patients capable of consenting |
|
(1) Medical treatment mentioned in section 234(2) of this Act is given to a patient in accordance with this section if the requirements set out in subsections (2) and (3) below are satisfied. |
|
(2) Subject to subsection (6) below, the first requirement is that a designated medical practitioner who is not the patient's responsible medical officer certifies in writing that- |
|
(a) the patient is capable of consenting to the treatment; |
|
(b) the patient consents in writing to the treatment; and |
|
(c) having regard to the likelihood of its alleviating, or preventing a deterioration in, the patient's condition, it is in the patient's best interests that the treatment should be given to the patient. |
|
(3) The second requirement is that two other persons (not being medical practitioners) appointed by the Commission for the purposes of this subsection certify in writing that- |
|
(a) the patient is capable of consenting to the treatment; and |
|
(b) the patient consents in writing to the treatment. |
|
(4) A person appointed for the purposes of subsection (3) above may- |
|
(a) interview the patient at any reasonable time; and |
|
(b) require any such interview to be conducted in private. |
|
(5) If the patient withdraws consent to the treatment (in writing or otherwise) at any time before its completion, this section shall then apply as if the remainder of the treatment were a separate treatment. |
|
(6) Where- |
|
(a) the patient is a child; and |
|
(b) the patient's responsible medical officer is not a child specialist, |
|
the first requirement is that the matters mentioned in paragraphs (a) to (c) of subsection (2) above are certified in writing by a designated medical practitioner who is a child specialist. |
|
(7) References in subsections (2) and (6)(b) above to a patient's responsible medical officer include, in any case where a patient does not have a responsible medical officer, references to the medical practitioner primarily responsible for treating the patient. |
236 | Treatment mentioned in section 234(2): patients incapable of consenting |
|
(1) Medical treatment mentioned in section 234(2) of this Act is given to a patient in accordance with this section if- |
|
(a) the requirements set out in subsections (2) to (4) below are satisfied; and |
|
(b) the patient does not resist or object to the treatment. |
|
(2) Subject to subsection (6) below, the first requirement is that a designated medical practitioner who is not the patient's responsible medical officer certifies in writing that- |
|
(a) the patient is incapable of consenting to the treatment; |
|
(b) the patient does not object to the treatment; and |
|
(c) having regard to the likelihood of its alleviating, or preventing a deterioration in, the patient's condition, it is in the patient's best interests that the treatment should be given to the patient. |
|
(3) The second requirement is that two persons (not being medical practitioners) appointed by the Commission for the purposes of this subsection certify in writing that- |
|
(a) the patient is incapable of consenting to the treatment; and |
|
(b) the patient does not object to the treatment. |
|
(4) The third requirement is that on the application of the patient's responsible medical officer, the Court of Session has made an order declaring that the treatment may lawfully be given. |
|
(5) The Court of Session may make an order such as is mentioned in subsection (4) above only if it is satisfied that- |
|
(a) having regard to the likelihood of its alleviating, or preventing a deterioration in, the patient's condition, it is in the patient's best interests that the treatment should be given to the patient; and |
|
(b) the patient does not object to the treatment. |
|
(6) Where the patient is a child, the first requirement is that the matters mentioned in paragraphs (a) to (c) of subsection (2) above are certified- |
|
(a) where the patient's responsible medical officer is a child specialist, by a medical practitioner approved for the purposes of this subsection by the Commission; |
|
(b) where the patient's responsible medical officer is not a child specialist, by a child specialist who is on the list maintained under section 233(1) of this Act. |
|
(7) References in subsections (2), (4) and (6) above to a patient's responsible medical officer include, in any case where a patient does not have a responsible medical officer, references to the medical practitioner primarily responsible for treating the patient. |
| Safeguards for other medical treatment |
237 | Electro-convulsive therapy etc. |
|
(1) This section applies where the giving of medical treatment to a patient is authorised by virtue of this Act or the 1995 Act. |
|
(2) Subject to section 243 of this Act, the types of medical treatment mentioned in subsection (3) below may be given to the patient only in accordance with section 238 or 239 of this Act. |
|
(3) The types of medical treatment referred to in subsection (2) above are- |
|
(a) electro-convulsive therapy; and |
|
(b) such other types of medical treatment as may be specified in regulations for the purposes of this section. |
|
(4) Before making regulations under subsection (3)(b) above the Scottish Ministers shall consult such persons as they consider appropriate. |
238 | Treatment mentioned in sections 237(3) and 240(3): patients capable of consenting and not refusing consent |
|
(1) Subject to subsection (3) below, medical treatment mentioned in section 237(3) or 240(3) of this Act is given to a patient in accordance with this section if the patient's responsible medical officer or a designated medical practitioner certifies in writing that- |
|
(a) the patient is capable of consenting to the treatment; |
|
(b) the patient consents in writing to the treatment; |
|
(c) the giving of medical treatment to the patient is authorised by virtue of this Act or the 1995 Act; and |
|
(d) having regard to the likelihood of its alleviating, or preventing a deterioration in, the patient's condition, it is in the patient's best interests that the treatment should be given. |
|
(2) If the patient withdraws consent to the treatment (in writing or otherwise) at any time before its completion, this section shall then apply as if the remainder of the treatment were a separate treatment. |
|
(3) Where the patient is a child, any certificate under subsection (1) above shall be given by a child specialist. |
239 | Treatment mentioned in section 237(3): patients incapable of consenting |
|
(1) Subject to subsections (2) to (4) below, medical treatment mentioned in section 237(3) of this Act is given to a patient in accordance with this section if a designated medical practitioner who is not the patient's responsible medical officer certifies in writing that- |
|
(a) the patient is incapable of understanding the nature, purpose and likely effects of the treatment; |
|
(b) the giving of medical treatment to the patient is authorised by virtue of this Act or the 1995 Act; and |
|
(c) having regard to the likelihood of its alleviating, or preventing a deterioration in, the patient's condition, it is in the patient's best interests that the treatment should be given. |
|
(2) Where the patient resists or objects to the treatment, certification under subsection (1) above is effective only if, instead of certifying the matter mentioned in paragraph (c) of that subsection, the designated medical practitioner certifies that- |
|
(a) the patient resists or objects to the treatment; but |
|
(b) it is necessary to give the treatment to the patient for a purpose mentioned in any of paragraphs (a) to (c) of section 243(3) of this Act and specified in the certificate. |
|
(3) Where the patient is a child, certification under subsection (1) above is effective only if done- |
|
(a) where the patient's responsible medical officer is a child specialist, by a medical practitioner approved for the purposes of this subsection by the Commission; |
|
(b) where the patient's responsible medical officer is not a child specialist, by a child specialist who is on the list maintained under section 233(1) of this Act. |
|
(4) Where the patient is not in hospital, subsection (1) above does not authorise the giving of medical treatment by force to the patient. |
240 | Treatments given over period of time etc. |
|
(1) This section applies where the giving of medical treatment to a patient is authorised by virtue of this Act or the 1995 Act. |
|
(2) Subject to subsection (4) below and to section 243 of this Act, the types of treatment mentioned in subsection (3) below, when given as treatment for mental disorder or in consequence of the patient having a mental disorder, may be given to the patient only in accordance with section 238 or 241 of this Act. |
|
(3) The types of treatment referred to in subsection (2) above are- |
|
(a) any medicine (other than the surgical implantation of hormones) given for the purpose of reducing sex drive; |
|
|
|
(c) provision, without the consent of the patient and by artificial means, of nutrition to the patient; and |
|
(d) such other types of treatment as may be specified in regulations for the purposes of this section. |
|
(4) Subsection (2) above does not apply to the giving of medicine in a relevant period until 2 months have passed since the patient was first in the relevant period given any medicine that was not, when given, a treatment specified under subsection (3)(d) above or section 234(2)(b) or 237(3)(b) of this Act. |
|
(5) The Scottish Ministers may by order amend subsection (4) above for the purpose of substituting a period specified in the order for (as the case may be)- |
|
(a) the period of 2 months mentioned in that subsection; or |
|
(b) the period that is for the time being mentioned in that subsection in place of that period of 2 months. |
|
(6) For the purposes of subsection (4) above- |
|
"medicine" does not include medicine such as is mentioned in paragraph (a) of subsection (3) above or any treatment specified in regulations under paragraph (d) of that subsection; and |
|
"relevant period", in relation to a patient, means any period during which the giving of medical treatment to the patient is authorised by virtue of this Act or the 1995 Act. |
|
(7) Before making regulations under subsection (3)(d) above the Scottish Ministers shall consult such persons as they consider appropriate. |
241 | Treatment mentioned in section 240(3): patients refusing consent or incapable of consenting |
|
(1) Subject to subsections (3) and (4) below, medical treatment mentioned in section 240(3) of this Act is given in accordance with this section if a designated medical practitioner who is not the patient's responsible medical officer certifies in writing that- |
|
|
|
(i) does not consent to the treatment; or
|
|
(ii) is incapable of consenting to the treatment;
|
|
(b) the giving of medical treatment to the patient is authorised by virtue of this Act or the 1995 Act; and |
|
(c) having regard to the likelihood of its alleviating, or preventing a deterioration in, the patient's condition, it is in the patient's best interests that the treatment should be given. |
|
(2) If the condition mentioned in subsection (1)(a)(i) above applies, the designated medical practitioner shall- |
|
(a) if the reason for refusal of consent is known, have regard to the reason for the refusal; and |
|
(b) if the designated medical practitioner is of the opinion that the treatment should be given, include in any certificate under subsection (1) above a statement of the reason for that opinion. |
|
(3) Where the patient is a child, the certification of the matters mentioned in paragraphs (a) to (c) of subsection (1) above is effective only if done- |
|
(a) where the patient's responsible medical officer is a child specialist, by a medical practitioner approved for the purposes of this subsection by the Commission; |
|
(b) where the patient's responsible medical officer is not a child specialist, by a child specialist who is on the list maintained under section 233(1) of this Act. |
|
(4) Where the patient is not in hospital, subsection (1) above does not authorise the giving of medical treatment by force to the patient. |
242 | Treatment not mentioned in section 234(2), 237(3) or 240(3) |
|
(1) This section applies where the giving of medical treatment to a patient is authorised by virtue of this Act or the 1995 Act. |
|
(2) Subject to subsection (6) below and to sections 234(1), 237(2), 240(2) and 243 of this Act, medical treatment may be given to the patient only in accordance with subsection (3) or (4) below. |
|
(3) If the patient- |
|
(a) is capable of consenting to the treatment; and |
|
(b) consents in writing to the treatment, |
|
medical treatment is given to the patient in accordance with this subsection if the treatment is given by, or under the direction of, the patient's responsible medical officer. |
|
(4) If the patient- |
|
(a) is capable of consenting to the treatment but- |
|
|
|
(ii) consents otherwise than in writing; or
|
|
(b) is incapable of consenting to the treatment, |
|
medical treatment is given to the patient in accordance with this subsection if the requirements in subsection (5) below are satisfied. |
|
(5) Those requirements are- |
|
|
|
(i) in a case where subsection (4)(a)(i) above applies, to the reason for not consenting (if it has been disclosed to the patient's responsible medical officer);
|
|
(ii) to any views expressed by the patient;
|
|
(iii) to any views expressed by the patient's named person;
|
|
(iv) to any advance statement made by the patient; and
|
|
(v) to the likelihood of the treatment's alleviating, or preventing a deterioration in, the patient's condition,
|
|
the responsible medical officer determines that it is in the patient's best interests that the treatment be given; |
|
(b) in the case of a patient subject to an assessment order, an approved medical practitioner who is not the patient's responsible medical officer determines, after having regard to the matters mentioned in sub-paragraphs (i) to (v) of paragraph (a) above, that it is in the patient's best interests that the treatment be given; |
|
(c) the treatment is given by, or under the direction of, the patient's responsible medical officer; |
|
(d) the patient's responsible medical officer records in writing the reasons for giving the treatment; and |
|
(e) in the case of a patient subject to an assessment order, the approved medical practitioner who makes the determination referred to in paragraph (b) above records in writing the reasons for that determination. |
|
(6) Where the patient is not in hospital, subsection (4) above does not authorise the giving of medical treatment by force to the patient. |
| Urgent medical treatment where patient detained in hospital |
243 | Urgent medical treatment |
|
(1) This section applies where the detention in hospital of a patient is authorised by virtue of- |
|
|
|
|
|
(2) Where it is necessary as a matter of urgency for medical treatment to be given to the patient for any of the purposes mentioned in subsection (3) below, the treatment may, subject to subsections (4) and (5) below, be given notwithstanding that the patient- |
|
|
|
(b) is incapable of consenting, |
|
to the treatment. |
|
(3) The purposes are- |
|
(a) saving the patient's life; |
|
(b) preventing serious deterioration in the patient's condition; |
|
(c) alleviating serious suffering on the part of the patient; and |
|
(d) preventing the patient from- |
|
(i) behaving violently; or
|
|
(ii) being a danger to the patient or to others.
|
|
(4) Subsection (2) above authorises the giving of medical treatment- |
|
(a) for a purpose mentioned in any of paragraphs (b) to (d) of subsection (3) above only if the treatment is not likely to entail unfavourable, and irreversible, physical or psychological consequences; |
|
(b) for a purpose mentioned in paragraph (c) or (d) of that subsection only if the treatment does not entail significant physical hazard to the patient. |
|
(5) Subsection (2) above does not authorise the giving of electro-convulsive therapy if the patient is capable of consenting but does not consent to the treatment. |
|
(6) Where the patient is given medical treatment by virtue of subsection (2) above, the patient's responsible medical officer shall, before the expiry of the period of 7 days beginning with the day on which such treatment is given (or first given), give notice to the Commission of- |
|
(a) the type of treatment given; and |
|
(b) the purpose mentioned in subsection (3) above for which it was given. |
| Additional safeguards for certain informal patients |
244 | Scottish Ministers' power to make provision in relation to treatment for certain informal patients |
| Regulations may prescribe conditions that must be satisfied before types of medical treatment specified in the regulations may be given to patients- |
|
(a) who are under 16 years of age; and |
|
(b) in respect of whom the giving of medical treatment is not authorised by virtue of this Act or the 1995 Act. |
| Supplementary |
245 | Certificates under sections 235, 236, 239 and 241 |
|
(1) This section applies to certificates under sections 235, 236, 239 and 241 of this Act. |
|
(2) A certificate shall contain such particulars as may be prescribed by regulations. |
|
(3) Before giving a certificate, the person giving it shall consult- |
|
(a) subject to subsection (4) below- |
|
|
|
(ii) the patient's named person; and
|
|
(b) such person or persons as appear to the person giving the certificate to be principally concerned with the patient's medical treatment. |
|
(4) The person giving a certificate need not consult any person such as is mentioned in paragraph (a) of subsection (3) above in any case where it is impracticable to do so. |
|
(5) A person who gives a certificate shall, before the expiry of the period of 7 days beginning with the day on which the certificate is given, send a copy of it to the Commission. |
246 | Certificates under section 238 |
| A certificate under section 238 of this Act shall contain such particulars as may be prescribed by regulations. |
247 | Scope of consent or certificate under sections 235, 236, 238, 239 and 241 |
| Any- |
|
|
|
|
|
given under section 235, 236, 238, 239 or 241 of this Act may relate to a plan of treatment under which (whether during a specified period or otherwise) one or more of the types of treatment to which the consent or certificate relates is to be given to the patient. |
248 | Sections 235, 236, 238, 239 and 241: review of treatment etc. |
|
(1) Where medical treatment is given to a patient by virtue of section 235, 236, 239 or 241 of this Act, the patient's responsible medical officer shall- |
|
(a) on the next occasion after the giving of the treatment on which the patient's responsible medical officer submits a record to the Tribunal under section 87(2)(b) of this Act or, as the case may be, makes an application to the Tribunal under section 92 of this Act; or |
|
(b) at such other time as the patient's responsible medical officer is required to do so by the Commission, |
|
submit to the Commission a report as to the treatment given and the patient's condition. |
|
(2) The Commission may at any time by notice to the patient's responsible medical officer revoke, with effect from such time as may be specified in the notice, a certificate given under section 235(2) or (3), 236(2) or (3), 238(1), 239 or 241(1) of this Act. |
|
(3) A time specified in a notice under subsection (2) above may not be earlier than the time of the notice. |
| Interpretation of Part |
249 | Interpretation of Part |
| In this Part- |
|
"child" means a person who has not attained the age of 18 years; and |
|
"child specialist" means a medical practitioner who has such qualifications or experience in relation to children as the Commission may determine from time to time. |
|
| |
|
PART 17 |
|
PATIENT REPRESENTATION ETC. |
|
CHAPTER 1 |
|
NAMED PERSON |
| Meaning of "named person" |
250 | Nomination of named person |
|
(1) Where a person who has attained the age of 16 years (a "nominator") nominates in accordance with subsection (2) below another person who has attained that age to be the nominator's named person, that person is, subject to subsections (3) and (6) below, the nominator's named person. |
|
(2) A person is nominated in accordance with this subsection if- |
|
(a) the nomination is signed by the nominator; |
|
(b) the nominator's signature is witnessed by a prescribed person; |
|
(c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator- |
|
(i) understands the effect of nominating a person to be the nominator's named person; and
|
|
(ii) has not been subjected to any undue influence in making the nomination.
|
|
(3) A nomination under subsection (1) above may be revoked by the nominator in accordance with subsection (4) below. |
|
(4) The nomination of a named person is revoked in accordance with this subsection if- |
|
(a) the revocation is signed by the nominator; |
|
(b) the nominator's signature is witnessed by a prescribed person; |
|
(c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator- |
|
(i) understands the effect of revoking the appointment of a person as named person; and
|
|
(ii) has not been subjected to any undue influence in making the revocation.
|
|
(5) The nomination of a named person shall be effective notwithstanding the nominator's becoming, after making the nomination, incapable. |
|
(6) A person nominated under subsection (1) above may decline to be the nominator's named person by giving notice to- |
|
|
|
(b) the local authority for the area in which the nominator resides, |
|
to that effect. |
|
(7) In this section- |
|
"incapable" means incapable by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise); and |
|
"prescribed person" means a person of a class prescribed by regulations. |
251 | Named person where no person nominated or nominated person declines to act |
|
(1) Subject to subsections (2) to (5) below, where, in the case of a person who has attained the age of 16 years, there is no person who is by virtue of section 250 of this Act the person's named person, the person's primary carer shall, unless the person's primary carer has not attained the age of 16 years, be the person's named person. |
|
(2) Where a person's primary carer has not attained the age of 16 years, but the person has a carer who has attained that age, that carer shall be the person's named person. |
|
(3) Where- |
|
(a) a person does not have a primary carer; or |
|
(b) a person's primary carer has not attained the age of 16 years, |
|
but the person has two or more carers who have attained the age of 16 years, those carers may agree which of them is to be the named person of the person. |
|
(4) Where, by virtue of subsection (2) or (3) above, a carer is a person's named person, the references in subsections (5) and (6) below to a person's primary carer shall be construed as references to that carer. |
|
(5) If- |
|
(a) the person has no primary carer; or |
|
(b) the person's primary carer declines in accordance with subsection (6) below to be the person's named person, |
|
the person's nearest relative shall be the person's named person. |
|
(6) A person's primary carer declines in accordance with this subsection to be the person's named person by giving notice to- |
|
|
|
(b) the local authority for the area in which the person resides, |
|
to that effect. |
252 | Named person in relation to child |
|
(1) The named person of a person who has not attained the age of 16 years ("the child") shall be- |
|
(a) subject to subsection (2) below, in a case where a person who has attained the age of 16 years has parental rights and parental responsibilities in relation to the child, that person; |
|
(b) in a case where the child is in the care of a local authority by virtue of a care order made under section 31 of the Children Act 1989 (c.41), that authority; or |
|
(c) in any other case, where the child's primary carer has attained the age of 16 years, that person. |
|
(2) Subject to subsection (3) below, where two or more persons who have attained the age of 16 years have parental rights and parental responsibilities in relation to the child, the named person of the child shall be- |
|
(a) if those persons agree that one of them is to be the named person of the child, that person; or |
|
(b) if those persons do not so agree, the one of them- |
|
(i) who provides, on a regular basis, all, or most, of the care for, and support to, the child;
|
|
(ii) in a case where the child is in hospital, who provided all, or most, of that care for, and support to, the child before the child was admitted to hospital.
|
|
(3) If- |
|
(a) one of the persons who has parental rights and parental responsibilities in relation to the child is a local authority; and |
|
(b) the local authority has those rights and responsibilities by virtue of an order under section 86(1) of the Children (Scotland) Act 1995 (c.36) (orders transferring parental rights and parental responsibilities), |
|
the local authority shall be the child's named person. |
|
(4) In this section- |
|
"parental responsibilities", in relation to a child, has the meaning given by section 1(3) of the Children (Scotland) Act 1995 (c.36); and |
|
"parental rights", in relation to a child, has the meaning given by section 2(4) of that Act. |
253 | Declaration in relation to named person |
|
(1) Subject to subsection (4) below and to section 257 of this Act, where a person who has attained the age of 16 years ("the declarer") makes a declaration in writing in accordance with subsection (2) below stating that a person specified in the declaration shall not be the declarer's named person, that person shall not be the declarer's named person. |
|
(2) A declaration is made in accordance with this subsection if- |
|
(a) signed by the declarer; and |
|
(b) witnessed by a prescribed person who certifies that, in the opinion of the prescribed person, the declarer- |
|
(i) understands the effect of making the declaration; and
|
|
(ii) has not been subjected to any undue influence in making the declaration.
|
|
(3) A declaration under this section shall be effective notwithstanding the individual's becoming, after making the declaration, incapable. |
|
(4) A declaration under subsection (1) above may be revoked by the declarer in accordance with subsection (5) below. |
|
(5) A declaration is revoked in accordance with this subsection if the revocation is- |
|
(a) signed by the declarer; and |
|
(b) witnessed by a prescribed person who shall certify that, in the opinion of the prescribed person, the declarer- |
|
(i) understands the effect of revoking the declaration; and
|
|
(ii) has not been subjected to any undue influence in making the revocation.
|
|
(6) In this section, "incapable" and "prescribed person" have the same meaning as in section 250 of this Act. |
254 | Meaning of "nearest relative" |
|
(1) In this Act, "nearest relative", in relation to a person (the "relevant person"), means- |
|
(a) subject to subsection (3) below, in a case where only one person falls within the list set out in subsection (2) below, that person; |
|
(b) subject to subsections (3) and (4) below, in a case where two or more persons fall within that list, the person falling within the paragraph first appearing in the list set out in subsection (2) below. |
|
(2) The list mentioned in subsection (1) above is- |
|
(a) the relevant person's spouse; |
|
(b) a person such as is mentioned in subsection (7) below; |
|
(c) the relevant person's child; |
|
(d) the relevant person's parent; |
|
(e) the relevant person's brother or sister; |
|
(f) the relevant person's grandparent; |
|
(g) the relevant person's grandchild; |
|
(h) the relevant person's uncle or aunt; |
|
(i) the relevant person's niece or nephew; |
|
(j) the person mentioned in subsection (8) below. |
|
(3) If the relevant person's spouse- |
|
(a) is permanently separated (either by agreement or under an order of a court) from the relevant person; or |
|
(b) has deserted, or has been deserted by, the relevant person and the desertion continues, |
|
subsection (2)(a) above shall be disregarded for the purposes of subsection (1) above. |
|
(4) Where two or more persons fall within the paragraph first appearing on the list set out in subsection (2) above, the nearest relative shall be- |
|
(a) if those persons agree that one of them should be the nearest relative, that person; or |
|
(b) if those persons do not so agree, the person determined in accordance with the following rules- |
|
(i) brothers and sisters of the whole blood shall be preferred over brothers and sisters of the half-blood; and
|
|
(ii) the elder or eldest, as the case may be, shall be preferred.
