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

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

2003 asp 13

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 20th March 2003 and received Royal Assent on 25th April 2003

An Act of the Scottish Parliament to restate and amend the law relating to mentally disordered persons; and for connected purposes.

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Modifications etc. (not altering text)

Part 1 SIntroductory

1Principles for discharging certain functionsS

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

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

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

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

(b)the views of—

(i)the patient’s named person;

(ii)any carer of the patient;

(iii)any guardian of the patient; and

(iv)any welfare attorney of the patient,

which are relevant to the discharge of the function;

(c)the importance of the patient participating as fully as possible in the discharge of the function;

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

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

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

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

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

(4)After having regard to—

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

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

(c)such other matters as are relevant in the circumstances,

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

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

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

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

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

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

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

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

(d)an order made under [F1section 57(2)(a) or 57A(2)] of the 1995 Act (any such order being referred to in this Act as a “compulsion order”),

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

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

(a)the patient;

(b)the patient’s named person;

(c)the patient’s primary carer;

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

(e)the patient’s legal representative;

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

(g)a guardian of the patient; or

(h)a welfare attorney of the patient.

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

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

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

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

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Amendments (Textual)

Commencement Information

I1S. 1 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

2Welfare of the childS

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

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

(3)This subsection applies to any power.

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

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

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

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

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

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

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

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Commencement Information

I2S. 2 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

3Equal opportunitiesS

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

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

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

(a)the Scottish Ministers;

(b)the Commission;

(c)a local authority;

(d)a Health Board;

(e)a Special Health Board;

(f)a National Health Service trust;

[F2(fa)(as respects its health service functions only) Healthcare Improvement Scotland;]

(g)the managers of a hospital;

(h)a mental health officer;

(i)a patient’s responsible medical officer;

(j)a medical practitioner; and

(k)a nurse.

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

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Amendments (Textual)

Commencement Information

I3S. 3 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Part 2SThe Mental Welfare Commission for Scotland

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Modifications etc. (not altering text)

Continued existence of CommissionS

4The Mental Welfare Commission for ScotlandS

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

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

(a)this Act;

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

(c)any other enactment.

[F3(2A)In so discharging its functions, the Commission shall act in a manner which seeks to protect the welfare of persons who have a mental disorder.]

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

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Amendments (Textual)

F3S. 4(2A) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(2), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I4S. 4(1)(2) in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

I5S. 4(3) in force at 1.7.2003 for specified purposes by S.S.I. 2003/316, art. 2

I6S. 4(3) in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F44ZANational Confidential ForumS

(1)The Commission must establish and maintain a committee to be known as the National Confidential Forum (“NCF”) for the purpose of carrying out the following functions (referred to in this Act as “NCF functions”)—

(a)the general functions mentioned in section 4ZB,

(b)the functions conferred on NCF in schedule 1A.

(2)Schedule 1A makes further provision about NCF.

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Amendments (Textual)

F4Ss. 4ZA-4ZD inserted (18.1.2014 for the purpose of the insertion of s. 4ZA, 1.7.2014 in so far as not already in force) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 30, 34(1); S.S.I. 2014/117, art. 3

4ZBGeneral functions of NCFS

The general functions of NCF are—

(a)to provide means for persons who were placed in institutional care as children to describe in confidence (such descriptions being referred to in this Act as “testimony”)—

(i)experiences of that care,

(ii)any abuse experienced during the period spent in that care,

(b)to acknowledge testimony by enabling it to be given at hearings established by NCF or by written or other means,

(c)based on testimony received—

(i)to identify any patterns and trends in the experiences of persons placed in institutional care as children (including the causes, nature, scale and circumstances of any abuse experienced), and

(ii)to make recommendations about policy and practice which NCF considers will improve institutional care (including by protecting children from, and preventing or reducing the incidence of, abuse),

(d)while preserving the anonymity of participants, establishments providing institutional care and other persons, to prepare reports of the testimony it receives and its recommendations in relation to them,

(e)to provide information about advice and assistance available to persons giving, or proposing to give, testimony.

