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

Part 1 — Introductory

Principles for discharging certain functions

1

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

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

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

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

(b) the views of—

(i) the patient’s named person;

(ii) any carer of the patient;

(iii) any guardian of the patient; and

(iv) any welfare attorney of the patient,

which are relevant to the discharge of the function;

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

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

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

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

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

(4) After having regard to—

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the patient;

(b) the patient’s named person;

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

(e) the patient’s legal representative;

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

(g) a guardian of the patient; or

(h) a welfare attorney of the patient.

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

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

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

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

Welfare of the child

2

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

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

(3) This subsection applies to any power.

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

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

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

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

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

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

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

Equal opportunities

3

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

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

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

(a) the Scottish Ministers;

(b) the Commission;

(d) a Health Board;

(e) a Special Health Board;

(f) a National Health Service trust;

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

(g) the managers of a hospital;

(h) a mental health officer;

(i) a patient’s responsible medical officer;

(j) a medical practitioner; and

(k) a nurse.

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

Part 2 — The Mental Welfare Commission for Scotland

Continued existence of Commission

The Mental Welfare Commission for Scotland

4

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

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

(a) this Act;

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

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

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

General duties

Duty to monitor operation of Act and promote best practice

5

The Commission shall—

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

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

Reporting on operation of Act

6

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

Particular functions

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

7

The Commission shall bring to the attention of—

(a) the Scottish Ministers;

(b) a local authority;

(d) a Special Health Board;

(e) a National Health Service trust;

(ea) Healthcare Improvement Scotland;

(f) Social Care and Social Work Improvement Scotland;

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

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

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

8

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

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

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

(2) Those circumstances are—

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

(b) that—

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

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

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

(a) the Scottish Ministers;

(b) the Public Guardian;

(d) a Health Board;

(e) a Special Health Board;

(f) a National Health Service trust;

(g) a mental health officer;

(h) a responsible medical officer;

(i) the managers of a registered care service;

(j) the managers of—

(i) a prison; or

(ii) a young offenders institution;

(ja) Healthcare Improvement Scotland;

(k) Social Care and Social Work Improvement Scotland;

(la) the Police Service of Scotland;

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

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

Duty to give advice

9

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

(2) Those persons are—

(a) the Scottish Ministers;

(b) a local authority;

(d) a Special Health Board;

(da) Healthcare Improvement Scotland;

(e) Social Care and Social Work Improvement Scotland;

(f) the Scottish Public Services Ombudsman.

Publishing information, guidance etc.

10

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

(a) its conclusions in relation to—

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

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

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

(i) such investigations or inquiries; or

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

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

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

Investigations

11

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

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

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

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

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

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

(2) Those circumstances are—

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

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

(i) this Act; or

(ii) the 1995 Act;

(i) a compulsory treatment order;

(ii) an interim compulsory treatment order;

(iii) an emergency detention certificate;

(iv) a short-term detention certificate;

(v) a compulsion order;

(vi) an interim compulsion order;

(vii) an assessment order;

(viii) a treatment order;

(ix) a hospital direction; or

(x) a transfer for treatment direction;

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

(i) ill-treatment;

(ii) neglect; or

(iii) some other deficiency in care or treatment;

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

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

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

(f) that the patient may be—

(i) living alone or without care; and

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

Investigations: further provision

12

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

(2) The Commission—

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

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

(i) remuneration; and

(ii) expenses,

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

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

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

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

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

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

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

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

(6) The Commission shall pay to a person required by notice under subsection (3)(a) above to attend for the purposes of an inquiry under subsection (1) above such expenses as it considers appropriate.

(7) A person—

(a) who is required to attend for the purposes of an inquiry by virtue of notice under subsection (3)(a) above; and

(b) who refuses or wilfully neglects to attend or, subject to subsection (4)(b) above, to give evidence,

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

Visits in relation to patients

13

(1) The Commission shall secure that a Commission Visitor visits, as often as the Commission Visitor considers it appropriate to do so, such patients who fall within the categories mentioned in subsection (2) below as the Commission Visitor considers appropriate.

(2) Those categories are—

(a) patients who are detained in hospital and whose detention is authorised by virtue of—

(i) this Act; or

(ii) the 1995 Act;

(b) patients who, though not detained in hospital, are subject to—

(i) a compulsory treatment order;

(ii) an interim compulsory treatment order;

(iii) an emergency detention certificate;

(iv) a short-term detention certificate;

(v) a compulsion order;

(vi) an interim compulsion order;

(vii) an assessment order;

(viii) a treatment order;

(ix) a hospital direction; or

(x) a transfer for treatment direction;

(i) an intervention order of which the Commission has been notified under section 53(10)(b) of the Adults with Incapacity (Scotland) Act 2000 (asp 4); or

(ii) a guardianship order of which the Commission has been notified under section 58(7)(d) of that Act;

(d) patients in respect of whom a person is a guardian by virtue of sub-paragraph (4), (5), (6) or (7) of paragraph 1 of schedule 4 to the Adults with Incapacity (Scotland) Act 2000 (asp 4); and

(e) patients who have granted, in accordance with section 16 of that Act, a welfare power of attorney, a copy of which has been sent to the Commission under section 19(2)(c) of that Act.

(3) If it appears to the Commission that patients—

(a) may be resident, or may be receiving medical treatment, in premises mentioned in subsection (4) below; or

(b) may use facilities provided in such premises,

a Commission Visitor may visit such premises for ... the purposes mentioned in subsection (5A) below.

(4) Those premises are—

(a) a health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978 (c. 29));

(b) premises in which—

(i) an independent health care service is provided;

(ii) a care home service is provided; or

(iii) a secure accommodation service is provided;

(d) a prison; and

(e) a young offenders institution.

(5A) The purposes are—

(a) to provide an opportunity for any patient who may for the time being be present in the premises to meet a Commission Visitor and discuss with the Visitor any concerns that the patient may have; and

(b) to assess whether the requirements of such patients in relation to this Act, the Adults with Incapacity (Scotland) Act 2000 (asp 4) and other relevant legislation are being met.

(5B) A Commission Visitor may, when visiting premises under subsection (3), conduct an assessment of the suitability of the premises (and its facilities) in relation to the requirements of the patients (or any one of them).