|
|
(5) A relevant person's nearest relative may decline to be the named person of the relevant person by giving notice to- |
|
(a) the relevant person; and |
|
(b) the local authority for the area in which the relevant person resides, |
|
to that effect. |
|
(6) For the purposes of subsection (2) above- |
|
(a) a relationship of the half-blood shall, subject to subsection (4)(b)(i) above, be treated as a relationship of the whole blood; |
|
(b) the stepchild of a person shall be treated as the child of that person; |
|
(c) if the relevant person is ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man, any person who is not so resident shall be disregarded; and |
|
(d) any person who is under 16 years of age shall be disregarded. |
|
(7) The person referred to in subsection (2)(b) above is a person who- |
|
(a) is living with the relevant person- |
|
(i) as husband and wife; or
|
|
(ii) in a relationship which has the characteristics of the relationship between husband and wife except that the person and the relevant person are of the same sex; and
|
|
(b) has been living with the relevant person for a period of at least 6 months or, if the relevant person is for the time being in hospital, had been living with the relevant person for such period when the relevant person was admitted to hospital. |
|
(8) The person referred to in subsection (2)(j) above is a person who- |
|
(a) is living with the relevant person and has been living with the relevant person for a period of at least 5 years; or |
|
(b) if the relevant person is in hospital, had been living with the relevant person for such period when the relevant person was admitted to hospital. |
| Mental health officer's duties etc. |
255 | Named person: mental health officer's duties etc. |
|
(1) Subsection (2) below applies where- |
|
(a) a mental health officer is discharging any function by virtue of this Act or the 1995 Act in relation to a patient; and |
|
(b) it is necessary for the purposes of the discharge of the function to establish whether the patient has a named person. |
|
(2) The mental health officer shall take such steps as are reasonably practicable- |
|
(a) to establish whether the patient has a named person; and |
|
(b) if so, to ascertain who that person is. |
|
(3) Subsection (4) below applies where the mental health officer- |
|
(a) establishes that the patient does not have a named person; or |
|
(b) is unable to establish whether the patient has a named person. |
|
(4) The mental health officer- |
|
(a) shall make a record of the steps taken under subsection (2)(a) above; and |
|
(b) may apply to the Tribunal for an order under section 257 of this Act. |
|
(5) Where the mental health officer makes a record under subsection (4)(a) above, the mental health officer shall, as soon as practicable, give a copy of the record to- |
|
|
|
|
|
(6) Where by virtue of subsection (2) above- |
|
(a) the mental health officer- |
|
(i) establishes that the patient has a named person; and
|
|
(ii) ascertains the name of that person ("the apparent named person"); but
|
|
(b) the mental health officer considers that it is inappropriate for the apparent named person to be the patient's named person, |
|
the mental health officer shall apply to the Tribunal for an order under section 257 of this Act. |
|
(7) Where- |
|
(a) a mental health officer is discharging any function by virtue of this Act in relation to a patient; and |
|
(b) it appears to the mental health officer- |
|
(i) that the patient does not have a named person; or
|
|
(ii) that the patient has a named person ("the apparent named person") but the mental health officer considers that it is inappropriate for the apparent named person to be the patient's named person,
|
|
the mental health officer may apply to the Tribunal for an order under section 257 of this Act. |
| Applications to Tribunal by patient etc. |
256 | Named person: application by patient etc. |
|
(1) Where- |
|
(a) it appears to a person mentioned in subsection (2) below (any such person being referred to in this section as "the applicant") that a patient does not have a named person; |
|
(b) the applicant considers that though the patient has a named person it is inappropriate that that person be the patient's named person; or |
|
(c) circumstances of such description as may be prescribed by regulations exist, |
|
the applicant may apply to the Tribunal for an order under section 257 of this Act in relation to the patient. |
|
(2) Those persons are- |
|
|
|
(b) the patient's responsible medical officer; |
|
(c) if the patient is a child, any person who has parental responsibilities in relation to the patient; |
|
(d) if the patient is in hospital, the managers of the hospital; |
|
(e) any welfare attorney of the patient; |
|
(f) any guardian of the patient; |
|
(g) any relative of the patient; and |
|
(h) any other person having an interest in the welfare of the patient. |
|
(3) In subsection (2)(c) above, "child" and "parental responsibilities" have the same meanings as they have in Part I of the Children (Scotland) Act 1995 (c.36). |
| Tribunal's powers |
257 | Named person: Tribunal's powers |
|
(1) Where- |
|
(a) an application is made under section 255(4)(b) or (7)(b)(i) or 256(1)(a) of this Act; and |
|
(b) the Tribunal is satisfied that the patient does not have a named person, |
|
the Tribunal may, subject to subsection (4) below, make an order appointing the person specified in the order to be the patient's named person. |
|
(2) Where- |
|
(a) an application is made under section 255(6) or (7)(b)(ii) or 256(1)(b) of this Act; and |
|
(b) the Tribunal is satisfied that it is inappropriate for the named person ("the acting named person") to be the patient's named person, |
|
the Tribunal may, subject to subsection (4) below, make an order declaring that the acting named person is not the named person or appointing the person specified in the order to be the patient's named person in place of the acting named person. |
|
(3) Where an application is made under section 256(1)(c) of this Act, the Tribunal may, subject to subsection (4) below, make such order as it thinks fit. |
|
(4) It shall not be competent for the Tribunal to make an order under this section appointing a person who has not attained the age of 16 years to be a patient's named person. |
| Interpretation of Chapter |
258 | Interpretation of Chapter |
| In this Chapter, other than section 252, "person" means a natural person. |
|
| |
|
CHAPTER 2 |
|
ADVOCACY ETC. |
| Advocacy |
259 | Advocacy |
|
(1) Every person with a mental disorder shall have a right of access to independent advocacy; and accordingly it is the duty of- |
|
(a) each local authority, in collaboration with the (or each) relevant Health Board; and |
|
(b) each Health Board, in collaboration with the (or each) relevant local authority, |
|
to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services. |
|
(2) Each relevant Health Board and local authority shall, for the purposes of subsection (1) above, collaborate with the local authority or, as the case may be, Health Board in relation to which it is the relevant Board or authority. |
|
(3) For the purposes of subsections (1) and (2) above- |
|
(a) a Health Board is, in relation to a local authority, a "relevant" Health Board if its area or part of its area is the same as or is included in the area of the local authority; and |
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(b) a local authority is, in relation to a Health Board, a "relevant" local authority if its area or part of its area is the same as or is included in the area of the Health Board. |
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(4) In subsection (1) above, "advocacy services" are services of support and representation made available for the purpose of enabling the person to whom they are available to have as much control of, or capacity to influence, that person's care and welfare as is, in the circumstances, appropriate. |
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(5) For the purposes of subsection (1) above, advocacy services are "independent" if they are to be provided by a person who is none of the following- |
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(c) a National Health Service trust; |
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(iii) a National Health Service trust,
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in the area of which the person to whom those services are made available is to be provided with them; |
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(i) in pursuance of arrangements made between that person and a Health Board, is giving medical treatment to;
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(ii) in pursuance of those arrangements, is providing, under the National Health Service (Scotland) Act 1978 (c.29), treatment, care or services for; or
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(iii) in pursuance of arrangements made between that person and a local authority, is providing, under Part II of the Social Work (Scotland) Act 1968 (c.49) (promotion of social welfare) or any of the enactments specified in section 5(1B) of that Act, services for,
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the person to whom the advocacy services are made available; |
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(f) in relation to a patient detained in a state hospital or a person who (by virtue of any of the means specified in subsection (11)(b) below) is no longer detained there, the State Hospitals Board for Scotland or a member of that Board. |
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(6) In subsection (5)(d) above the reference to the area of a National Health Service trust is a reference to the Health Board area in which the trust discharges its functions. |
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(7) It is the duty of the State Hospitals Board for Scotland (the "State Hospitals Board") to secure the availability to persons who are patients detained in a state hospital of the services referred to in subsection (1) above and, in relation to those persons, to take the steps there referred to. |
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(8) It is the duty of- |
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(a) the State Hospitals Board, in collaboration with each relevant local authority and Health Board; and |
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(b) each relevant local authority and Health Board, in collaboration with the State Hospitals Board, |
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to secure the availability to relevant persons of the services referred to in subsection (1) above, and, in relation to those persons, to take the steps there referred to. |
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(9) Each relevant local authority and Health Board shall, for the purposes of subsection (8)(a) above, collaborate with the State Hospitals Board and with each other. |
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(10) The State Hospitals Board shall, for the purposes of subsection (8)(b) above, collaborate with each relevant local authority and Health Board. |
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(11) For the purposes of subsections (8) to (10) above- |
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(a) a local authority or Health Board is a relevant local authority or, as the case may be, Health Board if there is residing in its area a relevant person; |
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(b) a relevant person is a person with a mental disorder who, having been detained as a patient in a state hospital, is (by virtue of section 127 or 193(7) of this Act) no longer detained there. |
| Information |
260 | Provision of information to patient |
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(1) This section applies where a patient- |
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(a) is detained in hospital by virtue of- |
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(b) though not detained in hospital, is subject to- |
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(i) an emergency detention certificate;
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(ii) a short-term detention certificate;
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(iii) a compulsory treatment order;
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(iv) an interim compulsory treatment order;
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(vii) a hospital direction;
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(viii) a transfer for treatment direction;
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(ix) an interim compulsion order; or
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(2) The appropriate person shall- |
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(a) take all reasonable steps- |
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(i) to ensure that the patient understands the relevant matters at each of the times mentioned in subsection (3) below;
|
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(ii) to ensure that the patient is supplied with material appropriate to the patient's needs (and in a form that is appropriate to those needs and permanent) from which the patient may refresh the patient's understanding of those matters; and
|
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(iii) to inform the patient of the availability under section 259 of this Act of independent advocacy services at each of those times; and
|
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(b) take appropriate steps to ensure that the patient has the opportunity of making use of those services. |
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(3) Those times are- |
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(a) as soon as practicable after- |
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(i) where the patient is detained in hospital, the beginning of such detention; or
|
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(ii) where the patient is not so detained, the making of the order;
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(b) as soon as practicable after any occasion on which the patient reasonably requests to be informed of those matters; and |
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(c) such other times as may be prescribed by regulations. |
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(4) Where material is supplied to the patient under subsection (2)(a)(ii) above, the appropriate person shall, as soon as practicable after such material is supplied, take all reasonable steps to ensure that the patient's named person is supplied with a copy of such material in a form that is appropriate to the person's needs. |
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(5) In this section- |
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"the appropriate person" means- |
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(a) where the patient is detained in hospital, the managers of the hospital;
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(b) where by virtue of a certificate granted under any provision of this Act, the authorisation to detain the patient in a hospital is suspended, the managers of the hospital in which, but for the certificate, the patient would be authorised to be detained;
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(c) in any other case, the managers of the hospital specified in the order; and
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"the relevant matters" means- |
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(a) the provision of this Act or the 1995 Act by virtue of which-
|
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(i) the patient is being detained; or
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(ii) the order has effect;
|
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(b) the consequences of the operation of that provision;
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(c) the powers that the patient's responsible medical officer and the Tribunal each has in relation to revoking that provision;
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(d) any right to make an application, or appeal, to the Tribunal that the patient has by virtue of that provision;
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(e) the powers exercisable by the Tribunal in the event of any such right being exercised;
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(f) how the patient may exercise any such right;
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(g) the functions that the Commission has that appear to be relevant to the patient's case;
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(h) how the patient may obtain legal assistance as respects any such right.
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261 | Provision of assistance to patient with communication difficulties |
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(1) This section applies where- |
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(a) a patient is detained in hospital by virtue of- |
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(b) though not detained in hospital, a patient is subject to- |
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(i) an emergency detention certificate;
|
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(ii) a short-term detention certificate;
|
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(iii) a compulsory treatment order;
|
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(iv) an interim compulsory treatment order;
|
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(vii) a hospital direction;
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(viii) a transfer for treatment direction;
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(ix) an interim compulsion order; or
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and the patient has difficulty in communicating or generally communicates in a language other than English. |
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(2) The appropriate person shall take all reasonable steps to secure that, for the purpose of enabling the patient to communicate during each of the events mentioned in subsection (3) below- |
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(a) arrangements appropriate to the patient's needs are made; or |
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(b) the patient is provided with assistance, or material, appropriate to the patient's needs. |
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(3) Those events are- |
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(a) any medical examination of the patient carried out for the purpose of assessing the patient's mental disorder; |
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(b) any review under this Act or the 1995 Act of the patient's detention; or |
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(c) any proceedings before the Tribunal relating to the patient. |
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(4) As soon as practicable after taking any steps under subsection (2) above, the appropriate person shall make a written record of the steps. |
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(5) In this section "the appropriate person" has the meaning given by section 260(5) of this Act. |
| Access to medical practitioner |
262 | Access to medical practitioner for purposes of medical examination |
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(1) This section applies where a patient is detained in hospital by virtue of- |
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(2) A duly authorised medical practitioner may, for any of the purposes mentioned in subsection (3) below, visit the patient at any reasonable hour and carry out a medical examination of the patient in private. |
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(3) Those purposes are- |
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(a) advising the patient or, as the case may be, the patient's named person about the making of applications to the Tribunal in respect of the patient under this Act; and |
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(b) providing to the patient or, as the case may be, the patient's named person information as respects the condition of the patient for the purpose of- |
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(i) any such application (or proposed application); or
|
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(ii) any other proceedings before the Tribunal in respect of the patient in which the patient or, as the case may be, the patient's named person is taking part (or considering whether to take part).
|
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(4) For the purposes of subsection (2) above and subject to subsection (5) below, a medical practitioner is duly authorised if authorised for the purposes of this section by- |
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(b) the patient's named person. |
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(5) Authorisation given for the purposes of this section by the patient's named person may be rescinded by the patient at any time when the patient is not incapable. |
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(6) In subsection (5) above, "incapable" has the same meaning as in section 250(7) of this Act. |
263 | Inspection of records by medical practitioner |
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(1) A duly authorised medical practitioner may, for any of the purposes mentioned in subsection (3) below, require any person holding records relating to- |
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(b) medical treatment given at any time to, |
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a patient whose detention in hospital is authorised by virtue of this Act or the 1995 Act to produce them for inspection by the medical practitioner. |
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(2) A duly authorised medical practitioner may, for any of the purposes mentioned in subsection (3) below, require any person holding records relating to medical treatment given at any time to a patient who is subject to- |
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(a) a compulsory treatment order; or |
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that does not authorise the detention of the patient in hospital to produce them for inspection by the medical practitioner. |
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(3) Those purposes are- |
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(a) advising the patient or, as the case may be, the patient's named person about the making of applications to the Tribunal in respect of the patient under this Act; |
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(b) providing to the patient or, as the case may be, the patient's named person information as respects the condition of the patient for the purpose of- |
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(i) any such application (or proposed application); or
|
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(ii) any other proceedings before the Tribunal in respect of the patient in which the patient or, as the case may be, the patient's named person is taking part (or considering whether to take part).
|
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(4) For the purposes of subsections (1) and (2) above and subject to subsection (5) below, a medical practitioner is duly authorised if authorised for the purposes of this section by- |
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(b) the patient's named person. |
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(5) Authorisation given for the purposes of this section by the patient's named person may be rescinded by the patient at any time when the patient is not incapable. |
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(6) In subsection (5) above, "incapable" has the same meaning as in section 250(7) of this Act. |
|
| |
|
CHAPTER 3 |
|
DETENTION IN CONDITIONS OF EXCESSIVE SECURITY |
| State hospitals |
264 | Detention in conditions of excessive security: state hospitals |
|
(1) This section applies where a patient's detention in a state hospital is authorised by- |
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(a) a compulsory treatment order; |
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(c) a hospital direction; or |
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(d) a transfer for treatment direction; |
|
and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient. |
|
(2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order- |
|
(a) declaring that the patient is being detained in conditions of excessive security; and |
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(b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed. |
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(3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital- |
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(a) which is not a state hospital; |
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(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and |
|
(c) in which accommodation is available for the patient. |
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(4) Where the Tribunal makes an order under subsection (2) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
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(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in appropriate conditions; and |
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(c) in which accommodation is available for the patient. |
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(5) Where the Tribunal makes an order under subsection (2) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (3) or, as the case may be, (4) above, give notice to the managers of the state hospital of the name of the hospital so identified. |
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(6) The persons referred to in subsection (2) above are- |
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(b) the patient's named person; |
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(c) any guardian of the patient; |
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(d) any welfare attorney of the patient; and |
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(7) An application may not be made under subsection (2) above- |
|
(a) if the compulsory treatment order that authorises the patient's detention in hospital has not been extended; |
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(b) during the period of 6 months beginning with the making of the compulsion order that authorises the patient's detention in hospital; or |
|
(c) before the expiry of the period of 6 months beginning with the making of- |
|
(i) the hospital direction; or
|
|
(ii) the transfer for treatment direction,
|
|
that authorises the patient's detention in hospital. |
|
(8) No more than one application may be made under subsection (2) above in respect of the same patient- |
|
(a) during the period of 12 months beginning with the day on which the order, or direction, authorising the patient's detention in hospital is made; |
|
(b) during any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period mentioned in paragraph (a) above. |
|
(9) Before determining an application under subsection (2) above, the Tribunal shall- |
|
(a) afford the persons mentioned in subsection (10) below the opportunity- |
|
(i) of making representations (whether orally or in writing); and
|
|
(ii) of leading, or producing, evidence; and
|
|
(b) whether or not any such representations are made, hold a hearing. |
|
(10) Those persons are- |
|
|
|
(b) the patient's named person; |
|
(c) the relevant Health Board; |
|
(d) the patient's responsible medical officer; |
|
(e) the managers of the state hospital in which the patient is detained; |
|
(f) the mental health officer; |
|
(g) any guardian of the patient; |
|
(h) any welfare attorney of the patient; |
|
(i) any curator ad litem appointed by the Tribunal in respect of the patient; |
|
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(k) in the case of a relevant patient, the Scottish Ministers; and |
|
(l) any other person appearing to the Tribunal to have an interest in the application. |
265 | Order under section 264: further provision |
|
(1) This section applies where- |
|
(a) an order is made under section 264(2) of this Act in respect of a patient; and |
|
(b) the order is not recalled under section 267 of this Act; |
|
and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient. |
|
(2) If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the patient has been transferred to another hospital, there shall be a hearing before the Tribunal. |
|
(3) Where such a hearing is held, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order- |
|
(a) declaring that the patient is being detained in conditions of excessive security; and |
|
|
|
(i) a period of 28 days; or
|
|
(ii) such longer period not exceeding 3 months as the Tribunal thinks fit,
|
|
beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed. |
|
(4) Where the Tribunal makes an order under subsection (3) above in respect of a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and |
|
(c) in which accommodation is available for the patient. |
|
(5) Where the Tribunal makes an order under subsection (3) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in appropriate conditions; and |
|
(c) in which accommodation is available for the patient. |
|
(6) Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4) or, as the case may be, (5) above, give notice to the managers of the state hospital of the name of the hospital so identified. |
|
(7) Before making an order under subsection (3) above, the Tribunal shall afford the persons mentioned in section 264(10) of this Act the opportunity- |
|
(a) of making representations (whether orally or in writing); and |
|
(b) of leading, or producing, evidence. |
266 | Order under section 265: further provision |
|
(1) This section applies where- |
|
(a) an order is made under subsection (3) of section 265 of this Act in respect of a patient; |
|
(b) the order specifies the period mentioned in paragraph (b)(ii) of that subsection; and |
|
(c) the order is not recalled under section 267 of this Act; |
|
and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient. |
|
(2) If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the patient has been transferred to another hospital, there shall be a hearing before the Tribunal. |
|
(3) Where such a hearing is held, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order- |
|
(a) declaring that the patient is being detained in conditions of excessive security; and |
|
(b) specifying the period of 28 days beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed. |
|
(4) Where the Tribunal makes an order under subsection (3) above in respect of a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and |
|
(c) in which accommodation is available for the patient. |
|
(5) Where the Tribunal makes an order under subsection (3) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in appropriate conditions; and |
|
(c) in which accommodation is available for the patient. |
|
(6) Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4) or, as the case may be, (5) above, give notice to the managers of the state hospital of the name of the hospital so identified. |
|
(7) Before making an order under subsection (3) above, the Tribunal shall afford the persons mentioned in section 264(10) of this Act the opportunity- |
|
(a) of making representations (whether orally or in writing); and |
|
(b) of leading, or producing, evidence. |
267 | Orders under sections 264 to 266: recall |
|
(1) This section applies where an order is made under section 264(2), 265(3) or 266(3) of this Act in respect of a patient. |
|
(2) On the application of any of the persons mentioned in subsection (4) below, the Tribunal- |
|
(a) shall, if satisfied that the patient requires to be detained under conditions of special security that can be provided only in a state hospital, recall the order; |
|
(b) may, on any other grounds, recall the order. |
|
(3) Where the order is recalled, the relevant Health Board ceases to be subject to the duties under section 264(3) to (5), 265(4) to (6) or 266(4) to (6) to which it became subject by virtue of the making of the order. |
|
(4) The persons referred to in subsection (2) above are- |
|
(a) the relevant Health Board; |
|
(b) in the case of a relevant patient, the Scottish Ministers; |
|
(c) in the case of a patient who is not a relevant patient, the patient's responsible medical officer. |
|
(5) Before determining an application under subsection (2) above, the Tribunal shall- |
|
(a) afford the persons mentioned in section 264(10) of this Act the opportunity- |
|
(i) of making representations (whether orally or in writing); and
|
|
(ii) of leading, or producing, evidence; and
|
|
(b) whether or not any such representations are made, hold a hearing. |
| Other hospitals |
268 | Detention in conditions of excessive security: hospitals other than state hospitals |
|
(1) This section applies where a qualifying patient's detention in a qualifying hospital is authorised by- |
|
(a) a compulsory treatment order; |
|
|
|
(c) a hospital direction; or |
|
(d) a transfer for treatment direction; |
|
and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient. |
|
(2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that detention of the qualifying patient in the qualifying hospital involves the patient being subject to a level of security that is excessive in the patient's case, make an order- |
|
(a) declaring that the patient is being detained in conditions of excessive security; and |
|
(b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed. |
|
(3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and |
|
(c) in which accommodation is available for the patient. |
|
(4) Where the Tribunal makes an order under subsection (2) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and |
|
(c) in which accommodation is available for the patient. |
|
(5) Where the Tribunal makes an order under subsection (2) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (3) or, as the case may be, (4) above, give notice to the managers of the qualifying hospital of the name of the hospital so identified. |
|
(6) The persons referred to in subsection (2) above are- |
|
(a) the qualifying patient; |
|
(b) the qualifying patient's named person; |
|
(c) any guardian of the qualifying patient; |
|
(d) any welfare attorney of the qualifying patient; and |
|
|
|
(7) An application may not be made under subsection (2) above- |
|
(a) if the compulsory treatment order that authorises the patient's detention in hospital has not been extended; |
|
(b) during the period of 6 months beginning with the making of the compulsion order that authorises the patient's detention in hospital; or |
|
(c) before the expiry of the period of 6 months beginning with the making of- |
|
(i) the hospital direction; or
|
|
(ii) the transfer for treatment direction,
|
|
that authorises the patient's detention in hospital. |
|
(8) No more than one application may be made under subsection (2) above in respect of the same patient- |
|
(a) during the period of 12 months beginning with the day on which the order, or direction, authorising the patient's detention in hospital is made; |
|
(b) during any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period mentioned in paragraph (a) above. |
|
(9) Before determining an application under subsection (2) above, the Tribunal shall- |
|
(a) afford the persons mentioned in subsection (10) below the opportunity- |
|
(i) of making representations (whether orally or in writing); and
|
|
(ii) of leading, or producing, evidence; and
|
|
(b) whether or not any such representations are made, hold a hearing. |
|
(10) Those persons are- |
|
(a) the qualifying patient; |
|
(b) the qualifying patient's named person; |
|
(c) the relevant Health Board; |
|
(d) the qualifying patient's responsible medical officer; |
|
(e) the managers of the qualifying hospital; |
|
(f) the mental health officer; |
|
(g) any guardian of the qualifying patient; |
|
(h) any welfare attorney of the qualifying patient; |
|
(i) any curator ad litem appointed by the Tribunal in respect of the qualifying patient; |
|
|
|
(k) in the case of a relevant patient, the Scottish Ministers; and |
|
(l) any other person appearing to the Tribunal to have an interest in the application. |
|
(11) A patient is a "qualifying patient" for the purposes of this section and sections 269 to 271 of this Act if the patient is of a description specified in regulations. |
|
(12) A hospital is a "qualifying hospital" for the purposes of this section and sections 269 to 271 of this Act if- |
|
(a) it is not a state hospital; and |
|
(b) it is specified, or of a description specified, in regulations. |
|
(13) Regulations under subsection (11) or (12) above may in particular have the effect- |
|
(a) that "qualifying patient" means a patient; |
|
(b) that "qualifying hospital" means- |
|
(i) a hospital other than a state hospital; or
|
|
(ii) a part of a hospital.
