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

(i) which it is proposed to give; and

(ii) which is being given,

to the patient while the patient is subject to the compulsion order; and

(b) such other information relating to the care of the patient as may be prescribed by regulations.

(4) Subject to subsection (5)(b) below, a patient’s responsible medical officer may from time to time amend the patient’s Part 9 care plan.

(5) Regulations may prescribe—

(a) circumstances in which a patient’s responsible medical officer is required to amend the patient’s Part 9 care plan;

(b) information in a Part 9 care plan which may not be amended.

(6) Where a patient’s responsible medical officer amends the patient’s Part 9 care plan—

(a) the responsible medical officer shall secure that, as soon as practicable after it is amended, the amended Part 9 care plan is included in the patient’s medical records; and

(b) subsections (3) to (5) above and this subsection shall apply as if references to the Part 9 care plan were references to the amended Part 9 care plan.

Mental health officer’s duty to identify named person

138

The mental health officer shall, as soon as practicable after a relevant compulsion order is made in respect of the patient, take such steps as are reasonably practicable to ascertain the name and address of the patient’s named person.

Chapter 2 — Review of compulsion orders

Mandatory reviews by responsible medical officer

First review of compulsion order

139

(1) This section applies where a relevant compulsion order is made in respect of a patient.

(2) The patient’s responsible medical officer shall, during the appropriate period, carry out a review in respect of the compulsion order (such review being referred to in this Part of this Act as the “first review”) by complying with the requirements in subsection (3) below.

(3) Those requirements are—

(a) to—

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

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

(b) to consider—

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

(ii) whether it continues to be necessary for the patient to be subject to the compulsion order; and

(i) the mental health officer;

(ii) such persons as are mentioned in subsection (5) below as the responsible medical officer considers appropriate; and

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

(4) Those conditions are—

(a) that the patient has a mental disorder;

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

(i) prevent the mental disorder worsening; or

(ii) alleviate any of the symptoms, or effects, of the disorder,

is available for the patient; and

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

(ii) to the safety of any other person.

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

(a) persons who appear to the responsible medical officer to provide medical treatment of the kind that is recorded in the Part 9 care plan;

(b) if any community care services or relevant services are set out in that plan, persons who appear to the responsible medical officer to provide services of that kind;

(c) if any other treatment, care or service is set out in that plan, persons who appear to the responsible medical officer to provide treatment, care or a service of that kind.

(6) In subsection (2) above, “appropriate period” means the period of 2 months ending with the day on which the relevant compulsion order ceases to authorise the measures specified in it.

Further reviews of compulsion order

140

(1) This section applies where a relevant compulsion order is extended by virtue of an order under section 167 of this Act.

(2) The patient’s responsible medical officer shall, during the period mentioned in subsection (3) below, carry out a review in respect of the compulsion order (such review being referred to in this Part of this Act as a “further review”) by complying with the requirements in section 139(3) of this Act.

(3) The period referred to in subsection (2) above is the period of 2 months ending with the day on which the compulsion order, as extended by virtue of the order, ceases to authorise the measures specified in it.

Revocation of order by responsible medical officer or Commission

Responsible medical officer’s duty to revoke compulsion order: mandatory reviews

141

(1) This section applies where a patient’s responsible medical officer is carrying out—

(a) the first review of the relevant compulsion order to which the patient is subject; or

(b) a further review of that order.

(2) If, having regard to any views expressed by persons consulted under section 139(3)(c) of this Act for the purpose of the review being carried out, the responsible medical officer is not satisfied—

(a) that the conditions mentioned in section 139(4) of this Act continue to apply in respect of the patient; or

(b) that it continues to be necessary for the patient to be subject to the compulsion order,

the responsible medical officer shall make a determination revoking the compulsion order.

(3) A determination under this section shall be made as soon as practicable after the duty to make it arises.

Revocation of compulsion order: responsible medical officer’s duty to keep under review

142

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

(2) Without prejudice to the duties imposed on the patient’s responsible medical officer by sections 139(2), 140(2), 141(2) and 159(2) of this Act, the responsible medical officer shall from time to time consider—

(a) whether the conditions mentioned in section 139(4) of this Act continue to apply in respect of the patient; and

(b) whether it continues to be necessary for the patient to be subject to a compulsion order.

(3) If, having considered the matters mentioned in paragraphs (a) and (b) of subsection (2) above, the responsible medical officer is not satisfied—

(a) that the conditions mentioned in section 139(4) of this Act continue to apply in respect of the patient; or

(b) that it continues to be necessary for the patient to be subject to a compulsion order,

the responsible medical officer shall make a determination revoking the compulsion order.

Commission’s power to revoke compulsion order

143

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

(2) If the Commission is satisfied—

(a) that not all of the conditions mentioned in section 139(4) of this Act continue to apply in respect of the patient; or

(b) that it does not continue to be necessary for the patient to be subject to a compulsion order,

it may make a determination revoking the compulsion order.

Revocation of compulsion order: notification

144

(1) Where a patient’s responsible medical officer makes a determination under section 141 or 142 of this Act, the responsible medical officer shall—

(a) give notice of the determination; and

(b) send a statement of the reasons for it,

to the Commission and to the persons mentioned in subsection (3) below.

(2) Where the Commission makes a determination under section 143 of this Act it shall—

(a) give notice of the determination; and

(b) send a statement of the reasons for it,

to the patient’s responsible medical officer and to the persons mentioned in subsection (3) below.

(3) The persons referred to in subsections (1) and (2) above are—

(a) the patient;

(b) the patient’s named person;

(d) any welfare attorney of the patient;

(e) the mental health officer; and

(f) the Tribunal.

(4) Notice under subsection (1) or (2) above—

(a) to the persons mentioned in subsection (3)(a) to (d) above shall be given as soon as practicable after the determination is made and, in any event, before the expiry of the period of 7 days beginning with the day on which the determination is made; and

(b) to—

(i) the Commission;

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

(iii) the persons mentioned in subsection (3)(e) and (f) above,

shall be given before the expiry of the period of 7 days beginning with the day on which the determination is made.

Further steps to be taken where order not revoked

Mandatory reviews: further steps to be taken where compulsion order not revoked

145

(1) This section applies where a patient’s responsible medical officer is carrying out—

(a) the first review of the relevant compulsion order to which the patient is subject; or

(b) a further review of that order.

