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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 person who is aged 16 years or over has a mental disorder;

(b) any of the circumstances mentioned in subsection (2) below apply in respect of that person; and

the sheriff may make an order under this section (any such order being referred to in this Act as a “removal order”) in respect of that person.

(2) The circumstances referred to in subsection (1)(b) above are—

(a) that the person is subject, or exposed, to—

(i) ill-treatment;

(ii) neglect; or

(iii) some other deficiency in care or treatment;

(b) that, because of the mental disorder, the person’s property—

(i) is suffering loss or damage; or

(ii) is at risk of suffering loss or damage; and

(i) living alone or without care; and

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

(3) A removal order is an order—

(a) authorising—

(i) the mental health officer specified in the order;

(ii) any other persons so specified; and

(iiia) any constable of the Police Service of Scotland,

before the expiry of the period of 72 hours beginning with the granting of the order, to enter any premises so specified;

(b) authorising any such constable, before the expiry of that period, for the purpose of exercising the power mentioned in paragraph (a) above, to open lockfast places on premises so specified; and

(i) before the expiry of that period, the removal of the person who is the subject of the removal order to a place of safety specified in the order; and

(ii) the detention of that person in that place for such period, not exceeding 7 days, as may be specified in the order.

(4) An application for a removal order shall be made to the sheriff of the sheriffdom in which the premises to which the application relates are situated.

(5) Before determining an application for a removal order, the sheriff shall, subject to subsection (7) below, afford the persons mentioned in subsection (6) below the opportunity—

(a) of making representations (whether orally or in writing); and

(b) of leading, or producing, evidence.

(6) Those persons are—

(a) the person who is the subject of the application; and

(b) such other persons as may be prescribed by regulations.

(7) If the sheriff considers that such delay as would result from compliance with the requirements of subsection (5) above would be likely to be prejudicial to the person who is the subject of the application, the sheriff may dispense with the requirements of that subsection.

(8) In this section “relevant mental health officer” means a mental health officer appointed by the local authority for the area in which the premises to which the application relates are situated.

Removal order: urgent application to justice of the peace

294

Where—

(a) the making of an application to the sheriff for a removal order is impracticable; and

(b) the circumstances are such that any delay in obtaining a removal order is likely to be prejudicial to the person who would be the subject of the application,

the application may be made instead to a justice of the peace for the commission area in which the premises to which the application relates are situated; and subsections (1) to (3) of section 293 of this Act shall apply in relation to an application made by virtue of this section as those subsections apply as respects an application to the sheriff.

Recall or variation of removal order

295

(1) A person who is the subject of a removal order, or any person claiming an interest in the welfare of that person, may apply to the sheriff for an order under this section—

(a) recalling the removal order; or

(b) varying that order by—

(i) specifying a different place of safety;

(ii) authorising, before the expiry of the period mentioned in subsection (2) below, the removal of the person who is the subject of the removal order to that place of safety; and

(iii) authorising the detention of the person who is the subject of the removal order in that place of safety for the remainder of such period as may have been specified, by virtue of section 293(3)(c)(ii) of this Act, in the removal order.

(2) The period referred to in subsection (1)(b)(ii) above is the period of 72 hours beginning with the granting of the order varying the removal order.

(3) An application under section (1) above shall be made to the sheriff of the sheriffdom in which the premises to which the application for a removal order related are situated.

(4) Before determining an application under subsection (1) above, the sheriff shall afford the persons mentioned in subsection (5) below the opportunity—

(a) of making representations (whether orally or in writing); and

(b) of leading, or producing, evidence.

(5) Those persons are—

(a) the person who is the subject of the removal order to which the application relates; and

(b) such persons as may be prescribed by regulations.

(6) Where a sheriff makes an order under this section recalling a removal order, the sheriff may, in addition, make such order as the sheriff thinks fit for the person who was the subject of the removal order—

(a) to be returned to the premises from which that person was, by virtue of the removal order, removed; or

(b) to be taken to some appropriate place chosen by that person.

No appeal against decision under section 293 or 295

296

No appeal shall be competent against—

(a) a decision of a sheriff under—

(i) section 293(1) of this Act making, or refusing to make, a removal order; or

(ii) section 295 of this Act making, or refusing to make, an order recalling or varying a removal order; or

(b) a decision of a justice of the peace under section 293(1) of this Act making, or refusing to make, a removal order.

Removal from public place

297

(1) Where—

(a) a constable reasonably suspects—

(i) that a person (referred to in this section and in section 298 of this Act as a “relevant person”) who is in a public place has a mental disorder; and

(ii) that the relevant person is in immediate need of care or treatment; and

(b) the constable considers that it would be in the interests of the relevant person, or necessary for the protection of any other person, to remove the relevant person to a place of safety,

the constable may remove the relevant person to a place of safety.

(2) A relevant person removed to a place of safety under subsection (1) above may, for the purposes of enabling—

(a) arrangements to be made for a medical practitioner to carry out a medical examination of the relevant person; and

(b) the making of such arrangements as the medical practitioner considers necessary for the relevant person’s care or treatment,

be detained there for a period ending not later than 24 hours after the time at which the relevant person is removed from the public place by the constable.

(3) If a relevant person absconds—

(a) while being removed to a place of safety under subsection (1) above; or

(b) from the place of safety,

a constable may, at any time during the period mentioned in subsection (2) above, take the person into custody and remove the person to a place of safety.

(4) In this section, “public place” means a place to which the public, or any section of the public, has, or is permitted to have, access (whether on payment or otherwise); and includes the common parts of a building containing two or more separate dwellings.

(5) If no place of safety is immediately available, a constable may, under subsection (1) or (3) above, remove a relevant person to a police station; and in any such case, any reference in this section and in section 298 of this Act to a place of safety shall be construed as being a reference to a police station.

Removal under section 297: further provision

298

(1) This section applies where a constable removes a relevant person to a place of safety under section 297 of this Act.

(2) The constable shall—

(a) as soon as reasonably practicable after removing a relevant person to a place of safety, ensure—

(i) that the local authority in whose area the place of safety is situated are informed of the matters mentioned in subsection (3) below; and

(ii) subject to subsection (4) below, that the nearest relative of the relevant person is informed of those matters; and

(b) before the expiry of the period of 14 days beginning with the day on which the person is removed to the place of safety, ensure that the Commission is given notice of those matters.

(3) The matters are—

(a) the name and address of the relevant person;

(b) the date and time at which the relevant person was removed from the public place;

(d) the address of the place of safety;

(e) if the relevant person is removed to a police station, the reason why the relevant person was removed there; and

(f) any other matter prescribed by regulations.

(4) Where—

(a) it is impracticable to ensure that the relevant person’s nearest relative is informed of the matters mentioned in subsection (3) above; or

(b) the nearest relative is so informed but the nearest relative does not reside with the relevant person,

the constable shall, as soon as reasonably practicable after removing the relevant person to the place of safety, ensure that, where reasonably practicable, a person falling within subsection (5) below is informed of those matters.

(5) A person falls within this subsection if—

(a) the person—

(i) resides with the relevant person; or

(ii) provides a care service or, independent health care service to the relevant person; or

(b) the person is an individual who, otherwise than—

(i) by virtue of a contract of employment, or other contract, with any person; or

(ii) as a volunteer for a voluntary organisation,

provides care for the relevant person.

(6) In this section—

“care service” has the meaning given by section47(1) of the Public Services Reform (Scotland) Act 2010 (asp 8);

“independent health care service” means any of the following—an independent hospital;a private psychiatric hospital;an independent clinic; oran independent medical agency,as each of those terms is defined in section 10F(2) of the National Health Service (Scotland) Act 1978 (c.29);.