|
|
(14) Regulations may make provision as to when for the purposes of this section and sections 269 to 271 of this Act a patient's detention in a hospital is to be taken as involving the patient being subject to a level of security that is excessive in the patient's case. |
269 | Order under section 268: further provision |
|
(1) This section applies where- |
|
(a) an order is made under section 268(2) of this Act in respect of a qualifying patient; and |
|
(b) the order is not recalled under section 271 of this Act; |
|
and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient. |
|
(2) If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the qualifying patient has been transferred to another hospital, there shall be a hearing before the Tribunal. |
|
(3) Where such a hearing is held, the Tribunal may, if satisfied that detention of the patient in the qualifying hospital involves the patient being subject to a level of security that is excessive in the patient's case, make an order- |
|
(a) declaring that the patient is being detained in conditions of excessive security; and |
|
|
|
(i) a period of 28 days; or
|
|
(ii) such longer period not exceeding 3 months as the Tribunal thinks fit,
|
|
beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed. |
|
(4) Where the Tribunal makes an order under subsection (3) above in respect of a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and |
|
(c) in which accommodation is available for the patient. |
|
(5) Where the Tribunal makes an order under subsection (3) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and |
|
(c) in which accommodation is available for the patient. |
|
(6) Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4) or, as the case may be, (5) above, give notice to the managers of the qualifying hospital of the name of the hospital so identified. |
|
(7) Before making an order under subsection (3) above, the Tribunal shall afford the persons mentioned in section 268(10) of this Act the opportunity- |
|
(a) of making representations (whether orally or in writing); and |
|
(b) of leading, or producing, evidence. |
270 | Order under section 269: further provision |
|
(1) This section applies where- |
|
(a) an order is made under subsection (3) of section 269 of this Act in respect of a qualifying patient; |
|
(b) the order specifies the period mentioned in paragraph (b)(ii) of that subsection; and |
|
(c) the order is not recalled under section 271 of this Act; |
|
and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient. |
|
(2) If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the qualifying patient has been transferred to another hospital, there shall be a hearing before the Tribunal. |
|
(3) Where such a hearing is held, the Tribunal may, if satisfied that detention of the patient in the qualifying hospital involves the patient being subject to a level of security that is excessive in the patient's case, make an order- |
|
(a) declaring that the patient is being detained in conditions of excessive security; and |
|
(b) specifying the period of 28 days beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed. |
|
(4) Where the Tribunal makes an order under subsection (3) above in respect of a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and |
|
(c) in which accommodation is available for the patient. |
|
(5) Where the Tribunal makes an order under subsection (3) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital- |
|
(a) which is not a state hospital; |
|
(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and |
|
(c) in which accommodation is available for the patient. |
|
(6) Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4) or, as the case may be, (5) above, give notice to the managers of the qualifying hospital of the name of the hospital so identified. |
|
(7) Before making an order under subsection (3) above, the Tribunal shall afford the persons mentioned in section 268(10) of this Act the opportunity- |
|
(a) of making representations (whether orally or in writing); and |
|
(b) of leading, or producing, evidence. |
271 | Orders under sections 268 to 270: recall |
|
(1) This section applies where an order is made under section 268(2), 269(3) or 270(3) of this Act in respect of a qualifying patient. |
|
(2) On the application of any of the persons mentioned in subsection (4) below, the Tribunal- |
|
(a) shall, if satisfied that detention of the patient in the qualifying hospital does not involve the patient being subject to a level of security that is excessive in the patient's case, recall the order; |
|
(b) may, on any other grounds, recall the order. |
|
(3) Where the order is recalled, the relevant Health Board ceases to be subject to the duties under section 268(3) to (5), 269(4) to (6) or 270(4) to (6) to which it became subject by virtue of the making of the order. |
|
(4) The persons referred to in subsection (2) above are- |
|
(a) the relevant Health Board; |
|
(b) in the case of a relevant patient, the Scottish Ministers; |
|
(c) in the case of a patient who is not a relevant patient, the patient's responsible medical officer. |
|
(5) Before determining an application under subsection (2) above, the Tribunal shall- |
|
(a) afford the persons mentioned in section 268(10) of this Act the opportunity- |
|
(i) of making representations (whether orally or in writing); and
|
|
(ii) of leading, or producing, evidence; and
|
|
(b) whether or not any such representations are made, hold a hearing. |
| Enforcement: civil proceedings |
272 | Proceedings for specific performance of statutory duty |
|
(1) The duties imposed by virtue of- |
|
(a) an order under section 264(2) of this Act; |
|
(b) an order under subsection (3) of section 265 of this Act which specifies the period mentioned in paragraph (b)(ii) of that subsection; |
|
(c) an order under section 268(2) of this Act; or |
|
(d) an order under subsection (3) of section 269 of this Act which specifies the period mentioned in paragraph (b)(ii) of that subsection, |
|
shall not be enforceable by proceedings for specific performance of a statutory duty under section 45(b) of the Court of Session Act 1988 (c.36). |
|
(2) Without prejudice to the rights of any other person, the duties imposed by virtue of- |
|
(a) an order under subsection (3) of section 265 of this Act which specifies the period mentioned in paragraph (b)(i) of that subsection; |
|
(b) an order under section 266(3) of this Act; |
|
(c) an order under subsection (3) of section 269 of this Act which specifies the period mentioned in paragraph (b)(i) of that subsection; or |
|
(d) an order under section 270(3) of this Act, |
|
shall be enforceable by proceedings by the Commission for specific performance of a statutory duty under section 45(b) of that Act of 1988. |
| Interpretation of Chapter |
273 | Interpretation of Chapter |
| In this Chapter- |
|
"relevant Health Board" means, in relation to a patient of such description as may be specified in regulations, the Health Board, or Special Health Board- |
|
(a) of such description as may be so specified; or
|
|
(b) determined under such regulations; and
|
|
"relevant patient" means- |
|
(a) in sections 264 to 267 of this Act-
|
|
(i) a patient whose detention in hospital is authorised by a compulsion order and who is also subject to a restriction order; or
|
|
(ii) a patient whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction;
|
|
(b) in sections 268 to 271 of this Act-
|
|
(i) a qualifying patient whose detention in hospital is authorised by a compulsion order and who is also subject to a restriction order; or
|
|
(ii) a qualifying patient whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction.
|
|
| |
|
PART 18 |
|
MISCELLANEOUS |
| Code of practice |
274 | Code of practice |
|
(1) The Scottish Ministers shall, in accordance with this section, draw up, give effect to and publish a code of practice giving guidance to any person discharging functions by virtue of this Act as to- |
|
(a) the discharge of such of those functions; and |
|
(b) such matters arising in connection with the discharge of those functions, |
|
as they think fit. |
|
(2) The Scottish Ministers shall, before giving effect to a code of practice drawn up under subsection (1) above- |
|
(a) consult such persons as they think fit; and |
|
(b) lay a draft of the code before the Scottish Parliament. |
|
(3) A code of practice drawn up under subsection (1) above shall be given effect by being- |
|
(a) confirmed by order made; and |
|
(b) brought into force on a day appointed, |
|
by the Scottish Ministers. |
|
(4) Any person discharging functions by virtue of this Act shall have regard (so far as they are applicable to the discharge of those functions by that person) to the provisions of any code of practice published under subsection (1) above for the time being in force. |
|
(5) The references in subsections (1) and (4) above to a person discharging functions by virtue of this Act do not include references to- |
|
|
|
|
|
|
|
(6) The Scottish Ministers may, from time to time, revise the whole or part of any code of practice published under subsection (1) above; and if a code is so revised, the Scottish Ministers shall publish the revised code. |
|
(7) Subsections (2) to (6) above apply to a code of practice revised under subsection (6) above as they apply to a code of practice published under subsection (1) above. |
| Advance statements |
275 | Advance statements: making and withdrawal |
|
(1) An "advance statement" is a statement complying with subsection (2) below and specifying- |
|
(a) the ways the person making it wishes to be treated for mental disorder; |
|
(b) the ways the person wishes not to be so treated, |
|
in the event of the person's becoming mentally disordered and the person's ability to make decisions about the matters referred to in paragraphs (a) and (b) above being, because of that, significantly impaired. |
|
(2) An advance statement complies with this subsection if- |
|
(a) at the time of making it, the person has the capacity of properly intending the wishes specified in it; |
|
|
|
(c) it is subscribed by the person making it; |
|
(d) that person's subscription of it is witnessed by a person (the "witness") who is within the class of persons prescribed by regulations for the purposes of this paragraph and who signs the statement as a witness to that subscription; and |
|
(e) the witness certifies in writing on the document which comprises the statement that, in the witness's opinion, the person making the statement has the capacity referred to in paragraph (a) above. |
|
(3) An advance statement may be withdrawn by the person who made it by a withdrawal complying with this subsection; and a withdrawal so complies if- |
|
(a) at the time of making it the person has the capacity properly to intend to withdraw the statement; and |
|
(b) it is made by means of a document which, were it an advance statement, would comply with paragraphs (b) to (e) of subsection (2) above. |
276 | Advance statements: effect |
|
(1) If the Tribunal is satisfied as to the matters set out in subsection (2) below, it shall, in making any decision in respect of a patient who is a person who has made and not withdrawn an advance statement, have regard to the wishes specified in the statement. |
|
(2) Those matters are- |
|
(a) that, because of mental disorder, the ability of the person who made the advance statement to make decisions about the matters referred to in paragraphs (a) and (b) of subsection (1) of section 275 of this Act is significantly impaired; |
|
(b) that the statement complies with subsection (2) of that section; |
|
(c) that any measures or treatment which might or will be authorised by virtue of the decision referred to in subsection (1) above or might or will, by virtue of that decision, no longer be authorised correspond to any wishes specified in the statement; and |
|
(d) that, since the person made the statement, there has been no change of circumstances which, were the person to have been considering making the statement at the time the Tribunal is making the decision referred to in subsection (1) above, would have been likely to cause the person not to make the statement or to make a substantially different one. |
|
(3) A person giving medical treatment authorised by virtue of this Act or the 1995 Act to a patient who is a person- |
|
(a) who has made and not withdrawn an advance statement; and |
|
(b) whose ability to make decisions about the matters referred to in paragraphs (a) and (b) of subsection (1) of section 275 of this Act is, because of mental disorder, significantly impaired, |
|
shall have regard to the wishes specified in the advance statement. |
|
(4) Before making a decision under section 236(2)(c), 239(1)(c) or 241(1)(c) of this Act in relation to a patient who is a person who has made and not withdrawn an advance statement, a designated medical practitioner shall have regard to the wishes specified in the statement. |
|
(5) For the purposes of subsections (1) and (2) above and (in the case where medical treatment is to or might be given to a patient otherwise than by virtue of any such decision as is referred to in subsection (1) above or is to be given to the patient by virtue of such a decision which was made in ignorance of the existence or the withdrawal of an advance statement) of subsections (3) and (4) above- |
|
(a) an advance statement shall be taken to comply with subsection (2) of section 275 of this Act; and |
|
(b) a withdrawal of an advance statement shall be taken to comply with subsection (3) of that section, |
|
unless the contrary appears. |
|
(6) For the purposes of subsections (3) and (4) above in the case where the medical treatment is authorised by virtue of a decision such as is referred to in subsection (1) above- |
|
(a) an advance statement shall be taken to comply with subsection (2) of section 275 of this Act; and |
|
(b) a withdrawal of an advance statement shall be taken to comply with subsection (3) of that section, |
|
if the Tribunal was satisfied when making the decision that the statement or, as the case may be, the withdrawal so complies. |
|
(7) If, in respect of a patient who is a person who has made and not withdrawn an advance statement- |
|
(a) the Tribunal makes such a decision as is referred to in subsection (1) above authorising measures which conflict with the wishes specified in the statement; |
|
(b) a person having functions under this Act gives medical treatment authorised by virtue of this Act or the 1995 Act to the person and that treatment conflicts with those wishes; |
|
(c) a designated medical practitioner makes such a decision as is referred to in subsection (4) above and it conflicts with those wishes; or |
|
(d) such measures, treatment or decision which could have been so authorised, given or, as the case may be, made are not so authorised or is not so given or made, with the consequence that there is a conflict with those wishes, |
|
then the Tribunal, person having those functions or, as the case may be, designated medical practitioner shall comply with the requirements set out in subsection (8) below. |
|
(8) Those requirements are- |
|
(a) recording in writing the circumstances in which those measures were or treatment or decision was authorised, given or made or, as the case may be, not authorised, given or made, and the reasons why; |
|
|
|
(i) the person who made the statement;
|
|
(ii) that person's named person;
|
|
(iii) that person's welfare attorney;
|
|
(iv) that person's guardian; and
|
|
|
|
with a copy of that record; and |
|
(c) placing a copy of that record with that person's medical records. |
| Education |
277 | Education of persons who have mental disorder |
|
(1) The Education (Scotland) Act 1980 (c.44) shall be amended as follows. |
|
(2) In section 14(1) (education for children unable to attend school by reason of extraordinary circumstances or prolonged ill-health), in paragraph (b) after "ill-health" there is inserted "or a pupil's being subject to any measures authorised by virtue of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or authorised, in consequence of the pupil's mental disorder, by virtue of the Criminal Procedure (Scotland) Act 1995 (c.46)". |
|
(3) In section 131(2) (persons to whom duties and powers under the Act do not extend), in paragraph (a) after "court" there is inserted "(other than an order so made under the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13))". |
| Parental relations |
278 | Duty to mitigate adverse effect of compulsory measures on parental relations |
|
(1) Subsection (2) below applies- |
|
|
|
(i) a child is subject to any measures authorised by virtue of this Act or authorised, in consequence of the child's mental disorder, by virtue of the 1995 Act; and
|
|
(ii) the measures will or will be likely to impair the personal relations or diminish direct contact between the child and any person with parental responsibilities in relation to the child; or
|
|
|
|
(i) a person with parental responsibilities in relation to a child is subject to any measures authorised by virtue of this Act or authorised, in consequence of the person's mental disorder, by virtue of the 1995 Act; and
|
|
(ii) the measures will or will be likely to impair the personal relations or diminish direct contact between that person and the child.
|
|
(2) Every person having functions by virtue of this Act which include responsibility for the administration of any of the measures mentioned in subsection (1) above shall take such steps as are practicable and appropriate to mitigate the impairment or diminution referred to in that subsection or, as the case may be, the likelihood of that impairment or diminution. |
|
(3) In this section, "child" and "parental responsibilities" have the same meanings as they have in Part I of the Children (Scotland) Act 1995 (c.36). |
| Research |
279 | Information for research |
|
(1) A person having functions by virtue of this Act shall, on being required to do so by the Scottish Ministers- |
|
(a) provide them or any other person specified in the requirement with such relevant information as is so specified; and |
|
(b) do so in any such form as may be so specified. |
|
(2) The Scottish Ministers may, under subsection (1) above, require the provision of relevant information only if, in their opinion, it is needed by them (or, as the case may be, the other person specified in the requirement) for research purposes within the meaning given by section 33 of the Data Protection Act 1998 (c.29) (research, history and statistics). |
|
(3) Information need not be provided under this section if, were it evidence which might be given in proceedings in any court in Scotland, the person having that evidence could not be compelled to give it in such proceedings. |
|
(4) Where information required under subsection (1) above- |
|
(a) is, or refers to, information about a natural person and would identify or enable the identification of the person; and |
|
(b) can reasonably be provided under subsection (1) above so as not to identify or enable the identification of the person, |
|
it shall be so provided. |
|
(5) Where- |
|
(a) the person required under subsection (1) above to provide the information is under a duty of confidentiality in respect of that information; and |
|
(b) the person cannot provide the information without breaching the duty, |
|
the information shall not be provided unless the person to whom the duty is owed has consented to its provision. |
|
(6) On receipt of information provided under this section, the Scottish Ministers (or any other person provided under this section with the information) may, for the purposes referred to in subsection (2) above, do any, or all, of the following- |
|
(a) process the information; |
|
|
|
(c) publish it or reports based on it. |
|
(7) Regulations may provide as to the procedure to be followed in making requirements under this section for information and in providing it. |
|
(8) Where information recorded otherwise than in legible form is required to be provided under this section, it shall be provided in legible form. |
|
(9) For the purposes of this section- |
|
(a) information is "relevant" if it is information as to the operation of this Act; and |
|
(b) a person is under a duty of confidentiality in respect of information although the person could notwithstanding that duty be compelled to give evidence as to that information in proceedings in a court in Scotland. |
| State hospitals |
280 | Restriction of Scottish Ministers' power to delegate management of state hospitals |
| In section 102 of the National Health Service (Scotland) Act 1978 (c.29) (provision and management of state hospitals)- |
|
(a) in subsection (4), paragraph (a) and the word "or" immediately following it; and |
|
|
|
shall cease to have effect. |
| Communications, security etc. |
281 | Correspondence of certain persons detained in hospital |
|
(1) A postal packet which is- |
|
(a) addressed to any person by a specified person; and |
|
(b) delivered by the specified person for dispatch, |
|
may, where subsection (2) or (3) below applies, be withheld from the relevant carrier by the managers of the hospital in which the specified person is detained. |
|
(2) This subsection applies if the person in question has requested that communications addressed to such person by the specified person should be withheld. |
|
(3) This subsection applies if- |
|
(a) the postal packet is not addressed to a person mentioned in subsection (5) below; and |
|
(b) the managers of the hospital consider that the postal packet is likely- |
|
(i) to cause distress to the person in question or any other person who is not on the staff of the hospital; or
|
|
(ii) to cause danger to any person.
|
|
(4) Any request for the purposes of subsection (2) above shall be made in writing to- |
|
(a) the managers of the hospital concerned; |
|
(b) the responsible medical officer; or |
|
(c) the Scottish Ministers. |
|
(5) The persons referred to in subsection (3)(a) above are- |
|
(a) any Minister of the Crown or the Scottish Ministers; |
|
(b) any member of either House of Parliament or member of the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly; |
|
(c) any member of the European Parliament elected for the United Kingdom; |
|
(d) the Commission or any of its members; |
|
(e) the Parliamentary Commissioner for Administration; |
|
(f) the Scottish Public Services Ombudsman; |
|
|
|
(h) any judge or clerk of court; |
|
|
|
(j) the managers of the hospital in which the specified person is detained; |
|
|
|
(l) a Special Health Board; |
|
(m) a National Health Service trust; |
|
(n) any person who, to the knowledge of the managers of the hospital in which the specified person is detained, is providing independent advocacy services to the specified person under section 259 of this Act; |
|
(o) any legally qualified person instructed by the specified person to act as the specified person's legal adviser; |
|
(p) the European Court of Human Rights; and |
|
(q) such other persons as may be specified in regulations. |
|
(6) A postal packet which- |
|
(a) is addressed to a specified person; and |
|
(b) is not sent by or on behalf of any person mentioned in subsection (5) above, |
|
may be withheld from the specified person by the managers of the hospital in which the specified person is detained if, in their opinion, it is necessary to do so in the interests of the health or safety of the specified person or for the protection of any other person. |
|
(7) The managers of a hospital may inspect and open any postal packet for the purposes of determining- |
|
(a) whether it is a postal packet to which subsection (1) or (6) above applies; and |
|
(b) if it is, whether it should be withheld under the subsection in question. |
|
(8) The power to withhold a postal packet under subsection (1) or (6) above includes power to withhold anything contained in such packet. |
|
(9) In this section- |
|
"postal packet" has the meaning given by section 125 of the Postal Services Act 2000 (c.26); |
|
"relevant carrier" means- |
|
(a) the postal operator (as defined in that section of that Act); or
|
|
(b) the person other than a person mentioned in paragraph (a) above,
|
|
who is to receive or collect the postal packet for the purpose of its being conveyed and delivered; and |
|
"specified person" means a person who- |
|
(a) is detained in a hospital; and
|
|
(b) meets such other conditions, or in relation to whom such other conditions are met, as may be specified in regulations.
