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

[^key-4744c402aa68752ca9be154eb06dcf7e]: Words in s. 299(1)(a) substituted (30.6.2017) by The Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions) Order 2017 (S.S.I. 2017/228), arts. 1, 2(2)(a) (with art. 3)

[^key-581fb0abf6c2e3bc83769b9cd2144016]: Words in s. 299(1)(a)(i) substituted (30.6.2017) by The Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions) Order 2017 (S.S.I. 2017/228), arts. 1, 2(2)(b) (with art. 3)

[^key-bb94a05780046ae67db0b3d92bed6e02]: Words in s. 299(1)(a)(ii) substituted (30.6.2017) by The Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions) Order 2017 (S.S.I. 2017/228), arts. 1, 2(2)(c) (with art. 3)

[^key-fa02a236a343919f505832957585a408]: S. 318(2)(b)(ii) repealed (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 22(3), 61(2); S.S.I. 2017/197, art. 2, sch. (with arts. 13-15)

[^key-ed6e3c354e4902582a4b23feb92a9991]: S. 320(1)(t) repealed (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 24(5), 61(2); S.S.I. 2017/197, art. 2, sch.

[^key-df944591f2ecfd7dcae15b7dc13c0939]: Word in s. 326(4)(c) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 36(3), 61(2); S.S.I. 2017/197, art. 2, sch.

[^key-c6b5a6fd50dc8e99083d72eaad2d1a5f]: Words in s. 329(1) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 6(3), 61(2); S.S.I. 2017/197, art. 2, sch.

[^key-0126e7b47e755677b376f7e3648ac78d]: Words in s. 329(1) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 22(4), 61(2); S.S.I. 2017/197, art. 2, sch. (with arts. 13-15)

[^key-0bbe7b27e4c9feb21bbd474004ef9d7e]: Words in s. 329(1) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 53(5), 61(2); S.S.I. 2017/197, art. 2, sch.

[^key-0c862244bb5e1df6136c10d521430a8c]: Sch. 2 para. 13A repealed (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 21(5), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 12(d))

[^M_F_ae40a6dd-e942-484a-b78c-d7d219c9c0f1]: Words in sch. 2 para. 7(4) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 35(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 17)

[^M_F_7dba4bd6-ba2b-4aae-fb7d-0b8519e46ae5]: Sch. 2 para. 7(4A) inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 35(2)(b), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 17)

[^M_C_46a9dae8-6ff7-47a4-a542-9b1918ff9ee4]: S. 257A(5) excluded by S.S.I. 2005/467 regs. 14(4), 15(3) (as inserted (30.6.2017) by The Mental Health (Cross-border transfer patients subject to detention requirement or otherwise in hospital) (Scotland) Amendment Regulations 2017 (S.S.I. 2017/229), regs. 2, 18(4), 19(3) (with reg. 4(1)))

[^M_C_83d1baef-3e0d-495b-ae90-d8911f2596fb]: S. 257A(5) excluded by S.S.I. 2008/356, reg. 9(4) (as inserted (30.6.2017) by The Mental Health (Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2017 (S.S.I. 2017/232), regs. 1. 9(1))

[^key-1000c960e648f87c987c53d40ee18e0d]: S. 193(9A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 60(2), 61(2); S.S.I. 2017/234, art. 2(2)(c)

[^key-124ee1d5da52e150e96e7181fe870a15]: S. 200(2A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 60(3), 61(2); S.S.I. 2017/234, art. 2(2)(c)

[^key-c07961c8fdbd8b23d995a263104ab657]: S. 224(6A) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 60(4), 61(2); S.S.I. 2017/234, art. 2(2)(c)

[^key-346dc2824bd3b5e97b3fc426638488c5]: Words in s. 329(1) inserted (30.9.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 60(5), 61(2); S.S.I. 2017/234, art. 2(2)(c)

[^key-361d104b216c2bbc100003a21114e65a]: S. 315(5) inserted (1.10.2017) by Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (asp 14), ss. 32(c), 36(2); S.S.I. 2017/294, reg. 2, sch.

[^key-f3716a7fa6092b30d7a5862537c83ee9]: Word in s. 315(3)(b) substituted (1.10.2017) by Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (asp 14), ss. 32(a), 36(2); S.S.I. 2017/294, reg. 2, sch.

[^key-8be5fc0d73366db353eae1feaee57a98]: S. 315(4) substituted (1.10.2017) by Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (asp 14), ss. 32(b), 36(2); S.S.I. 2017/294, reg. 2, sch.

