Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

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

Type Act of the Scottish Parliament

Publication 2003-04-25

Last updated 2024-04-17

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(a) a patient has been conditionally discharged by the Tribunal under section 193(7) of this Act; and

(b) the Tribunal imposed conditions on that discharge under that section.

(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.

(2A) Before varying any conditions under subsection (2), the Scottish Ministers must have regard to any victim's representations.

(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—

(a) the patient;

(b) the patient’s named person;

(d) the mental health officer.

Appeal to Tribunal against variation of conditions imposed on conditional discharge

201

(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.

(2) Those persons are—

(a) the patient; and

(b) the patient’s named person.

(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.

Recall of patients from conditional discharge

202

(1) This section applies to a patient conditionally discharged by the Tribunal under section 193(7) of this Act.

(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.

Effect of recall from conditional discharge

203

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.

Appeal to Tribunal against recall from conditional discharge

204

(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.

(2) Those persons are—

(a) the patient; and

(b) the patient’s named person.

(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.

Part 11 — Hospital directions and transfer for treatment directions

Preliminary

Mental health officer’s duty to identify named person

205

(1) This section applies where—

(a) a hospital direction; or

(b) a transfer for treatment direction,

is made in respect of a patient.

(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

Review of hospital direction and transfer for treatment direction

206

(1) This section applies where a patient is subject to—

(a) a hospital direction; or

(b) a transfer for treatment direction.

(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.

(3) Those requirements are—

(a) to—

(i) carry out a medical examination of the patient; or

(ii) make arrangements for an approved medical practitioner to carry out such a medical examination;

(b) to consider—

(i) whether the conditions mentioned in subsection (4) below continue to apply in respect of the patient;

(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

(iii) whether it continues to be necessary for the patient to be subject to the direction; and

(i) the mental health officer; and

(ii) such other persons as the responsible medical officer considers appropriate.

(4) Those conditions are—

(a) that the patient has a mental disorder;

(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 patient; and

(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

(b) where that relevant day has passed, the day falling on the same day in every year thereafter.

Consequences of review

Responsible medical officer’s report following review of direction

207

(1) This section applies where a patient’s responsible medical officer carries out a review under section 206(2) of this Act.

(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.

(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;

(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

(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.

(5) If, after having regard to any views expressed by persons consulted under section 206(3)(c) of this Act, the responsible medical officer—

(a) is satisfied that the patient has a mental disorder; but

(b) is 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) either—

(A) that the conditions mentioned in paragraph (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient; or

(B) that it continues to be necessary for the patient to be subject to the direction,

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

(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;

(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

(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

(b) is 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) either—

(A) that the conditions mentioned in paragraph (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient; or

(B) that it continues to be necessary for the patient to be subject to the direction,

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

Commission’s power to require Scottish Ministers to make reference to Tribunal

209

(1) This section applies where a patient is subject to—

(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.

(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.

Duty of Scottish Ministers on receiving report from responsible medical officer

210

(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) either—

(A) that the conditions mentioned in paragraph (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient; or

(B) that it continues to be necessary for the patient to be subject to the direction,

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—

(a) the patient;

(b) the patient’s named person;

(d) any welfare attorney of the patient;

(e) the patient’s responsible medical officer;

(f) the mental health officer; and

(g) the Commission.

(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

(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.

Notice under section 209(2): reference to Tribunal

211

(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

Duty of Scottish Ministers to keep directions under review

212

(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

(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

(b) 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) either—

(A) that the conditions mentioned in paragraph (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient; or

(B) that it continues to be necessary for the patient to be subject to the direction,

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.

Reference to Tribunal by Scottish Ministers

213

(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 determined by the Tribunal; and

(ii) no application under section 214(2) of this Act has been determined by 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 determined by the Tribunal; and

(ii) no application such as is mentioned in paragraph (a)(ii) above has been determined by 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 determined by the Tribunal during any 2 year period, leave out of account any reference made under subsection (2) above that has been determined by it 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

(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.