|
282 | Correspondence: supplementary |
|
(1) If a postal packet or anything contained in it is withheld under subsection (1) or (6) of section 281 of this Act, the managers of the hospital shall record that fact in writing. |
|
(2) If a postal packet or anything contained in it is withheld under- |
|
(a) subsection (1) of section 281 of this Act by virtue of subsection (3) of that section; or |
|
(b) subsection (6) of that section, |
|
the managers of the hospital shall, before the expiry of the period of 7 days beginning with the withholding of the packet or anything contained in it, give notice to the Commission of the matters mentioned in subsection (3) below. |
|
(3) Those matters are- |
|
(a) the name of the specified person; |
|
(b) the nature of the postal packet or contents withheld; and |
|
(c) the reason for withholding the postal packet or contents. |
|
(4) If a postal packet or anything contained in it is withheld under- |
|
(a) subsection (1) of section 281 of this Act by virtue of subsection (3) of that section; or |
|
(b) subsection (6) of that section, |
|
the managers of the hospital shall, before the expiry of the period of 7 days beginning with the withholding of the packet or anything contained in it, give notice to the persons mentioned in subsection (5) below of the fact that the postal packet or anything contained in it has been withheld and the effect of section 283 of this Act. |
|
(5) Those persons are- |
|
(a) the specified person; and |
|
(b) in a case where the packet is withheld as mentioned in paragraph (b) of subsection (4) above, the person by whom the packet was sent (if known). |
|
(6) The functions under section 281 of this Act and this section of the managers of a hospital shall be discharged on their behalf by a person on the staff of the hospital appointed by them for that purpose; and different persons may be so appointed to discharge different functions. |
|
(7) Regulations may- |
|
(a) make provision with respect to the exercise of the powers conferred by section 281 of this Act; |
|
(b) make provision for that section and this section to apply as if references to postal packets included references to written communications by the means specified in the regulations, with such modifications as may be so specified. |
|
(8) In this section- |
|
"postal packet" has the same meaning as in section 281 of this Act; and |
|
"specified person" has the same meaning as in that section. |
283 | Review of decision to withhold postal packet |
|
(1) This section applies where a relevant item is withheld under- |
|
(a) subsection (1) of section 281 of this Act by virtue of subsection (3) of that section; or |
|
(b) subsection (6) of that section. |
|
(2) On an application- |
|
(a) in the case where a relevant item is withheld as mentioned in paragraph (a) of subsection (1) above, by the specified person; or |
|
(b) in the case where a relevant item is withheld as mentioned in paragraph (b) of that subsection, by- |
|
(i) the specified person; or
|
|
(ii) the person by whom the postal packet was sent,
|
|
the Commission shall review the decision to withhold the relevant item. |
|
(3) Any application under subsection (2) above shall be made before the expiry of the period of 6 months beginning with the day on which the person making the application receives notice under section 282(4) of this Act. |
|
(4) On an application under subsection (2) above the Commission may direct that the relevant item should not be withheld; and the managers of the hospital concerned shall comply with any such direction. |
|
(5) Regulations may make provision with respect to the making of applications under subsection (2) above. |
|
(6) Regulations under subsection (5) above may in particular make provision as to the production to the Commission of relevant items. |
|
(7) In this section- |
|
"postal packet" has the same meaning as in section 281 of this Act; |
|
"relevant item" means a postal packet or anything contained in it; and |
|
"specified person" has the same meaning as in that section. |
284 | Certain persons detained in hospital: use of telephones |
|
(1) Regulations may make provision for or in connection with regulating the use of telephones by such persons detained in hospital as may be specified in the regulations ("specified persons"). |
|
(2) Provision under subsection (1) above may in particular- |
|
(a) confer rights on specified persons to use telephones; |
|
(b) make the entitlement to, or exercise of, any such rights subject to conditions imposed by or under regulations; |
|
(c) restrict, or prohibit, the use of telephones by specified persons; |
|
(d) authorise the managers of a hospital to intercept, or arrange for the interception of, telephone calls- |
|
(i) to specified persons; or
|
|
(ii) made by specified persons;
|
|
(e) require the managers of a hospital to make, and maintain, records of such matters as may be specified in the regulations; |
|
(f) require the managers of a hospital to inform persons specified in the regulations of matters so specified; |
|
(g) confer power on the Commission to give to the managers of a hospital directions as to matters of any description specified in the regulations; |
|
(h) require the managers of a hospital to comply with any directions given to them by virtue of paragraph (g) above. |
|
(3) The conditions mentioned in subsection (2)(b) above include in particular conditions as to payment of call charges for calls made by or on behalf of specified persons. |
|
(4) Regulations under this section may not authorise the interception of a telephone call made by a specified person to a person mentioned in subsection (6) below unless- |
|
(a) the person has requested the interception of telephone calls made by the specified person to the person; or |
|
(b) the telephone call is or would be unlawful for any reason other than one arising from provision made by virtue of this section. |
|
(5) Regulations under this section may not authorise the interception of a telephone call made to a specified person by a person mentioned in subsection (6) below unless the telephone call is or would be unlawful for any reason other than one arising from provision made by virtue of this section. |
|
(6) The persons referred to in subsections (4) and (5) above are- |
|
(a) any of the persons mentioned in paragraphs (a) to (i), (k) to (n) and (p) of section 281(5) of this Act; |
|
(b) the managers of the hospital in which the specified person is detained; |
|
(c) a legally qualified person instructed by the specified person to act as the specified person's legal adviser; and |
|
(d) such other person as may be specified by the regulations. |
|
(7) In this section "intercept", in relation to a telephone call, includes- |
|
(a) listen to, record or otherwise monitor; and |
|
(b) interrupt, cut short, divert or prevent from being connected. |
|
(8) For the purposes of this section, a telephone call is made when the telephone number of the person being called has been dialled. |
285 | Directions as to implementation of regulations under section 284(1) |
|
(1) The Scottish Ministers may give to the managers of a hospital directions as to the implementation by those managers of regulations made under section 284(1) of this Act; and the managers shall comply with any such directions. |
|
(2) The Scottish Ministers may require the managers of a hospital to provide them with a statement setting out such information as respects the implementation of the regulations by those managers as the Scottish Ministers may specify. |
286 | Safety and security in hospitals |
|
(1) Regulations may authorise- |
|
(a) the search of such persons detained in hospital by virtue of this Act or the 1995 Act as may be specified in the regulations and of anything they have with them in the hospital in which they are detained; |
|
(b) the taking, from external parts of the body of those persons and, by means of swabbing, from the mouth of those persons, of samples of body tissue, blood or other body fluid or other material, the taking hypodermically from those persons of samples of blood and the examination of those samples; |
|
(c) the placing of restrictions on the kinds of things which those persons may have with them in the hospitals in which they are detained and the removal from them of articles kept in breach of such restrictions; |
|
(d) the placing of prohibitions and restrictions on the entry into and the conduct while in those hospitals of persons ("visitors") visiting those persons or otherwise entering or seeking to enter those hospitals and on the kinds of things which visitors may bring with them into those hospitals; |
|
(e) the surveillance, whether directly or otherwise, of those persons and visitors; |
|
(f) the search of visitors and of anything they bring with them into those hospitals, |
|
and make that which is authorised subject to conditions specified in the regulations. |
|
(2) Regulations may require the managers of each hospital of such class as is or classes as are specified to provide- |
|
(a) the Scottish Ministers, on their request, with a statement describing how regulations made under subsection (1) above- |
|
(i) have been implemented in that hospital during the period the Ministers specify in their request;
|
|
(ii) are being implemented there at the time of the request;
|
|
(iii) are proposed by those managers to be implemented there after that time;
|
|
(b) the Commission with statements of the incidence and circumstances of the implementation there of regulations under subsection (1) above in such ways as are specified. |
|
(3) Regulations may confer power on the Commission, by direction- |
|
(a) to prohibit the implementation of regulations under subsection (1) above in relation to a specified patient in a specified way; |
|
(b) to require the managers of a hospital in which a specified patient is detained to notify a specified person that such a regulation has been implemented in relation to such a patient in such a way. |
|
(4) In each of subsections (2) and (3) above, "specified" means specified in the regulations made under that subsection. |
|
(5) The Scottish Ministers may give to the managers of a hospital directions as to the implementation by those managers of regulations made under subsection (1) above; and the managers shall comply with any such directions. |
|
(6) Before making regulations under this section the Scottish Ministers shall consult such persons as they consider appropriate. |
| Information |
287 | Scottish Ministers' power to require responsible medical officer to provide certain information |
| The Scottish Ministers may, for the purposes of the discharge of their functions under- |
|
(a) Part 10, 11 or 13 of this Act; or |
|
(b) section 52F, 52L or 52P of the 1995 Act, |
|
in relation to a patient who has a responsible medical officer, require the patient's responsible medical officer to provide them with such information as they may specify. |
| Payments for expenses |
288 | Payments to persons in hospital to meet personal expenses |
|
(1) Where subsections (2) and (3) below apply in relation to a person, the Scottish Ministers may pay to the person such amounts as they consider appropriate in respect of the person's occasional personal expenses. |
|
(2) This subsection applies where the person- |
|
(a) has a mental disorder; |
|
(b) has been admitted to a hospital; and |
|
(c) is being given treatment there primarily for mental disorder. |
|
(3) This subsection applies where it appears to the Scottish Ministers that the person would not otherwise have resources to meet the expenses in question. |
|
(4) For the purposes of the National Health Service (Scotland) Act 1978 (c.29), the making of payments under this section to persons for whom services are provided under that Act shall be treated as included among those services. |
|
(5) In subsection (2) above, "hospital" means- |
|
(a) any health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978 (c.29)); or |
|
|
| Cross-border transfer of patients |
289 | Cross-border transfer: patients subject to requirement other than detention |
|
(1) Regulations may make provision for or in connection with the removal of a patient subject to a relevant requirement from Scotland to a place outwith Scotland (whether or not a place in the United Kingdom). |
|
(2) Where that provision is made, the regulations shall- |
|
(a) require a patient's removal to be authorised by warrant issued by the patient's responsible medical officer; |
|
(b) provide that a responsible medical officer may give that authority only- |
|
(i) where the patient has notified the responsible medical officer of the patient's wish to be so removed; or
|
|
(ii) where, in the case where the patient is not capable of giving that notification, the patient's named person has notified the responsible medical officer that that person considers that it is in the patient's best interests to be so removed;
|
|
(c) provide that the responsible medical officer may give that authority only if satisfied that there are in existence, in the place to which the patient is to go after being so removed, arrangements which will secure for the patient measures, treatment, care or services corresponding or similar to those which the patient is subject to or is receiving by virtue of this Act or, as the case may be, the 1995 Act; |
|
(d) require a patient's responsible medical officer, before making a decision whether to authorise the removal of the patient, to notify- |
|
(i) except where notification referred to in paragraph (b) above has been given by the patient's named person, that person;
|
|
(ii) the mental health officer; and
|
|
|
|
of the circumstances of the case; and |
|
(e) authorise a patient's responsible medical officer to give directions in connection with the removal of the patient. |
|
(3) References in this section to- |
|
(a) a relevant requirement are, as respects a patient, references to a requirement imposed in relation to the patient under section 66(1) of this Act or section 57A(8) of the 1995 Act, not being detention in a hospital; |
|
(b) a patient subject to a relevant requirement include references to a patient in respect of whom section 128(1) (either as enacted or as applied by section 179 of this Act) is in operation. |
290 | Cross-border transfer: patients subject to detention requirement or otherwise in hospital |
|
(1) Regulations may make provision for or in connection with- |
|
(a) the removal, of a patient whose detention in hospital is authorised by virtue of this Act or the 1995 Act, from Scotland to a place outwith Scotland (whether or not a place in the United Kingdom); |
|
(b) the removal, of a patient who for the purposes of being given treatment for mental disorder is in hospital otherwise than by virtue of this Act or the 1995 Act, from Scotland to a place outwith the United Kingdom; |
|
(c) the reception in Scotland of a person subject to corresponding measures in England, Wales, Northern Ireland, the Isle of Man or the Channel Islands and removed from there. |
|
(2) Where provision is made by regulations under paragraph (a) or (b) of subsection (1) above, the regulations shall- |
|
(a) require a patient's removal from Scotland to be authorised by warrant issued by the Scottish Ministers; |
|
(b) require that, among the factors to which the Scottish Ministers have regard in deciding whether to authorise that removal, there are included, as well as the best interests of the patient, the following- |
|
(i) the existence, in the place to which a patient is to go after being removed from Scotland, of arrangements which will secure for the patient measures, treatment, care or services corresponding or similar to those to which the patient is subject or is receiving by virtue of this Act or, as the case may be, the 1995 Act;
|
|
(ii) any wish or preference as to the patient's removal from Scotland of which the patient has given notice to the Scottish Ministers; and
|
|
(iii) any risk to the safety of any person;
|
|
(c) require notice to be given to- |
|
|
|
(ii) the patient's named person;
|
|
(iii) the mental health officer; and
|
|
|
|
of any decision that the patient be removed from Scotland under the regulations; |
|
(d) require any such giving of notice to be effected, in a case where removal is to a place in the United Kingdom, at least 7 days before the date proposed for the patient's removal; |
|
(e) require any such giving of notice to be effected, in a case where removal is to a place outwith the United Kingdom, at least 28 days before the date proposed for the patient's removal; |
|
(f) make provision for such a patient to be able to appeal against any such decision; and |
|
(g) provide for such a patient's removal not to take place until proceedings on any such appeal have been concluded. |
|
(3) Where provision is made by regulations under paragraph (a) or (b) of subsection (1) above, the regulations may make provision for exceptions to provisions included in them by virtue of subsection (2)(c), (d), (e) or (g) above. |
|
(4) Where provision is made by regulations under paragraph (c) of subsection (1) above, the regulations shall provide for the reception of patients in Scotland to take place only with the consent of the Scottish Ministers. |
|
(5) Regulations under subsection (1) above may in particular- |
|
(a) make provision for things done under the law of a territory other than Scotland to be treated as things done under provisions of the law of Scotland; |
|
(b) confer powers and immunities on persons engaged in- |
|
(i) escorting persons being moved under the regulations;
|
|
(ii) pursuing persons who have absconded while being so moved;
|
|
(iii) restraining persons who have absconded, or attempt to abscond, while being so moved;
|
|
(c) authorise the Scottish Ministers to arrange for any of their functions under the regulations to be exercised by other persons; |
|
(d) authorise the Scottish Ministers to give directions in connection with removals of persons under the regulations or any particular such removal or removals; |
|
(e) make provision amending provisions of this Act (other than this section) or any other enactment, or providing for any such provision or enactment to have effect with modification. |
|
(6) Subsections (2) to (5) above are without prejudice to the generality of the powers conferred by subsection (1) above. |
|
(7) References in this section to a patient whose detention in hospital is authorised by virtue of this Act or the 1995 Act include references to a patient- |
|
(a) in respect of whom a certificate under section 41(1), 53(1), 127(1) or (3) (either as enacted or as applied by section 179 of this Act), 221(2) or 224(2) of this Act is in operation; or |
|
(b) who has been conditionally discharged under section 193(7) of this Act and not recalled under section 202 of this Act. |
|
(8) For the purposes of paragraph (c) of subsection (1) above, a person is subject to "corresponding measures" in a territory if under the law of that territory the person- |
|
(a) is subject to measures corresponding or similar to detention in hospital authorised by virtue of this Act or the 1995 Act; or |
|
(b) has a status corresponding or similar to that of a patient such as is mentioned in paragraph (b) of that subsection. |
| Informal patients |
291 | Application to Tribunal in relation to unlawful detention |
|
(1) This section applies where, otherwise than by virtue of this Act or the 1995 Act, a person ("the patient")- |
|
(a) has been admitted to a hospital; and |
|
(b) is being given treatment there primarily for mental disorder. |
|
(2) A person mentioned in subsection (4) below may apply to the Tribunal for an order requiring the managers of the hospital to cease to detain the patient. |
|
(3) On an application under subsection (2) above the Tribunal shall- |
|
(a) if satisfied that the patient is being unlawfully detained in the hospital, make the order mentioned in subsection (2) above; or |
|
(b) if not satisfied about the matter mentioned in paragraph (a) above, refuse the application. |
|
(4) The persons referred to in subsection (2) above are- |
|
|
|
(b) the patient's named person; |
|
(c) if the patient is a child, any person who has parental responsibilities in relation to the patient; |
|
(d) a mental health officer; |
|
|
|
(f) any guardian of the patient; |
|
(g) any welfare attorney of the patient; and |
|
(h) any other person having an interest in the welfare of the patient. |
|
(5) Subsection (2) above is without prejudice to any right that a person has by virtue of any enactment or rule of law. |
|
(6) In subsection (4)(c) above, "child" and "parental responsibilities" have the same meanings as they have in Part I of the Children (Scotland) Act 1995 (c.36). |
|
| |
|
PART 19 |
|
ENTRY, REMOVAL AND DETENTION POWERS |
| Entry to premises |
292 | Warrant to enter premises for purposes of taking patient |
|
(1) If a sheriff or a justice of the peace is satisfied by an authorised person's evidence on oath as to the matters mentioned in subsection (2) below, the sheriff or, as the case may be, justice of the peace may grant a warrant under this subsection. |
|
(2) Those matters are- |
|
(a) that for the purposes for which the authorised person is authorised it is necessary to enter premises; and |
|
(b) that the authorised person- |
|
(i) is unable to obtain entry to those premises; or
|
|
(ii) reasonably apprehends that the authorised person will be unable to obtain entry to those premises.
|
|
(3) A warrant under subsection (1) above is a warrant- |
|
|
|
(i) the authorised person;
|
|
(ii) any mental health officer appointed by the local authority for the area in which the premises are situated; and
|
|
(iii) any constable of the police force maintained for the area in which the premises are situated,
|
|
to enter the premises specified in the warrant; and |
|
(b) authorising any constable of the police force for the area in which the premises are situated, for the purpose of exercising the power mentioned in paragraph (a) above, to open lockfast places on premises so specified. |
|
(4) In the execution of a warrant granted under subsection (1) above, the persons authorised for the purpose of subsection (3)(a) above may be accompanied by- |
|
(a) a medical practitioner; |
|
(b) any other authorised person. |
|
(5) In this section, references to an authorised person are to a person who, in relation to a patient, is authorised by virtue of this Act- |
|
(a) to take the patient to any place; or |
|
(b) to take (or retake) into custody the patient where the patient is liable to be taken (or retaken). |
| Removal to place of safety |
293 | Removal order |
|
(1) If, on the application of a relevant mental health officer, a sheriff is satisfied that- |
|
(a) a person who is aged 16 years or over has a mental disorder; |
|
(b) any of the circumstances mentioned in subsection (2) below apply in respect of that person; and |
|
(c) that person is likely to suffer significant harm if not removed to a place of safety, |
|
the sheriff may make an order under this section (any such order being referred to in this Act as a "removal order") in respect of that person. |
|
(2) The circumstances referred to in subsection (1)(b) above are- |
|
(a) that the person is subject, or exposed, to- |
|
|
|
|
|
(iii) some other deficiency in care or treatment;
|
|
(b) that, because of the mental disorder, the person's property- |
|
(i) is suffering loss or damage; or
|
|
(ii) is at risk of suffering loss or damage; and
|
|
|
|
(i) living alone or without care; and
|
|
(ii) unable to look after himself or his property or financial affairs.
|
|
(3) A removal order is an order- |
|
|
|
(i) the mental health officer specified in the order;
|
|
(ii) any other persons so specified; and
|
|
(iii) any constable of the police force maintained for the area in which the premises are situated,
|
|
before the expiry of the period of 72 hours beginning with the granting of the order, to enter any premises so specified; |
|
(b) authorising any such constable, before the expiry of that period, for the purpose of exercising the power mentioned in paragraph (a) above, to open lockfast places on premises so specified; and |
|
|
|
(i) before the expiry of that period, the removal of the person who is the subject of the removal order to a place of safety specified in the order; and
|
|
(ii) the detention of that person in that place for such period, not exceeding 7 days, as may be specified in the order.
|
|
(4) An application for a removal order shall be made to the sheriff of the sheriffdom in which the premises to which the application relates are situated. |
|
(5) Before determining an application for a removal order, the sheriff shall, subject to subsection (7) below, afford the persons mentioned in subsection (6) below the opportunity- |
|
(a) of making representations (whether orally or in writing); and |
|
(b) of leading, or producing, evidence. |
|
(6) Those persons are- |
|
(a) the person who is the subject of the application; and |
|
(b) such other persons as may be prescribed by regulations. |
|
(7) If the sheriff considers that such delay as would result from compliance with the requirements of subsection (5) above would be likely to be prejudicial to the person who is the subject of the application, the sheriff may dispense with the requirements of that subsection. |
|
(8) In this section "relevant mental health officer" means a mental health officer appointed by the local authority for the area in which the premises to which the application relates are situated. |
294 | Removal order: urgent application to justice of the peace |
| Where- |
|
(a) the making of an application to the sheriff for a removal order is impracticable; and |
|
(b) the circumstances are such that any delay in obtaining a removal order is likely to be prejudicial to the person who would be the subject of the application, |
|
the application may be made instead to a justice of the peace for the commission area in which the premises to which the application relates are situated; and subsections (1) to (3) of section 293 of this Act shall apply in relation to an application made by virtue of this section as those subsections apply as respects an application to the sheriff. |
295 | Recall or variation of removal order |
|
(1) A person who is the subject of a removal order, or any person claiming an interest in the welfare of that person, may apply to the sheriff for an order under this section- |
|
(a) recalling the removal order; or |
|
(b) varying that order by- |
|
(i) specifying a different place of safety;
|
|
(ii) authorising, before the expiry of the period mentioned in subsection (2) below, the removal of the person who is the subject of the removal order to that place of safety; and
|
|
(iii) authorising the detention of the person who is the subject of the removal order in that place of safety for the remainder of such period as may have been specified, by virtue of section 293(3)(c)(ii) of this Act, in the removal order.
