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Mental Health (Care and Treatment) (Scotland) Act 2003

Type Act of the Scottish Parliament

Publication 2003-04-25

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — Introductory

Principles for discharging certain functions

1

(1) Subsections (2) to (4) below apply whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a patient who has attained the age of 18 years.

(2) In discharging the function the person shall, subject to subsection (9) below, have regard to the matters mentioned in subsection (3) below in so far as they are relevant to the function being discharged.

(3) The matters referred to in subsection (2) above are—

(a) the present and past wishes and feelings of the patient which are relevant to the discharge of the function;

(b) the views of—

(i) the patient’s named person;

(ii) any carer of the patient;

(iii) any guardian of the patient; and

(iv) any welfare attorney of the patient,

which are relevant to the discharge of the function;

(d) the importance of providing such information and support to the patient as is necessary to enable the patient to participate in accordance with paragraph (c) above;

(e) the range of options available in the patient’s case;

(f) the importance of providing the maximum benefit to the patient;

(g) the need to ensure that, unless it can be shown that it is justified in the circumstances, the patient is not treated in a way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation;

(h) the patient’s abilities, background and characteristics, including, without prejudice to that generality, the patient’s age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group.

(4) After having regard to—

(a) the matters mentioned in subsection (3) above;

(b) if subsections (5) and (6) below apply, the matters mentioned there; and

the person shall discharge the function in the manner that appears to the person to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances.

(5) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act (other than the making of a decision about medical treatment) in relation to a patient, the person shall have regard, in so far as it is reasonable and practicable to do so, to—

(a) the needs and circumstances of any carer of the patient which are relevant to the discharge of the function and of which the person is aware; and

(b) the importance of providing such information to any carer of the patient as might assist the carer to care for the patient.

(6) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a person who is, or has been, subject to—

(a) detention in hospital authorised by a certificate granted under section 36(1) of this Act (any such certificate being referred to in this Act as an “emergency detention certificate”);

(b) detention in hospital authorised by a certificate granted under section 44(1) of this Act (any such certificate being referred to in this Act as a “short-term detention certificate”);

(c) an order made under section 64(4)(a) of this Act (any such order being referred to in this Act as a “compulsory treatment order”); or

(d) an order made under section 57(2)(a) or 57A(2) of the 1995 Act (any such order being referred to in this Act as a “compulsion order”),

the person who is discharging the function shall have regard to the importance of the provision of appropriate services to the person who is, or has been, subject to the certificate or order concerned (including, without prejudice to that generality, the provision of continuing care when the person is no longer subject to the certificate or order).

(7) A person falls within this subsection if the person is discharging the function by virtue of being—

(a) the patient;

(b) the patient’s named person;

(d) a person providing independent advocacy services to the patient under section 259 of this Act;

(e) the patient’s legal representative;

(f) a curator ad litem appointed by the Tribunal in respect of the patient;

(g) a guardian of the patient; or

(h) a welfare attorney of the patient.

(8) In subsection (3)(a) above, the reference to wishes and feelings of the patient is a reference to those wishes and feelings in so far as they can be ascertained by any means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise), appropriate to the patient.

(9) The person need not have regard to the views of a person mentioned in subsection (3)(b) above in so far as it is unreasonable or impracticable to do so.

(10) In subsection (3)(d) above, the reference to information is to information in the form that is mostly likely to be understood by the patient.

(11) In this section, a reference to “discharging”, in relation to a power, includes a reference to exercising the power by taking no action; and “discharge” shall be construed accordingly.

Welfare of the child

2

(1) This section applies whenever a person who does not fall within section 1(7) of this Act is discharging a function, by virtue of this Act, to which subsection (2) or (3) below applies in relation to a patient who is under the age of 18 years.

(2) This subsection applies to any duty which may be discharged in more than one manner.

(3) This subsection applies to any power.

(4) The person shall discharge the function in the manner that appears to the person to be the manner that best secures the welfare of the patient.

(5) In determining the manner of discharging the function that best secures the welfare of the patient, the person shall have regard to—

(a) the matters mentioned in section 1(3) of this Act;

(b) the matters mentioned in section 1(5) and (6) of this Act (where those subsections apply); and

(c) the importance of the function being discharged in the manner that appears to the person to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances.