(2) If, having regard to any views expressed by persons consulted under section 139(3)(c) of this Act for the purpose of the review being carried out, the patient’s responsible medical officer is satisfied—

(a) that the conditions mentioned in section 139(4) of this Act continue to apply in respect of the patient; and

(b) that it continues to be necessary for the patient to be subject to a compulsion order,

the responsible medical officer shall comply with the requirements in subsection (3) below.

(3) Those requirements are—

(a) to consider whether it will continue to be necessary for the patient to be subject to a compulsion order after the day on which the order to which the patient is subject will cease (unless extended) to authorise the measures specified in it;

(b) to assess the needs of the patient for medical treatment;

(i) whether the compulsion order should be varied by modifying the measures specified in it;

(ii) if the order should be varied, what modification is appropriate; and

(d) to consider any views expressed on the matters mentioned in paragraphs (a) to (c) above by persons consulted under section 139(3)(c) of this Act.

Extension of order following first review

First review: responsible medical officer’s duty where extension proposed

146

(1) This section applies where a patient’s responsible medical officer is carrying out the first review of the relevant compulsion order to which the patient is subject.

(2) If, having regard to any views expressed by persons consulted under section 139(3)(c) of this Act, it appears to the responsible medical officer—

(a) that it will continue to be necessary for the patient to be subject to a compulsion order after the day on which the order will cease (unless extended) to authorise the measures specified in it; and

(b) that the compulsion order should not be varied by modifying the measures specified in it,

the responsible medical officer shall give notice to the mental health officer that the responsible medical officer is proposing to make an application under section 149 of this Act for an order under section 167 extending the compulsion order for the period of 6 months beginning with the day on which the compulsion order will cease (unless extended) to authorise the measures specified in it.

Proposed extension on first review: mental health officer’s duties

147

(1) The mental health officer shall, as soon as practicable after receiving notice under section 146(2) of this Act, comply with the requirements in subsection (2) below.

(2) Those requirements are—

(a) subject to subsection (3) below, to interview the patient;

(b) to inform the patient—

(i) that the patient’s responsible medical officer is proposing to make an application under section 149 of this Act for an order under section 167 of this Act;

(ii) of the patient’s rights in relation to such an application; and

(iii) of the availability of independent advocacy services under section 259 of this Act;

(d) to inform the patient’s responsible medical officer—

(i) as to whether the mental health officer agrees, or disagrees, that the proposed application should be made;

(ii) if the mental health officer disagrees, of the reason why that is the case; and

(iii) of any other matters that the mental health officer considers relevant.

(3) If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so.

First review: responsible medical officer’s duty to apply for extension of compulsion order

148

(1) This section applies where a patient’s responsible medical officer is carrying out the first review of the relevant compulsion order to which the patient is subject.

(2) If, having regard to—

(a) any views expressed by persons consulted under section 139(3)(c) of this Act; and

(b) any views expressed by the mental health officer under section 147(2)(d) of this Act,

the responsible medical officer is satisfied as to the matters mentioned in section 146(2)(a) and (b) of this Act, the responsible medical officer shall comply with the requirement mentioned in subsection (3) below.

(3) The requirement referred to in subsection (2) above is to make an application to the Tribunal under section 149 of this Act for an order extending the compulsion order for the period of 6 months beginning with the day on which the order to which the patient is subject will cease (unless extended) to authorise the measures specified in it.

Application to Tribunal for extension of order following first review

149

An application under this section to the Tribunal by a patient’s responsible medical officer—

(a) shall state—

(i) the name and address of the patient;

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

(iii) whether the mental health officer agrees, or disagrees, that the application should be made, or has failed to comply with the duty imposed by section 147(2)(d)(i) of this Act; and

(b) shall be accompanied by such documents as may be prescribed by regulations.

Extension of order following further review

Further review: responsible medical officer’s duty where extension proposed

150

(1) This section applies where a patient’s responsible medical officer is carrying out a further review of the relevant compulsion order to which the patient is subject.

(2) If, having regard to any views expressed by persons consulted under section 139(3)(c) of this Act for the purpose of the review being carried out, it appears to the responsible medical officer—

(a) that it will continue to be necessary for the patient to be subject to a compulsion order after the day on which the order will cease (unless extended) to authorise the measures specified in it; and

(b) that the compulsion order should not be varied by modifying the measures specified in it,

the responsible medical officer shall give notice to the mental health officer that the responsible medical officer is proposing to make a determination under section 152 of this Act extending the order.

Proposed extension of order on further review: mental health officer’s duties

151

(1) The mental health officer shall, as soon as practicable after receiving notice under section 150(2) of this Act, comply with the requirements in subsection (2) below.

(2) Those requirements are—

(a) subject to subsection (3) below, to interview the patient;

(b) to inform the patient—

(i) that the patient’s responsible medical officer is proposing to make a determination under section 152 of this Act extending the compulsion order to which the patient is subject for the period mentioned in section 152(3) of this Act that applies in the patient’s case;

(ii) of the patient’s rights in relation to such a determination; and

(iii) of the availability of independent advocacy services under section 259 of this Act;

(d) to inform the patient’s responsible medical officer—

(i) as to whether the mental health officer agrees, or disagrees, that the determination that is proposed should be made;

(ii) if the mental health officer disagrees, of the reason why that is the case; and

(iii) of any other matters that the mental health officer considers relevant.

(3) If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so.

Further review: responsible medical officer’s duty to extend compulsion order

152

(1) This section applies where a patient’s responsible medical officer is carrying out a further review of the relevant compulsion order to which the patient is subject.

(2) If, having regard to—

(a) any views expressed by persons consulted under section 139(3)(c) of this Act for the purpose of the review being carried out; and

(b) any views expressed by the mental health officer under section 151(2)(d) of this Act for the purpose of that review,

the responsible medical officer is satisfied as to the matters mentioned in section 150(2)(a) and (b) of this Act, the responsible medical officer shall make a determination extending the compulsion order for the period mentioned in subsection (3) below.

(3) The period referred to in subsection (2) above is—

(a) where a determination is made in respect of the first further review, the period of 12 months beginning with the expiry of the period for which the order is extended by virtue of an order under section 167 of this Act;

(b) where a determination is made in respect of a subsequent further review, the period of 12 months beginning with the expiry of the period of 12 months for which the order is extended as a result of the immediately preceding further review.