[^key-34cf04b09e420a86e585afdbf8aea56b]: Words in sch. 2 para. 6(1) substituted (1.4.2018) by The Courts Reform (Scotland) Act 2014 (Consequential and Supplemental Provisions) Order 2018 (S.S.I. 2018/93), arts. 1, 2

[^key-00a302e349a643ec7912dc9f42da684c]: Words in s. 279(2) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 98(2) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

[^key-30a0bfdd7acc498c93c4ceea5ab7ecf9]: S. 164A inserted (30.11.2020) by Management of Offenders (Scotland) Act 2019 (asp 14), ss. 26(4), 63(2); S.S.I. 2020/245, reg. 2, sch. (with reg. 3)

[^key-07b42f4b428b9ad61b8c5d79602af531]: Ss. 167A, 167B inserted (30.11.2020) by Management of Offenders (Scotland) Act 2019 (asp 14), ss. 26(5), 63(2); S.S.I. 2020/245, reg. 2, sch. (with reg. 3)

[^key-2d2ac270942ff40550e92711da91af79]: Word in s. 257A(3) inserted (30.11.2020) by Management of Offenders (Scotland) Act 2019 (asp 14), ss. 26(6), 63(2); S.S.I. 2020/245, reg. 2, sch. (with reg. 3)

[^key-a0f568f6077f5244f045724a0e92f767]: Words in s. 279(2) substituted (31.12.2020) by The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (S.I. 2019/419), reg. 1(2), Sch. 3 para. 23(2) (with Sch. 3 para. 112); 2020 c. 1, Sch. 5 para. 1(1)

[^key-c08eb11b5e31aebfe8481a6f5cd27efd]: S. 279(10) substituted (31.12.2020) by The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (S.I. 2019/419), reg. 1(2), Sch. 3 para. 23(3) (with Sch. 3 para. 112); 2020 c. 1, Sch. 5 para. 1(1)

[^key-b3d0019f992a0b5e44cb8f3f1a06ec70]: Sch. 1A repealed (28.6.2021) by Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (asp 15), s. 109(2), sch. 2 para. 4(4); S.S.I. 2021/234, reg. 2, sch.

[^key-7b31ecdbe1e081526f66b94309561e1d]: Ss. 4ZA-4ZD repealed (28.6.2021) by Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (asp 15), s. 109(2), sch. 2 para. 4(2); S.S.I. 2021/234, reg. 2, sch.

[^key-f9caa988c9e2107b35aec20fd7645bc0]: Words in sch. 1 para. 2A(1)(b) substituted (28.6.2021) by Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (asp 15), s. 109(2), sch. 2 para. 4(3)(a); S.S.I. 2021/234, reg. 2, sch.

[^key-14bf72eee24caef9ddf2230423362135]: Word in sch. 1 para. 2B(2) inserted (28.6.2021) by Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (asp 15), s. 109(2), sch. 2 para. 4(3)(b)(i); S.S.I. 2021/234, reg. 2, sch.

[^key-f2dc2316659e09e3e2737202765608d4]: Sch. 1 para. 2B(2)(c) and word repealed (28.6.2021) by Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (asp 15), s. 109(2), sch. 2 para. 4(3)(b)(ii); S.S.I. 2021/234, reg. 2, sch.

[^key-9275d99a0ad2e947183763cdd8df0f65]: Word in s. 250(2A) repealed (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 37(2)(a), 59(1) (with s. 48(1)(c)(2)(c)(3)(b))

[^key-8cda5d0725cd5602d577f46ceeb5ae6a]: S. 250(2A)(c) repealed (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 37(2)(b), 59(1) (with s. 48(1)(c)(2)(c)(3)(b))

Order under section 264: further provision

Offences under section 311: extended sentences

Obstruction

Power to prescribe forms

Offences under section 311: extended sentences

Notification requirements for offenders under sections 311 and 313

Appeal to Court of Session against decisions of sheriff principal

Orders, regulations and rules

Principles for discharging certain functions

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

Mentally disordered offenders: interim compulsion orders

Remand for inquiry into mental condition: time-limit for appeals

Mentally disordered offenders: compulsion orders

Remand for inquiry into mental condition: time-limit for appeals

Mentally disordered offenders: compulsion orders

Provision of information to patient

Power of court to detain acquitted persons

Transfer of prisoners for treatment for mental disorder

Order under section 265: further provision

Order under section 269: further provision

309A

• (1) Regulations may make provision for and in connection with the keeping in charge of

• (a) a person who is subject to a corresponding suspension of detention in England, Wales, Northern Ireland, the Isle of Man or the Channel Islands.

• (b) a person who is subject to a corresponding suspension of detention in a member State of the European Union (apart from the United Kingdom).

• (2) Those regulations may—

• (a) make provision applying sections 301 to 303 of this Act to such persons;

• (b) make such modifications of those sections in that application as the Scottish Ministers think fit.

• (3) A person is subject to a “corresponding suspension of detention” in a territory if under the law of that territory—

• (a) but for the leave of absence mentioned in paragraph (b), the person would be subject to measures corresponding or similar to detention in hospital authorised by virtue of this Act or the 1995 Act; and

• (b) the person has been granted a leave of absence subject to a condition corresponding or similar to the condition set out in section 127(6)(a) of this Act.

Obstruction

Appeal to sheriff principal against certain decisions of the Tribunal

Power to prescribe forms

Withdrawn applications to be disregarded for certain purposes

13A

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

Commission Visitors

4A

• (1) Commission Visitors are to exercise the functions conferred on them by this Act or any other enactment on behalf of the Commission.

• (2) Commission Visitors may, in addition to the other functions conferred in this Part, exercise the functions of the Commission mentioned in—

• (a) section 8A of this Act;

• (b) section 9(1)(d) of the Adults with Incapacity (Scotland) Act 2000 (asp 4).