(6) Subsections (8) to (10) of section 1 of this Act shall apply for the purpose of subsection (5)(a) above as they apply in relation to subsection (3) of that section.

(7) In this section, a reference to “discharging”, in relation to a power, includes a reference to exercising the power by taking no action; and “discharge” shall be construed accordingly.

Equal opportunities

3

(1) Subsection (2) below applies whenever a person mentioned in subsection (3) below is discharging a function by virtue of this Act.

(2) The person shall discharge the function in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements.

(3) The persons referred to in subsection (1) above are—

(a) the Scottish Ministers;

(b) the Commission;

(d) a Health Board;

(e) a Special Health Board;

(f) a National Health Service trust;

(fa) (as respects its health service functions only) Healthcare Improvement Scotland;

(g) the managers of a hospital;

(h) a mental health officer;

(i) a patient’s responsible medical officer;

(j) a medical practitioner; and

(k) a nurse.

(4) In this section “equal opportunities” and “equal opportunity requirements” have the same meanings as in Section L2 of Part II of Schedule 5 to the Scotland Act 1998 (c. 46).

Part 2 — The Mental Welfare Commission for Scotland

Continued existence of Commission

The Mental Welfare Commission for Scotland

4

(1) There shall continue to be a body corporate known as the Mental Welfare Commission for Scotland (in this Act referred to as “the Commission”).

(2) The Commission shall discharge such functions as are conferred on it by virtue of—

(a) this Act;

(b) the Adults with Incapacity (Scotland) Act 2000 (asp 4); and

(2A) In so discharging its functions, the Commission shall act in a manner which seeks to protect the welfare of persons who have a mental disorder.

(3) Schedule 1 to this Act (which makes provision as respects the Commission) shall have effect.

General duties

Duty to monitor operation of Act and promote best practice

5

The Commission shall—

(a) monitor the practical application of the observance of Part 1 of this Act; and

(b) promote best practice in relation to the practical application of the observance of Part 1 of this Act.

Reporting on operation of Act

6

The Commission shall bring to the attention of the Scottish Ministers such matters concerning the operation of this Act as the Commission considers ought to be brought to their attention.

Particular functions

Duty to bring matters generally to attention of Scottish Ministers and others

7

The Commission shall bring to the attention of—

(a) the Scottish Ministers;

(b) a local authority;

(d) a Special Health Board;

(e) a National Health Service trust;

(ea) Healthcare Improvement Scotland;

(f) Social Care and Social Work Improvement Scotland;

(g) such other person, or group of persons, as it considers appropriate,

any matter of general interest or concern as respects the welfare of any persons who have a mental disorder which is a matter that the Commission considers ought to be brought to their attention.

Duty to bring specific matters to attention of Scottish Ministers and others etc.

8

(1) If it appears to the Commission that a relevant person has, or may have, powers or duties, the exercise or performance of which might prevent or remedy or assist in preventing or remedying, as respects a person who has a mental disorder, any of the circumstances mentioned in subsection (2) below, the Commission shall—

(a) bring the facts of the person’s case to the attention of the relevant person; and

(b) if it considers it appropriate to do so, make recommendations as respects the case to the relevant person.

(2) Those circumstances are—

(a) the circumstances mentioned in section 11(2)(a), (d), (e) or (f) of this Act;

(b) that—

(i) the patient is detained in hospital and the detention is authorised by virtue of this Act or the 1995 Act; and

(ii) there may be some impropriety in relation to that detention.

(3) For the purposes of subsection (1) above, “relevant person” means—

(a) the Scottish Ministers;

(b) the Public Guardian;

(d) a Health Board;

(e) a Special Health Board;

(f) a National Health Service trust;

(g) a mental health officer;

(h) a responsible medical officer;

(i) the managers of a registered care service;

(j) the managers of—

(i) a prison; or

(ii) a young offenders institution;

(ja) Healthcare Improvement Scotland;

(k) Social Care and Social Work Improvement Scotland;

(la) the Police Service of Scotland;

(m) such other person, or group of persons, as the Commission considers appropriate.

(4) In subsection (3)(i) above, “registered care service” means a care service registered under Part 5 of the Public Services Reform (Scotland) Act 2010 (asp 8).