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Amendments (Textual)

F4Ss. 4ZA-4ZD inserted (18.1.2014 for the purpose of the insertion of s. 4ZA, 1.7.2014 in so far as not already in force) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 30, 34(1); S.S.I. 2014/117, art. 3

4ZCCarrying out NCF functionsS

(1)The Commission must delegate the NCF functions to NCF.

(2)The person appointed to chair NCF (the “NCF Head”) must account to the Commission for the carrying out of the NCF functions.

(3)Subsections (1) and (2) do not affect the responsibility of the Commission for the carrying out of the NCF functions.

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Amendments (Textual)

F4Ss. 4ZA-4ZD inserted (18.1.2014 for the purpose of the insertion of s. 4ZA, 1.7.2014 in so far as not already in force) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 30, 34(1); S.S.I. 2014/117, art. 3

4ZDModifications in relation to NCFS

(1)The following modifications of this Part apply in relation to the NCF functions—

(a)sections 5, 6, 9, 9A, 10, 16 and 19 do not apply,

(b)in section 17(1), references to the Commission (except in the phrase “Commission Visitor”) are to be read as if they were references to NCF,

(c)sub-paragraph (2) of paragraph 11 of schedule 1A applies in relation to the Commission's annual report mentioned in section 18(1) as it applies in relation to a report prepared under that paragraph,

(d)section 20 is to be read as if after subsection (1) there were inserted—

(1A)For the purposes of the law of defamation—

(a)any statement made in good faith by NCF, its members or NCF staff in carrying out any of the NCF functions is privileged,

(b)any statement made by an eligible person in accordance with arrangements made by NCF under paragraph 8(2) of schedule 1A is privileged.

(1B)A word or expression used in subsection (1A) has the same meaning as it has in schedule 1A..

(2)Section 1 of the Public Records (Scotland) Act 2011 is to be read as if after subsection (8) there were inserted—

(8A)The Mental Welfare Commission for Scotland must have a separate records management plan in relation to the public records created in carrying out the NCF functions (within the meaning of section 4ZA(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003)..]

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Amendments (Textual)

F4Ss. 4ZA-4ZD inserted (18.1.2014 for the purpose of the insertion of s. 4ZA, 1.7.2014 in so far as not already in force) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 30, 34(1); S.S.I. 2014/117, art. 3

[F5Commission VisitorsS

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Amendments (Textual)

F5S. 4A and crossheading inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(3), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

4ACommission VisitorsS

(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.]

General dutiesS

5Duty to monitor operation of Act and promote best practiceS

The Commission shall—

(a)monitor the [F6practical application of the observance of Part 1] of this Act; and

(b)promote best practice in relation to the [F7practical application of the observance of Part 1 of this Act].

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Amendments (Textual)

F6Words in s. 5(a) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(4)(a), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F7Words in s. 5(b) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(4)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I7S. 5 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

6Reporting on operation of ActS

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

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Commencement Information

I8S. 6 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Particular functionsS

7Duty to bring matters generally to attention of Scottish Ministers and othersS

The Commission shall bring to the attention of—

(a)the Scottish Ministers;

(b)a local authority;

(c)a Health Board;

(d)a Special Health Board;

(e)a National Health Service trust;

[F8(ea)Healthcare Improvement Scotland;]

[F9(f)Social Care and Social Work Improvement Scotland;]

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

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

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Amendments (Textual)

F8S. 7(ea) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 17 para. 28; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F9S. 7(f) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 14 para. 14; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I9S. 7 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

8Duty to bring specific matters to attention of Scottish Ministers and others etc.S

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

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

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

(2)Those circumstances are—

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

(b)that—

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

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

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

(a)the Scottish Ministers;

(b)the Public Guardian;

(c)a local authority;

(d)a Health Board;

(e)a Special Health Board;

(f)a National Health Service trust;

(g)a mental health officer;

(h)a responsible medical officer;

(i)the managers of a registered care service;

(j)the managers of—

(i)a prison; or

(ii)a young offenders institution;

[F10(ja)Healthcare Improvement Scotland;]

[F11(k)Social Care and Social Work Improvement Scotland;]

[F12(la)the Police Service of Scotland;]

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

(4)In subsection (3)(i) above, “registered care service” means a care service registered under [F13Part 5 of the Public Services Reform (Scotland) Act 2010] (asp 8).