• (3) The Commission may give the Commission Visitors directions of a general or specific nature in relation to the exercise of the functions conferred on them.

• (4) A Commission Visitor must—

• (a) comply with any direction given under subsection (3); and

• (b) act in accordance with any guidance issued by the Commission in relation to the exercise of the functions of Commission Visitors.

• (5) A Commission Visitor acting in the exercise of any function must, if required, produce evidence of the Commission Visitor's authority.

• (6) In this Act, “Commission Visitors” are persons appointed under paragraph 7A(1) or (2) of schedule 1 to this Act.

8A

• (1) The Commission shall, as it considers appropriate, raise any concerns (of a general or specific nature) about the provision of any service mentioned in subsection (2) as respects a person who has a mental disorder, with—

• (a) Social Care and Social Work Improvement Scotland;

• (b) Healthcare Improvement Scotland; or

• (c) such other relevant persons, or group of persons.

• (2) The services are—

• (a) any social service (within the meaning of Part 5 of the Public Services Reform (Scotland) Act 2010 (asp 8));

• (b) health care (within the meaning of section 10A of the National Health Service (Scotland) Act 1978 (c. 29)).

• (3) In subsection (1), the “provision” of any service includes the organisation or co-ordination of any such service.

9A

The Commission shall when asked to do so provide advice, so far as is reasonable, to any person about any matters relevant to the functions of the Commission.

Services designed to promote well-being and social development

Notification by medical practitioner

Mentally disordered offenders: interim compulsion orders

Power to prescribe forms

Appeal to Court of Session against decisions of sheriff principal

Orders, regulations and rules

Power to prescribe forms

2A

• (1) The Commission is to consist of the following members—

• (a) a person appointed by the Scottish Ministers to chair the Commission; and

• (b) no fewer than 6 nor more than 8 other members appointed by the Scottish Ministers.

• (2) The Scottish Ministers may by order amend sub-paragraph (1)(b) by substituting for the minimum or maximum number of members for the time being specified there such other number as they think fit.

2B

• (1) In appointing members, the Scottish Ministers are to have regard to the desirability of including—

• (a) persons who have experience of, and have shown capacity and capability in, the provision of services to those who have a mental disorder;

• (b) persons who use, or have used, such services;

• (c) persons who are, or have been, carers of those who have a mental disorder;

• (d) persons who have such other skills, knowledge or experience as the Scottish Ministers consider to be relevant in relation to the exercise of the Commission's functions.

• (2) In appointing members under paragraph 2A(1)(b), the Scottish Ministers must appoint at least—

• (a) one person who falls within paragraph (b) of sub-paragraph (1) of this paragraph; and

• (b) one person who falls within paragraph (c) of sub-paragraph (1) of this paragraph ...

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Terms of appointment etc.

2C

• (1) Each member of the Commission is to be appointed for such period as the Scottish Ministers think fit.

• (2) A member—

• (a) holds and vacates office in accordance with the terms and conditions of appointment; but

• (b) may, by written notice to the Scottish Ministers, resign office as a member.

• (3) A person is, on ceasing to be a member, eligible for reappointment.

Removal of members

2D

The Scottish Ministers may, by written notice, remove a member from office if they are satisfied that—

• (a) the member—

• (i) has been adjudged bankrupt;

• (ii) has granted a trust deed for creditors or a composition contract;

• (iii) has proposed a voluntary arrangement which has been approved;

• (b) the member's estate has been sequestrated;

• (c) the member has been absent from 3 consecutive meetings of the Commission without the permission of the Commission;

• (d) the member is otherwise unfit or unable to discharge the functions of a member.

Disqualification from membership

2E

A person is disqualified from appointment, and from holding office, as a member of the Commission if that person is—

• (a) a member of the Scottish Parliament;

• (b) a member of the House of Commons;

• (c) a member of the European Parliament.

Membership

Commission Visitors

7A

• (1) The Commission must appoint such staff, employed under paragraph 7(1)(a) or (b), to exercise the functions of Commission Visitors; and when doing so those staff are to be known as Commission Visitors.

• (2) The Commission may arrange for such other persons as it thinks fit to be appointed as and exercise the functions of Commission Visitors; and when doing so those persons are to be known as Commission Visitors.

• (3) There may be no more than 10 Commission Visitors appointed by the Commission under sub-paragraph (2).

• (4) The Scottish Ministers may by order amend sub-paragraph (3) by substituting for the maximum number of Commission Visitors for the time being specified there such other number as they think fit.

• (5) In appointing Commission Visitors, the Commission is to have regard to the desirability of appointing—

• (a) persons who have experience of, and have shown capacity and capability in, the provision of services to those who have a mental disorder;

• (b) persons who use, or have used, such services;

• (c) persons who are, or have been, carers of those who have a mental disorder;

• (d) persons who have such other skills, knowledge or experience as the Commission considers to be relevant in relation to the exercise of the functions of Commission Visitors.