|
|
(2) The period referred to in subsection (1)(b)(ii) above is the period of 72 hours beginning with the granting of the order varying the removal order. |
|
(3) An application under section (1) above shall be made to the sheriff of the sheriffdom in which the premises to which the application for a removal order related are situated. |
|
(4) Before determining an application under subsection (1) above, the sheriff shall afford the persons mentioned in subsection (5) below the opportunity- |
|
(a) of making representations (whether orally or in writing); and |
|
(b) of leading, or producing, evidence. |
|
(5) Those persons are- |
|
(a) the person who is the subject of the removal order to which the application relates; and |
|
(b) such persons as may be prescribed by regulations. |
|
(6) Where a sheriff makes an order under this section recalling a removal order, the sheriff may, in addition, make such order as the sheriff thinks fit for the person who was the subject of the removal order- |
|
(a) to be returned to the premises from which that person was, by virtue of the removal order, removed; or |
|
(b) to be taken to some appropriate place chosen by that person. |
296 | No appeal against decision under section 293 or 295 |
| No appeal shall be competent against- |
|
(a) a decision of a sheriff under- |
|
(i) section 293(1) of this Act making, or refusing to make, a removal order; or
|
|
(ii) section 295 of this Act making, or refusing to make, an order recalling or varying a removal order; or
|
|
(b) a decision of a justice of the peace under section 293(1) of this Act making, or refusing to make, a removal order. |
297 | Removal from public place |
|
(1) Where- |
|
(a) a constable reasonably suspects- |
|
(i) that a person (referred to in this section and in section 298 of this Act as a "relevant person") who is in a public place has a mental disorder; and
|
|
(ii) that the relevant person is in immediate need of care or treatment; and
|
|
(b) the constable considers that it would be in the interests of the relevant person, or necessary for the protection of any other person, to remove the relevant person to a place of safety, |
|
the constable may remove the relevant person to a place of safety. |
|
(2) A relevant person removed to a place of safety under subsection (1) above may, for the purposes of enabling- |
|
(a) arrangements to be made for a medical practitioner to carry out a medical examination of the relevant person; and |
|
(b) the making of such arrangements as the medical practitioner considers necessary for the relevant person's care or treatment, |
|
be detained there for a period ending not later than 24 hours after the time at which the relevant person is removed from the public place by the constable. |
|
(3) If a relevant person absconds- |
|
(a) while being removed to a place of safety under subsection (1) above; or |
|
(b) from the place of safety, |
|
a constable may, at any time during the period mentioned in subsection (2) above, take the person into custody and remove the person to a place of safety. |
|
(4) In this section, "public place" means a place to which the public, or any section of the public, has, or is permitted to have, access (whether on payment or otherwise); and includes the common parts of a building containing two or more separate dwellings. |
|
(5) If no place of safety is immediately available, a constable may, under subsection (1) or (3) above, remove a relevant person to a police station; and in any such case, any reference in this section and in section 298 of this Act to a place of safety shall be construed as being a reference to a police station. |
298 | Removal under section 297: further provision |
|
(1) This section applies where a constable removes a relevant person to a place of safety under section 297 of this Act. |
|
(2) The constable shall- |
|
(a) as soon as reasonably practicable after removing a relevant person to a place of safety, ensure- |
|
(i) that the local authority in whose area the place of safety is situated are informed of the matters mentioned in subsection (3) below; and
|
|
(ii) subject to subsection (4) below, that the nearest relative of the relevant person is informed of those matters; and
|
|
(b) before the expiry of the period of 14 days beginning with the day on which the person is removed to the place of safety, ensure that the Commission is given notice of those matters. |
|
(3) The matters are- |
|
(a) the name and address of the relevant person; |
|
(b) the date and time at which the relevant person was removed from the public place; |
|
(c) the circumstances giving rise to the removal of the relevant person to the place of safety; |
|
(d) the address of the place of safety; |
|
(e) if the relevant person is removed to a police station, the reason why the relevant person was removed there; and |
|
(f) any other matter prescribed by regulations. |
|
(4) Where- |
|
(a) it is impracticable to ensure that the relevant person's nearest relative is informed of the matters mentioned in subsection (3) above; or |
|
(b) the nearest relative is so informed but the nearest relative does not reside with the relevant person, |
|
the constable shall, as soon as reasonably practicable after removing the relevant person to the place of safety, ensure that, where reasonably practicable, a person falling within subsection (5) below is informed of those matters. |
|
(5) A person falls within this subsection if- |
|
|
|
(i) resides with the relevant person; or
|
|
(ii) provides a care service to the relevant person; or
|
|
(b) the person is an individual who, otherwise than- |
|
(i) by virtue of a contract of employment, or other contract, with any person; or
|
|
(ii) as a volunteer for a voluntary organisation,
|
|
provides care for the relevant person. |
|
(6) In this section- |
|
"care service" has the meaning given by section 2(1) of the Regulation of Care (Scotland) Act 2001 (asp 8); |
|
"nearest relative" has the meaning given by section 254 of this Act; and |
|
"public place" has the meaning given by section 297 of this Act. |
| Detention pending medical examination |
299 | Nurse's power to detain pending medical examination |
|
(1) This section applies where- |
|
(a) by virtue of an order under section 228(1) of the 1995 Act which includes- |
|
(i) by virtue of subsections (1) and (2)(a) of section 230 of that Act, a requirement that the patient submit to treatment as a resident patient in a hospital; or
|
|
(ii) by virtue of subsections (1) and (2)(b) of that section, a requirement that the patient submit to treatment as a non-resident patient at an institution or place specified in the order,
|
|
a patient is in hospital and being given medical treatment; or |
|
(b) otherwise than by virtue of- |
|
(i) an order such as is mentioned in paragraph (a) above;
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(ii) any other provision of the 1995 Act; or
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a patient is in hospital and being given medical treatment. |
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(2) Where- |
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(a) a nurse of such class as may be prescribed by regulations considers that it is likely that the conditions mentioned in subsection (3) below are met in respect of the patient; and |
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(b) it is not practicable to secure the immediate medical examination of the patient by a medical practitioner, |
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the patient may, subject to subsection (4) below, be detained in hospital for a period of 2 hours (the "holding period") for the purpose of enabling arrangements to be made for a medical examination of the patient to be carried out. |
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(3) The conditions referred to in subsection (2)(a) above are- |
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(a) that the patient has a mental disorder; |
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(b) that it is necessary for the protection of- |
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(i) the health, safety or welfare of the patient; or
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(ii) the safety of any other person,
|
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that the patient be immediately restrained from leaving the hospital; and |
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(c) that it is necessary to carry out a medical examination of the patient for the purpose of determining whether the granting of- |
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(i) an emergency detention certificate; or
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(ii) a short-term detention certificate,
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(4) If the medical practitioner who first arrives to carry out a medical examination of the patient within the holding period arrives after the expiry of the first hour of the holding period, the period for which the patient may be held shall be the period beginning with the commencement of the patient's detention under subsection (2) above and ending one hour after the arrival of the medical practitioner. |
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(5) Where the patient is detained under subsection (2) above the nurse shall, as soon as practicable after the holding period begins, take all reasonable steps to inform a mental health officer of the detention. |
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(6) Where the patient is detained under subsection (2) above, the nurse shall, as soon as practicable after the holding period begins, record in writing- |
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(a) the fact that the patient has been detained; |
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(b) the time at which the holding period began; and |
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(c) the nurse's reasons for believing that it is likely that the conditions mentioned in paragraphs (a) to (c) of subsection (3) are met in respect of the patient. |
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(7) A record made under subsection (6) above shall, as soon as practicable after it is made, be delivered to the managers of the hospital in which the patient is detained by- |
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(b) a person authorised for the purpose by the nurse. |
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(8) Where the managers of a hospital receive a record by virtue of subsection (7) above, they shall, before the expiry of the period of 14 days beginning with the day on which they receive it, send a copy of it to the Commission. |
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(9) Any subordinate legislation made under section 25 of the Mental Health (Scotland) Act 1984 (c.36) (detention of patients already in hospital) shall, if in force immediately before the day on which this section comes into force, have effect on and after that day as if made under this section. |
| Meaning of "place of safety" |
300 | Meaning of "place of safety" |
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In this Part of this Act, "place of safety" means- |
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(b) premises which are used for the purpose of providing a care home service (as defined in section 2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8)); or |
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(c) any other suitable place (other than a police station) the occupier of which is willing temporarily to receive mentally disordered persons. |
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PART 20 |
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ABSCONDING |
| Absconding |
301 | Absconding etc. by patients subject to compulsory treatment order |
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(1) A patient who is subject to a compulsory treatment order authorising detention in hospital and who- |
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(i) any place where the patient is kept pending removal to hospital under the order; or
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(ii) the hospital in which, under the order, the patient is being detained; or
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(b) while being removed to hospital under the order or transferred under section 124 of this Act, absconds, |
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is liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
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(2) A patient who is subject to such an order and in respect of whom- |
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(a) a certificate under section 127(1) of this Act has effect; and |
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(b) a condition under subsection (6) of that section requires- |
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(i) that the patient be kept in the charge of an authorised person or reside continuously or for or at specified times at a specified place; or
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(ii) that the patient, on being recalled or on the expiry of a specified period or on or after the occurrence of a specified event, return to the hospital in which the patient was detained under the order or go to such other place as may be specified,
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and who absconds from the charge of that authorised person or otherwise fails to comply with the condition is liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
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(3) A patient who is subject to a compulsory treatment order imposing a requirement that the patient reside at a specified place and who fails to comply with that requirement is liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
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(4) A patient who is subject to a compulsory treatment order imposing a requirement that the patient obtain the approval of the mental health officer to any proposed change of address and who changes address without having obtained that approval is liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
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(5) A patient who has been taken into custody under this section and who absconds from that custody remains liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
302 | Absconding etc. by other patients |
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(1) Subsection (2) below applies to a patient- |
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(i) an interim compulsory treatment order authorising detention;
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(ii) a short-term detention certificate; or
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(iii) a certificate under section 114(2) or 115(2) of this Act authorising continued detention;
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(b) who is being detained in pursuance of an extension certificate or under the power conferred by section 68 of this Act; |
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(c) to whom an emergency detention certificate applies; or |
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(d) who is being detained in hospital under the power conferred by section 113(5) or 299 of this Act. |
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(2) A patient to whom this subsection applies and who absconds from- |
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(a) any place where the patient is kept pending removal to hospital under the order or certificate; or |
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(b) the hospital in which, under the order, certificate or, as the case may be, power, the patient is detained, |
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is liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
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(3) A patient who is subject to an interim compulsory treatment order imposing a requirement that the patient reside continuously or for or at specified times at a specified place and who fails to comply with that requirement is liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
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(4) A patient who is subject to an interim compulsory treatment order authorising detention and in respect of whom- |
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(a) a certificate under section 127(3) of this Act has effect; and |
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(b) a condition under subsection (6) of that section requires- |
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(i) that the patient be kept in the charge of an authorised person or reside continuously or for or at specified times at a specified place; or
|
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(ii) that the patient, on being recalled or on the expiry of a specified period or on or after the occurrence of a specified event, return to the hospital in which the patient was detained under the order or go to such other place as may be specified,
|
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and who absconds from the charge of that authorised person or otherwise fails to comply with any such condition is liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
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(5) A patient who is subject to a short-term detention certificate in respect of whom- |
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(a) a certificate under section 53(1) of this Act has effect; and |
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(b) a condition under subsection (4) of that section requires- |
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(i) that the patient be kept in the charge of an authorised person or reside continuously or for or at specified times at a specified place; or
|
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(ii) that the patient, on being recalled or on the expiry of a specified period or on or after the occurrence of a specified event, return to the hospital in which the patient was detained under the certificate or go to such other place as may be specified,
|
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and who absconds from the charge of that authorised person or otherwise fails to comply with any such condition is liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
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(6) A patient who is subject to an emergency detention certificate in respect of whom- |
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(a) a certificate under section 41(1) of this Act has effect; and |
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(b) a condition under subsection (4) of that section requires- |
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(i) that the patient be kept in the charge of an authorised person or reside continuously or for or at specified times at a specified place; or
|
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(ii) that the patient, on being recalled or on the expiry of a specified period or on or after the occurrence of a specified event, return to the hospital in which the patient was detained under the certificate or go to such other place as may be specified,
|
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and who absconds from the charge of that authorised person or otherwise fails to comply with any such condition is liable to be taken into custody and dealt with in accordance with section 303 of this Act. |
303 | Taking into custody and return of absconding patients |
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(1) A person specified in subsection (3)(a) below may, during the period specified in subsection (4) below- |
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(a) take into custody any patient who, under sections 301 or 302 of this Act, is liable to be taken into custody; |
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(b) return the patient to the hospital in which the patient was detained or, as the case may be, take the patient to the hospital in which the patient was to be detained or, if that is not appropriate or practicable, take the patient to any other place considered appropriate by the patient's responsible medical officer; |
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(c) return or take the patient to such other place as the patient absconded from or at which the patient failed to reside or, if that is not appropriate or practicable, take the patient to any other place considered appropriate by the patient's responsible medical officer. |
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(2) The person specified in subsection (3)(b) below may, during the period specified in subsection (4) below- |
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(a) take into custody any patient in respect of whom a certificate under section 41(1), 53(1) or 127(1) of this Act has effect and a condition under section 41(4), 53(4) or, as the case may be, 127(6) of this Act requires that the patient be kept in charge of that person and who, under section 301 or 302 of this Act is liable to be taken into custody; and |
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(b) resume the charge of the patient or, if that is not appropriate or practicable, take the patient to any place considered appropriate by the patient's responsible medical officer. |
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(3) The- |
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(a) persons referred to in subsection (1) above are- |
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(i) a mental health officer;
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(iii) a member of staff of any hospital and, where the patient liable to be taken into custody is subject to a compulsory treatment order a condition of which requires the patient to reside in an establishment the address of which is specified in the order, a member of staff of that establishment; and
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(iv) any other person authorised for the purposes of that subsection by the patient's responsible medical officer;
|
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(b) person referred to in subsection (2) above is the person who is authorised under section 41(4), 53(4) or, as the case may be, 127(6) of this Act to have charge of the patient. |
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(4) The period referred to in subsection (1) above is- |
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(a) in the case of a patient who is subject to a compulsory treatment order, the period of 3 months beginning with the day- |
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(i) when the patient absconded; or
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(ii) when the patient's conduct or failure first gave rise to liability to be taken into custody;
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(b) in any other case, the period ending with the expiry of the order, certificate, report or, as the case may be, provision under or in pursuance of which the patient was to be detained. |
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(5) The expiry, during the period referred to in subsection (1) above, of the authorised period in relation to the compulsory treatment order to which a patient is subject does not affect the powers conferred by this section. |
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(6) The powers conferred by subsections (1) and (2) above include power to use reasonable force in their exercise. |
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(7) A patient who is, under section 301 or 302 of this Act, liable to be taken into custody ceases to be so liable- |
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(a) on returning to the hospital or other place from which the patient absconded or arriving at the hospital in which the patient was to be detained; |
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(b) on being returned or taken either there or to such other place as is considered appropriate by the patient's responsible medical officer under subsection (1)(b) or (c) or (2)(b) above; or |
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(c) on being taken into custody under section 113 of this Act. |
| Effect of unauthorised absence |
304 | Effect of unauthorised absence |
|
(1) References in this section and sections 305 to 308 of this Act to a patient's unauthorised absence are references to a patient's being liable, under section 301 of this Act, to be taken into custody and dealt with under section 303 of this Act. |
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(2) Subject to sections 305 to 308 of this Act, a patient's unauthorised absence does not affect the continuity or measurement of any period of time fixed by, under or relative to any provision of this Act or requirement imposed by virtue of it, of which that absence is a breach. |
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(3) Where, in the case of a patient who is subject to a compulsory treatment order, the patient's unauthorised absence has continued for a period of 3 months, the order shall then cease to have effect. |
305 | Effect of long unauthorised absence ending more than 14 days before expiry of compulsory treatment order |
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(1) Where the unauthorised absence of a patient who is subject to a compulsory treatment order- |
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(a) lasted longer than 28 consecutive days; and |
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(b) ceased before the beginning of the period of 14 days ending with the day when the compulsory treatment would, apart from this subsection, cease to authorise the measures specified in it, |
|
the order shall cease to have effect at the expiry of the period of 14 days beginning with the day when the patient's unauthorised absence ceased. |
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(2) The patient's responsible medical officer shall, during the period of 14 days secondly referred to in subsection (1) above, carry out a review in respect of the compulsory treatment order to which the patient is subject by complying with the requirements set out in section 77(3) of this Act. |
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(3) Where any part of the period of 14 days referred to in subsection (2) above occurs within the period of 2 months mentioned in subsection (5) of section 77 or subsection (3) of section 78 of this Act, the review which would (apart from this subsection) have been carried out during that period of 2 months under that section shall not be carried out. |
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(4) The other review provisions (that is to say, section 83(2) and (3) and the subsequent provisions of Chapter 4 of Part 7 of this Act) shall, in accordance with subsections (5) and (6) below, apply in respect and in consequence of a review under this section as they apply in respect and in consequence of the reviews for which that Chapter provides. |
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(5) Where the compulsory treatment order to which the patient is subject has not been extended as mentioned in section 78(1) of this Act, those of the other review provisions which relate to a first review apply. |
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(6) Where that order has been so extended, those of the other review provisions which relate to a further review apply. |
306 | Effect of unauthorised absence ending simultaneously with or within 14 days before expiry of compulsory treatment order |
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(1) Where the unauthorised absence of a patient who is subject to a compulsory treatment order- |
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(a) ceases on the day that the order to which the patient is subject would, apart from this subsection, cease to authorise the measures specified in it; or |
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(b) ceased within a period of 14 days ending with that day, |
|
the order shall be treated as having continued in effect and, subject to subsection (4) below, as continuing in effect until the end of the period of 14 days beginning with the day on which the patient's unauthorised absence ceased. |
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(2) The patient's responsible medical officer shall, during the period of 14 days secondly referred to in subsection (1) above, carry out a review in respect of the compulsory treatment order to which the patient is subject by complying with the requirements set out in section 77(3) of this Act. |
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(3) Where any part of the period of 14 days referred to in subsection (2) above occurs within the period of 2 months mentioned in subsection (5) of section 77 or subsection (3) of section 78 of this Act, the review which would (apart from this subsection) have been carried out during that period of 2 months under that section shall not be carried out. |
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(4) Subsections (4) to (6) of section 305 of this Act apply for the purposes of a review under subsection (2) above as they apply for the purposes of a review under subsection (2) of that section. |
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(5) Where- |
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(a) the compulsory treatment order to which a patient is subject is, under this section, treated as continuing in effect; and |
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(b) the patient's unauthorised absence- |
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(i) began at a time when a review of the order was being carried out under section 77 or 78 of this Act; and
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(ii) lasted for 28 consecutive days or any shorter period,
|
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then anything done by the patient's responsible medical officer for the purposes of that review which (apart from this subsection) would fall to be done for the purposes of a review under this section need not, for those latter purposes, be done. |
307 | Effect of unauthorised absence ending after expiry of compulsory treatment order |
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(1) Where the unauthorised absence of a patient who is subject to a compulsory treatment order ceases- |
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(a) within a period of 3 months beginning with the day on which it began; and |
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(b) after the day when the compulsory treatment order to which the patient was subject would, but for this subsection, have ceased to authorise the measures specified in it, |
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the order shall be treated as having continued in effect and, subject to subsection (3) below, as continuing in effect until the end of the period of 14 days beginning with the day on which the patient's unauthorised absence ceased. |
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(2) The patient's responsible medical officer shall, during the period of 14 days referred to in subsection (1) above, carry out a review of the compulsory treatment order to which the patient is subject by complying with the requirements set out in section 77(3) of this Act. |
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(3) Subsections (4) to (6) of section 305 of this Act apply for the purposes of a review under subsection (2) above as they apply for the purposes of a review under subsection (2) of that section. |
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(4) Where- |
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(a) the compulsory treatment order to which a patient is subject is, under this section, treated as continuing in effect; and |
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(b) the patient's unauthorised absence- |
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(i) began at a time when a review of the order was being carried out under section 77 or 78 of this Act; and
|
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(ii) lasted for 28 consecutive days or any shorter period,
|
|
then anything done by the patient's responsible medical officer for the purposes of that review which (apart from this subsection) would fall to be done for the purposes of a review under this section need not, for those latter purposes, be done. |
308 | Effect of unauthorised absence of patient subject to short-term detention certificate or certificate under section 114(2) or 115(2) |
|
Where the unauthorised absence of a patient who is subject to a short-term detention certificate or a certificate under section 114(2) or 115(2) of this Act authorising continued detention ceases within the period of 13 days ending with the day on which the certificate would, but for this section, have ceased to authorise the measures specified in it, the certificate shall continue to authorise those measures until the end of the period of 14 days beginning with the day when the patient's unauthorised absence ceased. |
| Patients from other jurisdictions |
309 | Patients from other jurisdictions |
|
(1) Regulations may make provision applying sections 301 to 303 of this Act to persons in Scotland who are subject to corresponding measures in England, Wales, Northern Ireland, the Isle of Man or the Channel Islands. |
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(2) Those regulations may make such modifications of those sections in that application as the Scottish Ministers think fit. |
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(3) The reference in subsection (1) above to persons subject to corresponding measures shall be construed in accordance with section 290(8) of this Act. |
| Absconding by certain other patients |
310 | Regulations as to absconding by other patients |
|
(1) Regulations may provide as to- |
|
(a) the circumstances in which patients- |
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(i) who are subject to any of the orders or directions mentioned in subsection (3) below; and
|
|
(ii) who abscond or fail to comply with requirements imposed on them by virtue of the orders or directions to which they are subject or otherwise by virtue of this Act or the 1995 Act,
|
|
are to be liable to be taken into custody by specified persons; |
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(b) the steps which may be taken by those persons upon their taking those patients into custody; and |
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(c) the effect (whether upon the orders or directions to which those patients are subject or otherwise) of such absconding or failure. |
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(2) Regulations under subsection (1) above may include provision- |
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(a) requiring patients' responsible medical officers to notify- |
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(iii) the Scottish Ministers,
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of such absconding or failure; |
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(b) authorising the use of reasonable force in the exercise of the powers conferred by virtue of subsection (1) above to take patients into custody and to take the steps referred to in that subsection; |
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(i) the review of those orders and directions; and
|
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(ii) the authorisation of measures additional to or different from those authorised by them,
|
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in consequence of such absconding or failure; |
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(d) corresponding to section 309 of this Act and any regulations which may be made under that section. |
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(3) The orders referred to in subsection (1) above are- |
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(c) temporary compulsion orders made under section 54(1)(c) of the 1995 Act; |
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(d) interim compulsion orders; and |
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and the directions there referred to are hospital directions and transfer for treatment directions. |
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(4) In this section, "specified" means specified in the regulations. |
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| |
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PART 21 |
|
OFFENCES |
311 | Non-consensual sexual acts |
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(1) Subject to subsection (5) below, a person who engages in an act mentioned in subsection (2) below with, or towards, a mentally disordered person shall be guilty of an offence if, at the time of the act, the mentally disordered person- |
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(a) does not consent to the act; or |
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(b) by reason of mental disorder, is incapable of consenting to the act. |
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(2) The acts referred to in subsection (1) above are- |
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(a) sexual intercourse (whether vaginal or anal); and |
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(b) any other sexual act. |
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(3) For the purposes of subsection (1)(a) above, a person shall be regarded as not consenting if the person purports to consent as a result of- |
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(a) being placed in such a state of fear; or |
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(b) being subjected to any such- |
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as vitiates that person's consent. |
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(4) For the purposes of subsection (1)(b) above, a person is incapable of consenting to an act if the person is unable to- |
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(a) understand what the act is; |
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(b) form a decision as to whether to engage in the act (or as to whether the act should take place); or |
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(c) communicate any such decision. |
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(5) Where a person is charged with an offence under subsection (1)(b) above it shall be a defence for such person to prove that, at the time of the sexual intercourse or other sexual act, such person did not know, and could not reasonably have been expected to know, that the other person- |
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(a) had a mental disorder; and |
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(b) was incapable of consenting to the intercourse or other act. |
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(6) A person guilty of an offence under subsection (1) above shall be liable- |
|
(a) on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding the statutory maximum or to both; |
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(b) on conviction on indictment to imprisonment for life. |
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(7) A person guilty of aiding, abetting, counselling, procuring or inciting any other person to commit an offence under subsection (1) above shall be liable- |
|
(a) on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding the statutory maximum or to both; |
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(b) on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine or to both. |
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(8) In this section "sexual act" means any activity which a reasonable person would, in all the circumstances, regard as sexual. |
312 | Offences under section 311: extended sentences |
| In section 210A(10) of the 1995 Act (extended sentences for sex and violent offenders: meaning of certain expressions), in the definition of "sexual offence"- |
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(a) the word "and" which occurs immediately after paragraph (xix) shall be omitted; and |
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(b) after paragraph (xx) there shall be added "and |
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(xxi) an offence under section 311(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (non-consensual sexual acts).".
|
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313 | Persons providing care services: sexual offences |
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(1) Subject to subsection (3) below, a person who engages in- |
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(a) sexual intercourse (whether vaginal or anal); or |
|
(b) any other sexual act, |
|
with, or towards, a mentally disordered person shall be guilty of an offence if, at the time of the intercourse or other act, the person is one of those specified in subsection (2) below. |
|
(2) Those persons are- |
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(a) a person providing care services to the mentally disordered person; |
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(i) is an individual employed in, or contracted to provide services in or to; or
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(ii) not being the Scottish Ministers, is a manager of,
|
|
a hospital in which the mentally disordered person is being given medical treatment. |
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(3) Where a person is charged with an offence under subsection (1) above, it shall be a defence for such person to prove that- |
|
(a) at the time of the intercourse or other act- |
|
(i) such person did not know, and could not reasonably have been expected to know, that the other person was mentally disordered; or
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(ii) the mentally disordered person was the spouse of such person; or
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(i) a person specified in subsection (2)(a) above, immediately before that person began to provide care services to the mentally disordered person; or
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(ii) a person specified in subsection (2)(b) above, immediately before the mentally disordered person was admitted to the hospital referred to in that provision or (where the mentally disordered person has been admitted to that hospital more than once) was last admitted to it,
|
|
a sexual relationship existed between them. |
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(4) A person guilty of an offence under subsection (1) above shall be liable- |
|
(a) on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding the statutory maximum or to both; |
|
(b) on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine or to both. |
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(5) References in this section to the provision of care services are references to anything done by way of such services- |
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(b) by an employee of; or |
|
(c) in the course of a service provided or supplied by, |
|
a care service, whether by virtue of a contract of employment or any other contract or in such other circumstances as may be prescribed by regulations. |
|
(6) In this section- |
|
"care service" has the meaning given by subsection (1)(a), (b), (e), (g), (h), (k) and (n) as read with subsections (2), (3), (6), (9), (10), (16) and (27) of section 2 of the Regulation of Care (Scotland) Act 2001 (asp 8); and |
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"sexual act" has the meaning given by section 311(8) of this Act. |
314 | Notification requirements for offenders under sections 311 and 313 |
| In Schedule 1 to the Sex Offenders Act 1997 (c.51) (sexual offences to which Part I applies), in paragraph 2(1), after paragraph (e) there shall be added- |
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(i) section 311(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (non-consensual sexual acts); and
|
|
(ii) section 313(1) of that Act (persons providing care services: sexual offences).".
|
|
315 | Ill-treatment and wilful neglect of mentally disordered person |
|
(1) This section applies to a person (a "relevant person") who- |
|
(a) is an individual employed in, or contracted to provide services in or to, a hospital; |
|
(b) not being the Scottish Ministers, is a manager of a hospital; |
|
(c) provides care services; or |
|
(d) is an individual who, otherwise than- |
|
(i) by virtue of a contract of employment or other contract with any person; or
|
|
(ii) as a volunteer for a voluntary organisation,
|
|
provides care or treatment. |
|
(2) A relevant person who- |
|
(a) whether under this Act or otherwise- |
|
(i) is providing care or treatment; or
|
|
(ii) purports to provide care or treatment,
|
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|
|
(b) ill-treats, or wilfully neglects, that patient, |
|
shall be guilty of an offence. |
|
(3) A person guilty of an offence under subsection (2) above shall be liable- |
|
(a) on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both; |
|
(b) on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine or to both. |
|
(4) In subsection (1)(c) above, the reference to the provision of care services shall be construed in accordance with section 313(5) of this Act. |
316 | Inducing and assisting absconding etc. |
|
(1) A person who knowingly- |
|
(a) induces or assists a patient to do or fail to do anything which results in the patient's being liable under section 301 or 302 of this Act to be taken into custody and dealt with under section 303 of this Act; or |
|
(b) harbours a patient who has, with that result, done or failed to do anything, |
|
shall be guilty of an offence. |
|
(2) Where a person is charged with an offence under subsection (1)(b) above, it shall be a defence for such person to prove that the doing of that with which the person is charged- |
|
(a) did not obstruct the discharge by any person of a function conferred or imposed on that person by virtue of this Act; and |
|
(b) was intended to protect the interests of the patient. |
|
(3) A person guilty of an offence under this section shall be liable- |
|
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both; |
|
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or both. |
|
(4) The reference in subsection (1) above to sections 301 to 303 of this Act includes a reference to those sections as applied or as applied and modified under section 309 of this Act and to any regulations made under section 310 of this Act which make provision corresponding to sections 301 to 303 of this Act. |
317 | Obstruction |
|
(1) A person who- |
|
(a) refuses to allow a person authorised by virtue of this Act access to any premises; |
|
(b) refuses to allow access to a mentally disordered person by a person authorised by virtue of this Act to have such access; |
|
(c) refuses to allow the interview or examination of a mentally disordered person by a person authorised by virtue of this Act to interview or examine such person; |
|
(d) persists in being present when requested to withdraw by a person authorised by virtue of this Act to interview or examine, in private, a mentally disordered person; |
|
(e) refuses to produce any document or record to a person authorised by virtue of this Act to require the production of such document or record; or |
|
(f) otherwise obstructs a person in the exercise of any functions conferred on such person by virtue of this Act, |
|
shall be guilty of an offence. |
|
(2) A mentally disordered person shall not be guilty of an offence under subsection (1) above if the person mentioned in that subsection- |
|
(a) who is authorised by virtue of this Act, is so authorised; or |
|
(b) who is exercising functions conferred on that person by virtue of this Act, is exercising those functions, |
|
in relation to that mentally disordered person. |
|
(3) In any proceedings against a person for an offence under subsection (1) above it shall be a defence for the accused to show that the accused had a reasonable excuse for doing that with which the accused is charged. |
|
(4) A person guilty of an offence under subsection (1) above shall be liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 3 on the standard scale or to both. |
318 | False statements |
|
(1) A person who- |
|
(a) knowingly makes, in a relevant document, an entry or statement which is false in a material particular; or |
|
(b) with intent to deceive, makes use of any such entry or statement knowing it to be false, |
|
shall be guilty of an offence. |
|
(2) For the purposes of subsection (1) above, a "relevant document"- |
|
|
|
(i) an application under this Act;
|
|
(ii) a document accompanying any such application; or
|
|
(iii) any other document required or authorised to be granted, prepared, sent or given for any of the purposes of this Act; but
|
|
|
|
(i) a nomination of a named person in accordance with section 250(2) of this Act;
|
|
(ii) a declaration made in accordance with section 253(2) of this Act; and
|
|
(iii) an advance statement.