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Amendments (Textual)

F10S. 8(3)(ja) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 17 para. 29; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F11S. 8(3)(k) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 14 para. 15; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F12S. 8(3)(la) substituted for s. 8(3)(l) (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 23(2); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Commencement Information

I10S. 8 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F148ADuty to raise service concerns with certain bodiesS

(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.]

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Amendments (Textual)

F14S. 8A inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(5), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

9Duty to give adviceS

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

(2)Those persons are—

(a)the Scottish Ministers;

(b)a local authority;

(c)a Health Board;

(d)a Special Health Board;

[F15(da)Healthcare Improvement Scotland;]

[F16(e)Social Care and Social Work Improvement Scotland;]

(f)the Scottish Public Services Ombudsman.

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Amendments (Textual)

F15S. 9(2)(da) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 17 para. 30; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F16S. 9(2)(e) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 14 para. 16; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I11S. 9 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F179ADuty to give advice: further provisionS

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.]

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Amendments (Textual)

F17S. 9A inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(6), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

10Publishing information, guidance etc.S

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

(a)its conclusions in relation to—

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

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

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

(c)matters which it considers arise or come to light (or have arisen or come to light) in the course of—

(i)such investigations or inquiries; or

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

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

[F18(3)The Commission may, with the agreement of a person to whom advice is provided under section 9A, publish that advice.]

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Amendments (Textual)

F18S. 10(3) added (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(7), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I12S. 10 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

11InvestigationsS

(1)If it appears to [F19a Commission Visitor] that any of the circumstances mentioned in subsection (2) below apply in respect of a patient, the Commission [F20Visitor] may—

(a)carry out such investigation as [F21the Commission Visitor] considers appropriate into the patient’s case; and

(b)make such recommendations as [F22the Commission Visitor] considers appropriate as respects the case.

[F23(1A)Where it is brought to the attention of the Commission that any of the circumstances mentioned in subsection (2) below may apply in respect of a patient, the Commission may—

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

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

(2)Those circumstances are—

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

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

(i)this Act; or

(ii)the 1995 Act;

(c)that the patient, though not detained in hospital, is subject to—

(i)a compulsory treatment order;

(ii)an interim compulsory treatment order;

(iii)an emergency detention certificate;

(iv)a short-term detention certificate;

(v)a compulsion order;

(vi)an interim compulsion order;

(vii)an assessment order;

(viii)a treatment order;

(ix)a hospital direction; or

(x)a transfer for treatment direction;

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

(i)ill-treatment;

(ii)neglect; or

(iii)some other deficiency in care or treatment;

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

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

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

(f)that the patient may be—

(i)living alone or without care; and

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

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Amendments (Textual)

F19Words in s. 11(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(8)(a)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F20Word in s. 11(1) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(8)(a)(ii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F21Words in s. 11(1)(a) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(8)(a)(iii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F22Words in s. 11(1)(b) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(8)(a)(iv), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F23S. 11(1A) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(8)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I13S. 11 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

12Investigations: further provisionS

(1)The Commission may, if it considers it appropriate to do so, cause an inquiry to be held for the purpose of carrying out an investigation, [F24in relation to any of the circumstances mentioned in section 11(2)] of this Act, into any case.

(2)The Commission—

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

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

(i)remuneration; and

(ii)expenses,

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

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

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

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

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

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

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

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

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

(7)A person—

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

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

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

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Amendments (Textual)

F24Words in s. 12(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(9), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I14S. 12 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

13Visits in relation to patientsS

(1)The Commission shall secure that a [F25Commission Visitor] visits, as often as the Commission [F26Visitor] considers it appropriate to do so, such patients who fall within the categories mentioned in subsection (2) below as [F27the Commission Visitor] considers appropriate.