• (6) In appointing Commission Visitors, the Commission must appoint at least—

• (a) one person who falls within paragraph (b) of sub-paragraph (5); and

• (b) one person who falls within paragraph (c) of sub-paragraph (5).

• (7) In this Act (unless the context otherwise requires), any reference to a function of a Commission Visitor (or the functions of Commission Visitors) is a reference to a function conferred by this Act or any other enactment.

Commission Visitors: further provision

7B

• (1) The arrangements entered into by virtue of paragraph 7A(2) may include provision with respect to the payment of remuneration and allowances to, or amounts in respect of, such persons.

• (2) Persons appointed as Commission Visitors by virtue of paragraph 7A(2) are not members of staff of the Commission.

Medical Visitors

7C

• (1) In appointing Commission Visitors, the Commission must appoint one or more persons who have such qualifications, training and experience as may be prescribed by regulations for the purposes of carrying out the functions of Commission Visitors under section 15 of this Act.

• (2) Persons so appointed may also be known as Medical Visitors.

Committees

7D

• (1) The Commission may establish committees for any purpose relating to its functions.

• (2) Subject to sub-paragraph (7), the Commission is to determine the composition of its committees.

• (3) The Commission may appoint persons who are not members of the Commission to be members of a committee.

• (4) A committee of the Commission is to comply with any directions given to it by the Commission.

• (5) The Commission must establish at least one committee (an “advisory committee”) for the purpose of giving advice to it about matters connected to its functions.

• (6) In considering how to exercise its functions, the Commission must have regard to relevant advice and information given to it by any advisory committee (whether or not given at its request).

• (7) An advisory committee must include persons of a description as may be prescribed by regulations.

Procedure and meetings

7E

• (1) The Commission may determine its own procedure and that of its committees, including a quorum for meetings.

• (2) The validity of any proceedings of the Commission, or any of its committees, is not affected by a vacancy in membership nor by any defect in the appointment of a member.

• (3) Members of the Scottish Executive and persons authorised by the Scottish Ministers may attend and take part in meetings of the Commission or any of its committees, but are not entitled to vote at such meetings.

Exercise of certain functions etc.

7F

• (1) A member of the Commission may not—

• (a) exercise the functions of a Commission Visitor;

• (b) be appointed as a Commission Visitor.

• (2) The chief executive may not be a member of the Commission.

• (3) A member of staff of the Commission (other than a Commission Visitor) may not exercise the functions of a Commission Visitor.

• (4) An appointment as a Commission Visitor under paragraph 7A(1) does not affect the appointed person's—

• (a) status as employed under paragraph 7(1)(a) or (b); or

• (b) ability to perform the duties of the person as so employed.

Delegation of functions

7G

• (1) The Commission may, subject to sub-paragraphs (2), (3) and (4), authorise—

• (a) the chief executive;

• (b) any other employee;

• (c) any of its committees,

to exercise such of its functions, and to such extent, as it may determine.

• (2) The Commission may not authorise any of the following functions to be exercised by any other person—

• (a) the functions of the Commission under section 12 (investigations: further provision);

• (b) the approval of any acquisition or disposal of land or other property with a value greater than £50,000 or such other amount as the Commission may, with the consent of the Scottish Ministers, determine;

• (c) the approval of annual reports and accounts;

• (d) the approval of any budget or other financial plan.

• (3) Any function conferred on a Commission Visitor may not be delegated by the Commission.

• (4) Sub-paragraph (1) does not affect the responsibility of the Commission for the exercise of its functions.

• (5) The chief executive may, with the consent of the Commission, authorise—

• (a) any other employee;

• (b) any of the Commission's committees,

to exercise such of the chief executive's functions, and to such extent, as the chief executive, with such consent, may determine.

• (6) Sub-paragraph (5) does not affect the responsibility of the chief executive for the exercise of the chief executive's functions.

Mandatory delegation of functions to chief executive

7H

• (1) The Commission must delegate to the chief executive the functions mentioned in sub-paragraph (2).

• (2) The functions are—

• (a) the Commission's functions relating to the discharge of patients under this Act;

• (b) the Commission's functions under section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4).

• (3) When exercising those functions so delegated, the chief executive must—

• (a) consult the Commission;

• (b) consult a Commission Visitor in every case in which it appears to the chief executive appropriate to do so;

• (c) have regard to any relevant guidance issued by the Commission.

• (4) Sub-paragraph (1) does not affect the responsibility of the Commission for the exercise of its functions.

Location of office

7I

The Commission's determination of the location of its office premises is subject to the approval of the Scottish Ministers.

Transitional provision: first chief executive

10A

• (1) The person who, immediately before the coming into force of this paragraph, holds (by virtue of paragraph 7) the post of chief officer of the Commission becomes the first chief executive of the Commission.

• (2) But if—

• (a) there is no person holding that post immediately before the coming into force of this paragraph; or

• (b) the person holding the post immediately before the coming into force of this paragraph is unwilling or unable to be the chief executive,

the Scottish Ministers are to make the first appointment of the chief executive of the Commission on such terms and conditions as the Scottish Ministers may determine.

• (3) Each subsequent chief executive is appointed in accordance with paragraph 7.