|
|
(3) A person guilty of an offence under this section shall be liable- |
|
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both; |
|
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both. |
319 | Time limit for summary proceedings for offences under sections 311 and 313 |
| Subsections (2) to (4) of section 4 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) (time limits for certain summary proceedings) shall apply to summary proceedings in respect of an offence under section 311 or 313 of this Act as they apply to the summary proceedings to which those subsections relate. |
|
| |
|
PART 22 |
|
APPEALS |
320 | Appeal to sheriff principal against certain decisions of the Tribunal |
|
(1) This section applies to the following decisions of the Tribunal- |
|
(a) a decision under section 50(4) of this Act refusing an application for revocation of a short-term detention certificate; |
|
(b) a decision under section 64(4)(a) or (b) of this Act making or refusing to make a compulsory treatment order; |
|
(c) a decision to make an interim compulsory treatment order under section 65(2) of this Act; |
|
(d) a decision to make an order under section 102(1)(c) or (d) of this Act confirming the determination of a patient's responsible medical officer extending a compulsory treatment order; |
|
(e) a decision to make an order under section 103(1)(a) or (b) of this Act on an application by the patient's responsible medical officer for an order extending and varying a compulsory treatment order; |
|
(f) a decision to make an order under section 103(2)(c) or (d) of this Act on an application for revocation of the determination of a patient's responsible medical officer extending a compulsory treatment order; |
|
(g) a decision to make an order under section 103(3)(b) or (c) of this Act on an application under section 100(2)(a) of this Act to revoke a compulsory treatment order; |
|
(h) a decision to make an order under section 103(4)(a) of this Act on an application by a patient's responsible medical officer to vary a compulsory treatment order; |
|
(i) a decision to make an order under section 103(4)(b) of this Act refusing an application under section 100(2)(b) of this Act to vary a compulsory treatment order; |
|
(j) a decision to make an order under section 104(1)(a) of this Act varying a compulsory treatment order; |
|
(k) a decision not to revoke under section 120(2) of this Act a certificate granted under section 114(2) or 115(2) of this Act; |
|
(l) a decision to make or refuse to make an order under section 125(5) or 126(5) of this Act preventing a transfer or requiring that a transferred patient be returned; |
|
(m) a decision to make an order under section 166(1)(c) or (d) of this Act confirming the determination of a patient's responsible medical officer extending a compulsion order; |
|
(n) a decision to make an order under section 167(1)(a) of this Act on an application by the patient's responsible medical officer for an order extending a compulsion order; |
|
(o) a decision to make an order under section 167(2)(a) or (b) of this Act on an application by the patient's responsible medical officer for an order extending and varying a compulsion order; |
|
(p) a decision to make an order under section 167(3)(c) or (d) of this Act on an application for revocation of the determination of a patient's responsible medical officer extending a compulsion order; |
|
(q) a decision to make an order under section 167(4)(b) or (c) of this Act on an application under section 164(2)(a) of this Act; |
|
(r) a decision to make an order under section 167(5)(a) of this Act on an application by a patient's responsible medical officer to vary a compulsion order; |
|
(s) a decision to make an order under section 167(5)(b) of this Act refusing an application under section 164(2)(b) of this Act to vary a compulsion order; |
|
(t) a decision to make or refuse to make an order under section 257(1) of this Act appointing a person to be a patient's named person; |
|
(u) a decision to make or refuse to make an order under section 257(2) of this Act declaring an acting named person not to be a named person or appointing a person to be a patient's named person in place of an acting named person; |
|
(v) a decision to make an order under section 257(3) of this Act;
|
|
(w) a decision, in relation to a patient who is not subject to a restriction order, a hospital direction or a transfer for treatment direction- |
|
(i) to make or refuse to make an order under section 264(2), 265(3) or 266(3) of this Act;
|
|
(ii) under section 267(2) of this Act to recall or refuse to recall an order made under section 264, 265 or 266 of this Act;
|
|
(iii) to make or refuse to make an order under section 268(2), 269(3) or 270(3) of this Act;
|
|
(iv) under section 271(2) of this Act to recall or refuse to recall an order made under section 268, 269 or 270 of this Act; and
|
|
(x) a decision granting or refusing an application for an order requiring the managers of the hospital to cease to detain a patient under section 291 of this Act. |
|
(2) A relevant party to proceedings before the Tribunal may appeal to the sheriff principal against a decision to which this section applies. |
|
(3) An appeal to the sheriff principal under subsection (2) above shall be to the sheriff principal- |
|
(a) of the sheriffdom in which the person to whom the decision relates is resident at the time when the appeal is lodged; |
|
(b) where the person to whom the decision relates is detained in a hospital at the time when the appeal is lodged, of the sheriffdom in which the hospital is situated; or |
|
(c) in any other case, of any sheriffdom. |
|
(4) If the sheriff principal to whom an appeal is made considers that the appeal raises an important or difficult question of law that makes it appropriate to remit the appeal to the Court of Session the sheriff principal may- |
|
|
|
(b) on the motion of any party to the appeal, |
|
do so. |
|
(5) Subject to subsections (6) to (9) below, in this section "relevant party" means- |
|
(a) the person to whom the decision relates; |
|
(b) that person's named person; |
|
(c) any guardian of the person; |
|
(d) any welfare attorney of the person; |
|
(e) the mental health officer; and |
|
(f) that person's responsible medical officer. |
|
(6) Where the person to whom the decision relates is a person to whom subsection (7) below applies, "relevant party" means- |
|
(a) the person to whom the decision relates; |
|
(b) that person's named person; |
|
(c) any guardian of the person; |
|
(d) any welfare attorney of the person; and |
|
(e) the Scottish Ministers. |
|
(7) This subsection applies to a patient who is subject to- |
|
(a) a compulsion order and a restriction order; |
|
(b) a hospital direction; or |
|
(c) a transfer for treatment direction. |
|
(8) Where the appeal is against a decision mentioned in paragraph (w) of subsection (1) above, "relevant party" means- |
|
(a) the person to whom the decision relates; |
|
(b) that person's named person; |
|
(c) any guardian of the person; |
|
(d) any welfare attorney of the person; |
|
|
|
(f) the relevant Health Board (within the meaning of section 273 of this Act). |
|
(9) Where the appeal is against a decision mentioned in paragraph (x) of subsection (1) above, "relevant party" means- |
|
(a) the person to whom the decision relates; |
|
(b) that person's named person; |
|
(c) any guardian of the person; |
|
(d) any welfare attorney of the person; |
|
(e) the managers of the hospital; and |
|
(f) if the person who applied for the order does not fall within paragraphs (a) to (d) above, the person who applied for the order. |
321 | Appeal to Court of Session against decisions of sheriff principal |
|
(1) A relevant party to an appeal to the sheriff principal under section 320(2) of this Act may appeal to the Court of Session against the decision of the sheriff principal allowing or refusing the appeal. |
|
(2) In subsection (1) above, "relevant party" has the same meaning as in section 320 of this Act. |
322 | Appeal to Court of Session against certain decisions of the Tribunal |
|
(1) This section applies to the following decisions of the Tribunal- |
|
(a) a decision to make an order revoking a compulsion order under section 193(3) or (4) of this Act; |
|
(b) a decision to make an order revoking a restriction order under section 193(5) of this Act; |
|
(c) a decision to make an order varying a compulsion order under section 193(6) of this Act; |
|
(d) a decision to make an order conditionally discharging a patient under section 193(7) of this Act; |
|
(e) a decision, under section 193 of this Act, to make no order under that section; |
|
(f) a decision, under section 215(2) of this Act, to make no direction; |
|
(g) a decision to make a direction under section 215(3) or (4) of this Act; |
|
(h) a decision to make or refuse to make an order under section 219(5) or 220(5) of this Act preventing a transfer or requiring that a transferred patient be returned; and |
|
(i) a decision, in relation to a patient who is subject to a restriction order, a hospital direction or a transfer for treatment direction- |
|
(i) to make or refuse to make an order under section 264(2), 265(3) or 266(3) of this Act;
|
|
(ii) under section 267(2) of this Act to recall or refuse to recall an order made under section 264, 265 or 266 of this Act;
|
|
(iii) to make or refuse to make an order under section 268(2), 269(3) or 270(3) of this Act; or
|
|
(iv) under section 271(2) of this Act to recall or refuse to recall an order made under section 268, 269 or 270 of this Act.
|
|
(2) A relevant party to proceedings before the Tribunal may appeal to the Court of Session against a decision to which this section applies. |
|
(3) Subject to subsection (4) below, in this section "relevant party" means- |
|
(a) the person to whom the decision relates; |
|
(b) that person's named person; |
|
(c) any guardian of the person; |
|
(d) any welfare attorney of the person; and |
|
(e) the Scottish Ministers. |
|
(4) Where the appeal is against a decision mentioned in paragraph (i) of subsection (1) above, "relevant party" means- |
|
(a) the person to whom the decision relates; |
|
(b) that person's named person; |
|
(c) any guardian of the person; |
|
(d) any welfare attorney of the person; |
|
|
|
(f) the relevant Health Board (within the meaning of section 273 of this Act); and |
|
(g) the Scottish Ministers. |
323 | Suspension of decision of Tribunal pending determination of certain appeals |
|
(1) Where the Scottish Ministers appeal under section 322(2) of this Act against any decision of the Tribunal under section 193 of this Act, or a decision of the Tribunal to make a direction under section 215(3) or (4) of this Act, the Court of Session may, on the motion of the Scottish Ministers, order- |
|
(a) that the patient in respect of whom the Tribunal's decision was made shall continue, subject to subsection (2) below, to be detained; and |
|
(b) that both the compulsion order and restriction order or, as the case may be, the hospital direction or transfer for treatment direction to which the patient is subject shall continue to have effect accordingly. |
|
(2) An order under subsection (1) above has the effect of continuing the patient's detention- |
|
(a) in a case where no appeal is made to the House of Lords against the decision of the Court of Session under section 322(2) of this Act, until the expiry of the time allowed to so appeal to the House of Lords; or |
|
(b) in a case where such an appeal is made, until it is abandoned or finally determined. |
324 | Appeals: general provisions |
|
(1) An appeal- |
|
(a) to the sheriff principal under section 320(2) of this Act; or |
|
(b) to the Court of Session under section 322(2) of this Act, |
|
may be made only on one or more of the grounds mentioned in subsection (2) below. |
|
(2) The grounds referred to in subsection (1) above are- |
|
(a) that the Tribunal's decision was based on an error of law; |
|
(b) that there has been a procedural impropriety in the conduct of any hearing by the Tribunal on the application; |
|
(c) that the Tribunal has acted unreasonably in the exercise of its discretion; |
|
(d) that the Tribunal's decision was not supported by the facts found to be established by the Tribunal. |
|
(3) The Tribunal may be a party to an appeal under section 320(2) or 322(2) and in any appeal from the decision of the sheriff principal under section 321(1). |
|
(4) The court may, where it considers it appropriate, order the Tribunal to be represented at any hearing of an appeal under section 320(2), 321(1) or 322(2). |
|
(5) In allowing an appeal under section 320(2), 321(1) or 322(2) of this Act the court- |
|
(a) shall set aside the decision of the Tribunal; and |
|
|
|
(i) if it considers that it can properly do so on the facts found to be established by the Tribunal, substitute its own decision; or
|
|
(ii) remit the case to the Tribunal for consideration anew.
|
|
(6) If the court remits a case under paragraph (b)(ii) of subsection (5) above, the court may- |
|
(a) direct that the Tribunal be differently constituted from when it made the decision; and |
|
(b) issue such other directions to the Tribunal about the consideration of the case as it considers appropriate. |
|
(7) Regulations may specify the period within which an appeal under section 320(2), 321(1) or 322(2) of this Act shall be made. |
|
(8) In this section, "the court" means the sheriff principal or the Court of Session as the case may be. |
|
| |
|
PART 23 |
|
GENERAL |
325 | Power to prescribe forms |
| Regulations may prescribe- |
|
(a) the form of any document that is required or authorised to be prepared by virtue of this Act; and |
|
(b) circumstances in which a form prescribed under paragraph (a) above for a document shall, or may, be used for the document. |
326 | Orders, regulations and rules |
|
(1) Any power conferred by this Act on the Scottish Ministers to make orders, regulations or rules shall be exercisable by statutory instrument. |
|
(2) Any power conferred by this Act on the Scottish Ministers to make orders, regulations or rules- |
|
(a) may be exercised so as to make different provision for different cases or descriptions of case or for different purposes; and |
|
(b) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Scottish Ministers consider appropriate. |
|
(3) A statutory instrument containing an order, regulations or rules made under this Act (other than an order under section 333(2) or (3) of this Act) shall, subject to subsection (4) below, be subject to annulment in pursuance of a resolution of the Scottish Parliament. |
|
(4) A statutory instrument containing- |
|
(a) an order under paragraph 3(3) of schedule 1 to this Act; |
|
(b) an order under section 330(1) of this Act containing provisions adding to, replacing or omitting any part of the text of an Act; or |
|
(c) regulations under section 21(3), 66(2), 234(2)(b), 237(3)(b), 240(3)(d), 240(5), 244, 268(11) to (14), 281(9), 284, 286, 290, 309, 310 or 313(5) of this Act, |
|
shall not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament. |
327 | Directions |
|
(1) Any power conferred by virtue of this Act to give a direction shall include power to vary or revoke the direction. |
|
(2) Any direction given by virtue of this Act shall be in writing. |
328 | Meaning of "mental disorder" |
|
(1) Subject to subsection (2) below, in this Act "mental disorder" means any- |
|
|
|
(b) personality disorder; or |
|
|
|
however caused or manifested; and cognate expressions shall be construed accordingly. |
|
(2) A person is not mentally disordered by reason only of any of the following- |
|
|
|
|
|
|
|
|
|
(e) dependence on, or use of, alcohol or drugs; |
|
(f) behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person; |
|
(g) acting as no prudent person would act. |
329 | Interpretation |
|
(1) In this Act, unless the context otherwise requires- |
|
"the 1995 Act" means the Criminal Procedure (Scotland) Act 1995 (c.46); |
|
"advance statement" has the meaning given by section 275 of this Act; |
|
"approved medical practitioner" has the meaning given by section 22(4) of this Act; |
|
"assessment order" means an order made under section 52D(2) of the 1995 Act; |
|
"care plan", in relation to a patient, means a plan prepared under subsection (1)(a) of section 76 of this Act; and includes a reference to a care plan amended by virtue of subsection (3) or (4)(a) of that section; |
|
"carer", in relation to a person, means an individual who, otherwise than- |
|
(a) by virtue of a contract of employment or other contract with any person; or
|
|
(b) as a volunteer for a voluntary organisation,
|
|
provides, on a regular basis, a substantial amount of care for, and support to, the person; and includes, in the case where the person is in hospital, an individual who, before the person was admitted to hospital, provided, on a regular basis, a substantial amount of care for, and support to, the person; |
|
"the Commission" means the Mental Welfare Commission for Scotland; |
|
"community care services" has the meaning given by section 5A(4) of the Social Work (Scotland) Act 1968 (c.49); |
|
"compulsion order" means an order made under section 57A(2) of the 1995 Act; |
|
"compulsory treatment order" means an order made under section 64(4)(a) of this Act; |
|
"designated medical practitioner" has the meaning given by section 233(2) of this Act; |
|
"emergency detention certificate" means a certificate granted under section 36(1) of this Act; |
|
"extension certificate" means a certificate granted under section 47(1) of this Act; |
|
"guardian" means a person appointed as a guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4) who has power by virtue of section 64(1)(a) or (b) of that Act in relation to the personal welfare of a person; |
|
"Health Board" means a board constituted by order under section 2(1)(a) of the National Health Service (Scotland) Act 1978 (c.29); |
|
|
|
(a) any health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978 (c.29));
|
|
(b) any independent health care service; or
|
|
|
|
"hospital direction" means a direction made under section 59A of the 1995 Act; |
|
"independent health care service" has the meaning given by section 2(5) of the Regulation of Care (Scotland) Act 2001 (asp 8); |
|
"interim compulsion order" means an order made under section 53(2) of the 1995 Act; |
|
"interim compulsory treatment order" means an order made under section 65(2) of this Act; |
|
"local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39); |
|
"managers", in relation to a hospital, means- |
|
(a) in the case of a hospital vested in the Scottish Ministers for the purposes of their functions under the National Health Service (Scotland) Act 1978 (c.29), the Health Board or Special Health Board responsible for the administration of the hospital;
|
|
(b) in the case of a hospital vested in a National Health Service trust, the directors of the trust;
|
|
(c) in the case of an independent health care service which is registered under Part 1 of the Regulation of Care (Scotland) Act 2001 (asp 8), the person providing the service; and
|
|
(d) in the case of a state hospital-
|
|
(i) where the Scottish Ministers have delegated the management of the hospital to a Health Board, Special Health Board, National Health Service trust or the Common Services Agency for the Scottish Health Service, that Board, trust or Agency;
|
|
(ii) where the management of the hospital has not been so delegated, the Scottish Ministers;
|
|
"medical practitioner" means registered medical practitioner; |
|
"medical records" has the meaning given by section 77(1) of the Regulation of Care (Scotland) Act 2001 (asp 8); |
|
"medical treatment" means treatment for mental disorder; and for this purpose "treatment" includes- |
|
|
|
|
|
(c) psychological intervention;
|
|
(d) habilitation (including education, and training in work, social and independent living skills); and
|
|
(e) rehabilitation (read in accordance with paragraph (d) above);
|
|
"mental health officer" means a person appointed (or deemed to be appointed) under section 32(1) of this Act, and "the mental health officer", in relation to a patient, means a mental health officer having responsibility for the patient's case; |
|
"mental health report" has the meaning given by section 57(4) of this Act; |
|
"named person" means the person who is, in relation to another person, that other person's named person by virtue of any of sections 250 to 254 and 257 of this Act; |
|
"National Health Service trust" means a body established by order under section 12A(1) of the National Health Service (Scotland) Act 1978 (c.29); |
|
"notice" means notice in writing; |
|
"patient" means a person who has, or appears to have, a mental disorder; |
|
"primary", in relation to a carer, means the individual who provides all, or most, of the care for, and support for, the person; |
|
"prison" includes any prison other than a naval, military or air force prison; |
|
"recorded matter" has the meaning given by section 64(4)(a)(ii) of this Act; |
|
"regulations" means regulations made by the Scottish Ministers; |
|
"relevant services" has the meaning given by section 19(2) of the Children (Scotland) Act 1995 (c.36); |
|
"restriction order" means an order made under section 59 of the 1995 Act; |
|
"short-term detention certificate" means a certificate granted under section 44(1) of this Act; |
|
"Special Health Board" means a board constituted by order under section 2(1)(b) of the National Health Service (Scotland) Act 1978 (c.29); |
|
"state hospital" means a hospital provided under section 102(1) of the National Health Service (Scotland) Act 1978 (c.29); |
|
"transfer for treatment direction" has the meaning given by section 136 of this Act; |
|
"treatment order" means an order made under section 52M of the 1995 Act; |
|
"the Tribunal" means the Mental Health Tribunal for Scotland; |
|
"voluntary organisation" means a body, other than a public or local authority, the activities of which are not carried on for profit; |
|
"welfare attorney" means an individual authorised, by a welfare power of attorney granted under section 16 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) and registered under section 19 of that Act, to act as such; and |
|
"young offenders institution" has the same meaning as in the Prisons (Scotland) Act 1989 (c.45). |
|
(2) In this Act, unless the context otherwise requires, a reference to the Tribunal is, where the power conferred by paragraph 7(1) of schedule 2 is exercised, to be construed as a reference to the tribunal concerned. |
|
(3) References in this Act to the giving of medical treatment to a person include references to medical treatment being performed on a person. |
|
(4) References in this Act to a patient's responsible medical officer appointed by the managers of a hospital under any provision of this Act include references to any approved medical practitioner authorised by the managers to act in place of the responsible medical officer under section 230(3)(b) of this Act. |
330 | Supplementary provisions etc. |
|
(1) The Scottish Ministers may by order make such supplementary, incidental or consequential provision as they consider appropriate for the purposes of, in consequence of, or for giving full effect to, any provision of this Act. |
|
(2) An order under subsection (1) above may modify any enactment (including this Act). |
331 | Minor and consequential amendments, repeals and revocations |
|
(1) Schedule 4 to this Act, which contains minor amendments and amendments consequential on the provisions of this Act, shall have effect. |
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(2) The enactments mentioned in Part 1 of schedule 5 to this Act (which include provisions that are spent) are hereby repealed to the extent specified in the second column of that schedule. |
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(3) The enactments mentioned in Part 2 of schedule 5 to this Act (which include provisions that are spent) are hereby revoked to the extent specified in the second column of that schedule. |
332 | Transitional provisions etc. |
|
(1) Schedule 6 to this Act (which contains certain transitory amendments of the Mental Health (Scotland) Act 1984) shall have effect. |
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(2) The Scottish Ministers may by order make such other provision as they consider necessary or expedient for transitory, transitional or saving purposes in connection with the coming into force of any provision of this Act. |
333 | Short title and commencement |
|
(1) This Act may be cited as the Mental Health (Care and Treatment) (Scotland) Act 2003. |
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(2) Chapter 3 of Part 17 of this Act shall come into force on 1st May 2006 or such earlier day as the Scottish Ministers may by order appoint. |
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(3) The remaining provisions of this Act, other than this section and sections 325, 326, 330 and 332, shall come into force on such day as the Scottish Ministers may by order appoint. |
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(4) Different days may be appointed under subsection (2) or (3) above for different purposes. |
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| |
|
SCHEDULE 1 |
|
(introduced by section 4) |
|
THE MENTAL WELFARE COMMISSION FOR SCOTLAND |
|
PART 1 |
|
MEMBERSHIP, PROCEEDINGS ETC. |
| Status |
1 | The Commission shall not be regarded as the servant or agent of the Crown, or as having any status, immunity or privilege of the Crown, nor shall its members or employees be regarded as civil servants, nor its property as property of, or held on behalf of, the Crown. |
| General powers |
2 | The Commission may do anything which appears to it to be necessary or expedient for the purposes of, or in connection with, the exercise of its functions; and without prejudice to that generality the Commission may in particular- |
|
(a) acquire and dispose of land and other property; and |
|
(b) enter into contracts. |
| Membership |
3 | (1) The Commission shall consist of the following members appointed by Her Majesty on the recommendation of the Scottish Ministers- |
|
(a) a member appointed to serve as convener; |
|
(b) a minimum of three members, who have such qualifications, training and experience as may be prescribed by regulations, appointed to serve as medical commissioners; and |
|
(c) other members who meet such other requirements as may be so prescribed. |
|
(2) The person who holds the post of chief officer of the Commission shall- |
|
(a) be a member ex officio of the Commission; and |
|
(b) cease automatically to hold office as such member on ceasing to hold that post. |
|
(3) The Scottish Ministers may, after consulting such persons, or groups of persons, as they consider appropriate, by order- |
|
(a) amend sub-paragraph (1) above by- |
|
(i) adding to that sub-paragraph categories of members; or
|
|
(ii) removing from it a category which is for the time being set out there;
|
|
(b) specify the number (including a minimum or maximum number) of- |
|
(i) the members of the Commission; or
|
|
(ii) any category of member,
|
|
that may be appointed under sub-paragraph (1) above; |
|
(c) specify the maximum term of appointment (including any reappointment) of a member appointed under that sub-paragraph; or |
|
(d) amend sub-paragraph (2) above by adding to it further posts, the holders of which shall- |
|
(i) be members ex officio of the Commission; and
|
|
(ii) cease to be such members on ceasing to hold such posts.