“nearest relative” has the meaning given by section 254 of this Act; and

“public place” has the meaning given by section 297 of this Act.

Detention pending medical examination

Nurse’s power to detain pending medical examination

299

(1) This section applies where—

(a) by virtue of an order under section 227A(1) of the 1995 Act which includes—

(i) by virtue of subsections (1) and (3)(a) of section 227R of that Act, a requirement that the patient submit to treatment as a resident patient in a hospital; or

(ii) by virtue of subsections (1) and (3)(b) of that section, a requirement that the patient submit to treatment as a non-resident patient at an institution or place specified in the order,

a patient is in hospital and being given medical treatment; or

(b) otherwise than by virtue of—

(i) an order such as is mentioned in paragraph (a) above;

(ii) any other provision of the 1995 Act; or

(iii) this Act,

a patient is in hospital and being given medical treatment.

(2) Where—

(a) a nurse of such class as may be prescribed by regulations considers that it is likely that the conditions mentioned in subsection (3) below are met in respect of the patient; ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the patient may be detained in the hospital for a period not exceeding 3 hours (“holding period”) for the purpose of enabling the carrying out of a medical examination of the patient by a medical practitioner.

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

(a) that the patient has a mental disorder;

(b) that it is necessary for the protection of—

(i) the health, safety or welfare of the patient; or

(ii) the safety of any other person,

that the patient be immediately restrained from leaving the hospital; and

(c) that it is necessary for a medical examination of the patient to be carried out by a medical practitioner for the purpose of determining whether the granting of—

(i) an emergency detention certificate; or

(ii) a short-term detention certificate,

is warranted.

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

(5) Where the patient is detained under subsection (2) above the nurse shall, as soon as practicable after the holding period begins, take all reasonable steps to inform a mental health officer of the detention.

(6) Where the patient is detained under subsection (2) above, the nurse shall, as soon as practicable after the holding period begins, record in writing—

(a) the fact that the patient has been detained;

(b) the time at which the holding period began; and

(c) the nurse’s reasons for believing that it is likely that the conditions mentioned in paragraphs (a) to (c) of subsection (3) are met in respect of the patient.

(7) A record made under subsection (6) above shall, as soon as practicable after it is made, be delivered to the managers of the hospital in which the patient is detained by—

(a) the nurse; or

(b) a person authorised for the purpose by the nurse.

(8) Where the managers of a hospital receive a record by virtue of subsection (7) above, they shall, before the expiry of the period of 14 days beginning with the day on which they receive it, send a copy of it to the Commission.

(9) Any subordinate legislation made under section 25 of the Mental Health (Scotland) Act 1984 (c. 36) (detention of patients already in hospital) shall, if in force immediately before the day on which this section comes into force, have effect on and after that day as if made under this section.

Meaning of “place of safety”

300

In this Part of this Act, “place of safety” means—

(a) a hospital;

(b) premises which are used for the purpose of providing a care home service (as defined in paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8)); or

(c) any other suitable place (other than a police station) the occupier of which is willing temporarily to receive mentally disordered persons.

Part 20 — Absconding

Absconding

Absconding etc. by patients subject to compulsory treatment order

301

(1) A patient who is subject to a compulsory treatment order authorising detention in hospital and who—

(a) absconds from—

(i) any place where the patient is kept pending removal to hospital under the order; or

(ii) the hospital in which, under the order, the patient is being detained; or

(b) while being removed to hospital under the order or transferred under section 124 of this Act, absconds,

is liable to be taken into custody and dealt with in accordance with section 303 of this Act.

(2) A patient who is subject to such an order and in respect of whom—

(a) a certificate under section 127(1) of this Act has effect; and

(b) a condition under subsection (6) of that section requires—

(i) that the patient be kept in the charge of an authorised person or reside continuously or for or at specified times at a specified place; or

(ii) that the patient, on being recalled or on the expiry of a specified period or on or after the occurrence of a specified event, return to the hospital in which the patient was detained under the order or go to such other place as may be specified,

and who absconds from the charge of that authorised person or otherwise fails to comply with the condition is liable to be taken into custody and dealt with in accordance with section 303 of this Act.

(3) A patient who is subject to a compulsory treatment order imposing a requirement that the patient reside at a specified place and who fails to comply with that requirement is liable to be taken into custody and dealt with in accordance with section 303 of this Act.

(4) A patient who is subject to a compulsory treatment order imposing a requirement that the patient obtain the approval of the mental health officer to any proposed change of address and who changes address without having obtained that approval is liable to be taken into custody and dealt with in accordance with section 303 of this Act.

(5) A patient who has been taken into custody under this section and who absconds from that custody remains liable to be taken into custody and dealt with in accordance with section 303 of this Act.

Absconding etc. by other patients

302

(1) Subsection (2) below applies to a patient—

(a) who is subject to—

(i) an interim compulsory treatment order authorising detention;

(ii) a short-term detention certificate; or

(iii) a certificate under section 114(2) or 115(2) of this Act authorising continued detention;

(b) who is being detained in pursuance of an extension certificate or under the power conferred by section 68 of this Act;

(d) who is being detained in hospital under the power conferred by section 113(5) or 299 of this Act.

(2) A patient to whom this subsection applies and who absconds from—

(a) any place where the patient is kept pending removal to hospital under the order or certificate; or

(b) the hospital in which, under the order, certificate or, as the case may be, power, the patient is detained,

is liable to be taken into custody and dealt with in accordance with section 303 of this Act.

(3) A patient who is subject to an interim compulsory treatment order imposing a requirement that the patient reside continuously or for or at specified times at a specified place and who fails to comply with that requirement is liable to be taken into custody and dealt with in accordance with section 303 of this Act.

(4) A patient who is subject to an interim compulsory treatment order authorising detention and in respect of whom—

(a) a certificate under section 127(3) of this Act has effect; and

(b) a condition under subsection (6) of that section requires—

(i) that the patient be kept in the charge of an authorised person or reside continuously or for or at specified times at a specified place; or

(ii) that the patient, on being recalled or on the expiry of a specified period or on or after the occurrence of a specified event, return to the hospital in which the patient was detained under the order or go to such other place as may be specified,

and who absconds from the charge of that authorised person or otherwise fails to comply with any such condition is liable to be taken into custody and dealt with in accordance with section 303 of this Act.

(5) A patient who is subject to a short-term detention certificate in respect of whom—

(a) a certificate under section 53(1) of this Act has effect; and

(b) a condition under subsection (4) of that section requires—

(i) that the patient be kept in the charge of an authorised person or reside continuously or for or at specified times at a specified place; or

(ii) that the patient, on being recalled or on the expiry of a specified period or on or after the occurrence of a specified event, return to the hospital in which the patient was detained under the certificate or go to such other place as may be specified,

(6) A patient who is subject to an emergency detention certificate in respect of whom—

(a) a certificate under section 41(1) of this Act has effect; and

(b) a condition under subsection (4) of that section requires—

(i) that the patient be kept in the charge of an authorised person or reside continuously or for or at specified times at a specified place; or

(ii) that the patient, on being recalled or on the expiry of a specified period or on or after the occurrence of a specified event, return to the hospital in which the patient was detained under the certificate or go to such other place as may be specified,

Taking into custody and return of absconding patients

303

(1) A person specified in subsection (3)(a) below may, during the period specified in subsection (4) below—

(a) take into custody any patient who, under sections 301 or 302 of this Act, is liable to be taken into custody;

(b) return the patient to the hospital in which the patient was detained or, as the case may be, take the patient to the hospital in which the patient was to be detained or, if that is not appropriate or practicable, take the patient to any other place considered appropriate by the patient’s responsible medical officer;

(c) return or take the patient to such other place as the patient absconded from or at which the patient failed to reside or, if that is not appropriate or practicable, take the patient to any other place considered appropriate by the patient’s responsible medical officer.