(6) A visit under subsection (1) or (3) above may be made with or without prior notification.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In—

(a) subsection (4)(b)(ii) above, “care home service” has the meaning given to that expression by paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8); and

(b) subsection (4)(b)(iii) above, “secure accommodation service” has the meaning given to that expression by paragraph 6 of schedule 12 to that Act.

Interviews

14

(1) A Commission Visitor may, in connection with the discharge by the Commission of any of its functions under this Act or the Adults with Incapacity (Scotland) Act 2000 (asp 4)—

(a) interview—

(i) any patient; or

(ii) any other person that the Commission Visitor considers it appropriate to interview; and

(b) require any such interview to be conducted in private.

(2) Without prejudice to the generality of subsection (1) above—

(a) a Commission Visitor conducting a visit under subsection (1) of section 13 of this Act shall afford an opportunity, on request, during the visit, to—

(i) the patient who is the subject of the visit; and

(ii) other patients whose presence in the premises where the visit takes place is known to the Commission Visitor,

to be interviewed in private by the Commission Visitor; and

(b) a Commission Visitor conducting a visit under subsection (3) of that section shall afford an opportunity, on request, during the visit, to patients whose presence in the premises that are being visited is known to the Commission Visitor, to be so interviewed.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Medical examination

15

(1) A Commission Visitor may, in connection with the discharge by the Commission of any of its functions under—

(a) this Act; or

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

carry out in private a medical examination of a patient.

(1A) Only a Commission Visitor who has also been appointed as a Medical Visitor may exercise the functions under subsection (1).

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

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Inspection etc. of records

16

(1) A person authorised by the Commission (an “authorised person”) or Commission Visitor may, in connection with the discharge by the Commission of any of its functions under—

(a) this Act; or

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

require any person holding medical or other records of a patient to produce them for inspection by the authorised person or, as the case may be, the Commission Visitor.

(2) An authorised person shall be—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) a member of the staff of the Commission.

(3) An authorised person proposing to exercise the power conferred by subsection (1) above shall, if requested to do so, produce an authenticated document showing that the authorised person is ... a member of staff of the Commission.

Duties of Scottish Ministers, local authorities and others as respects Commission

17

(1) The persons mentioned in subsection (2) below shall afford the Commission, any Commission Visitor, or a person authorised by the Commission, all facilities necessary to enable the Commission, or that person, to discharge the Commission's, or (as the case may be) that person's, functions under this Act.

(2) Those persons are—

(a) the Scottish Ministers;

(b) a local authority;

(d) a Special Health Board;

(e) a National Health Service trust;

(fa) the Police Service of Scotland;

(g) the managers of a registered care service;

(h) the managers of—

(i) a prison; or

(ii) a young offenders institution;

(ha) Healthcare Improvement Scotland;

(i) Social Care and Social Work Improvement Scotland;

(j) the Scottish Public Services Ombudsman; and

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

(3) In subsection (2)(g) above, “registered care service” has the meaning given by section 8(4) of this Act.

Annual Report

18

(1) The Commission shall, as soon as practicable after the end of each financial year of the Commission, submit to the Scottish Ministers, a report on the discharge of its functions during that year.

(2) The Scottish Ministers shall lay before the Scottish Parliament a copy of each report submitted to them under subsection (1) above.

(3) The financial year of the Commission is the period of 12 months ending with 31st March.

Statistical information

19

(1) The Commission shall ... provide the Ministers with, and publish, statistical or other information of such kind as may be prescribed in regulations relating to the discharge of its functions.

(2) Before making regulations under subsection (1) above, the Scottish Ministers shall consult such persons as they consider appropriate.

Protection from actions of defamation

20

(1) For the purposes of the law of defamation, any statement made in pursuance of any of sections 6, 7 to 10 and 18(1) of this Act by the Commission, or any of its employees, shall be privileged unless such statement is shown to be made with malice.

(2) In this section—

“statement” has the same meaning as in the Defamation Act 1996 (c. 31); and

“employees” shall be construed in accordance with paragraph 7 of schedule 1 to this Act.

Part 3 — The Mental Health Tribunal for Scotland

The Mental Health Tribunal for Scotland

21

(1) There shall be a tribunal to be known as the Mental Health Tribunal for Scotland (in this Act referred to as “the Tribunal”).

(2) The Tribunal shall discharge such functions as are conferred on it by virtue of this Act.

(3) Regulations may make such provision in connection with the Tribunal as the Scottish Ministers consider appropriate.

(4) Schedule 2 to this Act (which makes provision as respects the Tribunal and its proceedings) shall have effect.

Part 4 — Health Board and local authority functions

Chapter 1 — Health Board duties

Approved medical practitioners

22

(1) Subject to subsection (3) below, the persons mentioned in subsection (2) below shall each compile and maintain a list of medical practitioners who—

(a) have such qualifications and experience, and have undertaken such training, as may be specified in directions given by the Scottish Ministers; and

(b) are approved for the purposes of this paragraph by the Board concerned as having special experience in the diagnosis and treatment of mental disorder.

(2) Those persons are—

(a) a Health Board; and

(b) the State Hospitals Board for Scotland.

(3) A list compiled by a Health Board under subsection (1) above shall be compiled for its area.

(4) A medical practitioner included for the time being in any list maintained under subsection (1) above is referred to in this Act as an “approved medical practitioner”.

Services and accommodation: particular cases

Provision of services and accommodation for certain patients under 18

23

(1) A Health Board shall provide for any child or young person who—

(a) is detained in hospital under Part 5 or 6 of this Act; or

(b) has been admitted to hospital, whether voluntarily or not, for the purposes of receiving treatment for a mental disorder,

such services and accommodation as are sufficient for the particular needs of that child or young person.

(2) In this section, “child or young person” means a person under the age of 18 years.

Provision of services and accommodation for certain mothers with post-natal depression

24

(1) A Health Board shall provide for any woman who—

(a) is the mother or adoptive mother of a child less than one year old;

(b) cares for the child;

(d) has been admitted to hospital, whether voluntarily or not, for the purposes of receiving treatment for—

(i) post-natal depression; or

(ii) a mental disorder (other than post-natal depression),

such services and accommodation as are necessary to ensure that the woman is able, if she wishes, to care for the child in hospital.