|
| Terms of office etc. |
4 | (1) The provisions of this paragraph apply as respects a person appointed as member under paragraph 3(1) above. |
|
(2) Subject to the provisions of this schedule, the appointment shall be on such terms and conditions as the Scottish Ministers may determine. |
|
(3) Subject to section 23 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7), a person holds and vacates office as member in accordance with the terms of appointment of that person. |
|
(4) A person may resign office as member at any time by notice to the Scottish Ministers. |
| Eligibility for reappointment |
5 | Subject to paragraph 3(3)(c) above, a person who ceases, otherwise than by virtue of section 23 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7), to be a member of the Commission is eligible for reappointment. |
| Remuneration, pensions, allowances etc. |
6 | The Commission shall pay- |
|
(a) to its members (and to the members of its committees and sub-committees who are not members of the Commission) such remuneration and allowances- |
|
|
|
(ii) subject to such conditions,
|
|
as the Scottish Ministers may determine; |
|
(b) to, or in respect of, persons who have been a member of it (or such members of committees and sub-committees as are mentioned in paragraph (a) above) such pensions, allowances and gratuities- |
|
|
|
(ii) subject to such conditions,
|
|
as the Scottish Ministers may determine; or |
|
(c) to any person who ceases, other than on the expiry of a term of office, to be a member of it, such compensation as the Scottish Ministers may determine. |
| Appointment etc. of chief officer and other staff |
7 | (1) Subject to sub-paragraphs (2) and (3) below, the Commission- |
|
(a) shall appoint a chief officer; and |
|
(b) may appoint such other staff as it considers appropriate, |
|
on such terms and conditions as it may, with the approval of the Scottish Ministers, determine. |
|
(2) A member of the Commission may not be appointed as a member of its staff. |
|
(3) The Commission shall obtain the approval of the Scottish Ministers before appointing a chief officer. |
|
(4) The Commission may pay to the members of its staff, including its chief officer, (referred to in this paragraph collectively as "employees") such remuneration and allowances as the Scottish Ministers may determine. |
|
(5) The Commission may- |
|
(a) pay, or make arrangements for the payment of; |
|
(b) make payments towards the provision of; and |
|
(c) provide and maintain schemes (whether contributory or not) for the payment of, |
|
such pensions, allowances and gratuities to or in respect of such of its employees, or former employees, as the Scottish Ministers may determine. |
|
(6) The reference in sub-paragraph (5) above to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment or reduction in remuneration. |
|
(7) A determination under sub-paragraph (4) or (5) above may make different provision for different cases or descriptions of case. |
| Regulations as to proceedings and delegation of functions |
8 | (1) Subject to sub-paragraph (2) below, regulations may make provision as to- |
|
(a) the appointment of and composition of committees and sub-committees of the Commission (including committees and sub-committees which consist of or include persons who are not members of the Commission); |
|
(b) the procedure of the Commission and of any of its committees or sub-committees (including the constitution of a quorum and the validation of proceedings in the event of vacancies or of defects in appointment); |
|
(c) the exercise of functions by any such committee or sub-committee; |
|
(d) the delegation by the Commission of any of its functions to any of its committees, sub-committees, members or staff; and |
|
(e) what functions the Commission shall not so delegate. |
|
(2) Before making regulations under sub-paragraph (1) above, the Scottish Ministers shall consult such persons, or groups of persons, as they consider appropriate. |
| Accounts |
9 | The following provisions of the National Health Service (Scotland) Act 1978 (c.29) shall continue to apply to the Commission as they apply to a Special Health Board- |
|
(a) section 85 (which makes provision for payment of funds by the Scottish Ministers towards expenditure attributable to performance of functions by the Board); |
|
(b) section 85A(1) and (3) (which imposes corresponding financial duties on the Board); and |
|
(c) section 86 (which provides for the keeping, transmission to Scottish Ministers and auditing, of accounts). |
|
| |
|
PART 2 |
|
TRANSITIONAL PROVISION |
10 | (1) The Mental Health (Scotland) Act 1984 (c.36) shall be amended as follows. |
|
(2) In section 2 (membership etc. of the Mental Welfare Commission)- |
|
(a) in subsection (2), after "commissioners", where it first occurs, insert "appointed under subsection (4) of this section"; |
|
(b) in subsection (4), at the beginning, insert "Subject to subsection (5A) of this section,"; |
|
(c) after subsection (5), insert- |
|
|
"(5A) The person who holds the post of chief officer of the Mental Welfare Commission shall- |
|
(a) be a member ex officio of the Commission; and |
|
(b) cease automatically to hold office as such member on ceasing to hold that post."; and |
|
|
(d) in subsection (7), for "the said commissioners", in both places where it occurs, substitute "commissioners appointed under subsection (4) of this section". |
|
(3) In section 6 (appointment and payment etc. of officers and staff)- |
|
(a) at the beginning, insert- |
|
|
"(1) The Mental Welfare Commission shall appoint a chief officer on such terms and conditions as the Scottish Ministers may determine. |
|
(2) Before appointing a chief officer under subsection (1) above, the Commission shall obtain the approval of the Scottish Ministers. |
|
(3) "; and |
|
|
(b) in subsection (3) (being the existing wording of the section)- |
|
(i) in paragraph (a), after "appoint", insert "other"; and
|
|
(ii) in paragraph (b)(ii), after "of", insert "its chief officer or in respect of".
|
|
| |
|
SCHEDULE 2 |
|
(introduced by section 21) |
|
THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND |
|
PART 1 |
|
MEMBERS OF THE TRIBUNAL ETC. |
| Members |
1 | (1) The Scottish Ministers shall appoint as members of the Tribunal- |
|
(a) a panel of persons who have such legal- |
|
|
|
|
|
|
|
as may be prescribed in regulations for the purposes of serving as legal members of the Tribunal; |
|
(b) a panel of persons who have such qualifications, training and experience- |
|
|
|
(ii) in the diagnosis and treatment of mental disorder,
|
|
as may be prescribed in regulations for the purposes of serving as medical members of the Tribunal; and |
|
(c) a panel of persons who have- |
|
(i) such qualifications, training, skills and experience in caring for, or providing services to, persons having a mental disorder; or
|
|
(ii) experience of such description,
|
|
as may be prescribed in regulations for the purposes of serving as general members of the Tribunal. |
|
(2) A person is disqualified from appointment as, and being, a member of the Tribunal if the person- |
|
(a) is a member of the Scottish Parliament; |
|
(b) is a member of the Scottish Executive or a junior Scottish Minister; or |
|
(c) is of such other description as may be prescribed in regulations. |
| Shrieval panel |
2 | There shall be a panel consisting of each person who for the time being holds the office of- |
|
|
|
|
|
|
|
for the purposes of serving as sheriff conveners of the Tribunal. |
| The President |
3 | (1) The Scottish Ministers shall appoint a person to be known as the President of the Mental Health Tribunal for Scotland (the "President"). |
|
(2) The President- |
|
(a) shall preside over the discharge of the Tribunal's functions; and |
|
(b) may serve as a convener of the Tribunal. |
|
(3) The Scottish Ministers may not appoint a person to be the President unless that person has such- |
|
|
|
|
|
|
|
as may be prescribed by regulations. |
|
(4) The following provisions of this schedule apply (with the necessary modifications) to the President as they apply to a member of the Tribunal- |
|
|
|
|
|
|
|
|
|
(5) The functions of the President may, if the President is absent or otherwise unable to act, be discharged by one of the members of the panel mentioned in paragraph 1(1)(a) above appointed for that purpose by the Scottish Ministers. |
|
(6) Regulations may make provision as to the delegation by the President of any of the President's functions to any of the members of the Tribunal or its staff. |
|
(7) Regulations made under sub-paragraph (6) above may include provision for different functions to be delegated to different persons for different areas. |
| Terms of office etc. |
4 | (1) Subject to this paragraph and paragraph 5 below, each member of the Tribunal shall hold office in accordance with the terms of such member's instrument of appointment. |
|
(2) An appointment as a member of the Tribunal shall, subject to sub-paragraphs (3) and (4) below, last for 5 years. |
|
(3) A member of the Tribunal- |
|
(a) may at any time resign office by notice to the Scottish Ministers; |
|
(b) shall vacate office on the day on which such member attains the age of 70; and |
|
(c) shall vacate office on becoming disqualified from being a member of the Tribunal by virtue of paragraph 1(2) above. |
|
(4) A member of the Tribunal's appointment shall come to an end upon the member's being removed from office under paragraph 5(1) below. |
|
(5) A member of the Tribunal whose appointment comes to an end by operation of sub-paragraph (2) above may be reappointed and, except in the circumstances set out in sub-paragraph (6) below, shall be reappointed. |
|
(6) The circumstances referred to in sub-paragraph (5) above are that- |
|
(a) the member of the Tribunal has declined that reappointment; |
|
(b) the member of the Tribunal is aged 69 or over; |
|
(c) the President has made a recommendation to the Scottish Ministers against the reappointment; |
|
(d) there has, since the member of the Tribunal was last appointed, been a reduction in the number of members of the panel to which the member belongs required by the Tribunal to discharge its functions; |
|
(e) since the member of the Tribunal was last appointed, the member has, without reasonable excuse, failed to comply with the terms of the member's appointment; or |
|
(f) the member of the Tribunal does not have such qualifications, training, skills or experience as are for the time being prescribed under paragraph 1(1) above for appointment to the panel to which the member of the Tribunal belongs. |
5 | (1) A member of the Tribunal may be removed from office only by order of the disciplinary committee constituted under sub-paragraph (3) below. |
|
(2) The disciplinary committee may order the removal from office of a member of the Tribunal only if, after investigation carried out at the request of the Scottish Ministers, it finds that the member is unfit for office by reason of inability, neglect of duty or misbehaviour. |
|
(3) The disciplinary committee shall consist of- |
|
(a) a Senator of the College of Justice or a sheriff principal (who shall preside); |
|
(b) a person who is a solicitor or an advocate of at least ten years' standing; and |
|
|
|
all appointed by the Lord President of the Court of Session. |
|
(4) Regulations- |
|
|
|
(i) enabling the disciplinary committee, at any time during an investigation, to suspend a member of the Tribunal from office; and
|
|
(ii) as to the effect and duration of such suspension; and
|
|
(b) shall make such further provision as respects the disciplinary committee (including in particular provision for the procedure of the committee) as the Scottish Ministers consider necessary or expedient. |
| Remuneration and pensions etc. |
6 | (1) The Scottish Ministers may pay, or make provision for paying, to, or in respect of, each member of the Tribunal such remuneration, expenses, pensions, allowances and gratuities (including by way of compensation for loss of office) as the Scottish Ministers may determine. |
|
(2) Sub-paragraph (1) above, so far as relating to pensions, allowances and gratuities, shall not have effect in relation to persons to whom Part I of the Judicial Pensions and Retirement Act 1993 (c.8) applies, except to the extent provided by virtue of that Act. |
|
| |
|
PART 2 |
|
ORGANISATION AND ADMINISTRATION OF THE TRIBUNAL |
| Organisation and administration of the functions of the Tribunal |
7 | (1) The functions of the Tribunal shall be discharged by such number of tribunals as may be determined from time to time by the President. |
|
(2) The Tribunal shall sit at such times and in such places as the President may determine. |
|
(3) Subject to sub-paragraph (4) below, and to any rules made under paragraph 10(1) below, a tribunal constituted under sub-paragraph (1) above shall consist of- |
|
(a) a convener who shall be- |
|
|
|
(ii) a member selected by the President from the panel mentioned in paragraph 1(1)(a) above; and
|
|
(b) a member selected by the President from each of the panels mentioned in paragraph 1(1)(b) and (c) above. |
|
(4) In relation to an application to the Tribunal under section 191 or 192 of this Act, the convener shall be- |
|
|
|
(b) a person selected by the President from the panel mentioned in paragraph 2 above. |
|
(5) Subject to the provisions of this Act, regulations made under section 21 of this Act and rules made under paragraph 10 below, the President shall secure that the functions of the Tribunal are discharged efficiently and effectively. |
|
(6) The President may- |
|
(a) give such directions; and |
|
|
|
about the administration of the Tribunal as appear to the President to be necessary or expedient for the purpose of securing that the functions of the Tribunal are discharged efficiently and effectively. |
| Staff and accommodation |
8 | (1) The Scottish Ministers may appoint such staff and provide such accommodation for the Tribunal as they may determine. |
|
(2) The Scottish Ministers may pay, or make provision for paying, to, or in respect of, the Tribunal's staff, such remuneration, expenses, pensions, allowances and gratuities (including by way of compensation for loss of employment) as the Scottish Ministers may determine. |
|
(3) The persons mentioned in sub-paragraph (4) below shall, in so far as it is reasonably practicable to do so, provide, in response to a request by the President, accommodation for the holding of hearings by the Tribunal. |
|
(4) The persons referred to in sub-paragraph (3) above are- |
|
|
|
(b) the State Hospitals Board for Scotland; |
|
|
| Finance |
9 | Such expenses of the Tribunal as the Scottish Ministers may determine shall be defrayed by the Scottish Ministers. |
|
| |
|
PART 3 |
|
TRIBUNAL PROCEDURE |
| Rules |
10 | (1) The Scottish Ministers may make rules as to the practice and procedure of the Tribunal. |
|
(2) Such rules may, without prejudice to the generality of sub-paragraph (1) above, include provision for or in connection with- |
|
(a) the composition of the Tribunal for the purposes of its discharge of particular functions; |
|
(b) where the functions of the Tribunal are being discharged by more than one tribunal- |
|
(i) determining by which tribunal any proceedings are to be dealt with; and
|
|
(ii) transferring proceedings from one tribunal to another;
|
|
(c) the form of applications to the Tribunal; |
|
(d) the recovery and inspection of documents; |
|
(e) the persons who may appear on behalf of the parties; |
|
(f) enabling specified persons other than the parties to appear or be represented in specified circumstances; |
|
(g) requiring specified persons to give notice to other specified persons of specified matters in such form and by such method as may be specified; |
|
(h) as to the time within which any notice by virtue of sub-paragraph (g) above shall be given; |
|
(i) enabling any matters that are preliminary or incidental to the determination of proceedings to be determined by the convener alone or with such other members of the Tribunal as may be specified; |
|
(j) enabling hearings to be held in private; |
|
(k) enabling the Tribunal (or the convener, with such other members of the Tribunal as may be specified, as the case may be) to exclude the person to whom the proceedings relate from attending all or part of hearings; |
|
(l) enabling specified proceedings or specified matters that are preliminary or incidental to the determination of proceedings to be determined in specified circumstances without the holding of a hearing; |
|
(m) enabling the Tribunal to hear and determine concurrently two or more sets of proceedings relating to the same person; |
|
(n) the recording, publication and enforcement of decisions and orders of the Tribunal; |
|
(o) the admissibility of evidence to the Tribunal; |
|
(p) enabling matters to be referred to the Commission; |
|
(q) enabling the Tribunal to commission medical and other reports in specified circumstances; |
|
(r) requiring specified proceedings, or specified matters that are preliminary or incidental to the determination of proceedings, to be determined, or other specified actions to be taken, within specified periods; |
|
(s) the circumstances in which a curator ad litem may be appointed. |
|
(3) In sub-paragraph (2) above, "specified" means specified in the rules. |
| Practice directions |
11 | Subject to rules made under paragraph 10 above the President may give directions as to the practice and procedure to be followed by the Tribunal in relation to any matter. |
| Evidence |
12 | (1) The Tribunal may by citation require any person to attend, at such time and place as is specified in the citation, for the purpose of- |
|
|
|
(b) producing any document in the custody, or under the control, of such person which the Tribunal considers it necessary to examine. |
|
(2) In relation to persons giving evidence the Tribunal may administer oaths and take affirmations. |
|
(3) A person who is cited to attend the Tribunal and- |
|
|
|
|
|
(ii) to give evidence; or
|
|
(b) alters, conceals or destroys, or refuses to produce, a document which such person may be required to produce for the purposes of proceedings before the Tribunal, |
|
shall, subject to sub-paragraph (4) below, be guilty of an offence. |
|
(4) A person need not give evidence or produce any document if, were it evidence which might be given or a document that might be produced in any court in Scotland, the person having that evidence or document could not be compelled to give or produce it in such proceedings. |
|
(5) It shall be a defence for a person charged with contravening sub-paragraph (3) above to show that the person has a reasonable excuse for such contravention. |
|
(6) A person guilty of an offence under sub-paragraph (3)(a) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. |
|
(7) A person guilty of an offence under sub-paragraph (3)(b) above shall be liable- |
|
(a) on summary conviction to a fine not exceeding the statutory maximum; |
|
(b) on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine or both. |
| Decisions of the Tribunal |
13 | (1) Subject to sub-paragraph (2) below, where a decision is to be made by more than one member of the Tribunal, the decision of the Tribunal shall be made by majority. |
|
(2) If there is a tie, the convener shall have a second vote as a casting vote. |
|
(3) A decision of the Tribunal shall be recorded in a document which contains a full statement of the facts found by the Tribunal and the reasons for the decision. |
|
(4) The Tribunal shall- |
|
(a) inform each party of its decision; and |
|
(b) as soon as practicable after being requested to do so by one of the parties, send a copy of the document mentioned in sub-paragraph (3) above to each party. |
|
| |
|
PART 4 |
|
REPORTS, INFORMATION ETC. |
| Annual report |
14 | (1) The President shall, in respect of each period of 12 months beginning on 1st April, prepare a written report as to the Tribunal's discharge of its functions during that period. |
|
(2) The President shall submit each report prepared under sub-paragraph (1) above, as soon as practicable after the period to which it relates, to the Scottish Ministers. |
|
(3) The Scottish Ministers shall lay before the Scottish Parliament a copy of each report submitted to them under sub-paragraph (2) above. |
| Disclosure of information |
15 | The President shall, at such times and in respect of such periods as the Scottish Ministers may specify, provide to- |
|
(a) the Scottish Ministers; |
|
(b) such persons as the Scottish Ministers may specify, |
|
such information relating to the discharge of the Tribunal's functions as the Scottish Ministers may direct. |
| Allowances etc. for attendance at hearings of the Tribunal and preparation of reports |
16 | (1) The Tribunal may pay to any person (other than a member of the Tribunal or a member of the staff of the Tribunal) such allowances and expenses as the President shall determine for the purposes of, or in connection with, the person's attendance at hearings of the Tribunal. |
|
(2) The Tribunal may pay to any person (other than a member of the Tribunal or a member of the staff of the Tribunal) such amounts as the President shall determine in connection with any report prepared by the person in accordance with rules made under paragraph 10(2)(q) above. |
|
| |
|
SCHEDULE 3 |
|
(introduced by section 71) |
|
APPLICATION OF CHAPTER 1 OF PART 7 TO CERTAIN PATIENTS |
1 | Section 57(3) of this Act shall have effect as if, for paragraph (e), there were substituted the following- |
|
|
"(e) that it will be necessary, immediately after the hospital direction or, as the case may be, transfer for treatment direction to which the patient is subject ceases to have effect, for the patient to be subject to a compulsory treatment order.". |
|
2 | (1) Section 64(4)(a)(i) of this Act shall have effect subject to the following- |
|
(a) where a compulsory treatment order is made in respect of a patient who is subject to- |
|
(i) a hospital direction; or
|
|
(ii) a transfer for treatment direction,
|
|
that order shall authorise the measures specified in it only if the direction to which the patient is subject ceases, by virtue of section 217(2) of this Act, to have effect before the expiry of the period of 28 days beginning with the day on which the order is made; and |
|
|
|
(i) a compulsory treatment order is made in respect of such a patient; and
|
|
(ii) the direction to which the patient is subject ceases, by virtue of section 217(2) of this Act, to have effect before the expiry of the period of 28 days mentioned in sub-sub-paragraph (a) above,
|
|
the compulsory treatment order shall authorise the measures specified in it for the period of 6 months beginning with the day on which that direction ceases to have effect. |
|
(2) Section 64(5) shall have effect as if, for paragraph (e), there were substituted- |
|
|
"(e) that it will be necessary, immediately after the hospital direction or, as the case may be, transfer for treatment direction to which the patient is subject ceases to have effect, for the patient to be subject to a compulsory treatment order.". |
|
3 | Section 65 of this Act shall not have effect. |
|
| |
|
SCHEDULE 4 |
|
(introduced by section 331(1)) |
|
MINOR AND CONSEQUENTIAL AMENDMENTS |
| The Social Work (Scotland) Act 1968 (c.49) |
1 | (1) The Social Work (Scotland) Act 1968 shall be amended as follows. |
|
(2) In section 4 (assistance by voluntary organisations in performance of functions), for the words from "section 7" to "1984" substitute "section 25 (provision of care and support services for persons who have or have had a mental disorder), 26 (provision of services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)". |
|
(3) In section 5(1B) (compliance by local authorities with directions by Scottish Ministers in exercise of functions under certain Acts), for paragraph (k) substitute- |
|
|
"(k) the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);". |
|
|
(4) In section 5A(4) (local authority plans for community care services), in the definition of "community care services", for the words from "section 7" to "1984" substitute "section 25 (provision of care and support services for persons who have or have had a mental disorder), 26 (provision of services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)". |
|
(5) In section 6- |
|
|
|
(i) for the words from "section 7" to "1984", where they first occur, substitute "section 25 (provision of care and support services for persons who have or have had a mental disorder) or 26 (provision of services designed to promote well-being and social development of such persons) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)"; and
|
|
(ii) in paragraph (a), for the words from "section 7" to "1984" substitute "section 25 or 26 of the Mental Health (Care and Treatment) (Scotland) Act 2003"; and
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(b) in subsection (2), for the words from "section 7" to "1984" substitute "section 25 or 26 of the Mental Health (Care and Treatment) (Scotland) Act 2003". |
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(6) In section 59(1) (provision by local authorities of residential and other establishments etc.), for the words "section 13A" substitute "sections 12 and 13A". |
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(7) In section 86(1) (recovery of expenditure on provision of services for person ordinarily resident in the area of another local authority), for paragraph (e) substitute- |
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"(e) in the provision, for persons ordinarily so resident, of services under section 25 (care and support services for persons who have or who have had a mental disorder), 26 (services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);". |
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(8) In section 94(1) (interpretation), for the definition of "mental health officer" substitute- |
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""mental health officer" means a person appointed under subsection (1) of section 32 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); and includes a person deemed, by virtue of subsection (3) of that section, to be so appointed;". |
|
| The Local Government (Scotland) Act 1973 (c.65) |
2 | In section 64(5) of the Local Government (Scotland) Act 1973 (enactments concerning appointment of officers continuing to have effect), for paragraph (bb) substitute- |
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"(bb) section 32 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);". |
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| The National Health Service (Scotland) Act 1978 (c.29) |
3 | In section 102(1) of the National Health Service (Scotland) Act 1978 (duty of Scottish Ministers to provide state hospitals)- |
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(a) after the word "under" insert "the Criminal Procedure (Scotland) Act 1995 (c.46) or"; and |
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(b) for the words "Mental Health (Scotland) Act 1984" substitute "Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)". |
| The Disabled Persons (Services, Consultation and Representation) Act 1986 (c.33) |
4 | (1) The Disabled Persons (Services, Consultation and Representation) Act 1986 shall be amended as follows. |
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(2) In section 2(5)(b) (right of authorised representative to visit disabled person in accommodation provided by virtue of certain enactments), for the words "section 7 of the 1984 Act" substitute "section 25 of the 2003 Act". |
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(3) In section 16(1) (interpretation)- |
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(a) for the definition of "the 1984 Act" substitute- |
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""the 2003 Act" means the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);" and |
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(b) in paragraph (b) of the definition of "the welfare enactments", for the words "sections 7 and 8 of the 1984 Act" substitute "sections 25 and 26 of the 2003 Act". |
| The Tribunals and Inquiries Act 1992 (c.53) |
5 | In Part II of Schedule 1 to the Tribunals and Inquiries Act 1992 (tribunals under the supervision of the Scottish Committee of the Council on Tribunals), after paragraph 54 insert- |
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"Mental health | 54A. The Mental Health Tribunal for Scotland constituted under section 21 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)." |
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.
| The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9) |
6 | In section 4(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (persons detained under the Mental Health (Scotland) Act 1984 (c.36) by virtue of transfer direction and restriction direction), for the words from first "direction" to "given", substitute "for treatment direction under section 136(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) is made". |
| The Children (Scotland) Act 1995 (c.36) |
7 | In section 23(2) of the Children (Scotland) Act 1995 (children affected by disability), for the words from "suffers" to the end substitute "has a mental disorder (as defined in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13))". |
| The Criminal Procedure (Scotland) Act 1995 (c.46) |
8 | (1) The Criminal Procedure (Scotland) Act 1995 shall be amended as follows. |
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(2) In section 54 (insanity in bar of trial)- |
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(a) in paragraph (c) of subsection (1)- |
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(i) in sub-paragraph (i), for the words from "he" to "1984" substitute "the conditions mentioned in subsection (2A) below are met in respect of the person";
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(ii) for the words "temporary hospital order" there shall be substituted "temporary compulsion order";
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(iii) for the words "committing him to that hospital" substitute "authorising the measures mentioned in subsection (2B) below in respect of the person";
|
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(b) after subsection (2) insert- |
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"(2A) The conditions referred to in subsection (1)(c)(i) above are- |
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(a) that the person has a mental disorder; |
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(b) that medical treatment which would be likely to- |
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(i) prevent the mental disorder worsening; or
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(ii) alleviate any of the symptoms, or effects, of the disorder,
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is available for the person; and |
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(c) that if the person were not provided with such medical treatment there would be a significant risk- |
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(a) to the health, safety or welfare of the person; or
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(b) to the safety of any other person.