(2) The person specified in subsection (3)(b) below may, during the period specified in subsection (4) below—

(a) take into custody any patient in respect of whom a certificate under section 41(1), 53(1) or 127(1) of this Act has effect and a condition under section 41(4), 53(4) or, as the case may be, 127(6) of this Act requires that the patient be kept in charge of that person and who, under section 301 or 302 of this Act is liable to be taken into custody; and

(b) resume the charge of the patient or, if that is not appropriate or practicable, take the patient to any place considered appropriate by the patient’s responsible medical officer.

(3) The—

(a) persons referred to in subsection (1) above are—

(i) a mental health officer;

(ii) a constable;

(iii) a member of staff of any hospital and, where the patient liable to be taken into custody is subject to a compulsory treatment order or an interim compulsory treatment order a condition of which requires the patient to reside in an establishment the address of which is specified in the order, a member of staff of that establishment; and

(iv) any other person authorised for the purposes of that subsection by the patient’s responsible medical officer;

(b) person referred to in subsection (2) above is the person who is authorised under section 41(4), 53(4) or, as the case may be, 127(6) of this Act to have charge of the patient.

(4) The period referred to in subsection (1) above is—

(a) in the case of a patient who is subject to a compulsory treatment order, the period of 3 months beginning with the day—

(i) when the patient absconded; or

(ii) when the patient’s conduct or failure first gave rise to liability to be taken into custody;

(b) in any other case, the period ending with the expiry of the order, certificate, report or, as the case may be, provision under or in pursuance of which the patient was to be detained.

(5) The expiry, during the period referred to in subsection (1) above, of the authorised period in relation to the compulsory treatment order to which a patient is subject does not affect the powers conferred by this section.

(6) The powers conferred by subsections (1) and (2) above include power to use reasonable force in their exercise.

(7) A patient who is, under section 301 or 302 of this Act, liable to be taken into custody ceases to be so liable—

(a) on returning to the hospital or other place from which the patient absconded or arriving at the hospital in which the patient was to be detained;

(b) on being returned or taken either there or to such other place as is considered appropriate by the patient’s responsible medical officer under subsection (1)(b) or (c) or (2)(b) above; or

Effect of unauthorised absence

304

(1) References in this section and sections 305 to 308 of this Act to a patient’s unauthorised absence are references to a patient’s being liable, under section 301 of this Act, to be taken into custody and dealt with under section 303 of this Act.

(2) Subject to sections 305 to 308 of this Act, a patient’s unauthorised absence does not affect the continuity or measurement of any period of time fixed by, under or relative to any provision of this Act or requirement imposed by virtue of it, of which that absence is a breach.

(3) Where, in the case of a patient who is subject to a compulsory treatment order, the patient’s unauthorised absence has continued for a period of 3 months, the order shall then cease to have effect.

Effect of long unauthorised absence ending more than 14 days before expiry of compulsory treatment order

305

(1) Where the unauthorised absence of a patient who is subject to a compulsory treatment order—

(a) lasted longer than 28 consecutive days; and

(b) ceased before the beginning of the period of 14 days ending with the day when the compulsory treatment would, apart from this subsection, cease to authorise the measures specified in it,

the order shall cease to have effect at the expiry of the period of 14 days beginning with the day when the patient’s unauthorised absence ceased.

(2) The patient’s responsible medical officer shall, during the period of 14 days secondly referred to in subsection (1) above, carry out a review in respect of the compulsory treatment order to which the patient is subject by complying with the requirements set out in section 77(3) of this Act.

(3) Where any part of the period of 14 days referred to in subsection (2) above occurs within the period of 2 months mentioned in subsection (5) of section 77 or subsection (3) of section 78 of this Act, the review which would (apart from this subsection) have been carried out during that period of 2 months under that section shall not be carried out.

(4) The other review provisions (that is to say, section 83(2) and (3) and the subsequent provisions of Chapter 4 of Part 7 of this Act) shall, in accordance with subsections (5) and (6) below, apply in respect and in consequence of a review under this section as they apply in respect and in consequence of the reviews for which that Chapter provides.

(5) Where the compulsory treatment order to which the patient is subject has not been extended as mentioned in section 78(1) of this Act, those of the other review provisions which relate to a first review apply.

(6) Where that order has been so extended, those of the other review provisions which relate to a further review apply.

Effect of unauthorised absence ending simultaneously with or within 14 days before expiry of compulsory treatment order

306

(1) Where the unauthorised absence of a patient who is subject to a compulsory treatment order—

(a) ceases on the day that the order to which the patient is subject would, apart from this subsection, cease to authorise the measures specified in it; or

(b) ceased within a period of 14 days ending with that day,

the order shall be treated as having continued in effect and, subject to subsection (4) below, as continuing in effect until the end of the period of 14 days beginning with the day on which the patient’s unauthorised absence ceased.

(2) The patient’s responsible medical officer shall, during the period of 14 days secondly referred to in subsection (1) above, carry out a review in respect of the compulsory treatment order to which the patient is subject by complying with the requirements set out in section 77(3) of this Act.

(3) Where any part of the period of 14 days referred to in subsection (2) above occurs within the period of 2 months mentioned in subsection (5) of section 77 or subsection (3) of section 78 of this Act, the review which would (apart from this subsection) have been carried out during that period of 2 months under that section shall not be carried out.

(4) Subsections (4) to (6) of section 305 of this Act apply for the purposes of a review under subsection (2) above as they apply for the purposes of a review under subsection (2) of that section.

(5) Where—

(a) the compulsory treatment order to which a patient is subject is, under this section, treated as continuing in effect; and

(b) the patient’s unauthorised absence—

(i) began at a time when a review of the order was being carried out under section 77 or 78 of this Act; and

(ii) lasted for 28 consecutive days or any shorter period,

then anything done by the patient’s responsible medical officer for the purposes of that review which (apart from this subsection) would fall to be done for the purposes of a review under this section need not, for those latter purposes, be done.

Effect of unauthorised absence ending after expiry of compulsory treatment order

307

(1) Where the unauthorised absence of a patient who is subject to a compulsory treatment order ceases—

(a) within a period of 3 months beginning with the day on which it began; and

(b) after the day when the compulsory treatment order to which the patient was subject would, but for this subsection, have ceased to authorise the measures specified in it,

the order shall be treated as having continued in effect and, subject to subsection (3) below, as continuing in effect until the end of the period of 14 days beginning with the day on which the patient’s unauthorised absence ceased.

(2) The patient’s responsible medical officer shall, during the period of 14 days referred to in subsection (1) above, carry out a review of the compulsory treatment order to which the patient is subject by complying with the requirements set out in section 77(3) of this Act.

(3) Subsections (4) to (6) of section 305 of this Act apply for the purposes of a review under subsection (2) above as they apply for the purposes of a review under subsection (2) of that section.

(4) Where—

(a) the compulsory treatment order to which a patient is subject is, under this section, treated as continuing in effect; and

(b) the patient’s unauthorised absence—

(i) began at a time when a review of the order was being carried out under section 77 or 78 of this Act; and

(ii) lasted for 28 consecutive days or any shorter period,

Effect of unauthorised absence of patient subject to short-term detention certificate or certificate under section 114(2) or 115(2)

308

Where the unauthorised absence of a patient who is subject to a short-term detention certificate or a certificate under section 114(2) or 115(2) of this Act authorising continued detention ceases within the period of 13 days ending with the day on which the certificate would, but for this section, have ceased to authorise the measures specified in it, the certificate shall continue to authorise those measures until the end of the period of 14 days beginning with the day when the patient’s unauthorised absence ceased.