(1A) But a Health Board is required to provide services and accommodation under subsection (1) above only if it is satisfied that doing so would be beneficial to the wellbeing of the child.

(2) Each Health Board shall collaborate with other Health Boards to whatever extent is necessary to fulfil its duty under subsection (1) above.

Chapter 2 — Local authority functions

Provision of services

Care and support services etc.

25

(1) A local authority—

(a) shall—

(i) provide, for persons who are not in hospital and who have or have had a mental disorder, services which provide care and support; or

(ii) secure the provision of such services for such persons; and

(b) may—

(i) provide such services for persons who are in hospital and who have or have had a mental disorder; or

(ii) secure the provision of such services for such persons.

(2) Services provided by virtue of subsection (1) above shall be designed to—

(a) minimise the effect of the mental disorder on such persons; and

(b) give such persons the opportunity to lead lives which are as normal as possible.

(3) In subsection (1) above, “care and support”—

(a) includes, without prejudice to the generality of that expression—

(i) residential accommodation; and

(ii) personal care and personal support (each of those expressions having the meaning given by paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8)); but

(b) does not include nursing care.

(4) In section 59(1) of the Social Work (Scotland) Act 1968 (c. 49) (duty of local authorities as respects provision and maintenance of residential or other establishments), for the words “or under” there shall be substituted “sections 25 and 26 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or”.

26

(1) A local authority—

(a) shall—

(i) provide, for persons who are not in hospital and who have or have had a mental disorder, services which are designed to promote the well-being and social development of those persons; or

(ii) secure the provision of such services for such persons; and

(b) may—

(i) provide such services for persons who are in hospital and who have or have had a mental disorder; or

(ii) secure the provision of such services for such persons.

(2) Services provided by virtue of subsection (1) above shall include, without prejudice to the generality of that subsection, services which provide—

(a) social, cultural and recreational activities;

(b) training for such of those persons as are over school age; and

(3) Subsection (1) above is without prejudice to the operation of—

(a) section 1 of the Education (Scotland) Act 1980 (c. 44) (duties and powers of education authorities in relation to the provision of social, cultural and recreative activities and vocational and industrial training); and

(b) section 1 of the Further and Higher Education (Scotland) Act 1992 (c. 37) (duty of Scottish Ministers in relation to the provision of further education).

(4) In subsection (2)(b) and (c) above, “school age” has the same meaning as in section 31 of the Education (Scotland) Act 1980 (c. 44).

Assistance with travel

27

A local authority—

(a) shall—

(i) provide, for persons who are not in hospital and who have or have had a mental disorder, such facilities for, or assistance in, travelling as the authority may consider necessary to enable those persons to attend or participate in any of the services mentioned in sections 25 and 26 of this Act; or

(ii) secure the provision of such facilities or assistance for such persons; and

(b) may—

(i) provide such facilities or assistance for persons who are in hospital and who have or have had a mental disorder; or

(ii) secure the provision of such facilities or assistance for such persons.

Charging for services

Services under sections 25 to 27: charging

28

(1) In section 87 of the Social Work (Scotland) Act 1968 (c. 49) (charges that may be made for certain services)—

(a) in subsection (1), for the words from “section 7” to “Act 1984” there shall be substituted “ section 25 (care and support services for persons who have or have had a mental disorder), 26 (services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”;

(b) in paragraph (a) of subsection (1A), for the words “section 7 or 8 of the said Act of 1984” there shall be substituted “ section 25, 26 or 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”; and

(c) in each of subsections (2), (3) and (4), for the words “section 7 of the said Act of 1984” there shall be substituted the words “ section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”.

(2) In—

(a) section 2 of the Community Care and Health (Scotland) Act 2002 (asp 5) (meaning of “accommodation” for purpose of certain enactments), for the words from “section 7” to “in relation to” there shall be substituted “ section 25 of the 2003 Act (provision of care and support services etc. for ”; and

(b) section 22(1) of that Act (interpretation)—

(i) the definition of “the 1984 Act” shall be repealed;

(ii) after the definition of “the 1995 Act”, there shall be inserted—

“the 2003 Act” means the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

; and

(iii) for paragraph (b) of the definition of “social care” there shall be substituted—

(b) under section 25 (care and support services for persons who have or have had a mental disorder), 26 (services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the 2003 Act

; and

(iv) in that definition, for the word “either” there shall be substituted “ any ”.

Relationship with general duties

29

(1) The duties of a local authority under sections 25 to 27 of this Act are without prejudice to the duties imposed on them by the enactments mentioned in subsection (2) below as those duties apply in relation to persons who have or have had a mental disorder.

(2) Those enactments are—

(a) sections 12(1) (provision of advice, guidance and assistance on an appropriate scale), 13A (provision of residential accommodation with nursing), 13B (provision of care and after-care) and 14 (provision of domiciliary and laundry services) of the Social Work (Scotland) Act 1968 (c. 49); and

(b) section 22(1) of the Children (Scotland) Act 1995 (c. 36) (duty to provide services for children in need).

Co-operation and assistance

Co-operation with Health Boards and others

30

(1) In providing services for a person under any of sections 25 to 27 of this Act, a local authority shall co-operate with any—

(a) Health Boards;

(b) Special Health Boards;

(d) voluntary organisations,

that appear to the authority to have an interest, power or duty mentioned in subsection (2) below.

(1A) If, in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014, a local authority delegates the carrying out any of the functions conferred by sections 25 to 27 of this Act—

(a) subsection (1) applies to the person to whom the functions are delegated as it applies to a local authority; and

(b) the person to whom the functions are delegated must co-operate with the local authority if it appears to the person that the authority has an interest, power or duty mentioned in subsection (2)(b) below.

(2) Such an interest, power or duty is—

(a) an interest in the provision of services by the local authority under any of sections 25 to 27 of this Act; or

(b) a power or duty to provide or secure the provision of services, or an interest in the provision of services,

for the person.

Assistance from Health Boards and others

31

(1) Where it appears to a local authority that the assistance of a Health Board, a Special Health Board or a National Health Service trust—

(a) is necessary to enable the authority to perform any of their duties under section 25 or 26 of this Act; or

(b) would help the authority to perform any of those duties,

the authority may request the Health Board, Special Health Board or National Health Service trust to co-operate by providing the assistance specified in the request.