Determination extending compulsion order: notification

153

(1) Where a patient’s responsible medical officer makes a determination under section 152 of this Act, the responsible medical officer shall, as soon as practicable after the determination is made and, in any event, before the day on which the compulsion order will cease (unless extended) to authorise the measures specified in it, comply with the requirements in subsection (2) below.

(2) Those requirements are—

(a) to prepare a record stating—

(i) the determination;

(ii) the reasons for it;

(iii) whether the mental health officer agrees, or disagrees, with the determination or has failed to comply with the duty imposed by section 151(2)(d)(i) of this Act;

(iv) if the mental health officer disagrees with the determination, the reasons for the disagreement;

(v) (by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of this Act) the type (or types) of mental disorder that the patient has; and if there is a difference between that type (or types) and the type (or types) of mental disorder recorded in the compulsion order in respect of which the determination is made, what that difference is; and

(vi) such other matters as may be prescribed by regulations;

(b) to submit the record to the Tribunal; and

(c) at the same time as the responsible medical officer submits the record to the Tribunal, to give notice of the determination and send a copy of the record—

(i) subject to subsection (3) below, to the patient;

(ii) to the patient’s named person;

(iii) to the mental health officer; and

(iv) to the Commission.

(3) Where the responsible medical officer considers that there would be a risk of significant harm to the patient, or to others, if a copy of the record were sent to the patient, that officer need not send a copy to the patient.

(4) At the same time as the responsible medical officer submits the record to the Tribunal the responsible medical officer shall send to the Tribunal, and to the persons mentioned in subsection (2)(c)(ii) to (iv) above, a statement of the matters mentioned in subsection (5) below.

(5) Those matters are—

(a) whether the responsible medical officer is sending a copy of the record to the patient; and

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

Extension and variation of order

Responsible medical officer’s duty where extension and variation proposed

154

(1) This section applies where a patient’s responsible medical officer is carrying out—

(a) the first review of the relevant compulsion order to which the patient is subject; or

(b) a further review of that order.

(2) If, having regard to any views expressed by persons consulted under section 139(3)(c) of this Act for the purpose of the review being carried out, it appears to the responsible medical officer—

(a) that it will continue to be necessary for the patient to be subject to a compulsion order after the day on which the order will cease (unless extended) to authorise the measures specified in it; but

(b) that the compulsion order should be varied by modifying the measures specified in it,

the responsible medical officer shall comply with the requirement in subsection (3) below.

(3) The requirement is to give notice to the mental health officer—

(a) that the responsible medical officer is proposing to make an application to the Tribunal under section 158 of this Act for an order under section 167 of this Act—

(i) extending the compulsion order for the period mentioned in subsection (4) below; and

(ii) varying the order by modifying the measures specified in it; and

(b) of the modification of the measures specified in that order that the responsible medical officer is proposing.

(4) The period referred to in subsection (3)(a)(i) above is—

(a) where the application is made in respect of the first review, the period of 6 months beginning with the day on which the compulsion order will cease (unless extended) to authorise the measures specified in it;

(b) where the application is made in respect of the first further review, the period of 12 months beginning with the expiry of the period mentioned in paragraph (a) above;

(c) where the application is made in respect of a subsequent further review, the period of 12 months beginning with the expiry of the period of 12 months for which the order is extended as a result of the immediately preceding further review.

Mental health officer’s duties: extension and variation of compulsion order

155

(1) The mental health officer shall, as soon as practicable after receiving notice under section 154(3) of this Act, comply with the requirements in subsection (2) below.

(2) Those requirements are—

(a) subject to subsection (3) below, to interview the patient;

(b) to inform the patient of the matters mentioned in subsection (4) below;

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

(e) to inform the patient’s responsible medical officer—

(i) of whether the mental health officer agrees, or disagrees, that the application that is proposed should be made;

(ii) if the mental health officer disagrees, of the reason why that is the case; and

(iii) of any other matters that the mental health officer considers relevant.

(3) If it is impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the mental health officer need not do so.

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

(a) that the patient’s responsible medical officer is proposing to make an application to the Tribunal under section 158 of this Act for an order—

(i) extending the compulsion order to which the patient is subject for the period mentioned in section 154(4) of this Act that applies in the patient’s case; and

(ii) varying the compulsion order by modifying the measures specified in it;

(b) the modification of the measures specified in that order that the responsible medical officer is proposing; and

Responsible medical officer’s duty to apply for extension and variation of compulsion order

156

(1) If, having regard to—

(a) any views expressed by persons consulted under section 139(3)(c) of this Act for the purpose of the review being carried out; and

(b) any views expressed by the mental health officer under section 155(2)(e) of this Act for the purpose of that review,

the responsible medical officer is satisfied as to the matters mentioned in section 154(2)(a) and (b) of this Act, the responsible medical officer shall comply with the requirement in subsection (2) below.

(2) That requirement is to make an application to the Tribunal under section 158 of this Act for an order—

(a) extending the compulsion order for the period mentioned in section 154(4) of this Act that applies in the patient’s case; and

(b) varying that order by modifying the measures specified in it.

Application for extension and variation of compulsion order: notification

157

Where, by virtue of section 156(1) of this Act, an application is to be made under section 158 of this Act, the patient’s responsible medical officer shall, as soon as practicable after the duty to make the application arises (and, in any event, before making the application), give notice that the application is to be made to—

(a) the patient;

(b) the patient’s named person;

(d) any welfare attorney of the patient;

(e) the mental health officer; ...

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application to Tribunal for extension and variation of compulsion order

158

An application under this section to the Tribunal by a patient’s responsible medical officer for an order extending and varying a compulsion order—

(a) shall state—

(i) the name and address of the patient;

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

(iii) the modification of the measures authorised by the compulsion order that is proposed by the responsible medical officer;

(iv) the reasons for seeking that modification; ...

(v) whether the mental health officer agrees, or disagrees, that the application should be made, or has failed to comply with the duty imposed by section 155(2)(e)(i) of this Act; and

(vi) if the mental health officer disagrees, the reason for that disagreement; and

(b) shall be accompanied by such documents as may be prescribed by regulations.

Variation of order

Responsible medical officer’s duties: variation of compulsion order

159

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

(2) Without prejudice to the duties imposed on the patient’s responsible medical officer by sections 139(2), 140(2) and 145(2) of this Act, the responsible medical officer shall from time to time consider whether the compulsion order should be varied by modifying the measures specified in it.