Duty to give advice

9

(1) The Commission shall give advice to any person mentioned in subsection (2) below on any matter arising out of this Act which has been referred to the Commission, with its agreement, by that person.

(2) Those persons are—

(a) the Scottish Ministers;

(b) a local authority;

(d) a Special Health Board;

(da) Healthcare Improvement Scotland;

(e) Social Care and Social Work Improvement Scotland;

(f) the Scottish Public Services Ombudsman.

Publishing information, guidance etc.

10

(1) Subject to subsection (2) below, the Commission may publish information or guidance about any matter relevant to its functions and, without prejudice to that generality, may publish information or guidance as respects—

(a) its conclusions in relation to—

(i) an investigation under section 11(1) of this Act; or

(ii) an inquiry under section 12(1) of this Act;

(b) its conclusions in relation to any action taken (or not taken) in relation to such conclusions; or

(i) such investigations or inquiries; or

(ii) visits under section 13(1) or (3) of this Act.

(2) The Commission may, with the agreement of a person mentioned in subsection (2) of section 9 of this Act, publish advice which it gives under subsection (1) of that section to that person.

(3) The Commission may, with the agreement of a person to whom advice is provided under section 9A, publish that advice.

Investigations

11

(1) If it appears to a Commission Visitor that any of the circumstances mentioned in subsection (2) below apply in respect of a patient, the Commission Visitor may—

(a) carry out such investigation as the Commission Visitor considers appropriate into the patient’s case; and

(b) make such recommendations as the Commission Visitor considers appropriate as respects the case.

(1A) Where it is brought to the attention of the Commission that any of the circumstances mentioned in subsection (2) below may apply in respect of a patient, the Commission may—

(a) direct a Commission Visitor to carry out such investigation as the Commission considers appropriate into the patient's case; and

(b) having consulted the Visitor after the investigation, make such recommendations as it considers appropriate as respects the case.

(2) Those circumstances are—

(a) that the patient may be unlawfully detained in hospital;

(b) that the patient is detained in hospital and the detention is authorised by virtue of—

(i) this Act; or

(ii) the 1995 Act;

(i) a compulsory treatment order;

(ii) an interim compulsory treatment order;

(iii) an emergency detention certificate;

(iv) a short-term detention certificate;

(v) a compulsion order;

(vi) an interim compulsion order;

(vii) an assessment order;

(viii) a treatment order;

(ix) a hospital direction; or

(x) a transfer for treatment direction;

(d) that the patient may be, or may have been, subject, or exposed, to—

(i) ill-treatment;

(ii) neglect; or

(iii) some other deficiency in care or treatment;

(e) that, because of the mental disorder, the patient’s property—

(i) may be suffering, or may have suffered, loss or damage; or

(ii) may be, or may have been, at risk of suffering loss or damage;

(f) that the patient may be—

(i) living alone or without care; and

(ii) unable to look after himself or his property or financial affairs.

Investigations: further provision

12

(1) The Commission may, if it considers it appropriate to do so, cause an inquiry to be held for the purpose of carrying out an investigation, in relation to any of the circumstances mentioned in section 11(2) of this Act, into any case.

(2) The Commission—

(a) may appoint such person (or persons) as it considers appropriate to chair or to conduct any such inquiry and to report to it on the findings of any such inquiry; and

(b) may pay to a person appointed by it under paragraph (a) above such—

(i) remuneration; and

(ii) expenses,

as it may, with the consent of the Scottish Ministers, determine.

(3) A person appointed to chair any such inquiry—

(a) may, by notice, require any person to attend and give evidence at a time and place set out in the notice; and

(b) may administer oaths and examine witnesses on oath and may accept, in place of evidence on oath by a person, evidence on affirmation or a statement in writing by the person.

(4) A person required, by virtue of notice under subsection (3)(a) above, to attend and give evidence for the purposes of an inquiry under subsection (1) above—

(a) shall not be obliged to attend and give evidence as required in the notice unless the necessary expenses of attendance are paid or tendered to the person; and

(b) shall not be obliged at the inquiry to answer a question which the person would be entitled to decline to answer, on the ground of privilege or confidentiality, if the question were asked in the course of proceedings in a court.

(5) Proceedings in an inquiry under this section shall have the privilege of proceedings in a court.

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