(2) A Health Board, a Special Health Board or a National Health Service trust receiving a request under subsection (1) above shall, if complying with the request—

(a) would be compatible with the discharge of its own functions (whether under any enactment or otherwise); and

(b) would not prejudice unduly the discharge by it of any of those functions,

comply with the request.

(3) This section is without prejudice to section 21 of the Children (Scotland) Act 1995 (c. 36) (which enables a local authority to require assistance from a Health Board, a National Health Service trust or others in the exercise of the authority’s functions under Part II of that Act) and section 183 of the Children’s Hearings (Scotland) Act 2011 (asp 1) (which enables a local authority to obtain assistance from another local authority or a health board in the carrying out of the authority’s functions under the Act).

Appointment of mental health officers

32

(1) A local authority shall appoint a sufficient number of persons for the purpose of discharging, in relation to their area, the functions of mental health officers under—

(a) this Act;

(b) the 1995 Act; and

(2) A local authority shall appoint under subsection (1) above only persons—

(a) who are officers of a local authority; and

(b) who satisfy such requirements as the Scottish Ministers may direct as to—

(i) registration;

(ii) education and training;

(iii) experience;

(iv) competence as respects persons who have or have had a mental disorder; and

(v) any other matters that may be specified in the direction.

(3) A person duly appointed by a local authority before the day on which this section comes into force to discharge the functions of a mental health officer shall, for the purposes of this Act, be deemed to have been appointed under subsection (1) above; and references in subsections (4) and (5) below to a person appointed under subsection (1) above shall include references to a person deemed by virtue of this subsection to have been so appointed.

(4) A local authority shall, in accordance with directions given by the Scottish Ministers, provide or secure the provision of training for persons appointed by them under subsection (1) above as respects requirements in directions under subsections (2) above and (5) below.

(5) A local authority shall terminate the appointment of a person appointed under subsection (1) above if the person—

(a) ceases to be an officer of a local authority; or

(b) does not satisfy—

(i) any requirement in a direction under subsection (2) above; or

(ii) such other requirements as to any of the matters mentioned in paragraph (b) of that subsection as the Scottish Ministers may, from time to time, by direction specify.

(6) The validity of any acts or omissions of a person appointed as a mental health officer in the discharge of the functions of such an officer prior to a termination of appointment by virtue of subsection (5) above is not affected by such termination.

(7) Directions given by the Scottish Ministers under this section shall be given to local authorities collectively.

Duty to inquire into individual cases

Duty to inquire

33

(1) Where it appears to a local authority that—

(a) a person in their area who is aged 16 years or over has a mental disorder; and

(b) any of the circumstances mentioned in subsection (2) below apply,

the authority shall cause inquiries to be made into the person’s case.

(2) Those circumstances are—

(a) that the person may be, or may have been, subject, or exposed, at some place other than a hospital 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) may be suffering, or may have suffered, loss or damage; or

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

(i) living alone or without care; and

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

(d) that the person is not in hospital and, because of the mental disorder, the safety of some other person may be at risk.

Inquiries under section 33: co-operation

34

(1) This section applies where a local authority are required by section 33(1) of this Act to cause inquiries to be made into a person’s case.

(2) Where it appears to the local authority that the assistance of any of the persons mentioned in subsection (3) below—

(a) is necessary for the purposes of the inquiries; or

(b) would assist the inquiries,

the authority may request that person to provide the assistance specified in the request.

(3) Those persons are—

(a) the Commission;

(b) the Public Guardian;

(ba) Healthcare Improvement Scotland;

(d) a Health Board; and

(e) a National Health Service trust.

(4) Where—

(a) a person receives a request under subsection (2) above; and

(b) complying with the request—

(i) would be compatible with the discharge of the person’s functions (whether under any enactment or otherwise); and

(ii) would not prejudice unduly the discharge by the person of any of those functions,

the person shall comply with the request.

Inquiries under section 33: warrants

35

(1) If a sheriff, or a justice of the peace, is satisfied by a relevant mental health officer’s evidence on oath—

(a) that, for the purposes of inquiries under section 33 of this Act, it is necessary to enter premises; and

(b) that the mental health officer—

(i) is unable to obtain entry to those premises; or

(ii) reasonably apprehends that the mental health officer will be unable to obtain entry to those premises,

the sheriff or justice of the peace may grant a warrant under this subsection.

(2) A warrant under subsection (1) above is a warrant—

(a) authorising—

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

(ii) any other persons so specified; and

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

before the expiry of the period of 8 days beginning with the day on which the warrant is granted, to enter, for the purposes of the inquiries, any premises so specified; and

(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.

(3) An application for a warrant under subsection (1) above shall—

(a) if made to the sheriff, be made to the sheriff of the sheriffdom; or

(b) if made to a justice of the peace, be made to a justice for the commission area,

in which the premises to which the application relates are situated.

(4) If a sheriff, or a justice of the peace, is satisfied by a relevant mental health officer’s evidence on oath—

(a) that, for the purposes of inquiries under section 33 of this Act, it is necessary that a medical practitioner carry out a medical examination of the person who is the subject of the inquiries; and

(b) that the mental health officer is unable to obtain the consent of that person to that matter,

the sheriff, or justice of the peace, may grant a warrant under this subsection.

(5) A warrant under subsection (4) above is a warrant authorising the detention of the person who is the subject of the inquiries for a period of 3 hours for the purposes of enabling a medical examination of the person to be carried out by the medical practitioner specified in the warrant.

(6) An application for a warrant under subsection (4) above shall—

(a) if made to the sheriff, be made to the sheriff of the sheriffdom; or

(b) if made to a justice of the peace, be made to a justice for the commission area,

in which the person who is the subject of the inquiries for the time being is.

(7) If a sheriff, or a justice of the peace, is satisfied by a relevant mental health officer’s evidence on oath—

(a) that, for the purposes of inquiries under section 33 of this Act, it is necessary that a medical practitioner have access to the person’s medical records; and

(b) that the mental health officer is unable to obtain the consent of that person to that matter,

the sheriff, or justice of the peace, may grant a warrant under this subsection.

(8) A warrant under subsection (7) above is a warrant requiring any person holding medical records of the person subject to the inquiries to produce them for inspection by the medical practitioner specified in the warrant on being required to do so by the practitioner.