Application to Tribunal by patient and named person

214

(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—

(a) the patient; and

(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

Powers of Tribunal on reference under section 210(3), 211(2) or 213(2) or on application under section 214(2)

215

(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

(b) is 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) either—

(A) that the conditions mentioned in paragraph (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient; or

(B) that it continues to be necessary for the patient to be subject to the direction,

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—

(a) the patient;

(b) the patient’s named person;

(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

(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

Termination of hospital direction on release of patient

217

(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

Transfer of patients between hospitals

218

(1) This section applies where a patient is subject to—

(a) a compulsion order and a restriction order;

(b) a hospital direction; or

(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—

(a) the patient; and

(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.

Appeal to Tribunal against transfer under section 218 to hospital other than state hospital

219

(1) This section applies where—

(a) a patient—

(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.

Appeal to Tribunal against transfer under section 218 to state hospital

220

(1) This section applies where—

(a) a patient—

(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 a state hospital; and

(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.

(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 12 weeks 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 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;

(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 12 weeks after the transfer; or

(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.

(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 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, 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.

(6) That matter is—

(a) that the patient requires to be detained in hospital under conditions of special security; and

(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

Assessment order: suspension of measure authorising detention

221

(1) This section applies where a patient is subject to an assessment order.

(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.

(2A) A certificate under subsection (2) above may specify—

(a) a single period, or

(b) a series of more than one individual period.

(3) The patient’s responsible medical officer may grant a certificate under subsection (2) above only with the consent of the Scottish Ministers.

(3A) Subsection (3) above does not require the consent of the Scottish Ministers if the granting of the certificate is for the purpose of enabling the patient to—

(a) attend a hearing in criminal proceedings against the patient, or

(b) meet a medical or dental appointment made for the patient.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4A) The purpose for which a certificate under subsection (2) above is granted must be recorded in the certificate.

(5) If the responsible medical officer considers that it is necessary—

(a) in the interests of the patient; or

(b) for the protection of any other person,

a certificate under subsection (2) above may include conditions such as are mentioned in subsection (6) below; and any such conditions shall have effect.

(6) 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

(b) such other conditions as may be specified by the patient’s responsible medical officer.

Certificate under section 221: revocation by responsible medical officer

222

(1) Subsection (2) below applies where a certificate is granted under section 221(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—

(a) the patient;

(b) where a person is authorised for the purposes of section 221(6)(a) of this Act, that person; and

Certificate under section 221: revocation by Scottish Ministers

223

(1) Subsection (2) below applies where a certificate is granted under section 221(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—

(a) the patient;

(b) the patient’s responsible medical officer; and

Certain other orders and directions

Patients subject to certain other orders and directions: suspension of measure authorising detention

224

(1) This section applies where a patient is subject to—

(a) a treatment order;

(b) an interim compulsion order;

(ba) a temporary compulsion order;

(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 ... 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.

(2A) A certificate under subsection (2) above may specify—

(a) a single period not exceeding 90 days, or

(b) a series of more than one individual period falling within a particular 3 month period.

(3) The patient’s responsible medical officer may grant a certificate under subsection (2) above only with the consent of the Scottish Ministers.

(3A) In the case of a treatment order, an interim compulsion order or a temporary compulsion order, subsection (3) above does not require the consent of the Scottish Ministers if the granting of the certificate is for the purpose of enabling the patient to—

(a) attend a hearing in criminal proceedings against the patient, or

(b) meet a medical or dental appointment made for the patient.

(4) The total period that an order or direction does not, by reason of certification under subsection (2) above, authorise the detention of a patient in hospital must not exceed 200 days within any period of 12 months (whenever counted from).

(4A) For the purpose of subsection (4) above—

(a) a day does not count towards the total period if the detention is (by reason of such certification) not authorised for a period of 8 hours or less in that day,

(b) a single period (specified in such certification) of more than 8 hours and less than 24 hours, whether in one day or spanning two days, is to count as a whole day towards the total period.”. Specification of hospital units

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5A) The purpose for which a certificate under subsection (2) above is granted must be recorded in the certificate.

(6) If the responsible medical officer considers that it is necessary—

(a) in the interests of the patient; or

(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.

(6A) Before deciding what conditions such as are mentioned in subsection (7) below to include in a certificate under subsection (2) above (if any), the responsible medical officer must have regard to any victim's representations.

(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

(b) such other conditions as may be specified by the patient’s responsible medical officer.