• (4) Where sub-paragraph (1) applies, the person becoming the first chief executive of the Commission does so on the terms and conditions which applied to the post of chief officer held by that person.

Transitional provision: Commissioners

10B

Any person who, immediately before the coming into force of this paragraph, is a member of the Commission (including any ex officio members) by virtue of paragraph 3 ceases automatically to hold office as such a member.

Power to prescribe forms

Non-consensual sexual acts

4ZA

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

4ZB

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

4ZC

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

4ZD

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

Duty to monitor operation of Act and promote best practice

The Mental Health Tribunal for Scotland

Provision of services and accommodation for certain patients under 18

Services designed to promote well-being and social development

Emergency detention in hospital

Short-term detention in hospital

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

Mentally disordered persons subject to criminal proceedings: assessment and treatment

Mentally disordered persons subject to criminal proceedings: assessment and treatment

Mentally disordered offenders: interim compulsion orders

Remand for inquiry into mental condition: time-limit for appeals

Mentally disordered offenders: compulsion orders

Amendment of 1995 Act: probation for treatment of mental disorder

Review of compulsion order and restriction order

Mental health officer’s duty to identify named person

Assessment order: suspension of measure authorising detention

Assessment of needs for community care services etc.

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

Designation of mental health officer responsible for patient’s case

Designated medical practitioners

Nomination of named person

Information gathering

Order under section 264: further provision

Order under section 268: further provision

Order under section 269: further provision

Order under section 269: further provision

Code of practice

Proceedings for specific performance of statutory duty

Advance statements: making and withdrawal

Duty to mitigate adverse effect of compulsory measures on parental relations

Non-consensual sexual acts

Absconding etc. by other patients

Offences under section 311: extended sentences

SCHEDULE 1A

Part 1 — Members of NCF etc.

Membership

1

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

Membership selection panel

2

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

NCF staff

3

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

NCF powers and procedure

4

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

Application of schedule 1 to NCF

5

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

Part 2 — Delegation of functions

Delegation by NCF

6

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

Part 3 — Eligibility to participate in forum

Eligibility

7

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

Part 4 — Conduct of hearings etc.

Testimony given to NCF

8

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

Recording of testimony

9

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

Payment of expenses

10

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

Part 5 — Reporting

Reports by NCF

11

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

Annual NCF reports

12

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Confidentiality

Disclosure of information

13

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Part 7 — General

14

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Services designed to promote well-being and social development

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

Mentally disordered offenders: interim compulsion orders

Remand for inquiry into mental condition: time-limit for appeals

Mentally disordered offenders: compulsion orders

Power of court to detain acquitted persons

Orders, regulations and rules

Process for orders: further provision

271A

• (1) A hospital is a “qualifying hospital” for the purposes of sections 268 to 271 of this Act if—

• (a) it is not a state hospital, and

• (b) it is specified, or is of a description specified, in regulations.

• (2) Regulations may specify the test for the purposes of sections 268(2), 269(3) and 271(2)(a) of this Act.

• (3) Regulations under subsection (2) above specifying the test—

• (a) must include as a requirement for the test to be met in relation to a patient that the Tribunal be satisfied that detention of the patient in the hospital in which the patient is being detained involves the patient being subject to a level of security that is excessive in the patient's case, and

• (b) may include further requirements for the test to be met in relation to a patient.

• (4) Regulations may make provision about when, for the purposes of—

• (a) any regulations made under subsection (2) above, and

• (b) sections 268 to 271 of this Act,

a patient's detention in a hospital is to be taken to involve the patient being subject to a level of security that is excessive in the patient's case.

• (5) Regulations may modify sections 264 and 268 of this Act so as to provide that a person must meet criteria besides being a medical practitioner in order to prepare a report for the purpose of subsection (7A) in each of those sections.

False statements

Appeal to Court of Session against decisions of sheriff principal

71A

• (1) In sections 62 to 68 of this Act, a reference to a hospital may be read as a reference to a hospital unit.

• (2) For the purposes of subsection (1) above, “hospital unit” means any part of a hospital which is treated as a separate unit.

87A

• (1) Subsections (2) and (3) below apply where—

• (a) a mental health officer receives notice of a determination under section 86 of this Act from a patient's responsible medical officer, and

• (b) the Tribunal is required by virtue of section 101(2)(a) of this Act to review the determination.

• (2) The mental health officer must—

• (a) prepare a record stating the information mentioned in subsection (4) below,

• (b) submit the record to the Tribunal, and

• (c) at the same time as submitting the record to the Tribunal, send to the persons mentioned in subsection (6) below—

• (i) a copy of the record, and

• (ii) a statement of the matters mentioned in subsection (5) below.

• (3) At the same time as submitting the record to the Tribunal, the mental health officer must send a copy of the record to the patient except where the officer considers that doing so carries a risk of significant harm to the patient or others.