(9) An application for a warrant under subsection (7) above shall—

(a) if made to the sheriff, be made to the sheriff of the sheriffdom; or

(b) if made to a justice, be made to a justice for the commission area,

in which the person who is the subject of the inquiries for the time being is.

(10) A mental health officer shall as soon as practicable after the sheriff, or justice of the peace, decides to grant or refuse an application for a warrant under subsection (1), (4) or (7) above, give notice to the Commission as to whether a warrant was granted or refused.

(11) No appeal shall be competent against a decision of a sheriff, or a justice of the peace, under this section granting, or refusing to grant, a warrant.

(12) References to a relevant mental health officer—

(a) in subsection (1) above are to a mental health officer appointed by the local authority for the area in which the premises to which the application relates are situated;

(b) in subsections (4) and (7) above are to a mental health officer appointed by the local authority which is causing inquiries to be made.

Part 5 — Emergency detention

Emergency detention certificate

Emergency detention in hospital

36

(1) Where—

(a) a medical practitioner carries out a medical examination of a patient;

(b) the patient does not fall within subsection (2) below; and

the medical practitioner may, before the expiry of the appropriate period, grant an emergency detention certificate authorising, if the condition mentioned in subsection (7) below is satisfied, the measures mentioned in subsection (8) below.

(2) The patient falls within this subsection if, immediately before the medical examination mentioned in subsection (1)(a) above is carried out, the patient is subject to—

(a) an emergency detention certificate;

(b) a short-term detention certificate;

(d) section 68 of this Act; or

(da) section 113(5) of this Act;

(e) a certificate granted under section 114(2) or 115(2) of this Act.

(3) Subject to subsection (6) below, this subsection applies where—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the medical practitioner considers that it is likely that the conditions mentioned in subsection (4) below are met in respect of the patient;

(c) the medical practitioner is satisfied that the conditions mentioned in subsection (5) below are met in respect of the patient; and

(d) the medical practitioner has consulted a mental health officer and that mental health officer has consented to the grant of an emergency detention certificate.

(4) The conditions referred to in subsection (3)(b) above are—

(a) that the patient has a mental disorder; and

(b) that, because of the mental disorder, the patient’s ability to make decisions about the provision of medical treatment is significantly impaired.

(5) The conditions referred to in subsection (3)(c) above are—

(a) that it is necessary as a matter of urgency to detain the patient in hospital for the purpose of determining what medical treatment requires to be provided to the patient;

(b) that if the patient were not detained in hospital there would be a significant risk—

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

(ii) to the safety of any other person; and

(c) that making arrangements with a view to the grant of a short-term detention certificate would involve undesirable delay.

(6) If it is impracticable for the medical practitioner to consult or seek consent under paragraph (d) of subsection (3) above, that paragraph need not be satisfied for the subsection to apply.

(7) The condition referred to in subsection (1) above is that the measure mentioned in subsection (8)(b)(i) below is authorised by the certificate only if, before the patient is admitted under authority of the certificate to a hospital, the certificate is given to the managers of that hospital.

(8) The measures referred to in subsection (1) above are—

(a) the removal, before the expiry of the period of 72 hours beginning with the granting of the emergency detention certificate, of the patient to a hospital or to a different hospital; and

(b) the detention of the patient in hospital for the period of 72 hours beginning with—

(i) if, immediately before the certificate is granted, the patient is not in hospital, the first admission under authority of the certificate of the patient to hospital;

(ii) if, immediately before the certificate is granted, the patient is in hospital, the granting of the certificate.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) The emergency detention certificate—

(a) shall state the medical practitioner’s reasons for believing the conditions mentioned in subsections (4) and (5) above to be met in respect of the patient; and

(b) shall be signed by the medical practitioner.

(11) If a medical practitioner grants an emergency detention certificate in respect of a patient who, immediately before the certificate is granted, is in hospital, the medical practitioner shall, as soon as practicable after granting the certificate, give the certificate to the managers of that hospital.

(12) In subsection (1) above “appropriate period” means—

(a) in a case where the medical examination of the patient is completed at least 4 hours before the end of the day (or, if it takes place on two days, the later of the days) on which it is carried out, the period beginning with completion of the examination and ending with the end of that day;

(b) in any other case, the period of 4 hours beginning with the completion of the medical examination.

(13) A reference in this section to a hospital may be read as a reference to a hospital unit.

(14) For the purpose of subsection (13) above, “hospital unit” means any part of a hospital which is treated as a separate unit.

Notification by medical practitioner

37

(1) Subject to subsection (3) below, a medical practitioner who grants an emergency detention certificate shall, when the certificate is given to the managers of the hospital in which the patient is to be detained under authority of the certificate, give notice to them of the matters mentioned in subsection (2) below.

(2) Those matters are—

(a) the reason for granting the certificate;

(b) whether consent of a mental health officer was obtained to the granting of the certificate;

(c) if the certificate was granted without consent to its granting having been obtained from a mental health officer, the reason why it was impracticable to consult a mental health officer;

(d) the alternatives to granting the certificate that were considered by the medical practitioner; and

(e) the reason for the medical practitioner determining that any such alternative was inappropriate.

(3) If it is impracticable for notice to be given when the certificate is given to the managers, the medical practitioner shall give notice as soon as practicable after that time.

Duties on hospital managers

Duties on hospital managers: examination, notification etc.

38

(1) This section applies where a patient is detained in hospital under authority of an emergency detention certificate.

(2) As soon as practicable after the period of detention authorised by the certificate begins as mentioned in section 36(8)(b) of this Act, the managers of the hospital shall make arrangements for an approved medical practitioner to carry out a medical examination of the patient.

(3) The managers of the hospital shall—

(a) before the expiry of the period of 12 hours beginning with the giving of the certificate to them, inform the persons mentioned in subsection (4) below of the granting of the certificate; and

(b) before the expiry of the period of 7 days beginning with the day on which they receive notice under section 37 of this Act—

(i) give notice to the Commission of the granting of the certificate and of the matters notified to them under that section; and

(ii) if the certificate was granted without consent to its granting having been obtained from a mental health officer, give notice of those matters to the persons mentioned in subsection (5) below.

(3A) The managers of the hospital may, so far as they consider it appropriate, give notice of the matters notified to them under section 37 of this Act to the persons mentioned in subsection (4) below.