(3) If it appears to the responsible medical officer that the compulsion order should be varied by modifying the measures specified in it, the responsible medical officer shall, as soon as practicable, comply with the requirements in subsection (4) below.

(4) Those requirements are—

(a) to assess the needs of the patient for medical treatment;

(b) to consider what modification, if any, of the measures specified in the compulsion order is appropriate; and

(i) the mental health officer; and

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

(4A) If, having regard to any views expressed by persons consulted under subsection (4)(c) above, it continues to appear to the responsible medical officer that the compulsion order should be varied by modifying the measures specified in it, the responsible medical officer shall, as soon as practicable, notify the mental health officer–

(a) that the responsible medical officer is proposing to make an application to the Tribunal under section 161 of this Act for an order under section 167 of this Act varying the compulsion order; and

(b) the modification of the measures specified in that order that the responsible medical officer is proposing.

(4B) The mental health officer shall, as soon as practicable after being notified under subsection (4A) above, comply with the requirements in subsection (4C) below.

(4C) Those requirements are–

(a) subject to subsection (4D) below, to interview the patient;

(b) to inform the patient of the matters mentioned in subsection (4E) below;

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

(e) to inform the patient’s responsible medical officer–

(i) of whether the mental health officer agrees, or disagrees, that the application that is proposed should be made;

(ii) if the mental health officer disagrees, of the reason why that is the case; and

(iii) of any other matters that the mental health officer considers relevant.

(4D) If it is impracticable for the mental health officer to comply with the requirement in subsection (4C)(a) above, the mental health officer need not do so.

(4E) The matters referred to in subsection (4C)(b) above are–

(a) that the patient’s responsible medical officer is proposing to make an application to the Tribunal under section 161 of this Act for an order varying the compulsion order by modifying the measures specified in it;

(b) the modification of the measures specified in that order that the responsible medical officer is proposing; and

(5) If, having regard to any views expressed by persons consulted under subsection (4)(c) above, the responsible medical officer is satisfied that the compulsion order should be varied by modifying the measures specified in it, the responsible medical officer shall make an application to the Tribunal under section 161 of this Act for an order under section 167 of this Act varying the compulsion order in that way.

Application for variation of compulsion order: notification

160

Where, by virtue of section 159(5) of this Act, an application is to be made under section 161 of this Act, the patient’s responsible medical officer shall, as soon as practicable after the duty to make the application arises (and, in any event, before making the application), give notice that the application is to be made to the persons mentioned in section 157(a) to (e) of this Act.

Application to Tribunal by responsible medical officer

161

An application under this section to the Tribunal by a patient’s responsible medical officer for an order varying a compulsion order—

(a) shall state

(i) the matters mentioned in section 158(a)(i) to (iv) of this Act; and

(ii) whether the mental health officer agrees, or disagrees that the application should be made, or has failed to comply with the duty imposed by section 159(4C)(e)(i) of this Act; and

(iii) if the mental health officer disagrees, the reason for that disagreement.

(b) shall be accompanied by such documents as may be prescribed by regulations.

Reference to Tribunal by Commission

Commission’s power to make reference to Tribunal

162

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

(2) If it appears to the Commission that it is appropriate to do so, it may make a reference to the Tribunal in respect of the compulsion order to which the patient is subject.

(3) Where a reference is to be made under subsection (2) above, the Commission shall, as soon as practicable, give notice that a reference is to be made to—

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

(b) the persons mentioned in section 157(a) to (e) of this Act.

(4) A reference under subsection (2) above shall state—

(a) the name and address of the patient;

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

Applications to Tribunal by patient etc.

Application to Tribunal by patient etc. for revocation of determination extending compulsion order

163

(1) Subject to subsection (2) below, where a patient’s responsible medical officer makes a determination under section 152 of this Act—

(a) the patient; or

(b) the patient’s named person,

may make an application under this section to the Tribunal for an order under section 167 of this Act revoking the determination.

(2) Subsection (1) above does not apply where the Tribunal is required, by virtue of section 165 of this Act, to review the determination.

Application to Tribunal by patient etc. for revocation or variation of compulsion order

164

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

(2) Either of the persons mentioned in subsection (3) below may, subject to subsections (4) to (6) below, make an application under this section to the Tribunal for an order under section 167 of this Act—

(a) revoking the compulsion order; or

(b) varying that order by modifying the measures specified in it.

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

(a) the patient; and

(b) the patient’s named person.

(4) An application under this section may not be made—

(a) in respect of a compulsion order that has not been extended;

(b) during the period of 3 months beginning with the making of—

(i) an order in respect of the compulsion order made under section 166 of this Act; or

(ii) an order in respect of the compulsion order made, by virtue of section 149 or 158 of this Act, under section 167 of this Act.

(5) If—

(a) an application under this section for revocation of a compulsion order is refused; or

(b) an application is made under this section for variation of a compulsion order,

the person who made the application shall not be entitled to make more than one further application under this section in respect of the compulsion order during the period mentioned in subsection (7) below.

(6) If an application under section 163 of this Act for revocation of a determination under section 152 of this Act is refused, the person who made that application shall not be entitled to make more than one application under this section in respect of the compulsion order which is the subject of the determination during the period mentioned in subsection (7) below.

(7) The period referred to in subsections (5) and (6) above is—

(a) where the application is made during the period of 6 months beginning with the expiry of the initial period, that period of 6 months; or

(b) any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period of 6 months mentioned in paragraph (a) above.

(8) In subsection (7)(a) above, “initial period” means the period of 6 months beginning with the day on which the compulsion order is made.

Review by Tribunal of determination extending order

Tribunal’s duty to review determination under section 152

165

(1) This section applies where a patient’s responsible medical officer makes a determination under section 152 of this Act.

(2) If—

(a) the record submitted to the Tribunal under section 153 of this Act states—

(i) that there is a difference between the type (or types) of mental disorder that the patient has and the type (or types) of mental disorder recorded in the compulsion order in respect of which the determination is made; or

(ii) that the mental health officer disagrees with the determination or has failed to comply with the duty imposed by section 151(2)(d)(i) of this Act; or

(b) no decision has been made by the Tribunal under this section or section 167 of this Act in respect of the compulsion order to which the determination relates during the period of 2 years ending with the day on which the order, had it not been extended by the determination, would have ceased to authorise the measures specified in it,

the Tribunal shall review the determination.