(2)Those categories are—

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

(i)this Act; or

(ii)the 1995 Act;

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

(i)a compulsory treatment order;

(ii)an interim compulsory treatment order;

(iii)an emergency detention certificate;

(iv)a short-term detention certificate;

(v)a compulsion order;

(vi)an interim compulsion order;

(vii)an assessment order;

(viii)a treatment order;

(ix)a hospital direction; or

(x)a transfer for treatment direction;

(c)patients who are subject to—

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

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

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

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

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

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

(b)may use facilities provided in such premises,

a [F28Commission Visitor] may visit such premises for F29... the purposes mentioned in [F30subsection (5A)] below.

(4)Those premises are—

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

(b)premises in which—

(i)an independent health care service is provided;

(ii)a care home service is provided; or

(iii)a secure accommodation service is provided;

(c)premises provided by a local authority for the purpose of their duty under section 26 of this Act;

(d)a prison; and

(e)a young offenders institution.

[F31(5A)The purposes are—

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

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

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

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

F32(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)In—

(a)subsection (4)(b)(ii) above, “care home service” has the meaning given to that expression by [F33paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8)]; and

(b)subsection (4)(b)(iii) above, “secure accommodation service” has the meaning given to that expression by [F34paragraph 6 of schedule 12 to] that Act.

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Amendments (Textual)

F25Words in s. 13(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(a)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F26Word in s. 13(1) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(a)(ii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F27Words in s. 13(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), 111(10)(a)(iii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F28Words in s. 13(3) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), 111(10)(b)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F29Words in s. 13(3) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), 111(10)(b)(ii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F30Words in s. 13(3) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), 111(10)(b)(iii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F31 S. 13(5A)(5B) substituted for s. 13(5) (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(c), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F32 S. 13(7) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(d), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F33 Words in s. 13(8)(a) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(e)(a), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F34 Words in s. 13(8)(b) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(e)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I15S. 13 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

14InterviewsS

(1)A [F35Commission Visitor] may, in connection with the discharge by the Commission of any of its functions under this Act or the Adults with Incapacity (Scotland) Act 2000 (asp 4)—

(a)interview—

(i)any patient; or

(ii)any other person that the [F36Commission Visitor] considers it appropriate to interview; and

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

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

(a)[F37a Commission Visitor] conducting a visit under subsection (1) of section 13 of this Act shall afford an opportunity, on request, during the visit, to—

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

(ii)other patients whose presence in the premises where the visit takes place is known to the [F38Commission Visitor],

to be interviewed in private by the [F39Commission Visitor]; and

(b)[F40a Commission Visitor] conducting a visit under subsection (3) of that section shall afford an opportunity, on request, during the visit, to patients whose presence in the premises that are being visited is known to the [F41Commission Visitor], to be so interviewed.

F42(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F35Words in s. 14(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(a), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F36Words in s. 14(1)(a)(ii) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F37Words in s. 14(2)(a) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(c)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F38Words in s. 14(2)(a)(ii) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(c)(ii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F39Words in s. 14(2)(a) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(c)(iii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F40Words in s. 14(2)(b) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(d)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F41Words in s. 14(2)(b) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(d)(ii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F42S. 14(3) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(e), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I16S. 14 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

15Medical examinationS

(1)A [F43Commission Visitor] may, in connection with the discharge by the Commission of any of its functions under—

(a)this Act; or

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

carry out in private a medical examination of a patient.

[F44(1A)Only a Commission Visitor who has also been appointed as a Medical Visitor may exercise the functions under subsection (1).]

F45(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F43Words in s. 15(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(12)(a), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F44S. 15(1A) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(12)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F45S. 15(2)(3) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(12)(c), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I17S. 15 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I18S. 15 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

16Inspection etc. of recordsS

(1)A person authorised by the Commission (an “authorised person”) [F46or Commission Visitor] may, in connection with the discharge by the Commission of any of its functions under—

(a)this Act; or

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

require any person holding medical or other records of a patient to produce them for inspection by the authorised person [F47or, as the case may be, the Commission Visitor].

(2)An authorised person shall be—

F48(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(3)An authorised person proposing to exercise the power conferred by subsection (1) above shall, if requested to do so, produce an authenticated document showing that the authorised person is F49... a member of staff of the Commission.