(4) The persons referred to in subsections (3)(a) and (3A) above are—

(a) the patient’s nearest relative;

(b) if that person does not reside with the patient, any person who resides with the patient;

(i) the managers know who the patient’s named person is; and

(ii) that named person is not any of the persons mentioned in paragraphs (a) and (b) above,

the patient’s named person; ...

(ca) if known to the managers and not falling within paragraph (a) or (b) above—

(i) any guardian of the patient; and

(ii) any welfare attorney of the patient.

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The persons referred to in subsection (3)(b)(ii) above are—

(a) if the managers know where the patient resides, the local authority for the area in which the patient resides; or

(b) if the managers do not know where the patient resides, the local authority for the area in which the hospital is situated.

Revocation of certificate

Approved medical practitioner’s duty to revoke emergency detention certificate

39

Where a medical examination has been carried out under section 38(2) of this Act and an approved medical practitioner is not satisfied—

(a) that the conditions mentioned in section 36(4)(a) and (b) and (5)(b) of this Act continue to be met in respect of the patient; or

(b) that it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate,

the approved medical practitioner shall revoke the certificate.

Revocation of emergency detention certificate: notification

40

(1) Where an approved medical practitioner revokes a certificate under section 39 of this Act, the practitioner shall, as soon as practicable after doing so, inform—

(a) the patient; and

(b) the managers of the hospital in which the patient is detained,

of the revocation.

(2) The managers of the hospital shall, as soon as practicable after being informed of the revocation, inform the Commission and the persons mentioned in section 38(4) and (5) of this Act of the revocation.

Suspension of authority to detain

41

(1) Where—

(a) a patient is subject to an emergency detention certificate; and

(b) the patient’s responsible medical officer grants a certificate specifying a period during which the emergency detention certificate shall not authorise the measure mentioned in section 36(8)(b) of this Act,

the emergency detention certificate does not authorise that measure during that period.

(2) A period specified in a certificate granted under subsection (1) above may be expressed as—

(a) the duration of—

(i) an event; or

(ii) a series of events; or

(b) the duration of—

(i) an event; or

(ii) a series of events,

and any associated travel.

(3) 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 granted under subsection (1) above may include conditions such as are mentioned in subsection (4) below; and any such conditions shall have effect.

(4) 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 responsible medical officer;

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

Certificate under section 41: revocation

42

(1) Subsection (2) below applies where a certificate is granted under section 41(1) of this Act in respect of a patient.

(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 a responsible medical officer revokes a certificate under subsection (2) above, the responsible medical officer shall, as soon as practicable after doing so, inform—

(a) the patient;

(b) if the certificate includes a condition such as is mentioned in section 41(4)(a) of this Act, any person authorised in accordance with that condition; and

of the revocation.

(4) The managers of the hospital shall, as soon as practicable after being informed of the revocation, inform the Commission and the persons mentioned in section 38(4) and (5) of this Act of the revocation.

Effect of emergency detention certificate on certain orders

Effect of subsequent emergency detention certificate on compulsory treatment order

43

(1) This section applies where—

(a) a patient is subject to a relevant order; and

(b) an emergency detention certificate is granted in respect of the patient.

(2) A relevant order shall, subject to subsection (3) below, cease to authorise the measures specified in it for the period during which the patient is subject to the emergency detention certificate.

(3) If the measure mentioned in section 66(1)(b) of this Act or (as the case may be) section 57A(8)(b) of the 1995 Act is specified in the relevant order, the relevant order shall continue to authorise that measure during the period mentioned in subsection (2) above.

(4) In this section, the references to a relevant order are to—

(a) a compulsion order, or

(b) a compulsory treatment order or an interim compulsory treatment order.

Part 6 — Short-term detention

Short-term detention certificate

Short-term detention in hospital

44

(1) Where—

(a) an approved medical practitioner carries out a medical examination of a patient;

(b) the patient does not fall within subsection (2) below; and

the approved medical practitioner may, before the expiry of the period of 3 days beginning with the completion of the medical examination, grant a short-term detention certificate authorising, if the condition mentioned in subsection (6) below is satisfied, the measures mentioned in subsection (5) below.

(2) The patient falls within this subsection if, immediately before the medical examination mentioned in subsection (1)(a) above is carried out, the patient is subject to—

(a) a short-term detention certificate;

(b) an extension certificate;

(ca) section 113(5) of this Act;

(d) a certificate granted under section 114(2) or 115(2) of this Act.

(3) This subsection applies where—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the approved medical practitioner considers that it is likely that the conditions mentioned in subsection (4) below are met in respect of the patient;

(d) the mental health officer consents to the grant of a short-term detention certificate.

(4) The conditions referred to subsection (3)(b) above are—

(a) that the patient has a mental disorder;

(b) that, because of the mental disorder, the patient’s ability to make decisions about the provision of medical treatment is significantly impaired;

(i) determining what medical treatment should be given to the patient; or

(ii) giving medical treatment to the patient;

(d) that if the patient were not detained in hospital there would be a significant risk—

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

(ii) to the safety of any other person; and

(e) that the granting of a short-term detention certificate is necessary.

(5) The measures referred to in subsection (1) above are—

(a) the removal, before the expiry of the period of 3 days beginning with the granting of the short-term detention certificate, of the patient to a hospital or to a different hospital;

(b) the detention of the patient in hospital for the period of 28 days beginning with—

(i) if, immediately before the certificate is granted, the patient is not in hospital, the beginning of the day on which admission under authority of the certificate of the patient to hospital first takes place;

(ii) if, immediately before the certificate is granted, the patient is in hospital, the beginning of the day on which the certificate is granted;

(6) The condition referred to in subsection (1) above is that the measure mentioned in subsection (5)(b)(i) above is authorised by the certificate only if, before the patient is admitted to hospital under authority of the certificate, the certificate is given to the managers of that hospital.

(7) If an approved medical practitioner grants a short-term detention certificate in respect of a patient who, immediately before the certificate is granted, is in hospital, the approved medical practitioner shall, as soon as practicable after granting the certificate, give the certificate to the managers of that hospital.

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) The short-term detention certificate—

(a) shall state the approved medical practitioner’s reasons for believing the conditions mentioned in subsection (4) above to be met in respect of the patient; and

(b) shall be signed by the approved medical practitioner.