|
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(2B) The measures referred to in subsection (1)(c)(i) above are- |
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(a) in the case of a person who, when the temporary compulsion order is made, has not been admitted to the specified hospital, the removal, before the expiry of the period of 7 days beginning with the day on which the order is made of the person to the specified hospital by- |
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(ii) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or
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(iii) a specified person;
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(b) the detention of the person in the specified hospital; and |
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(c) the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment."; |
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(c) in subsection (4), for the word "hospital" there shall be substituted "compulsion"; and |
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(d) in subsection (8), after "section" insert- |
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""medical treatment" has the same meaning as in section 52D of this Act; |
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"specified" means specified in the temporary compulsion order; and". |
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(3) In section 57 (disposals in cases where accused found to be insane)- |
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(i) in paragraph (a), for the words from "make" to the end substitute "subject to subsection (4) below, make a compulsion order authorising the detention of the person in a hospital";
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(ii) in paragraph (b), for the words from first "an" to the end substitute "such a compulsion order, subject to subsection (4A) below, make a restriction order in respect of the person";
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(iii) for paragraph (bb), substitute-
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"(bb) subject to subsections (3A) and (4B) below, make an interim compulsion order in respect of the person;"; |
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(iv) in paragraph (c), for the words from "make" to the end substitute "subject to subsections (4C) and (6) below, make a guardianship order in respect of the person";
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(A) at the beginning insert "subject to subsection (5) below,"; and
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(B) after "Act)" insert "in respect of the person";
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(b) in subsection (3), for the word "hospital" substitute "compulsion"; |
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(c) after subsection (3) insert- |
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"(3A) The court may make an interim compulsion order under paragraph (bb) of subsection (2) above in respect of a person only where it has not previously made such an order in respect of the person under that paragraph."; and |
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(d) for subsection (4) substitute- |
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"(4) For the purposes of subsection (2)(a) above- |
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(a) subsections (2) to (16) of section 57A of this Act shall apply as they apply for the purposes of subsection (1) of that section, subject to the following modifications- |
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(i) references to the offender shall be construed as references to the person to whom this section applies; and
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(ii) in subsection (4)(b)(i), the reference to the offence of which the offender was convicted shall be construed as a reference to the offence with which the person to whom this section applies was charged;
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(b) section 57B of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies; |
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(c) section 57C of this Act shall have effect subject to the following modifications- |
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(i) references to the offender shall be construed as references to the person to whom this section applies; and
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(ii) references to section 57A of this Act shall be construed as references to subsection (2)(a) above; and
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(d) section 57D of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies. |
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(4A) For the purposes of subsection (2)(b) above, section 59 of this Act shall have effect. |
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(4B) For the purposes of subsection (2)(bb) above- |
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(a) subsections (2) to (13) of section 53 of this Act shall apply as they apply for the purposes of subsection (1) of that section, subject to the following modifications- |
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(i) references to the offender shall be construed as references to the person to whom this section applies;
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(ii) in subsection (3)(a)(ii), the reference to one of the disposals mentioned in subsection (6) of that section shall be construed as a reference to the disposal mentioned in subsection (6)(a) of that section;
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(iii) in subsection (4)(a), the reference to the offence of which the offender is convicted shall be construed as a reference to the offence with which the person to whom this section applies is charged; and
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(iv) subsection (6)(b) shall not apply;
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(b) section 53A of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies; |
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(c) section 53B of this Act shall have effect subject to the following modifications- |
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(i) references to the offender shall be construed as references to the person to whom this section applies; and
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(ii) for paragraphs (a) and (b) of subsection (8) there shall be substituted ", revoke the interim compulsion order and-
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(a) make an order in respect of the person under paragraph (a), (b), (c) or (d) of subsection (2) of section 57 of this Act; or |
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(b) decide, under paragraph (e) of that subsection, to make no order in respect of the person."; |
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(d) section 53C of this Act shall have effect subject to the following modifications- |
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(i) references to the offender shall be construed as references to the person to whom this section applies; and
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(ii) for paragraphs (a) to (c) of subsection (1) there shall be substituted-
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"(a) makes an order in respect of the person under paragraph (a), (b), (c) or (d) of subsection (2) of section 57 of this Act; or |
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(b) decides, under paragraph (e) of that subsection, to make no order in respect of the person."; and |
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(e) section 53D of this Act shall have effect subject to the modification that the reference to the offender shall be construed as a reference to the person to whom this section applies. |
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(4C) For the purposes of subsection (2)(c) above, subsections (1A), (6) to (8) and (11) of section 58 of this Act shall apply, subject to the modifications that the reference to a person convicted and any references to the offender shall be construed as references to the person to whom this section applies.". |
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(4) In section 58 (orders for hospital admission or guardianship)- |
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(a) in subsection (1A), for the words "as mentioned in subsection (1) above" there shall be substituted "in the High Court or the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment,"; and |
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(i) for the words from first "the" to first "suffering" substitute "(by reference to the appropriate paragraph (or paragraphs) of the definition of "mental disorder" in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)) the type (or types) of mental disorder that the offender has"; and
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(ii) for the words from "unless" to third "form" substitute "the descriptions of the offender's mental disorder by each of the medical practitioners, whose evidence is taken into account under subsection (1A)(a) above, specifies at least one type of mental disorder that is also specified by the other".
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(5) In section 59 (hospital orders: restrictions on discharge)- |
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(i) for the words "hospital order" there shall be substituted "compulsion order authorising the detention of a person in a hospital by virtue of paragraph (a) of section 57A(8) of this Act"; and
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(ii) for the words "section 62(1) of the Mental Health (Scotland) Act 1984" there shall be substituted "Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)";
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(i) for the words "medical practitioner approved by the Health Board for the purposes of section 20 of the Mental Health (Scotland) Act 1984" there shall be substituted "approved medical practitioner"; and
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(ii) for the words "section 58(1)(a)" there shall be substituted "section 57A(2)(a)"; and
|
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(c) after subsection (2) insert- |
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"(2A) The court may, in the case of a person in respect of whom it did not, before making the compulsion order, make an interim compulsion order, make a restriction order in respect of the person only if satisfied that, in all the circumstances, it was not appropriate to make an interim compulsion order in respect of the person.". |
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(6) For section 59A (hospital directions) substitute- |
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| "Hospital directions |
59A | Hospital direction |
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(1) This section applies where a person, not being a child, (in this section and in sections 59B and 59C of this Act referred to as the "offender") is convicted on indictment in- |
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of an offence punishable by imprisonment. |
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(2) If the court is satisfied- |
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(a) on the written or oral evidence of two medical practitioners- |
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(i) that the conditions mentioned in subsection (3) below are met in respect of the offender; and
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(ii) as to the matters mentioned in subsection (4) below; and
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(b) that, having regard to the matters mentioned in subsection (5) below, it is appropriate, |
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the court may, in addition to any sentence of imprisonment which it has the power or the duty to impose, make, subject to subsection (6) below, a direction (in this Act referred to as a "hospital direction") authorising the measures mentioned in subsection (7) below. |
|
(3) The conditions referred to in subsection (2)(a)(i) above are- |
|
(a) that the offender has a mental disorder; |
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(b) that medical treatment which would be likely to- |
|
(i) prevent the mental disorder worsening; or
|
|
(ii) alleviate any of the symptoms, or effects, of the disorder,
|
|
is available for the offender; |
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(c) that if the offender were not provided with such medical treatment there would be a significant risk- |
|
(i) to the health, safety or welfare of the offender; or
|
|
(ii) to the safety of any other person; and
|
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(d) that the making of a hospital direction in respect of the offender is necessary. |
|
(4) The matters referred to in subsection (2)(a)(ii) above are- |
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(a) that the hospital proposed by the two medical practitioners mentioned in subsection (2)(a) above is suitable for the purpose of giving the medical treatment mentioned in paragraph (b) of subsection (3) above to the offender; and |
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(b) that, were a hospital direction made, the offender could be admitted to such hospital before the expiry of the period of 7 days beginning with the day on which the direction is made. |
|
(5) The matters referred to in subsection (2)(b) above are- |
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(a) the mental health officer's report, prepared in accordance with section 59B of this Act, in respect of the offender; |
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(b) all the circumstances, including- |
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(i) the nature of the offence of which the offender was convicted; and
|
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(ii) the antecedents of the offender; and
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(c) any alternative means of dealing with the offender. |
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(6) A hospital direction may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court- |
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(a) that the offender requires to be detained in a state hospital under conditions of special security; and |
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(b) that such conditions of special security can be provided only in a state hospital. |
|
(7) The measures mentioned in subsection (2) above are- |
|
(a) in the case of an offender who, when the hospital direction is made, has not been admitted to the specified hospital, the removal, before the expiry of the period of 7 days beginning with the day on which the direction is made, of the offender to the specified hospital by- |
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(ii) a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or
|
|
(iii) a specified person;
|
|
(b) the detention of the offender in the specified hospital; and |
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(c) the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment. |
|
(8) The court shall be satisfied as to the condition mentioned in subsection (3)(a) above only if the description of the offender's mental disorder by each of the medical practitioners mentioned in subsection (2)(a) above specifies, by reference to the appropriate paragraph (or paragraphs) of the definition of "mental disorder" in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), at least one type of mental disorder that the offender has that is also specified by the other. |
|
(9) A hospital direction- |
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(a) shall specify, by reference to the appropriate paragraph (or paragraphs) of the definition of "mental disorder" in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), the type (or types) of mental disorder that each of the medical practitioners mentioned in subsection (2)(a) above specifies that is also specified by the other; and |
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(b) may include such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender's admission to the specified hospital. |
|
(10) In this section- |
|
"medical treatment" has the same meaning as in section 52D of this Act; and |
|
"specified" means specified in the hospital direction. |
59B | Hospital direction: mental health officer's report |
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(1) This section applies where the court is considering making a hospital direction in relation to an offender under section 59A of this Act. |
|
(2) If directed to do so by the court, the mental health officer shall- |
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(a) subject to subsection (3) below, interview the offender; and |
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(b) prepare a report in relation to the offender in accordance with subsection (4) below. |
|
(3) If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so. |
|
(4) The report shall state- |
|
(a) the name and address of the offender; |
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(b) if known by the mental health officer, the name and address of the offender's primary carer; |
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(c) in so far as relevant for the purposes of section 59A of this Act, details of the personal circumstances of the offender; and |
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(d) any other information that the mental health officer considers relevant for the purposes of that section. |
|
(5) In this section, "carer", "primary", in relation to a carer, and "mental health officer" have the same meanings as in section 57C of this Act. |
59C | Hospital direction: supplementary |
|
(1) If, before the expiry of the period of 7 days beginning with the day on which a hospital direction is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the hospital direction, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to such other hospital as is specified. |
|
(2) Where- |
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(a) the court makes a direction under subsection (1) above, it shall inform the person having custody of the offender; and |
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(b) the Scottish Ministers make such a direction, they shall inform- |
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(ii) the person having custody of the offender.
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(3) Where a direction is made under subsection (1) above, the hospital direction shall have effect as if the hospital specified in the hospital direction were the hospital specified by the court, or, as the case may be, the Scottish Ministers, under subsection (1) above. |
|
(4) In this section, "court" means the court which made the hospital direction.". |
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(7) In section 60 (appeals against hospital orders)- |
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(a) for the word "hospital" where it first, second and fourth occurs there shall be substituted "compulsion"; and |
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(b) for the word "renewal" there shall be substituted "extension". |
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(8) In section 60A (appeal by prosecutor against hospital orders etc.), in subsection (1), for paragraphs (a) and (b) substitute- |
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(c) a guardianship order; |
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(d) a decision under section 57(2)(e) of this Act to make no order; or |
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(e) a hospital direction.". |
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(9) In section 60B (intervention orders), for the word "hospital" there shall be substituted "compulsion". |
|
(10) In section 61 (requirements as to medical evidence)- |
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(a) in subsection (1), for the words from second "a" to "disorder" substitute "an approved medical practitioner"; |
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(i) for "53(1)" substitute "52M(2)(a), 53(2)(a)"; and
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(ii) for "58(1)(a)(i)" substitute "57A(2)(a)";
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(c) in subsection (2), after first "of" insert "section 52D(2)(a) or"; |
|
(d) in subsection (3), after "section" insert "52D(2)(a) or"; |
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(e) in subsection (6), for "53(1), 54(1)(c), 58(1)(a) and 59A(3)(a) and (b)" substitute "52M(2)(a), 53(2)(a), 54(1)(c), 57A(2)(a), 58(1A)(a), 59A(2)(a) and 60C(2)(a)"; and |
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(f) after subsection (6) insert- |
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"(7) In this section, "approved medical practitioner" has the meaning given by section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).". |
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(11) In section 118 (disposal of appeals), in subsection (6), for the words "(3) and (4)" substitute "(3) to (6)". |
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(12) In section 190 (disposal of appeal where appellant insane), in subsection (2), for the words "Subsection (4)" substitute "Subsections (3) to (6)". |
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(13) In section 200 (remand for inquiry into physical or mental conditions)- |
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(a) in subsection (2), for paragraph (b)(ii) there shall be substituted- |
|
|
"(ii) that the accused could be admitted to a hospital that is suitable for his detention,"; and
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(b) in subsection (3)(a), for the words "a suitable hospital is available" there shall be substituted "he could be admitted to a hospital that is suitable". |
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(14) In section 210 (consideration of time spent in custody), in subsection (1)- |
|
(a) in paragraph (a), after "virtue" insert "of an assessment order, a treatment order or an interim compulsion order or by virtue"; and |
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(b) in paragraph (c)(iii), after "virtue" insert "of an assessment order, a treatment order or an interim compulsion order or by virtue". |
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(15) In section 230 (probation orders requiring treatment for mental disorder)- |
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(i) for the words "a registered medical practitioner approved under section 20 of the Mental Health (Scotland) Act 1984" there shall be substituted "an approved medical practitioner"; and
|
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(ii) for the words "hospital order under Part V of that Act, or under this Act," there shall be substituted "compulsory treatment order under section 64 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or a compulsion order"; and
|
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(b) in subsection (2), in paragraph (a), for "1984" there shall be substituted "2003". |
|
(16) In section 307 (interpretation), in subsection (1)- |
|
(a) after the definition of "appropriate court" there shall be inserted- |
|
|
""assessment order" has the meaning given by section 52D of this Act;"; |
|
|
(b) after the definition of "complaint" there shall be inserted- |
|
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""compulsion order" has the meaning given by section 57A of this Act;"; |
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(c) after the definition of "indictment" there shall be inserted- |
|
|
""interim compulsion order" has the meaning given by section 53 of this Act;"; |
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(d) after the definition of "Lord Commissioner of Justiciary" there shall be inserted- |
|
|
""mental disorder" has the meaning given by section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); |
|
"Mental Welfare Commission" means the Mental Welfare Commission for Scotland;"; and |
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(e) after the definition of "training school order" there shall be inserted- |
|
|
""treatment order" has the meaning given by section 52M of this Act;". |
|
| The Adults with Incapacity (Scotland) Act 2000 (asp 4) |
9 | (1) The Adults with Incapacity (Scotland) Act 2000 shall be amended as follows. |
|
(2) In section 35(5) (definitions of certain expressions for the purposes of Part 4 of Act), for the words "who is liable to be detained there under the 1984 Act" substitute "whose detention there is authorised by virtue of the Criminal Procedure (Scotland) Act 1995 (c.46) or the 2003 Act". |
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(3) In section 47(2) (authority in relation to medical treatment of incapable adult), after "section" insert "and sections 234, 237, 240, 242, 243 and 244 of the 2003 Act". |
|
(4) In section 57 (application for guardianship order)- |
|
(a) in subsection (3)(a), for "a" where it second occurs substitute "an approved"; and |
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(b) after subsection (6) insert- |
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|
"(7) In subsection (3)(a), "approved medical practitioner" has the meaning given by section 22 of the 2003 Act.". |
|
|
(5) In section 87(1) (interpretation)- |
|
(a) in the definition of "mental disorder", for the words from "means" to the end substitute "has the meaning given by section 328 of the 2003 Act"; |
|
(b) after the definition of "mental disorder" insert- |
|
|
""mental health officer" has the meaning given by section 329 of the 2003 Act;"; |
|
|
(c) in the definition of "Mental Welfare Commission", for the words "section 2 of the 1984 Act" substitute "section 4 of the 2003 Act"; |
|
(d) in the definition of "nearest relative", for the words from "means" to the end substitute "has the meaning given by section 254 of the 2003 Act"; and |
|
(e) after the definition of "the 1984 Act" insert- |
|
|
""the 2003 Act" means the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).". |
|
| The Regulation of Care (Scotland) Act 2001 (asp 8) |
10 | In section 77(1) of the Regulation of Care (Scotland) Act 2001 (interpretation)- |
|
(a) in the definition of "independent hospital", for the words from "is" to the end substitute ", subject to subsection (2) below, is not a health service hospital"; and |
|
(b) in the definition of "mental disorder", for "Mental Health (Scotland) Act 1984 (c.36)" substitute "Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)". |
| The Housing (Scotland) Act 2001 (asp 10) |
11 | In paragraph 4(6) of schedule 7 to the Housing (Scotland) Act 2001 (power of Scottish Ministers to remove director, trustee, etc. of a registered social landlord), for the words "Mental Health (Scotland) Act 1984 (c.36)" substitute "Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)". |
| The Community Care and Health (Scotland) Act 2002 (asp 5) |
12 | (1) The Community Care and Health (Scotland) Act 2002 shall be amended as follows. |
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(2) In section 4(1) (payment towards cost of accommodation more expensive than local authority would expect usually to provide), for the words from "section 7" to "authorities)" substitute "section 25 of the 2003 Act (provision of care and support services for persons who have or have had a mental disorder)". |
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(3) In section 6(1)(a) (deferred payment of accommodation costs) for the words from "section 7" to "authorities)" substitute "section 25 of the 2003 Act (provision of care and support services for persons who have or have had a mental disorder)". |
| The Scottish Public Services Ombudsman Act 2002 (asp 11) |
13 | In schedule 3 to the Scottish Public Services Ombudsman Act 2002 (which specifies tribunals for the purpose of making the administrative actions of certain administrative staff of those tribunals liable to investigation under that Act), after paragraph 4 insert- |
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| "4A The Mental Health Tribunal for Scotland.". |
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SCHEDULE 5 |
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(introduced by section 331(2) and (3)) |
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REPEALS AND REVOCATIONS |
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PART 1 |
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REPEALS |
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Enactment | Extent of repeal |
The National Health Service (Scotland) Act 1978 (c.29) | In section 102, paragraph (a) of subsection (4), the word "or" immediately following that paragraph and subsection (5). |
The Mental Health (Scotland) Act 1984 (c.36) | The whole Act. |
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73) | Section 51(2)(b). |
The Disabled Persons (Services, Consultation and Representation) Act 1986 (c.33) | In section 7(9), in paragraph (c) of the definition of "the managers", the words from "a State Hospital Management Committee" to "constituted)". |
The Children Act 1989 (c.41) | In Schedule 13, paragraph 50. |
The National Health Service and Community Care Act 1990 (c.19) |
In Schedule 5, paragraph 13.
In Schedule 9, paragraph 28. |
The Access to Health Records Act 1990 (c.23) | In section 11, in the definition of "health service body", paragraph (c). |
The Mental Health (Detention) (Scotland) Act 1991 (c.47) | The whole Act. |
The Further and Higher Education (Scotland) Act 1992 (c.37) | In Schedule 9, paragraph 9. |
The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9) |
Section 4(2) and (3).
In Schedule 5, paragraph 2. |
The State Hospitals (Scotland) Act 1994 (c.16) | Section 2(4) and (5). |
The Children (Scotland) Act 1995 (c.36) | In Schedule 4, paragraph 33. |
The Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) | Section 13(3). |
The Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c.40) | In Schedule 4, paragraph 50. |
The Criminal Procedure (Scotland) Act 1995 (c.46) |
In section 52, subsections (2) to (7).
In section 58, subsection (1); in subsections (2) and (3), the words "(1) or"; subsections (4) and (5); in subsection (7), the words "hospital order or" and "paragraph (a) of subsection (1)"; subsection (9); subsection (10); in subsection (11), the words "subsection (1) of".
Section 59(3).
In section 200(9), the words "within 24 hours of his remand or, as the case may be, committal,".
In section 210(1), in paragraphs (a) and (c)(iii), the words "52, 53 or".
In section 230(1), the words ", not extending beyond 12 months from the date of the requirement,".
In section 307(1), the definitions of "hospital order", "residential establishment" and "responsible medical officer". |
The Mental Health (Patients in the Community) Act 1995 (c.52) |
Sections 4 to 6.
Schedule 2. |
The Crime (Sentences) Act 1997 (c.43) | In schedule 3, paragraphs 6 to 10. |
The Crime and Punishment (Scotland) Act 1997 (c.48) |
Sections 7 and 8.
In Schedule 1, paragraph 9. |
The Crime and Disorder Act 1998 (c.37) | In Schedule 8, paragraph 55. |
The Health Act 1999 (c.8) | In Schedule 4, paragraph 70. |
The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 (asp 1) | The whole Act. |
The Mental Health (Amendment) (Scotland) Act 1999 (c.32) | The whole Act. |
The Immigration and Asylum Act 1999 (c.33) |
Section 120(4) and (5).
In Schedule 15, paragraph 10. |
The Adults with Incapacity (Scotland) Act 2000 (asp 4) |
In section 9(1), the words "Without prejudice to their functions under the 1984 Act," and paragraphs (a), (b), (e) and (f).
In section 12(1)(b), the words "or (e)".
In section 35(1)(b), the words "or private psychiatric hospital".
Section 38(4).
In section 47(2), the words "and to".
Section 48(1).
In section 57(3)(a), the words from "approved" to the end.
Section 87(2) and (3).
In schedule 1, paragraph 1(c)(ii) and the word "or" immediately following it.
In schedule 5, paragraph 17(3) to (24). |
The Regulation of Care (Scotland) Act 2001 (asp 8) |
Section 2(5)(b).
In section 77, in subsection (1), the definition of "private psychiatric hospital" and, in subsection (2), the words "(not being a private psychiatric hospital)".
In schedule 3, paragraph 11(2) to (7). |
The International Criminal Court (Scotland) Act 2001 (asp 13) | Section 25. |
The Scottish Public Services Ombudsman Act 2002 (asp 11) | In schedule 6, paragraph 6. |
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PART 2 |
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REVOCATIONS |
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Enactment | Extent of repeal |
The Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999 (S.I. 1999/1820) | In Schedule 2, paragraph 74. |
The Postal Services Act 2000 (Consequential Modifications No.1) Order 2001 (S.I. 2001/1149) | In Schedule 1, paragraph 60. |
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SCHEDULE 6 |
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(introduced by section 332(1)) |
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TRANSITORY AMENDMENTS OF THE MENTAL HEALTH (SCOTLAND) ACT 1984 |
1 | Sections 33, 64 and 66 of the Mental Health (Scotland) Act 1984 (c.36) shall, until their repeal by this Act, have effect as follows. |
2 | In section 33 (discharge of patients from hospital), in subsection (4)- |
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(a) after "is", where secondly occurring, insert "not"; and |
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(b) in each of paragraphs (a) and (b) omit "not". |
3 | In section 64 (appeal by patient subject to restriction order)- |
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(i) after "shall" insert ", subject to subsection (2) of this section,";
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(ii) after "is", where first occurring, insert "not";
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(iii) in each of paragraphs (a) and (b) omit "not";
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(iv) omit "and (in either case)" and paragraph (c);
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(i) for "(1)" substitute "(A1)";
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(ii) after "is", where secondly occurring, insert "not";
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(iii) for the words from "not" to "subsection", where thirdly occurring, substitute "is satisfied that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment".
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4 | In section 66 (further consideration of case of conditionally discharged patient) in subsection (3) after "is", where first, secondly and thirdly occurring, insert "not". |
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© Crown copyright 2003 | Prepared 9 May 2003 |