Powers of Tribunal

Powers of Tribunal on review under section 165

166

(1) On the review of a determination under section 165 of this Act, the Tribunal may make an order under this section—

(a) revoking the determination;

(b) revoking both the determination and the compulsion order;

(d) confirming the determination and varying the compulsion order by modifying the measures specified in it.

(2) Before making a decision under subsection (1) above, the Tribunal shall allow 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 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 determination.

Powers of Tribunal on application under section 149, 158, 161, 163 or 164

167

(1) Where an application is made under section 149 of this Act, the Tribunal may make an order—

(a) extending the compulsion order to which the application relates for the period mentioned in section 146(2) of this Act;

(b) refusing the application; or

(2) Where an application is made under section 158 of this Act, the Tribunal may make an order—

(a) extending the compulsion order to which the application relates for the period mentioned in section 154(4) of this Act and varying the compulsion order by modifying the measures specified in it;

(b) extending the compulsion order for that period;

(d) refusing the application and revoking the compulsion order.

(3) Where an application is made under section 163 of this Act, the Tribunal may make an order—

(a) revoking the determination to which the application relates;

(b) revoking—

(i) the determination; and

(ii) the compulsion order to which the determination relates;

(d) confirming the determination and varying the compulsion order by modifying the measures specified in it.

(4) Where an application is made under section 164(2)(a) of this Act, the Tribunal may make an order—

(a) revoking the compulsion order to which the application relates;

(b) varying the compulsion order by modifying the measures specified in it; or

(5) Where an application is made under section 161 or 164(2)(b) of this Act, the Tribunal may make an order—

(a) varying the compulsion order to which the application relates by modifying the measures specified in it;

(b) refusing the application; or

(6) Before making a decision under any of subsections (1) to (5) above, the Tribunal shall afford the persons mentioned in subsection (7) below the opportunity—

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

(b) of leading, or producing, evidence.

(7) Those persons are—

(a) the persons mentioned in section 166(3)(a) to (h) of this Act; and

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

Interim extension etc. of order: application under section 149

168

(1) This section applies where an application is made under section 149or 158 of this Act.

(2) Subject to section 170 of this Act, on the application of any person having an interest in the proceedings, or ex proprio motu, the Tribunal may, if it considers—

(a) that it will be unable to determine the application before the compulsion order to which the application relates ceases to authorise the measures specified in it; and

(b) that it is appropriate, pending its determining the application, to—

(i) extend the order; or

(ii) extend and vary the order by modifying the measures specified in it,

make an interim order extending, or extending and varying, the compulsion order for such period not exceeding 28 days as may be specified in the order of the Tribunal.

Interim variation of order following application, reference or review under Chapter

169

(1) This section applies where—

(a) an application is made under section 149, 158, 161, 163 or 164 of this Act;

(b) a reference is made under section 162 of this Act; or

(2) Subject to section 170 of this Act, on the application of any person having an interest in the proceedings, or ex proprio motu, the Tribunal may, if it considers that it is appropriate to do so pending its—

(a) determining the application or reference; or

(b) making its decision on the review,

make an interim order varying the compulsion order by modifying the measures specified in it for such period not exceeding 28 days as may be specified in the order of the Tribunal.

Limit on power of Tribunal to make interim order

170

The Tribunal may not make an interim order under section 168 or 169 of this Act if the effect of making the order would be that interim orders under either, or both, of those sections would be in force for a continuous period of more than 56 days.

Powers of Tribunal on reference under section 162

171

(1) Where a reference is made under section 162 of this Act, the Tribunal may make an order—

(a) varying the compulsion order in respect of which the reference is made by modifying the measures specified in it; or

(b) revoking the compulsion order.

(2) Before making an order under subsection (1) above, the Tribunal shall allow 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 persons mentioned in section 166(3)(a) to (h) of this Act; and

(b) any other person appearing to the Tribunal to have an interest in the reference.

Tribunal’s order varying compulsion order

172

... where the Tribunal makes an order under section 166, 167 or 171 of this Act varying a compulsion order, the Tribunal—

(a) shall specify in its order the modifications made by its order to the measures specified in the compulsion order; and

(b) may specify in its order measures other than those set out in the application to which its order relates.

Applications to Tribunal: ancillary powers

173

(1) This section applies where—

(a) an application is made to the Tribunal under section 149, 158, 161, 163 or 164 of this Act; or

(b) the Tribunal is, under section 165 of this Act, reviewing a determination.

(2) Regulations may prescribe circumstances in which the Tribunal may require—

(a) the patient’s responsible medical officer; or

(b) the mental health officer,

to prepare and submit to the Tribunal reports on such matters as may be prescribed.

Effect of interim orders: calculation of time periods in Chapter

174

(1) Subject to subsection (2) below, in calculating, for the purpose of this Chapter of this Act, the day on which a relevant compulsion order—

(a) ceases;

(b) will cease; or

to authorise the measures specified in it, there shall be left out of account any period for which the order is extended (or extended and varied) by an interim order under section 168 of this Act.

(2) Subsection (1) above does not apply as respects calculating that day for the purpose of that section.

Meaning of “modify”

175

In this Chapter any reference to modifying measures specified in a relevant compulsion order includes a reference to—

(a) amending those measures;

(b) removing from the order any measure;

Chapter 3 — Application of Chapters 5 to 7 of Part 7

Breach of order

Medical treatment: failure to attend

176

(1) Section 112 of this Act shall apply in relation to a patient subject to a relevant compulsion order as that section applies in relation to a patient subject to a compulsory treatment order; but subject to the modifications in subsection (2) below.

(2) Those modifications are—

(a) in subsection (1)(a) of that section, the reference to section 66(1)(c) of this Act shall be read as a reference to section 57A(8)(c) of the 1995 Act; and

(b) in subsection (4)(a) of that section, the reference to section 66(1)(b) of this Act shall be read as a reference to section 57A(8)(b) of the 1995 Act.

Non-compliance generally with compulsion order

177

(1) Section 113 of this Act shall apply in relation to a patient subject to a relevant compulsion order as that section applies in relation to a patient subject to a compulsory treatment order.

(2) Section 114 of this Act shall apply in relation to a patient subject to a relevant compulsion order as that section applies in relation to a patient subject to a compulsory treatment order; but subject to the modifications that references in that section to section 93(2) and (5) of this Act shall be read as references to section 159(2) and (5) of this Act respectively.