(10) Before granting the short-term detention certificate, the approved medical practitioner shall, subject to subsection (11) below, consult the patient’s named person about the proposed grant of the certificate; and the approved medical practitioner shall have regard to any views expressed by the named person.

(11) The approved medical practitioner need not consult a named person as mentioned in subsection (10) above in any case where it is impracticable to do so.

(12) In this section and sections 46 to 49 of this Act, a reference to a hospital may be read as a reference to a hospital unit.

(13) For the purposes of subsection (12) above, “hospital unit” means any part of a hospital which is treated as a separate unit.

Mental health officer’s duty to interview patient etc.

45

(1) Subject to subsection (2) below, before deciding whether to consent for the purposes of section 44(3)(d) of this Act, a mental health officer shall—

(a) interview the patient;

(b) ascertain the name and address of the patient’s named person;

(d) take appropriate steps to ensure that the patient has the opportunity of making use of those services.

(2) If it is impracticable for the mental health officer to—

(a) interview the patient; or

(b) ascertain the name and address of the patient’s named person,

the mental health officer shall comply with the requirements in subsection (3) below.

(3) Those requirements are—

(a) recording the steps taken by the mental health officer with a view to complying with the duty concerned; and

(b) before the expiry of the period of 7 days beginning with the day on which the mental health officer is consulted by an approved medical practitioner under section 44(3)(c) of this Act, giving a copy of the record to the approved medical practitioner.

Duties on hospital managers

Hospital managers' duties: notification

46

(1) This section applies where a patient is subject to a short-term detention certificate.

(2) The managers of the hospital shall as soon as practicable after the production to them of the short-term detention certificate, give notice of its granting to—

(a) the patient;

(b) the patient’s named person;

(d) any welfare attorney of the patient.

(3) The managers of the hospital shall, before the expiry of the period of 7 days beginning with the day on which the certificate is granted, give notice of its granting ... to—

(a) the Tribunal; and

(b) the Commission.

(4) When giving notice under subsection (2) or (3) above, the managers of the hospital are to send a copy of the certificate to each recipient of the notice.

Extension certificate

Extension of detention pending application for compulsory treatment order

47

(1) Where—

(a) a patient is subject to a short-term detention certificate;

(b) an approved medical practitioner carries out a medical examination of the patient; and

the approved medical practitioner may, before the expiry of the period of 24 hours beginning with the completion of that medical examination, grant a certificate (any such certificate being referred to in this Act as an “extension certificate”) authorising the measures mentioned in subsection (4) below.

(2) This subsection applies where—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the approved medical practitioner considers—

(i) that the conditions mentioned in paragraphs (a) to (d) of section 44(4) of this Act are met in respect of the patient; and

(ii) that because of a change in the mental health of the patient, an application should be made under section 63 of this Act for a compulsory treatment order.

(3) This subsection applies where—

(a) no application has been made under section 63 of this Act;

(b) it would not be reasonably practicable to make an application under that section before the expiry of the period of detention authorised by the short-term detention certificate; and

(i) the approved medical practitioner consults a mental health officer about the proposed grant of an extension certificate; and

(ii) the mental health officer consents to the granting of the extension certificate.

(4) The measures referred to in subsection (1) above are—

(a) the detention in hospital of the patient for the period of 3 days beginning with the expiry of the period for which the short-term detention certificate authorises the detention of the patient in hospital; and

(b) the giving to the patient, in accordance with Part 16 of this Act, of medical treatment.

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

(6) An approved medical practitioner need not consult or seek consent under subsection (3)(c) above in any case where it is impracticable to do so.

(7) In reckoning the period of days mentioned in subsection (4)(a) above, there shall be left out of account any day which is not a working day.

(8) In this section “working day” means a day which is not—

(a) Saturday;

(b) Sunday; or

Extension certificate: notification

48

(1) An approved medical practitioner who grants an extension certificate shall, before the expiry of the period of 24 hours beginning with the granting of the certificate, give the certificate to the managers of the hospital in which the patient is detained and give notice to the persons mentioned in subsection (2) below—

(a) of the granting of the extension certificate;

(b) of the approved medical practitioner’s reasons for believing the conditions mentioned in paragraphs (a) to (d) of section 44(4) of this Act to be met in respect of the patient;

(d) if the certificate was granted without consent to its granting having been obtained from a mental health officer, the reason why it was impracticable to consult a mental health officer.

(2) Those persons are—

(a) the patient;

(b) the patient’s named person;

(d) the Commission;

(e) any guardian of the patient;

(f) any welfare attorney of the patient; and

(g) the mental health officer.

Revocation of certificates

Responsible medical officer’s duty to review continuing need for detention

49

(1) Where a patient is subject to a short-term detention certificate or an extension certificate, the patient’s responsible medical officer shall, from time to time, consider—

(a) whether the conditions mentioned in paragraphs (a), (b) and (d) of section 44(4) of this Act continue to be met in respect of the patient; and

(b) whether it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate.

(2) If, having complied with subsection (1) above, the responsible medical officer is not satisfied—

(a) that the conditions referred to in paragraph (a) of that subsection continue to be met in respect of the patient; or

(b) that it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate,

the responsible medical officer shall revoke the certificate.

(3) The responsible medical officer shall, as soon as practicable after revoking a certificate under subsection (2) above, give notice of its revocation to—

(a) the patient;

(b) the patient’s named person;

(d) any welfare attorney of the patient; and

(e) the mental health officer who was consulted under section 44(3)(c) of this Act.

(4) The responsible medical officer shall, before the expiry of the period of 7 days beginning with the day on which the certificate is revoked, give notice of its revocation to—

(a) the Tribunal; and

(b) the Commission.

Patient’s right to apply for revocation of short-term detention certificate or extension certificate etc.

50

(1) Where a patient is subject to a short-term detention certificate or an extension certificate—

(a) the patient; or

(b) the patient’s named person,

may apply to the Tribunal for revocation of the certificate.

(2) Before determining an application under subsection (1) above, the Tribunal shall afford the persons mentioned in subsection (3) below the opportunity—

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

(b) of leading, or producing, evidence.