Patients from other jurisdictions

309

(1) Regulations may make provision applying sections 301 to 303 of this Act to

(a) persons in Scotland who are subject to corresponding requirements or corresponding measures in England, Wales, Northern Ireland, the Isle of Man or the Channel Islands.

(b) persons in Scotland who are subject to corresponding requirements or corresponding measures in a member State of the European Union (apart from the United Kingdom).

(2) Regulations under subsection (1) above may make such modifications of those sections in that application as the Scottish Ministers think fit.

(2ZA) Regulations may make provision applying specific provisions in Part 16 of this Act to persons to whom sections 301 to 303 of this Act apply by virtue of subsection (1) above.

(2ZB) Regulations under subsection (2ZA) above may make such modifications of that Part in that application as the Scottish Ministers think fit.

(2ZC) But regulations under subsection (2ZA) above may not—

(a) apply any of that Part to persons who are subject to requirements or measures corresponding only to detention in hospital in accordance with an emergency detention certificate, or

(b) authorise medical treatment of the types mentioned in section 234(2) or 237(3) of this Act.

(2A) The reference in subsection (1) above to persons subject to corresponding requirements shall be construed in accordance with section 289(4) of this Act.

(3) The reference in subsection (1) above to persons subject to corresponding measures shall be construed in accordance with section 290(8) of this Act.

Absconding by certain other patients

Regulations as to absconding by other patients

310

(1) Regulations may provide as to—

(a) the circumstances in which patients—

(i) who are subject to any of the orders or directions mentioned in subsection (3) below; and

(ii) who abscond or fail to comply with requirements imposed on them by virtue of the orders or directions to which they are subject or otherwise by virtue of this Act or the 1995 Act,

are to be liable to be taken into custody by specified persons;

(b) the steps which may be taken by those persons upon their taking those patients into custody; and

(c) the effect (whether upon the orders or directions to which those patients are subject or otherwise) of such absconding or failure.

(2) Regulations under subsection (1) above may include provision—

(a) requiring patients' responsible medical officers to notify—

(i) specified courts;

(ai) specified prosecutors;

(ii) the Commission;

(iii) the Scottish Ministers,

of such absconding or failure;

(b) authorising the use of reasonable force in the exercise of the powers conferred by virtue of subsection (1) above to take patients into custody and to take the steps referred to in that subsection;

(i) the review of those orders and directions; and

(ii) the authorisation of measures additional to or different from those authorised by them,

in consequence of such absconding or failure;

(d) corresponding to section 309 of this Act and any regulations which may be made under that section.

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

(a) assessment orders;

(b) treatment orders;

(d) interim compulsion orders; and

(e) compulsion orders,

and the directions there referred to are hospital directions and transfer for treatment directions.

(3A) In making provision as described in paragraphs (a) and (b) of subsection (1) above, regulations under that subsection may specify persons who are authorised by patients' responsible medical officers.

(4) In this section, “specified” means specified in the regulations.

Part 21 — Offences

Non-consensual sexual acts

311

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

Offences under section 311: extended sentences

312

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

Persons providing care services: sexual offences

313

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

Notification requirements for offenders under sections 311 and 313

314

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

Ill-treatment and wilful neglect of mentally disordered person

315

(1) This section applies to a person (a “relevant person”) who—

(a) is an individual employed in, or contracted to provide services in or to, a hospital;

(b) not being the Scottish Ministers, is a manager of a hospital;

(d) is an individual who, otherwise than—

(i) by virtue of a contract of employment or other contract with any person; or

(ii) as a volunteer for a voluntary organisation,

provides care or treatment.

(2) A relevant person who—

(a) whether under this Act or otherwise—

(i) is providing care or treatment; or

(ii) purports to provide care or treatment,

to a patient; and

(b) ill-treats, or wilfully neglects, that patient,

shall be guilty of an offence.

(3) A person guilty of an offence under subsection (2) above shall be liable—

(a) on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both;

(b) on conviction on indictment to imprisonment for a term not exceeding 5 years or to a fine or to both.

(4) In subsection 1(c), “provides care services” means anything done—

(a) by a care service,

(b) by an employee of a care service, or

whether by virtue of a contract of employment or any other contract or in circumstances as may be prescribed by regulations.

(5) For the purposes of subsection (4), “care service” means a service mentioned in section 47(1)(a), (b), (d), (f), (g), (j) or (m) of the Public Services Reform (Scotland) Act 2010.

Inducing and assisting absconding etc.

316

(1) A person who knowingly—

(a) induces or assists a patient to do or fail to do anything which results in the patient’s being liable under section 301 or 302 of this Act to be taken into custody and dealt with under section 303 of this Act; or

(b) harbours a patient who has, with that result, done or failed to do anything ; or

(c) “induces or assists a patient to abscond or to attempt to abscond or harbours a patient who absconds while that patient is being removed or transferred under regulations made under section 289 or 290 of this Act.

shall be guilty of an offence.

(2) Where a person is charged with an offence under subsection (1)(b) above, it shall be a defence for such person to prove that the doing of that with which the person is charged—

(a) did not obstruct the discharge by any person of a function conferred or imposed on that person by virtue of this Act; and

(b) was intended to protect the interests of the patient.

(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or both.

(4) The reference in subsection (1) above to sections 301 to 303 of this Act includes a reference to those sections as applied or as applied and modified under section 309 of this Act and to any regulations made under section 310 of this Act which make provision corresponding to sections 301 to 303 of this Act.

Obstruction

317

(1) A person who—

(a) refuses to allow a person authorised by virtue of this Act access to any premises;

(b) refuses to allow access to a mentally disordered person by a person authorised by virtue of this Act to have such access;

(c) refuses to allow the interview or examination of a mentally disordered person by a person authorised by virtue of this Act to interview or examine such person;

(d) persists in being present when requested to withdraw by a person authorised by virtue of this Act to interview or examine, in private, a mentally disordered person;

(e) refuses to produce any document or record to a person authorised by virtue of this Act to require the production of such document or record; or

(f) otherwise obstructs a person in the exercise of any functions conferred on such person by virtue of this Act,

shall be guilty of an offence.

(2) A mentally disordered person shall not be guilty of an offence under subsection (1) above if the person mentioned in that subsection—

(a) who is authorised by virtue of this Act, is so authorised; or

(b) who is exercising functions conferred on that person by virtue of this Act, is exercising those functions,

in relation to that mentally disordered person.

(3) In any proceedings against a person for an offence under subsection (1) above it shall be a defence for the accused to show that the accused had a reasonable excuse for doing that with which the accused is charged.

(4) A person guilty of an offence under subsection (1) above shall be liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 3 on the standard scale or to both.

False statements

318

(1) A person who—

(a) knowingly makes, in a relevant document, an entry or statement which is false in a material particular; or

(b) with intent to deceive, makes use of any such entry or statement knowing it to be false,

shall be guilty of an offence.

(2) For the purposes of subsection (1) above, a “relevant document”—

(a) is—

(i) an application under this Act;

(ii) a document accompanying any such application; or

(iii) any other document required or authorised to be granted, prepared, sent or given for any of the purposes of this Act; but

(b) does not include—

(i) a nomination of a named person in accordance with section 250(2) of this Act;

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) an advance statement.