(3) Sections 116, 117, 119, 120, 121 and 122 shall apply in relation to a certificate granted by virtue of subsection (2) above as those sections apply in relation to a certificate granted under section 114(2) of this Act; but subject to the modifications that—

(a) any references in those sections to section 93(2) of this Act shall be read as references to section 159(2) of this Act; and

(b) any references to section 66(1)(b) of this Act shall be read as references to section 57A(8)(b) of the 1995 Act.

Transfers

178

Sections 124 to 126 of this Act shall apply in relation to a patient whose detention in hospital is authorised by a relevant compulsion order as those sections apply in relation to a patient whose detention in hospital is authorised by a compulsory treatment order.

Suspension of measures

179

(1) Section 127 of this Act shall apply in relation to a patient subject to a relevant compulsion order as that section applies in relation to a patient subject to a compulsory treatment order; but subject to the modification that references in that section to section 66(1)(a) of this Act shall be read as references to section 57A(8)(a) of the 1995 Actand to section 105 or 106 shall be read as references to section 168 or 169 of this Act.

(2) Section 128 of this Act shall apply in relation to a patient subject to a relevant compulsion order as that section applies in relation to a patient subject to a compulsory treatment order; but subject to the modification that references in that section to section 66(1)(b) to (h) of this Act shall be read as references to section 57A(8)(b) to (h) of the 1995 Act.

(3) Section 129 of this Act shall apply in relation to a patient subject to a relevant compulsion order as that section applies in relation to a patient subject to a compulsory treatment order.

Chapter 4 — Interpretation of Part

Interpretation of Part

180

In this Part of this Act “relevant compulsion order” has the meaning given by section 137(1) of this Act.

Part 10 — Compulsion orders and restriction orders

Chapter 1 — Preliminary

Mental health officer’s duty to identify named person

181

(1) This section applies where a compulsion order and a restriction order are made in respect of a patient.

(2) The mental health officer shall, as soon as practicable after the compulsion order is made, take such steps as are reasonably practicable to ascertain the name and address of the patient’s named person.

Chapter 2 — Review of orders

Annual review of orders

Review of compulsion order and restriction order

182

(1) This section applies where a patient is subject to a compulsion order and a restriction order.

(2) The patient’s responsible medical officer shall, during the period of 2 months ending with the relevant day, carry out a review in respect of both the compulsion order and restriction order by complying with the requirements set out in subsection (3) below.

(3) Those requirements are—

(a) to—

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

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

(b) to consider—

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

(ii) whether, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment;

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

(iv) whether it continues to be necessary for the patient to be subject to the restriction order; and

(4) Those conditions are—

(a) that the patient has a mental disorder;

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

(i) prevent the mental disorder worsening; or

(ii) alleviate any of the symptoms, or effects, of the disorder,

is available for the patient; and

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

(ii) to the safety of any other person.

(5) In subsection (2) above, the “relevant day” means—

(a) the day which falls 12 months after the day on which the compulsion order is made; or

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

Consequences of annual review

Responsible medical officer’s report and recommendation following review of compulsion order and restriction order

183

(1) This section applies where a patient’s responsible medical officer carries out a review under section 182(2) of this Act.

(2) The responsible medical officer shall, as soon as practicable after carrying out that review, submit a report in accordance with subsection (3) below to the Scottish Ministers.

(3) That report shall record the responsible medical officer’s views as to—

(a) whether the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient;

(b) whether, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment;

(d) whether it continues to be necessary for the patient to be subject to the restriction order.

(4) If, after having regard to any views expressed by the mental health officer, the responsible medical officer is not satisfied that the patient has a mental disorder, the responsible medical officer shall include in the report submitted to the Scottish Ministers under subsection (2) above a recommendation that the compulsion order be revoked.

(5) If, after having regard to any views expressed by the mental health officer, the responsible medical officer—

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

(b) is not satisfied—

(i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and

(ii) either—

(A) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient; or

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

the responsible medical officer shall include in the report submitted under subsection (2) above a recommendation that the compulsion order be revoked.

(6) If, after having regard to any views expressed by the mental health officer, the responsible medical officer—

(a) is satisfied—

(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and

(ii) that it continues to be necessary for the patient to be subject to the compulsion order; but

(b) is not satisfied—

(i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and

(ii) that it continues to be necessary for the patient to be subject to the restriction order,

the responsible medical officer shall include in the report submitted to the Scottish Ministers under subsection (2) above a recommendation that the restriction order be revoked.

(7) If, after having regard to any views expressed by the mental health officer, the responsible medical officer—

(a) is satisfied—

(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and

(ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but

(b) is not satisfied that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment,

the responsible medical officer may include in the report submitted to the Scottish Ministers under subsection (2) above a recommendation that the patient be conditionally discharged.

(8) Where the responsible medical officer—

(a) submits a report under subsection (2) above that includes a recommendation under subsection (6) above; and

(b) is satisfied that the compulsion order should be varied by modifying the measures specified in it,

the responsible medical officer shall include in the report a recommendation that the compulsion order be varied in that way.

Responsible medical officer’s duty to keep orders under review

Responsible medical officer’s duty to keep compulsion order and restriction order under review

184

(1) This section applies where a patient is subject to a compulsion order and a restriction order.

(2) Without prejudice to the duty imposed on the patient’s responsible medical officer by section 182(2) of this Act, the responsible medical officer shall from time to time consider—

(a) whether the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient;

(b) whether, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment;

(d) whether it continues to be necessary for the patient to be subject to the restriction order.

(3) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the responsible medical officer is not satisfied that the patient has a mental disorder, the responsible medical officer shall, as soon as practicable after considering those matters, submit to the Scottish Ministers a report complying with the requirements set out in section 183(3) of this Act and including a recommendation that the compulsion order be revoked.

(4) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the responsible medical officer—

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

(b) is not satisfied—

(i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and

(ii) either—

(A) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient; or

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

the responsible medical officer shall, as soon as practicable after considering those matters, submit to the Scottish Ministers a report complying with the requirements set out in section 183(3) of this Act and including a recommendation that the compulsion order be revoked.

(5) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the responsible medical officer—

(a) is satisfied—

(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and

(ii) that it continues to be necessary for the patient to be subject to the compulsion order; but

(b) is not satisfied that—

(i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and

(ii) that it continues to be necessary for the patient to be subject to the restriction order,

(6) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the responsible medical officer—

(a) is satisfied—

(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and

(ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but

(b) is not satisfied that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment,

the responsible medical officer may submit to the Scottish Ministers a report complying with the requirements set out in section 183(3) of this Act and including a recommendation that the patient be conditionally discharged.