(3) Those persons are—

(a) the patient;

(b) the patient’s named person;

(d) any welfare attorney of the patient;

(e) the approved medical practitioner who granted the short-term detention certificate;

(f) the mental health officer who was consulted under section 44(3)(c) of this Act;

(g) if the patient has a responsible medical officer, that responsible medical officer;

(h) any curator ad litem appointed in respect of the patient by the Tribunal; and

(i) any other person appearing to the Tribunal to have an interest in the application.

(4) On an application under subsection (1) above, the Tribunal shall, if not satisfied—

(a) that the conditions mentioned in paragraphs (a), (b) and (d) of section 44(4) of this Act continue to be met in respect of the patient; or

(b) that it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate,

revoke the certificate.

(5) Where, before a short-term detention certificate is revoked under subsection (4) above an extension certificate has been granted in respect of the patient, the revocation of the short-term detention certificate shall have the effect of revoking the extension certificate, notwithstanding that there has been no application under subsection (1) above in relation to the extension certificate.

Commission’s power to revoke short-term detention certificate or extension certificate

51

Where—

(a) a patient is subject to a short-term detention certificate or an extension certificate; and

(b) the Commission is satisfied—

(i) that not all of the conditions mentioned in paragraphs (a), (b) and (d) of section 44(4) of this Act continue to be met in respect of the patient; or

(ii) that it does not continue to be necessary for the detention in hospital of the patient to be authorised by the certificate,

the Commission may revoke the certificate.

Revocation of short-term detention certificate or extension certificate: notification

52

Where the Commission revokes a certificate under section 51 of this Act, it shall, as soon as practicable after doing so, give notice of the revocation to—

(a) the patient;

(b) the patient’s named person;

(d) any welfare attorney of the patient;

(e) the managers of the hospital in which the patient is detained;

(f) the mental health officer who was consulted under section 44(3)(c) of this Act; and

(g) the Tribunal.

Suspension of detention

Suspension of measure authorising detention

53

(1) Where—

(a) a patient is subject to a short-term detention certificate; and

(b) the patient’s responsible medical officer grants a certificate specifying a period during which the short-term detention certificate shall not authorise the measures mentioned in section 44(5)(b) of this Act,

the short-term detention certificate does not authorise that measure during that period.

(2) A period specified in a certificate granted under subsection (1) above may be expressed as—

(a) the duration of—

(i) an event; or

(ii) a series of events; or

(b) the duration of—

(i) an event; or

(ii) a series of events,

and any associated travel.

(3) 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 granted under subsection (1) above may include conditions such as are mentioned in subsection (4) below; and any such conditions shall have effect.

(4) 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 responsible medical officer;

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

Certificate under section 53: revocation

54

(1) Subsection (2) below applies where a certificate is granted under section 53(1) of this Act in respect of a patient.

(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 a responsible medical officer revokes a certificate under subsection (2) above, the responsible medical officer shall, as soon as practicable after doing so, give notice of the revocation to—

(a) the patient;

(b) the patient’s named person;

(d) if the certificate includes a condition such as is mentioned in section 53(4)(a) of this Act, any person authorised in accordance with that condition; and

(e) the Commission.

Effect of short-term detention certificate on emergency detention certificate

Effect of subsequent short-term detention certificate on emergency detention certificate

55

If a short-term detention certificate is granted in respect of a patient who is subject to an emergency detention certificate, the emergency detention certificate shall, on the granting of the short-term detention certificate, be revoked.

Effect of short-term detention certificate etc. on certain orders

Effect of subsequent short-term detention certificate on compulsory treatment order

56

(1) Subsection (2) below applies where—

(a) a patient is subject to a relevant order; and

(b) a short-term detention certificate is granted in respect of the patient.

(2) A relevant order shall cease to authorise the measures specified in it for the period during which the patient is subject to—

(a) the short-term detention certificate, or

(b) an extension certificate.

(3) In this section, the references to a relevant order are to—

(a) a compulsion order, or

(b) a compulsory treatment order or an interim compulsory treatment order.

Part 7 — Compulsory treatment orders

Chapter 1 — Application for, and making of, orders

Pre-application procedures

Mental health officer’s duty to apply for compulsory treatment order

57

(1) Where subsections (2) to (5) below apply in relation to a patient, a mental health officer shall apply to the Tribunal under section 63 of this Act for a compulsory treatment order in respect of that patient.

(2) This subsection applies where two medical practitioners carry out medical examinations of the patient in accordance with the requirements of section 58 of this Act.

(3) This subsection applies where each of the medical practitioners who carries out a medical examination mentioned in subsection (2) above is satisfied—

(a) that the patient has a mental disorder;

(b) that medical treatment which would be likely to—

(i) prevent the mental disorder worsening; or

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

Part 1 — Introductory

Principles for discharging certain functions

1

Welfare of the child

2

Equal opportunities

3

Part 2 — The Mental Welfare Commission for Scotland

Continued existence of Commission

The Mental Welfare Commission for Scotland

4

General duties

Duty to monitor operation of Act and promote best practice

5

Reporting on operation of Act

6

Particular functions

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

7

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

8

Duty to give advice

9

Publishing information, guidance etc.

10

Investigations

11

Investigations: further provision

12

Visits in relation to patients

13

Interviews

14

Medical examination

15

Inspection etc. of records

16

Duties of Scottish Ministers, local authorities and others as respects Commission

17

Annual Report

18

Statistical information

19

Protection from actions of defamation

20

Part 3 — The Mental Health Tribunal for Scotland

The Mental Health Tribunal for Scotland

21

Part 4 — Health Board and local authority functions

Chapter 1 — Health Board duties

Approved medical practitioners

Approved medical practitioners

22

Services and accommodation: particular cases

Provision of services and accommodation for certain patients under 18

23

Provision of services and accommodation for certain mothers with post-natal depression

24

Chapter 2 — Local authority functions

Provision of services

Care and support services etc.

25

Services designed to promote well-being and social development

26

Assistance with travel

27

Charging for services

Services under sections 25 to 27: charging

28

Relationship with general duties

Relationship between duties under sections 25 to 27 and duties under Social Work (Scotland) Act 1968 and Children (Scotland) Act 1995

29

Co-operation and assistance

Co-operation with Health Boards and others

30

Assistance from Health Boards and others

31

Appointment of mental health officers

Appointment of mental health officers