(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

Time limit for summary proceedings for offences under sections 311 and 313

319

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

Part 22 — Appeals

Appeal to sheriff principal against certain decisions of the Tribunal

320

(1) This section applies to the following decisions of the Tribunal—

(a) a decision under section 50(4) of this Act refusing an application for revocation of a short-term detention certificate;

(b) a decision under section 64(4)(a) or (b) of this Act making or refusing to make a compulsory treatment order;

(d) a decision to make an order under section 102(1)(c) or (d) of this Act confirming the determination of a patient’s responsible medical officer extending a compulsory treatment order;

(e) a decision to make an order under section 103(1)(a) or (b) of this Act on an application by the patient’s responsible medical officer for an order extending and varying a compulsory treatment order;

(f) a decision to make an order under section 103(2)(c) or (d) of this Act on an application for revocation of the determination of a patient’s responsible medical officer extending a compulsory treatment order;

(g) a decision to make an order under section 103(3)(b) or (c) of this Act on an application under section 100(2)(a) of this Act to revoke a compulsory treatment order;

(h) a decision to make an order under section 103(4)(a) of this Act on an application by a patient’s responsible medical officer to vary a compulsory treatment order;

(i) a decision to make an order under section 103(4)(b) of this Act refusing an application under section 100(2)(b) of this Act to vary a compulsory treatment order;

(j) a decision to make an order under section 104(1)(a) of this Act varying a compulsory treatment order;

(k) a decision not to revoke under section 120(2) of this Act a certificate granted under section 114(2) or 115(2) of this Act;

(l) a decision to make or refuse to make an order under section 125(5) or 126(5) of this Act preventing a transfer or requiring that a transferred patient be returned;

(m) a decision to make an order under section 166(1)(c) or (d) of this Act confirming the determination of a patient’s responsible medical officer extending a compulsion order;

(n) a decision to make an order under section 167(1)(a) of this Act on an application by the patient’s responsible medical officer for an order extending a compulsion order;

(o) a decision to make an order under section 167(2)(a) or (b) of this Act on an application by the patient’s responsible medical officer for an order extending and varying a compulsion order;

(p) a decision to make an order under section 167(3)(c) or (d) of this Act on an application for revocation of the determination of a patient’s responsible medical officer extending a compulsion order;

(q) a decision to make an order under section 167(4)(b) or (c) of this Act on an application under section 164(2)(a) of this Act;

(r) a decision to make an order under section 167(5)(a) of this Act on an application by a patient’s responsible medical officer to vary a compulsion order;

(s) a decision to make an order under section 167(5)(b) of this Act refusing an application under section 164(2)(b) of this Act to vary a compulsion order;

(t) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(u) a decision to make or refuse to make an order under section 257(2) of this Act declaring an acting named person not to be a named person or appointing a person to be a patient’s named person in place of an acting named person;

(v) a decision to make an order under section 257(3) of this Act;

(w) a decision, in relation to a patient who is not subject to a restriction order, a hospital direction or a transfer for treatment direction—

(i) to make or refuse to make an order under section 264(2), 265(3) or 266(3) of this Act;

(ii) under section 267(2) of this Act to recall or refuse to recall an order made under section 264, 265 or 266 of this Act;

(iii) to make or refuse to make an order under section 268(2), 269(3) or 270(3) of this Act;

(iv) under section 271(2) of this Act to recall or refuse to recall an order made under section 268, 269 or 270 of this Act; and

(x) a decision granting or refusing an application for an order requiring the managers of the hospital to cease to detain a patient under section 291 of this Act.

(2) A relevant party to proceedings before the Tribunal may appeal to the sheriff principal against a decision to which this section applies.

(3) An appeal to the sheriff principal under subsection (2) above shall be to the sheriff principal—

(a) of the sheriffdom in which the person to whom the decision relates is resident at the time when the appeal is lodged;

(b) where the person to whom the decision relates is detained in a hospital at the time when the appeal is lodged, of the sheriffdom in which the hospital is situated; or

(4) If the sheriff principal to whom an appeal is made considers that the appeal raises an important or difficult question of law that makes it appropriate to remit the appeal to the Court of Session the sheriff principal may—

(a) ex proprio motu; or

(b) on the motion of any party to the appeal,

do so.

(5) Subject to subsections (6) to (9) below, in this section “relevant party” means—

(a) the person to whom the decision relates;

(b) that person’s named person;

(d) any welfare attorney of the person;

(e) the mental health officer; and

(f) that person’s responsible medical officer.

(6) Where the person to whom the decision relates is a person to whom subsection (7) below applies, “relevant party” means—

(a) the person to whom the decision relates;

(b) that person’s named person;

(d) any welfare attorney of the person; and

(e) the Scottish Ministers.

(7) This subsection applies to a patient who is subject to—

(a) a compulsion order and a restriction order;

(b) a hospital direction; or

(8) Where the appeal is against a decision mentioned in paragraph (w) of subsection (1) above, “relevant party” means—

(a) the person to whom the decision relates;

(b) that person’s named person;

(d) any welfare attorney of the person;

(e) the Commission; and

(f) the relevant Health Board (within the meaning of section 273 of this Act).

(9) Where the appeal is against a decision mentioned in paragraph (x) of subsection (1) above, “relevant party” means—

(a) the person to whom the decision relates;

(b) that person’s named person;

(d) any welfare attorney of the person;

(e) the managers of the hospital; and

(f) if the person who applied for the order does not fall within paragraphs (a) to (d) above, the person who applied for the order.

Appeal to Court of Session against decisions of sheriff principal

321

(1) A relevant party to an appeal to the sheriff principal under section 320(2) of this Act may appeal to the Court of Session against the decision of the sheriff principal allowing or refusing the appeal.

(2) In subsection (1) above, “relevant party” has the same meaning as in section 320 of this Act.

Appeal to Court of Session against certain decisions of the Tribunal

322

(1) This section applies to the following decisions of the Tribunal—

(a) a decision to make an order revoking a compulsion order under section 193(3) or (4) of this Act;

(b) a decision to make an order revoking a restriction order under section 193(5) of this Act;

(d) a decision to make an order conditionally discharging a patient under section 193(7) of this Act;

(e) a decision, under section 193 of this Act, to make no order under that section;

(f) a decision, under section 215(2) of this Act, to make no direction;

(g) a decision to make a direction under section 215(3) or (4) of this Act;

(h) a decision to make or refuse to make an order under section 219(5) or 220(5) of this Act preventing a transfer or requiring that a transferred patient be returned; and

(i) a decision, in relation to a patient who is subject to a restriction order, a hospital direction or a transfer for treatment direction—

(i) to make or refuse to make an order under section 264(2), 265(3) or 266(3) of this Act;

(ii) under section 267(2) of this Act to recall or refuse to recall an order made under section 264, 265 or 266 of this Act;

(iii) to make or refuse to make an order under section 268(2), 269(3) or 270(3) of this Act; or

(iv) under section 271(2) of this Act to recall or refuse to recall an order made under section 268, 269 or 270 of this Act.

(2) A relevant party to proceedings before the Tribunal may appeal to the Court of Session against a decision to which this section applies.

(3) Subject to subsection (4) below, in this section “relevant party” means—

(a) the person to whom the decision relates;

(b) that person’s named person;

(d) any welfare attorney of the person; and

(e) the Scottish Ministers.

(4) Where the appeal is against a decision mentioned in paragraph (i) of subsection (1) above, “relevant party” means—

(a) the person to whom the decision relates;

(b) that person’s named person;

(d) any welfare attorney of the person;

(e) the Commission;

(f) the relevant Health Board (within the meaning of section 273 of this Act); and

(g) the Scottish Ministers.

Suspension of decision of Tribunal pending determination of certain appeals

323

(1) Where the Scottish Ministers appeal under section 322(2) of this Act against any decision of the Tribunal under section 193 of this Act, or a decision of the Tribunal to make a direction under section 215(3) or (4) of this Act, the Court of Session may, on the motion of the Scottish Ministers, order—

(a) that the patient in respect of whom the Tribunal’s decision was made shall continue, subject to subsection (2) below, to be detained; and

(b) that both the compulsion order and restriction order or, as the case may be, the hospital direction or transfer for treatment direction to which the patient is subject shall continue to have effect accordingly.