(7) Where the responsible medical officer—

(a) submits a report under subsection (5) above; and

(b) is satisfied that the compulsion order should be varied by modifying the measures specified in it,

the responsible medical officer shall include in the report a recommendation that the compulsion order be varied in that way.

Reference to Tribunal by Scottish Ministers

Duty of Scottish Ministers on receiving report from responsible medical officer

185

(1) Where a patient’s responsible medical officer submits to the Scottish Ministers—

(a) a report under section 183(2) of this Act that includes a recommendation; or

(b) a report under section 184 of this Act,

the Scottish Ministers shall make a reference to the Tribunal in respect of the compulsion order and restriction order to which the patient is subject.

(2) Where a reference is made under subsection (1) above, the Scottish Ministers shall, as soon as practicable, give notice that a reference is to be made to—

(a) the patient;

(b) the patient’s named person;

(d) any welfare attorney of the patient;

(e) the patient’s responsible medical officer;

(f) the mental health officer; and

(g) the Commission.

(3) A reference under subsection (1) above shall state—

(a) the name and address of the patient;

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

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

186

(1) This section applies where a patient is subject to a compulsion order and a restriction order.

(2) If it appears to the Commission that it is appropriate to do so, it may, by notice in writing to the Scottish Ministers, require them to make a reference to the Tribunal in respect of the compulsion order and the restriction order to which the patient is subject.

(3) Where, under subsection (2), the Commission gives notice to the Scottish Ministers, the Commission shall include in that notice its reasons for requiring the Scottish Ministers to make the reference.

Notice under section 186(2): reference to Tribunal

187

(1) This section applies where, under section 186(2) of this Act, the Commission gives notice to the Scottish Ministers.

(2) The Scottish Ministers shall, as soon as practicable after receiving notice under section 186(2) of this Act, make a reference to the Tribunal in respect of the compulsion order and restriction order to which the patient is subject.

(3) Where a reference is made under subsection (2) above, the Scottish Ministers shall, as soon as practicable, give notice that the reference is to be or, as the case may be, has been made to the persons mentioned in paragraphs (a) to (g) of section 185(2) of this Act.

(4) A reference under subsection (2) above shall state—

(a) the name and address of the patient;

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

(c) the reason given by the Commission in the notice under section 186(2) of this Act for requiring the Scottish Ministers to make the reference.

Scottish Ministers' duty to keep orders under review

Duty of Scottish Ministers to keep compulsion order and restriction order under review

188

(1) This section applies where a patient is subject to a compulsion order and a restriction order.

(2) Without prejudice to the duties imposed on the Scottish Ministers by sections 185(1), 187(2) and 189(2) of this Act, the Scottish Ministers shall from time to time consider—

(a) whether the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient;

(b) whether, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment;

(d) whether it continues to be necessary for the patient to be subject to the restriction order.

(3) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the Scottish Ministers are not satisfied that the patient has a mental disorder, they shall apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act revoking the compulsion order.

(4) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the Scottish Ministers—

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

(b) are not satisfied—

(i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and

(ii) either—

(A) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient; or

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

they shall, as soon as practicable after considering those matters, apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act revoking the compulsion order.

(5) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the Scottish Ministers—

(a) are satisfied—

(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and

(ii) that it continues to be necessary for the patient to be subject to the compulsion order; but

(b) are not satisfied—

(i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and

(ii) that it continues to be necessary for the patient to be subject to the restriction order,

they shall apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act revoking the restriction order.

(6) Where the Scottish Ministers—

(a) apply, by virtue of subsection (5) above, for an order revoking the restriction order; and

(b) are satisfied that the compulsion order should be varied by modifying the measures specified in it,

they shall apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act varying the compulsion order in that way.

(7) If, having considered the matters mentioned in paragraphs (a) to (d) of subsection (2) above, the Scottish Ministers—

(a) are satisfied—

(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and

(ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but

(b) are not satisfied that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment,

they may apply to the Tribunal under section 191 of this Act for an order under section 193 of this Act conditionally discharging the patient.

Reference to Tribunal by Scottish Ministers

189

(1) This section applies where a patient is subject to a compulsion order and a restriction order.

(2) If—

(a) during the period of 2 years ending with the relevant day—

(i) no reference under section 185(1) or 187(2) of this Act has been determined by the Tribunal; and

(ii) no application under section 191 or 192(2) of this Act has been determined by the Tribunal; and

(b) during each period of 2 years ending with the anniversary, in every year thereafter, of the relevant day—

(i) no reference such as is mentioned in paragraph (a)(i) above or, subject to subsection (3) below, under this subsection has been determined by the Tribunal; and

(ii) no application such as is mentioned in paragraph (a)(ii) above has been determined by the Tribunal,

the Scottish Ministers shall make a reference to the Tribunal in respect of the compulsion order and restriction order to which the patient is subject.

(3) The Scottish Ministers shall, in considering, under subsection (2)(b)(i) above, whether a reference has been determined by the Tribunal during any 2 year period, leave out of account any reference made under subsection (2) above that has been determined by it during the first year of that 2 year period.

(4) Where a reference is made under subsection (2) above, the Scottish Ministers shall, as soon as practicable, give notice that a reference is to be or, as the case may be, has been made to the persons mentioned in paragraphs (a) to (g) of section 185(2) of this Act.

(5) A reference under subsection (2) above shall state—

(a) the name and address of the patient;

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

(6) In subsection (2) above, the “relevant day” means the day which falls 2 years after the day on which the compulsion order is made.

Application by Scottish Ministers: notification

190

Where, by virtue of section 188 of this Act, an application is to be made under section 191 of this Act, the Scottish Ministers shall, as soon as practicable after the duty to make the application arises, give notice to the persons mentioned in paragraphs (a) to (g) of section 185(2) of this Act that the application is to be or, as the case may be, has been made.

Application to Tribunal

191

An application under this section to the Tribunal by the Scottish Ministers for an order under section 193 of this Act—

(a) shall state—

(i) the name and address of the patient;

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

(iii) the order (or orders) sought;

(iv) the modification of the measures specified in the compulsion order that is proposed by the Scottish Ministers; and

(v) the reasons for seeking that modification; and

(b) shall be accompanied by such documents as may be prescribed by regulations.