(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—

(a) the patient;

(b) the patient’s named person;

(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.

Certificate under section 224: revocation by responsible medical officer

225

(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—

(a) the patient;

(b) the patient’s named person;

(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.

Certificate under section 224: revocation by Scottish Ministers

226

(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—

(a) the patient;

(b) the patient’s named person;

(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

Assessment of needs for community care services etc.

227

(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

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

— (a)

; and

(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,

Request for assessment of needs: duty on local authorities and Health Boards

228

(1) Where—

(a) a—

(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—

(a) of whether—

(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

Designation of mental health officer responsible for patient’s case

229

(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—

(a) for all purposes; or

(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

Appointment of patient’s responsible medical officer

230

(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—

“appropriate act” means—a relevant event;the granting of an emergency detention certificate;the making of a temporary compulsion order ...;the variation of—a compulsory treatment order; ora compulsion order;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;return to a hospital under section 125(5), 126(5), 219(5) or 220(5) of this Act; and

“relevant managers” means—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;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;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; andin 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.

231

(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

(ii) the Commission.

(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

In this Part of this Act, “relevant event” means—

(a) the granting of a short-term detention certificate;

(b) the making of—

(i) an interim compulsory treatment order;

(ii) a compulsory treatment order;

(iii) an assessment order;

(iv) a treatment order;

(v) an interim compulsion order;

(vi) a compulsion order;

(vii) a hospital direction; or

(viii) a transfer for treatment direction.

Part 16 — Medical treatment

Designated medical practitioners

233

(1) The Commission shall compile and maintain a list of medical practitioners who appear to the Commission to have such—

(a) qualifications; and

(b) experience,

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.

Certain surgical operations etc.

234

(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—

(i) brain tissue; or

(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.

Treatment mentioned in section 234(2): patients capable of consenting

235

(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.

Treatment mentioned in section 234(2): patients incapable of consenting

236

(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

Electro-convulsive therapy etc.

237

(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

(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;

(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.

Treatment mentioned in section 237(3): patients incapable of consenting

239

(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.

Treatments given over period of time etc.

240

(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;

(b) any other medicine;

(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

(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—

(a) the patient—

(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.

Treatment not mentioned in section 234(2), 237(3) or 240(3)

242

(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—

(i) does not consent; or

(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—

(a) after having regard—

(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;

(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

Urgent medical treatment

243

(1) This section applies where the detention in hospital of a patient is authorised by virtue of—

(a) this Act; or

(b) the 1995 Act.

(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—

(a) does not consent; or

(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;

(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

Scottish Ministers' power to make provision in relation to treatment for certain informal patients

244

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

Certificates under sections 235, 236, 239 and 241

245

(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—

(i) the patient; ...

(ii) the patient’s named person; and

(iii) any guardian of the patient; and

(iv) any welfare attorney of the patient;

(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.

Certificates under section 238

246

(1) A certificate under section 238 of this Act shall contain such particulars as may be prescribed by regulations.

(2) A person who gives a certificate under section 238 of this Act 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.

247

Any—

(a) consent; or

(b) certificate,

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.

Sections 235, 236, 238, 239 and 241: review of treatment etc.

248

(1) Where medical treatment is given to a patient by virtue of section 235, 236,238, 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

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”

Nomination of named person

250

(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 (2A), (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;

(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.

(2A) A nomination under subsection (1) above is valid only if—

(a) a docket to the nomination states that the person nominated has consented to the nomination,

(b) the docket is signed by the nominated person, ...

(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;

(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 ceases to be the nominator’s named person by giving notice to—

(a) the nominator; and

(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.

Named person where no person nominated or nominated person declines to act

251

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Named person in relation to child

252

(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 relevant person 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

(2) Subject to subsection (3) below, where two or more relevant persons 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 therelevant 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); ...

“parental rights”, in relation to a child, has the meaning given by section 2(4) of that Act.; and

“relevant person” means–a local authority; ora person who has attained the age of 16 years.

Declaration in relation to named person

253

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meaning of “nearest relative”

254

(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;or civil partner

(b) a person such as is mentioned in subsection (7) below;

(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 spouseor civil partner—

(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,

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