(2) An order under subsection (1) above has the effect of continuing the patient’s detention—

(a) in a case where no appeal is made to the Supreme Court against the decision of the Court of Session under section 322(2) of this Act, until the expiry of the time allowed to so appeal to the Supreme Court; or

(b) in a case where such an appeal is made, until it is abandoned or finally determined.

Appeals: general provisions

324

(1) An appeal—

(a) to the sheriff principal under section 320(2) of this Act; or

(b) to the Court of Session under section 322(2) of this Act,

may be made only on one or more of the grounds mentioned in subsection (2) below.

(2) The grounds referred to in subsection (1) above are—

(a) that the Tribunal’s decision was based on an error of law;

(b) that there has been a procedural impropriety in the conduct of any hearing by the Tribunal on the application;

(d) that the Tribunal’s decision was not supported by the facts found to be established by the Tribunal.

(3) The Tribunal may be a party to an appeal under section 320(2) or 322(2) and in any appeal from the decision of the sheriff principal under section 321(1).

(4) The court may, where it considers it appropriate, order the Tribunal to be represented at any hearing of an appeal under section 320(2), 321(1) or 322(2).

(5) In allowing an appeal under section 320(2), 321(1) or 322(2) of this Act the court—

(a) shall set aside the decision of the Tribunal; and

(b) shall—

(i) if it considers that it can properly do so on the facts found to be established by the Tribunal, substitute its own decision; or

(ii) remit the case to the Tribunal for consideration anew.

(6) If the court remits a case under paragraph (b)(ii) of subsection (5) above, the court may—

(a) direct that the Tribunal be differently constituted from when it made the decision; and

(b) issue such other directions to the Tribunal about the consideration of the case as it considers appropriate.

(7) Regulations may specify the period within which an appeal under section 320(2), 321(1) or 322(2) of this Act shall be made.

(8) In this section, “the court” means the sheriff principal or the Court of Session as the case may be.

Part 23 — General

Power to prescribe forms

325

Regulations may prescribe—

(a) the form of any document that is required or authorised to be prepared by virtue of this Act; and

(b) circumstances in which a form prescribed under paragraph (a) above for a document shall, or may, be used for the document.

Orders, regulations and rules

326

(1) Any power conferred by this Act on the Scottish Ministers to make orders, regulations or rules shall be exercisable by statutory instrument.

(2) Any power conferred by this Act on the Scottish Ministers to make orders, regulations or rules—

(a) may be exercised so as to make different provision for different cases or descriptions of case or for different purposes; and

(b) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Scottish Ministers consider appropriate.

(3) A statutory instrument containing an order, regulations or rules made under this Act (other than an order under section 333(2) or (3) of this Act) shall, subject to subsection (4) below, be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(4) A statutory instrument containing—

(a) an order under section 240(5) or paragraph 2A(2) or 7A(4) of schedule 1 to this Act;

(b) an order under section 330(1) of this Act containing provisions adding to, replacing or omitting any part of the text of an Act; or

(c) regulations under section 19(1), 21(3), 66(2), 234(2)(b), 237(3)(b), 240(3)(d), ... 244, 271A, 281(9), 284, 286,289, 290, 309,309A, or 310 of this Act,

shall not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

Directions

327

(1) Any power conferred by virtue of this Act to give a direction shall include power to vary or revoke the direction.

(2) Any direction given by virtue of this Act shall be in writing.

Meaning of “mental disorder”

328

(1) Subject to subsection (2) below, in this Act “mental disorder” means any—

(a) mental illness;

(b) personality disorder; or

however caused or manifested; and cognate expressions shall be construed accordingly.

(2) A person is not mentally disordered by reason only of any of the following—

(a) sexual orientation;

(b) sexual deviancy;

(d) transvestism;

(e) dependence on, or use of, alcohol or drugs;

(f) behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person;

(g) acting as no prudent person would act.

Interpretation

329

(1) In this Act, unless the context otherwise requires—

“the 1995 Act” means the Criminal Procedure (Scotland) Act 1995 (c. 46);

“advance statement” has the meaning given by section 275 of this Act;

“approved medical practitioner” has the meaning given by section 22(4) of this Act;

“assessment order” means an order made under section 52D(2) of the 1995 Act;

“care home service” has the meaning given by paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 asp 8;

“care plan”, in relation to a patient, means a plan prepared under subsection (1)(a) of section 76 of this Act; and includes a reference to a care plan amended by virtue of subsection (3) or (4)(a) of that section;

“carer”, in relation to a person, means an individual who, otherwise than—by virtue of a contract of employment or other contract with any person; oras a volunteer for a voluntary organisation,provides, on a regular basis, a substantial amount of care for, and support to, the person; and includes, in the case where the person is in hospital, an individual who, before the person was admitted to hospital, provided, on a regular basis, a substantial amount of care for, and support to, the person;

“the Commission” means the Mental Welfare Commission for Scotland;

“community care services” has the meaning given by section 12A(8) of the Social Work (Scotland) Act 1968 (c. 49);

“compulsion order” means an order under section 57(2)(a) or 57A(2) of the 1995 Act;

“compulsory treatment order” means an order made under section 64(4)(a) of this Act;

“designated medical practitioner” has the meaning given by section 233(2) of this Act;

“emergency detention certificate” means a certificate granted under section 36(1) of this Act;

“extension certificate” means a certificate granted under section 47(1) of this Act;

“guardian” means a person appointed as a guardian under the Adults with Incapacity (Scotland) Act 2000 (asp 4) who has power by virtue of section 64(1)(a) or (b) of that Act in relation to the personal welfare of a person;

“Health Board” means a board constituted by order under section 2(1)(a) of the National Health Service (Scotland) Act 1978 (c. 29);

“hospital” means—any health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978 (c. 29));any independent health care service; orany state hospital;

“hospital direction” means a direction made under section 59A of the 1995 Act;

“independent health care service” means any of the following— an independent hospital;a private psychiatric hospital;an independent clinic; oran independent medical agency,as each of those terms is defined in section10F(2) of the National Health Service (Scotland) Act 1978 (c.29);

“interim compulsory treatment order” means an order made under section 65(2) of this Act;

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);

“managers”, in relation to a hospital, means—in the case of a hospital vested in the Scottish Ministers for the purposes of their functions under the National Health Service (Scotland) Act 1978 (c. 29), the Health Board or Special Health Board responsible for the administration of the hospital;in the case of a hospital vested in a National Health Service trust, the directors of the trust;in the case of an independent health care service which is registered under section 10Q(1) of the National Health Service (Scotland) Act 1978 (c.29), the person identified under section10P(2)(b) of that Act in the application for registration; andin the case of a state hospital—where the Scottish Ministers have delegated the management of the hospital to a Health Board, Special Health Board, National Health Service trust or the Common Services Agency for the Scottish Health Service, that Board, trust or Agency;where the management of the hospital has not been so delegated, the Scottish Ministers;

“medical practitioner” means registered medical practitioner;

“medical records” has the meaning given by section 77(1) of the Regulation of Care (Scotland) Act 2001 (asp 8);

“medical treatment” means treatment for mental disorder; and for this purpose “treatment” includes—nursing;care;psychological intervention;habilitation (including education, and training in work, social and independent living skills); andrehabilitation (read in accordance with paragraph (d) above);

“mental health officer” means a person appointed (or deemed to be appointed) under section 32(1) of this Act, and “the mental health officer”, in relation to a patient, means a mental health officer having responsibility for the patient’s case;