Application by patient etc.

Application to Tribunal by patient and named person

192

(1) This section applies where a patient is subject to a compulsion order and a restriction order.

(2) Each of the persons mentioned in subsection (3) below may, subject to subsections (4) and (5) below, make an application under this section to the Tribunal for an order under section 193 of this Act—

(a) conditionally discharging the patient;

(b) revoking the restriction order to which the patient is subject;

(d) revoking the compulsion order to which the patient is subject.

(3) Those persons are—

(a) the patient; and

(b) the patient’s named person.

(4) An application under this section may not be made—

(a) during the period of 6 months beginning with the making of the compulsion order;

(b) during the period of 3 months beginning with—

(i) the making of an order in respect of the compulsion order made under section 193 of this Act; or

(ii) the making, under section 193 of this Act, by the Tribunal of a decision to make no order under that section.

(5) Neither of the persons mentioned in subsection (3) above may make more than one application under this section during—

(a) the period of 12 months beginning with the day on which the compulsion order was made; or

(b) any subsequent period of 12 months that begins with or with an anniversary of the expiry of the period of 12 months mentioned in paragraph (a) above.

(6) Where a patient’s named person makes an application under subsection (2) above, the named person shall give notice to the patient of the making of the application.

Proceedings before Tribunal

Powers of Tribunal on reference under section 185(1), 187(2) or 189(2) or application under section 191 or 192(2)

193

(1) This section applies where—

(a) an application is made under section 191 or 192(2) of this Act; or

(b) a reference is made under section 185(1), 187(2) or 189(2) of this Act.

(2) If the Tribunal is satisfied—

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

(b) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment,

it shall make no order under this section.

(3) If the Tribunal is not satisfied that the patient has a mental disorder, the Tribunal shall make an order revoking the compulsion order.

(4) If the Tribunal—

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

(b) is not satisfied—

(i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and

(ii) either—

(A) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient; or

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

it shall make an order revoking the compulsion order.

(5) If the Tribunal—

(a) is satisfied—

(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and

(ii) that it continues to be necessary for the patient to be subject to the compulsion order; but

(b) is not satisfied—

(i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and

(ii) that it continues to be necessary for the patient to be subject to the restriction order,

it shall make an order revoking the restriction order.

(6) If the Tribunal—

(a) makes an order, under subsection (5) above, revoking the restriction order; and

(b) is satisfied that the compulsion order should be varied by modifying the measures specified in it,

it shall make an order varying the compulsion order in that way.

(7) If the Tribunal—

(a) is satisfied—

(i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and

(ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but

(b) is not satisfied—

(i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and

(ii) that it is necessary for the patient to be detained in hospital,

the Tribunal may make an order that the patient be conditionally discharged and impose such conditions on that discharge as it thinks fit.

(8) Before making a decision under this section the Tribunal shall—

(a) afford the persons mentioned in subsection (9) below the opportunity—

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

(ii) of leading, or producing, evidence; and

(b) whether or not any such representations are made, hold a hearing.

(9) Those persons are—

(a) the patient;

(b) the patient’s named person;

(d) any guardian of the patient;

(e) any welfare attorney of the patient;

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

(g) the Scottish Ministers;

(h) the patient’s responsible medical officer;

(i) the mental health officer; and

(j) any other person appearing to the Tribunal to have an interest.

(9A) Where—

(a) a person (“V”) is entitled to make victim's representations before the Tribunal makes a decision under this section, and

(b) V has not been afforded the opportunity of making representations under subsection (8),

before making a decision about what (if any) conditions to impose on the patient's conditional discharge under subsection (7), the Tribunal must have regard to any victim's representations made by V.

(10) Nothing in section 102 (state hospitals) of the National Health Service (Scotland) Act 1978 (c. 29) prevents or restricts the detention of a patient in a state hospital as a result of a decision of the Tribunal not to make any order under this section.

Tribunal’s powers etc. when varying compulsion order

194

Where the Tribunal makes an order under section 193(6) of this Act varying a compulsion order, the Tribunal shall specify in its order the modifications made by its order to the measures specified in the compulsion order.

Deferral of conditional discharge

195

Where the Tribunal makes an order under section 193(7) of this Act conditionally discharging a patient, it may defer that discharge until such arrangements as appear to the Tribunal to be necessary for that purpose have been made.

Effect of modification or revocation of orders

General effect of orders under section 193

196

(1) Where the Tribunal makes an order under section 193 of this Act—

(a) revoking a compulsion order;

(b) revoking a restriction order;

(d) varying a compulsion order by modifying the measures specified in it,

the order shall not have effect until the occurrence of the first to occur of the events mentioned in subsection (2) below.

(2) Those events are—

(a) the expiry of the appeal period, no appeal having been lodged within that period; and

(b) where an appeal has been lodged within the appeal period—

(i) the receipt by both the Court of Session and the managers of the hospital specified in the compulsion order of notice from the Scottish Ministers that they do not intend to move the Court of Session to make an order under section 323 of this Act;

(ii) the refusal by the Court of Session to make such an order; and

(iii) the recall of any such order or the expiry of its effect.

(3) In subsection (2) above—

“appeal” means an appeal under section 322 of this Act; and

“appeal period” means, in relation to an appeal, the period, prescribed by regulations made under section 324(7) of this Act, within which the appeal has to be lodged in order to be competent.

Effect of revocation of compulsion order

197

Where the Tribunal makes an order under section 193(3) or (4) of this Act revoking a compulsion order, the restriction order to which the patient is subject shall cease to have effect.

Effect of revocation of restriction order

198

(1) This section applies where the Tribunal—

(a) makes an order under subsection (5) of section 193 of this Act revoking the restriction order to which the patient is subject; but

(b) does not make an order under subsection (3) or (4) of that section revoking the compulsion order to which the patient is subject.

(2) Part 9 of this Act shall apply to the patient as if the compulsion order to which the patient is subject were a relevant compulsion order made on the day on which the order revoking the restriction order has effect in accordance with section 196 of this Act.

(3) In this section, “relevant compulsion order” has the meaning given by section 137(1) of this Act.

Meaning of “modify”

199

In this Chapter, any reference to modifying the measures specified in a compulsion order includes a reference to—

(a) amending those measures;

(b) removing from the order any measure; or

Chapter 3 — Conditional discharge

Variation of conditions imposed on conditional discharge

200

(1) This section applies where—

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