• (4) The information to be stated in the record is—

• (a) the name and address of the patient,

• (b) if known by the mental health officer, the name and address of—

• (i) the patient's named person, and

• (ii) the patient's primary carer,

• (c) the things done by the mental health officer in compliance with the requirements in subsection (2) of section 85 of this Act (and, if by virtue of subsection (3) of that section the first-listed one has not been complied with, the reason why compliance with it was impracticable),

• (d) so far as relevant to the extension of the compulsory treatment order—

• (i) the details of the personal circumstances of the patient, and

• (ii) if known by the mental health officer, the details of any advance statement made by the patient (and not withdrawn by the patient),

• (e) the views of the mental health officer on the extension of the compulsory treatment order, and

• (f) any other information that the mental health officer considers relevant in relation to the extension of the compulsory treatment order.

• (5) The matters referred to in subsection (2)(c) above are—

• (a) whether the mental health officer is sending a copy of the record to the patient, and

• (b) if the mental health officer is not sending a copy of the record to the patient, the reason for not doing so.

• (6) For the purposes of subsection (2)(c) above, the persons are—

• (a) the patient's named person,

• (b) the patient's responsible medical officer, and

• (c) the Commission.

124A

• (1) Subsection (2) below applies where—

• (a) the detention of a patient in hospital is authorised by—

• (i) a compulsory treatment order, or

• (ii) an interim compulsory treatment order, and

• (b) that order specifies the hospital unit in which the patient is to be detained.

• (2) The managers of the hospital in which the patient is detained may transfer the patient to another hospital unit within the same hospital.

• (3) In relation to a transfer or proposed transfer under subsection (2) above, section 124(4) to (14) of this Act applies subject to the following modifications—

• (a) a reference to section 124(2) is to be read as a reference to subsection (2) above,

• (b) subsection (10)(a) is to be ignored,

• (c) in subsection (12), a reference to the hospital from which the patient is transferred is to be read as a reference to the hospital in which the patient is detained,

• (d) in subsections (13)(b) and (14), a reference to the hospital to which the patient is transferred is to be read as a reference to the hospital unit to which the patient is transferred.

• (4) For the purposes of this section, “hospital unit” means any part of a hospital which is treated as a separate unit.

153A

• (1) Subsections (2) and (3) below apply where—

• (a) a mental health officer receives notice of a determination under section 152 of this Act from a patient's responsible medical officer, and

• (b) the Tribunal is required by virtue of section 165(2)(a) of this Act to review the determination.

• (2) The mental health officer must—

• (a) prepare a record stating the information mentioned in subsection (4) below,

• (b) submit the record to the Tribunal, and

• (c) at the same time as submitting the record to the Tribunal, send to the persons mentioned in subsection (6) below—

• (i) a copy of the record, and

• (ii) a statement of the matters mentioned in subsection (5) below.

• (3) At the same time as submitting the record to the Tribunal, the mental health officer must send a copy of the record to the patient except where the officer considers that doing so carries a risk of significant harm to the patient or others.

• (4) The information to be stated in the record is—

• (a) the name and address of the patient,

• (b) if known by the mental health officer, the name and address of—

• (i) the patient's named person, and

• (ii) the patient's primary carer,

• (c) the things done by the mental health officer in compliance with the requirements in subsection (2) of section 151 of this Act (and, if by virtue of subsection (3) of that section the first-listed one has not been complied with, the reason why compliance with it was impracticable),

• (d) so far as relevant to the extension of the compulsion order—

• (i) the details of the personal circumstances of the patient, and

• (ii) if known by the mental health officer, the details of any advance statement made by the patient (and not withdrawn by the patient),

• (e) the views of the mental health officer on the extension of the compulsion order, and

• (f) any other information that the mental health officer considers relevant in relation to the extension of the compulsion order.

• (5) The matters referred to in subsection (2)(c) above are—

• (a) whether the mental health officer is sending a copy of the record to the patient, and

• (b) if the mental health officer is not sending a copy of the record to the patient, the reason for not doing so.

• (6) For the purposes of subsection (2)(c) above, the persons are—

• (a) the patient's named person,

• (b) the patient's responsible medical officer, and

• (c) the Commission.

218A

• (1) Subsection (2) below applies where—

• (a) a patient is subject to—

• (i) a compulsion order and a restriction order,

• (ii) a hospital direction, or

• (iii) a transfer for treatment direction, and

• (b) that order or (as the case may be) direction specifies the hospital unit in which the patient is to be detained.

• (2) If the condition in subsection (3) below is satisfied, the managers of the hospital in which the patient is detained may transfer the patient to another hospital unit within the same hospital.

• (3) The condition is that the Scottish Ministers consent to the transfer.

• (4) In relation to a transfer or proposed transfer under subsection (2) above, section 218(4) to (14) of this Act applies subject to the following modifications—

• (a) a reference to section 218(2) is to be read as a reference to subsection (2) above,

• (b) in subsection (10)(a), a reference to section 218(3) is to be read as a reference to subsection (3) above,

• (c) in subsection (12), a reference to the hospital from which the patient is transferred is to be read as a reference to the hospital in which the patient is detained,

• (d) in subsections (13)(b) and (14), a reference to the hospital to which the patient is transferred is to be read as a reference to the hospital unit to which the patient is transferred.

• (5) For the purposes of this section, “hospital unit” means any part of a hospital which is treated as a separate unit.