“mental health report” has the meaning given by section 57(4) of this Act;

“named person” means the person (if any) who is, in relation to another person, that other person’s named person by virtue of any of sections 250 to 254 and 257 of this Act;

“National Health Service trust” means a body established by order under section 12A(1) of the National Health Service (Scotland) Act 1978 (c. 29);

“notice” means notice in writing;

“patient” means a person who has, or appears to have, a mental disorder;

“primary”, in relation to a carer, means the individual who provides all, or most, of the care for, and support for, the person;

“prison” includes any prison other than a naval, military or air force prison;

“recorded matter” has the meaning given by section 64(4)(a)(ii) of this Act;

“regulations” means regulations made by the Scottish Ministers;

“relevant services” has the meaning given by section 20(2) of the Children (Scotland) Act 1995 (c. 36);

“restriction order” means an order made under section 59 of the 1995 Act;

“short-term detention certificate” means a certificate granted under section 44(1) of this Act;

“Special Health Board” means a board constituted by order under section 2(1)(b) of the National Health Service (Scotland) Act 1978 (c. 29);

“state hospital” means a hospital provided under section 102(1) of the National Health Service (Scotland) Act 1978 (c. 29);

“temporary compulsion order” means an order made under section 54(1)(c) of the 1995 Act;

“transfer for treatment direction” has the meaning given by section 136 of this Act;

“treatment order” means an order made under section 52M of the 1995 Act;

“the Tribunal” means the Mental Health Tribunal for Scotland;

“victim's representations” means representations made under section 17B of the Criminal Justice (Scotland) Act 2003 in relation to the matter being considered;

“voluntary organisation” means a body, other than a public or local authority, the activities of which are not carried on for profit;

“welfare attorney” means an individual authorised, by a welfare power of attorney granted under section 16 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) and registered under section 19 of that Act, to act as such; and

“young offenders institution” has the same meaning as in the Prisons (Scotland) Act 1989 (c. 45).

(2) In this Act, unless the context otherwise requires, a reference to the Tribunal is, where the power conferred by paragraph 7(1) of schedule 2 is exercised, to be construed as a reference to the tribunal concerned.

(3) References in this Act to the giving of medical treatment to a person include references to medical treatment being performed on a person.

(4) References in this Act to a patient’s responsible medical officer are references to the approved medical practitioner who is for the time being–

(a) appointed under section 230(1) or (3)(a) of this Act; or

(b) authorised under section 230(3)(b) of this Act,

in respect of the patient.

Supplementary provisions etc.

330

(1) The Scottish Ministers may by order make such supplementary, incidental or consequential provision as they consider appropriate for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.

(2) An order under subsection (1) above may modify any enactment (including this Act).

Minor and consequential amendments, repeals and revocations

331

(1) Schedule 4 to this Act, which contains minor amendments and amendments consequential on the provisions of this Act, shall have effect.

(2) The enactments mentioned in Part 1 of schedule 5 to this Act (which include provisions that are spent) are hereby repealed to the extent specified in the second column of that schedule.

(3) The enactments mentioned in Part 2 of schedule 5 to this Act (which include provisions that are spent) are hereby revoked to the extent specified in the second column of that schedule.

(4) Notwithstanding the repeal in respect of sections 1, 125, 128 and 129 of the Mental Health (Scotland) Act 1984 (c. 36) in schedule 5 to this Act, those sections shall continue to have effect for the purposes of sections 10 and 95 of that Act.

Transitional provisions etc.

332

(1) Schedule 6 to this Act (which contains certain transitory amendments of the Mental Health (Scotland) Act 1984) shall have effect.

(2) The Scottish Ministers may by order make such other provision as they consider necessary or expedient for transitory, transitional or saving purposes in connection with the coming into force of any provision of this Act.

Short title and commencement

333

(1) This Act may be cited as the Mental Health (Care and Treatment) (Scotland) Act 2003.

(2) Chapter 3 of Part 17 of this Act shall come into force on 1st May 2006 or such earlier day as the Scottish Ministers may by order appoint.

(3) The remaining provisions of this Act, other than this section and sections 325, 326, 330 and 332, shall come into force on such day as the Scottish Ministers may by order appoint.

(4) Different days may be appointed under subsection (2) or (3) above for different purposes.

SCHEDULE 1

Part 1 — Membership, proceedings etc.

Status

1

The Commission shall not be regarded as the servant or agent of the Crown, or as having any status, immunity or privilege of the Crown, nor shall its members or employees be regarded as civil servants, nor its property as property of, or held on behalf of, the Crown.

General powers

2

The Commission may do anything which appears to it to be necessary or expedient for the purposes of, or in connection with, the exercise of its functions; and without prejudice to that generality the Commission may in particular—

(a) acquire and dispose of land and other property; and

(b) enter into contracts.

Membership

3

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

Terms of office etc.

4

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

Eligibility for reappointment

5

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

Remuneration, pensions, allowances etc.

6

The Commission shall pay—

(a) to its members (and to the members of its committees and sub-committees who are not members of the Commission) such remuneration and allowances—

(i) on such terms; and

(ii) subject to such conditions,

as the Scottish Ministers may determine;

(b) to, or in respect of, persons who have been a member of it (or such members of committees and sub-committees as are mentioned in paragraph (a) above) such pensions, allowances and gratuities—

(i) on such terms; and

(ii) subject to such conditions,

as the Scottish Ministers may determine; or

(c) to any person who ceases, other than on the expiry of a term of office, to be a member of it, such compensation as the Scottish Ministers may determine.

Appointment etc. of chief officer and other staff

7

(1) Subject to sub-paragraphs (2) and (3) below and paragraph 10A, the Commission—

(a) shall appoint a chief executive ; and

(b) may appoint such other staff as it considers appropriate,

on such terms and conditions as it may, with the approval of the Scottish Ministers, determine.

(2) A member of the Commission may not be appointed as a member of its staff.

(3) The Commission shall obtain the approval of the Scottish Ministers before appointing a chief executive.

(4) The Commission may pay to the members of its staff, including its chief executive, (referred to in this paragraph collectively as “employees”) such remuneration and allowances as the Scottish Ministers may determine.

(5) The Commission may—

(a) pay, or make arrangements for the payment of;

(b) make payments towards the provision of; and

such pensions, allowances and gratuities to or in respect of such of its employees, or former employees, as the Scottish Ministers may determine.

(6) The reference in sub-paragraph (5) above to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment or reduction in remuneration.

(7) A determination under sub-paragraph (4) or (5) above may make different provision for different cases or descriptions of case.

Regulations as to proceedings and delegation of functions

8

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

Accounts

9

The following provisions of the National Health Service (Scotland) Act 1978 (c. 29) shall continue to apply to the Commission as they apply to a Special Health Board—

(a) section 85 (which makes provision for payment of funds by the Scottish Ministers towards expenditure attributable to performance of functions by the Board);

(b) section 85A(1) and (3) (which imposes corresponding financial duties on the Board); and

Part 2 — Transitional provision

10

(1) The Mental Health (Scotland) Act 1984 (c. 36) shall be amended as follows.

(2) In section 2 (membership etc. of the Mental Welfare Commission)—

(a) in subsection (2), after “commissioners”, where it first occurs, insert “ appointed under subsection (4) of this section ”;

(b) in subsection (4), at the beginning, insert “ Subject to subsection (5A) of this section, ”;

(5A) The person who holds the post of chief officer of the Mental Welfare Commission shall— (a) be a member ex officio of the Commission; and (b) cease automatically to hold office as such member on ceasing to hold that post.

; and

(d) in subsection (7), for “the said commissioners”, in both places where it occurs, substitute “ commissioners appointed under subsection (4) of this section ”.

(3) In section 6 (appointment and payment etc. of officers and staff)—

(a) at the beginning, insert—

(1) The Mental Welfare Commission shall appoint a chief officer on such terms and conditions as the Scottish Ministers may determine. (2) Before appointing a chief officer under subsection (1) above, the Commission shall obtain the approval of the Scottish Ministers. (3)

; and

(b) in subsection (3) (being the existing wording of the section)—

(i) in paragraph (a), after “appoint”, insert “ other ”; and

(ii) in paragraph (b)(ii), after “of”, insert “ its chief officer or in respect of ”.

SCHEDULE 2

Part 1 — Members of the Tribunal etc.

Members

1

(1) The Scottish Ministers shall appoint as members of the Tribunal—

(a) a panel of persons who have such legal—

(i) qualifications;

(ii) training; and

(iii) experience,

as may be prescribed in regulations for the purposes of serving as legal members of the Tribunal;

(b) a panel of persons who have such qualifications, training and experience—

(i) in medicine; and

(ii) in the diagnosis and treatment of mental disorder,

as may be prescribed in regulations for the purposes of serving as medical members of the Tribunal; and

(i) such qualifications, training, skills and experience in caring for, or providing services to, persons having a mental disorder; or

(ii) experience of such description,

as may be prescribed in regulations for the purposes of serving as general members of the Tribunal.

(2) A person is disqualified from appointment as, and being, a member of the Tribunal if the person—

(a) is a member of the Scottish Parliament;

(b) is a member of the Scottish Executive or a junior Scottish Minister; or

Shrieval panel

2

There shall be a panel consisting of each person who for the time being holds the office of—

(a) sheriff principal;

(b) sheriff; or

for the purposes of serving as sheriff conveners of the Tribunal.

The President

3

(1) The Scottish Ministers shall appoint a person to be known as the President of the Mental Health Tribunal for Scotland (the “President”).

(2) The President—

(a) shall preside over the discharge of the Tribunal’s functions; and

(b) may serve as a convener of the Tribunal.

(3) The Scottish Ministers may not appoint a person to be the President unless that person has such—

(a) qualifications;

(b) training; and

as may be prescribed by regulations.

(4) The following provisions of this schedule apply (with the necessary modifications) to the President as they apply to a member of the Tribunal—

(a) paragraph 1(2);

(b) paragraph 4;

(d) paragraph 6.

(5) The functions of the President may, if the President is absent or otherwise unable to act, be discharged by one of the members of the panel mentioned in paragraph 1(1)(a) above appointed for that purpose by the Scottish Ministers.

(6) Regulations may make provision as to the delegation by the President of any of the President’s functions to any of the members of the Tribunal or its staff.

(7) Regulations made under sub-paragraph (6) above may include provision for different functions to be delegated to different persons for different areas.

Terms of office etc.

4

(1) Subject to this paragraph and paragraph 5 below, each member of the Tribunal shall hold office in accordance with the terms of such member’s instrument of appointment.

(2) An appointment as a member of the Tribunal shall, subject to sub-paragraphs (3) and (4) below, last for 5 years.

(3) A member of the Tribunal—

(a) may at any time resign office by notice to the Scottish Ministers;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) A member of the Tribunal’s appointment shall come to an end upon the member’s being removed from office under paragraph 5(1) below.

(5) A member of the Tribunal whose appointment comes to an end by operation of sub-paragraph (2) above may be reappointed and, except in the circumstances set out in sub-paragraph (6) below, shall be reappointed.

(6) The circumstances referred to in sub-paragraph (5) above are that—

(a) the member of the Tribunal has declined that reappointment;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) there has, since the member of the Tribunal was last appointed, been a reduction in the number of members of the panel to which the member belongs required by the Tribunal to discharge its functions;

(e) since the member of the Tribunal was last appointed, the member has, without reasonable excuse, failed to comply with the terms of the member’s appointment; or

(f) the member of the Tribunal does not have such qualifications, training, skills or experience as are for the time being prescribed under paragraph 1(1) above for appointment to the panel to which the member of the Tribunal belongs.

5

(1) A member of the Tribunal may be removed from office only by order of the disciplinary committee constituted under sub-paragraph (3) below.

(2) The disciplinary committee may order the removal from office of a member of the Tribunal only if, after investigation carried out at the request of the Scottish Ministers, it finds that the member is unfit for office by reason of inability, neglect of duty or misbehaviour.

(3) The disciplinary committee shall consist of—

(a) a Senator of the College of Justice or a sheriff principal (who shall preside);

(b) a person who is a solicitor or an advocate of at least ten years' standing; and

all appointed by the Lord President of the Court of Session.

(4) Regulations—

(a) may make provision—

(i) enabling the disciplinary committee, at any time during an investigation, to suspend a member of the Tribunal from office; and

(ii) as to the effect and duration of such suspension; and

(b) shall make such further provision as respects the disciplinary committee (including in particular provision for the procedure of the committee) as the Scottish Ministers consider necessary or expedient.

Remuneration and pensions etc.

6

(1) The Scottish Courts and Tribunals Service must pay, or make provision for paying, to, or in respect of, each member of the Tribunal such remuneration, expenses, pensions, allowances and gratuities (including by way of compensation for loss of office) as the Scottish Ministers may determine.

(2) Sub-paragraph (1) above, so far as relating to pensions, allowances and gratuities, shall not have effect in relation to persons to whom Part I of the Judicial Pensions and Retirement Act 1993 (c. 8) applies, except to the extent provided by virtue of that Act.

Part 2 — Organisation and administration of the Tribunal

Organisation and administration of the functions of the Tribunal

7

(1) The functions of the Tribunal shall be discharged by such number of tribunals as may be determined from time to time by the President.

(2) The Tribunal shall sit at such times and in such places as the President may determine.

(3) Subject to sub-paragraph (4) below, and to any rules made under paragraph 10(1) below, a tribunal constituted under sub-paragraph (1) above shall consist of—

(a) a convener who shall be—

(i) the President; or

(ii) a member selected by the President from the panel mentioned in paragraph 1(1)(a) above; and

(b) a member selected by the President from each of the panels mentioned in paragraph 1(1)(b) and (c) above.

(4) In relation to proceedings (other than excepted proceedings) before the Tribunal in relation to a patient subject to a compulsion order and a restriction order, a hospital direction or a transfer for treatment direction, the convener shall be—

(a) the President; or

(b) a person selected by the President from the panel mentioned in paragraph 2 above.

(4A) For the purpose of sub-paragraph (4) above, the following are excepted proceedings—

(a) proceedings relating solely to an application under section 255 or 256 of this Act, or

(b) proceedings relating to an application for a compulsory treatment order in respect of a patient subject to—

(i) a hospital direction, or

(ii) a transfer for treatment direction.

(5) Subject to the provisions of this Act, regulations made under section 21 of this Act and rules made under paragraph 10 below, the President shall secure that the functions of the Tribunal are discharged efficiently and effectively.

(6) The President may—

(a) give such directions; and

(b) issue such guidance,

about the administration of the Tribunal as appear to the President to be necessary or expedient for the purpose of securing that the functions of the Tribunal are discharged efficiently and effectively.

Staff and accommodation

8

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The persons mentioned in sub-paragraph (4) below shall, in so far as it is reasonably practicable to do so, provide, in response to a request by the President, accommodation for the holding of hearings by the Tribunal.

(4) The persons referred to in sub-paragraph (3) above are—

(a) a Health Board;

(b) the State Hospitals Board for Scotland;

Finance

9

Such expenses of the Tribunal as the Scottish Ministers may determine shall be defrayed by the Scottish Ministers.

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