Ability to act if no named person

257A

• (1) This section applies if—

• (a) a patient does not have a named person,

• (b) the patient has attained the age of 16 years, and

• (c) the patient is incapable in relation to a decision as to whether to initiate an application or appeal in the patient's case.

• (2) In subsection (1)(c) above, “incapable” has the same meaning as in section 250 of this Act.

• (3) Each of the persons listed in subsection (9)(a) to (d) below has authority to initiate an application or appeal that may be made by the patient under section 50(1), 99(1), 100(2), 120(2), 125(2), 126(2), 163(1), 164(2), 164A, 192(2), 201(1), 204(1), 214(2), 219(2), 220(2), 264(2), 268(2), 320(2), 321(1) or 322(2) of this Act.

• (4) Each of the persons listed in subsection (9)(a) and (b) below has authority to obtain any notice or information that is to be provided under section 54(3), 60(1), 87(2)(c), 124(4) or (6), 127(7), 128(3), 129(3) or (4), 153(2)(c), 200(3), 218(4), (6) or (10)(b), 224(8), 225(3) or 226(3) of this Act.

• (5) The reference in subsection (3) above to section 264(2), 268(2), 320(2), 321(1) or 322(2) of this Act does not apply in relation to a guardian or a welfare attorney of the patient (as that person is already entitled to make an application or appeal under that section).

• (6) In the application of subsection (4) above—

• (a) the reference to section 87(2)(c) or 153(2)(c) relates only to notice of the determination mentioned in that section (and not also to a copy of the record mentioned in that section),

• (b) the reference to section 128(3) or 129(4) relates to a responsible medical officer's reasons only if that officer is satisfied that it is appropriate to give notice of them to a guardian or a welfare attorney of the patient (having regard to the need to ensure the patient's wellbeing and confidentiality).

• (7) Neither of the persons listed in subsection (9)(c) or (d) below has authority to act in relation to a patient by virtue of this section if the patient has made a written declaration precluding the person (or all persons) from so acting.

• (8) Subsections (2) to (5) and (7) of section 250 of this Act apply to a declaration mentioned in subsection (7) above as they apply to a nomination to which subsection (1) of that section relates (with that section to be read accordingly).

• (9) The listed persons are—

• (a) any guardian of the patient,

• (b) any welfare attorney of the patient,

• (c) the patient's primary carer (if any),

• (d) the patient's nearest relative.

259A

• (1) Each of the bodies mentioned in subsection (2) below must give the Commission such information as the Commission may from time to time seek on how the body—

• (a) has, during a period of at least 2 years specified by the Commission, been exercising the functions conferred on the body by section 259 of this Act, and

• (b) intends, during a period of at least 2 years specified by the Commission, to exercise the functions conferred on the body by section 259 of this Act.

• (2) The bodies are—

• (a) a local authority,

• (b) a Health Board,

• (c) the State Hospitals Board for Scotland.

261A

• (1) Subsection (2) below applies where—

• (a) a medical examination or interview referred to in subsection (4)(a) or (b) below is to be carried out, and

• (b) the subject of it—

• (i) has difficulty in communicating, or

• (ii) generally communicates in a language other than English.

• (2) The appropriate person must take all reasonable steps to secure that, for the purpose of enabling the subject of the medical examination or interview to communicate during it—

• (a) arrangements appropriate to the subject's needs are made, or

• (b) the subject is provided with assistance, or material, appropriate to those needs.

• (3) As soon as practicable after taking any steps under subsection (2) above, the appropriate person must make a written record of the steps.

• (4) This subsection refers to—

• (a) a medical examination by virtue of section 36(1)(a), 44(1)(a), 57(2) or 136(2) of this Act,

• (b) an interview by virtue of—

• (i) section 45(1)(a) or 61(2)(a) of this Act, or

• (ii) section 57C(2)(a) or 59B(2)(a) of the 1995 Act.

• (5) In subsections (2) and (3) above, “the appropriate person” means—

• (a) in relation to a medical examination by virtue of section 136(2) of this Act, the Scottish Ministers,

• (b) in relation to a medical examination by virtue of any of the other sections of this Act mentioned in subsection (4)(a) above—

• (i) if it is to be carried out at a hospital, the managers of the hospital,

• (ii) if it is to be carried out elsewhere, the medical practitioner carrying it out,

• (c) in relation to an interview referred to in subsection (4)(b) above—

• (i) if it is to be carried out at a hospital, the managers of the hospital,

• (ii) if it is to be carried out elsewhere, the mental health officer carrying it out.

276A

• (1) Subsection (2) below applies where a Health Board receives a copy of an advance statement, or a copy of a document withdrawing an advance statement, from—

• (a) the person who made the statement, or

• (b) any individual acting with the person's authority in relation to the statement.

• (2) The Health Board must—

• (a) place a copy of the statement or document with the person's medical records, and

• (b) inform the Commission—

• (i) that a copy of the statement or document is held with the person's medical records, and

• (ii) of the premises at which the medical records are kept (and the personal and administrative details essential for identifying the records as the person's).

276B

• (1) Where the Commission receives information by virtue of section 276A(2) of this Act, the Commission must enter the information in a register of advance statements maintained by it (and mark the date on which the entry is made).

• (2) The Commission must allow an entry in the register to be inspected at a reasonable time—

• (a) by the person whose medical records are referred to in the entry,

• (b) with respect to treatment of the person for mental disorder, by any individual acting on the person's behalf,

• (c) for the purpose of making decisions or taking steps with respect to the treatment of the person for a mental disorder, by—

• (i) a mental health officer dealing with the person's case,

• (ii) the person's responsible medical officer,

• (iii) the Health Board responsible for the person's treatment.

276C

• (1) A Health Board is to publicise any support that it offers for—

• (a) making or withdrawing an advance statement,

• (b) sending a copy of an advance statement, or a copy of a document withdrawing an advance statement, to a Health Board.

• (2) A Health Board must give the Commission such information as the Commission may from time to time seek on what the Health Board is doing in order to comply with subsection (1) above.

Warrant to enter premises for purposes of taking patient

Conflicts of interest to be avoided

291A

• (1) There must not be a conflict of interest in relation to a medical examination to be carried out for the purpose of section 36(1), 44(1), 47(1), 57(2), 77(2), 78(2), 139(2), 140(2) or 182(2) of this Act.

• (2) Regulations may—

• (a) specify circumstances in which, in the application of subsection (1) above—

• (i) there is to be taken to be a conflict of interest,

• (ii) there is not to be taken to be a conflict of interest,

• (b) specify circumstances in which subsection (1) above does not apply.

Absconding etc. by patients subject to compulsory treatment order

295A

• (1) Subsection (2) below applies in relation to a decision of a sheriff or a justice of the peace under section 293 of this Act making, or refusing to make, a removal order.

• (2) As soon as practicable after the decision is made, the mental health officer who made the application for the removal order must notify the Commission of the decision.

• (3) Subsection (4) below applies in relation to a decision of a sheriff under section 295 of this Act making, or refusing to make, an order recalling or varying a removal order.

• (4) As soon as practicable after the decision is made, the mental health officer specified in the removal order must notify the Commission of—

• (a) the decision, and

• (b) any additional order made under subsection (6) of section 295 of this Act.

Appeal to sheriff principal against certain decisions of the Tribunal

1A

In the case of a patient subject to a hospital direction or a transfer for treatment direction, section 60(1) of this Act shall have effect as if, after paragraph (b), there were inserted—

(ba) to the Scottish Ministers;

164A

• (1) This section applies where a patient is subject to a relevant compulsion order.

• (2) Either of the persons mentioned in subsection (3) may make an application under this section to the Tribunal for a determination under section 167A that the disclosure period applicable to the compulsion order is to come to an end.

• (3) The persons referred to in subsection (2) are—

• (a) the patient, and

• (b) the patient's named person.

• (4) An application under this section may not be made until the expiry of the period of 12 months beginning with the day on which the order is made (or is deemed under section 198(2) to be made).

• (5) Where an application under this section relating to a compulsion order has already been refused by the Tribunal, a further such application relating to the order may not be made until the expiry of the period of 12 months beginning with the date of such refusal (or, where applicable, the date of the most recent such refusal).

• (6) An application under this section must be accompanied by such documents as may be prescribed by regulations.

167A

• (1) This section applies where an application is made under section 164A in respect of a patient.

• (2) If the Tribunal is satisfied that, without the provision of medical treatment of the kind mentioned in section 139(4)(b) to the patient, there would be a significant risk to the safety of other persons, it must refuse the application.

• (3) If the Tribunal is not satisfied as mentioned in subsection (2), it must determine that the disclosure period applicable to the compulsion order ends with immediate effect.

• (4) Before refusing an application under subsection (2) or making a determination under subsection (3), the Tribunal must afford the persons mentioned in subsection (5) the opportunity—

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

• (b) of leading, or producing, evidence.

• (5) Those persons are—

• (a) the patient,

• (b) the patient's named person,

• (c) any guardian of the patient,

• (d) any welfare attorney of the patient,

• (e) the mental health officer,

• (f) the patient's responsible medical officer,

• (g) the patient's primary carer,

• (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.

• (6) In this section and section 164A—

• (a) “disclosure period”, in relation to a compulsion order, is to be construed in accordance with the Rehabilitation of Offenders Act 1974,

• (b) references to the disclosure period applicable to a compulsion order are to be construed in accordance with section 5G(1) of that Act.

167B

• (1) The Scottish Ministers may require the Tribunal to provide the information mentioned in subsection (3) in respect of a person.

• (2) Where a requirement is made under subsection (1), the Tribunal must, before the expiry of the period of 15 working days beginning with the day on which the requirement is made, provide the Scottish Ministers with the information.

• (3) The information is whether a refusal under subsection (2) of section 167A has been given, or a determination under subsection (3) of that section has been made, in relation to the person to whom the request relates.

• (4) In subsection (2), “working day” has the meaning given by section 47(8).

Assistance with travel

Co-operation with Health Boards and others

Mentally disordered offenders: interim compulsion orders