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Amendments (Textual)

F46Words in s. 16(1) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(13)(a)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F47Words in s. 16(1) added (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(13)(a)(ii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F48S. 16(2)(a) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(13)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F49Words in s. 16(3) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(13)(c), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I19S. 16 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

17Duties of Scottish Ministers, local authorities and others as respects CommissionS

(1)The persons mentioned in subsection (2) below shall afford the Commission, [F50any Commission Visitor,] or a person authorised by the Commission, all facilities necessary to enable the Commission, or that person, to discharge the Commission's, or (as the case may be) that person's, functions under this Act.

(2)Those persons are—

(a)the Scottish Ministers;

(b)a local authority;

(c)a Health Board;

(d)a Special Health Board;

(e)a National Health Service trust;

[F51(fa)the Police Service of Scotland;]

(g)the managers of a registered care service;

(h)the managers of—

(i)a prison; or

(ii)a young offenders institution;

[F52(ha)Healthcare Improvement Scotland;]

[F53(i)Social Care and Social Work Improvement Scotland;]

(j)the Scottish Public Services Ombudsman; and

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

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

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Amendments (Textual)

F50Words in s. 17 inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(14), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F51S. 17(2)(fa) substituted for s. 17(2)(f) (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 23(3); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F52S. 17(2)(ha) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 17 para. 31; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F53S. 17(2)(i) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 14 para. 17; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I20S. 17 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I21S. 17 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

18Annual ReportS

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

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

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

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Commencement Information

I22S. 18 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

19Statistical informationS

[F54(1)]The Commission shall F55... provide the Ministers with, and publish, statistical or other information [F56of such kind as may be prescribed in regulations] relating to the discharge of its functions.

[F57(2)Before making regulations under subsection (1) above, the Scottish Ministers shall consult such persons as they consider appropriate.]

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Amendments (Textual)

F54S. 19 renumbered as s. 19(1) (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 36(2)(c), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 18)

Commencement Information

I23S. 19 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

20Protection from actions of defamationS

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

(2)In this section—

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

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

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Commencement Information

I24S. 20 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Part 3 SThe Mental Health Tribunal for Scotland

21The Mental Health Tribunal for ScotlandS

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

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

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

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

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Commencement Information

I25S. 21(1)(3) in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

I26S. 21(2) in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

I27S. 21(4) in force at 26.3.2004 for specified purposes by S.S.I. 2004/153, art. 2, Sch. 1

I28S. 21(4) in force at 3.5.2004 for specified purposes by S.S.I. 2004/153, art. 3, Sch. 2

I29S. 21(4) in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Part 4 SHealth Board and local authority functions

Chapter 1SHealth Board duties

Approved medical practitionersS

22Approved medical practitionersS

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

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

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

(2)Those persons are—

(a)a Health Board; and

(b)the State Hospitals Board for Scotland.

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

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

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Commencement Information

I30S. 22 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I31S. 22 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Services and accommodation: particular casesS

23Provision of services and accommodation for certain patients under 18S

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

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

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

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

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

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Commencement Information

I32S. 23 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

24[F58Services and accommodation for mothers]S

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

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

(b)cares for the child;

(c)is not likely to endanger the health or welfare of the child; and

(d)has been admitted to hospital, whether voluntarily or not, for the purposes of receiving treatment [F59for—

(i)post-natal depression; or

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

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

[F60(1A)But a Health Board is required to provide services and accommodation under subsection (1) above only if it is satisfied that doing so would be beneficial to the wellbeing of the child.]

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

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Amendments (Textual)

F58S. 24 title substituted by virtue of (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 31(3), 61(2); S.S.I. 2017/197, art. 2, sch.

Commencement Information

I33S. 24 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Chapter 2SLocal authority functions

Provision of servicesS

25Care and support services etc.S

(1)A local authority—

(a)shall—

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

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

(b)may—

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

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

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

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

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

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

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

(i)residential accommodation; and

(ii)personal care and personal support (each of those expressions having the meaning given by [F61paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010] (asp 8)); but

(b)does not include nursing care.

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

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Amendments (Textual)

Modifications etc. (not altering text)

C5Ss. 25-27 excluded (1.4.2015) by Care Act 2014 (c. 23), s. 127(1), Sch. 1 paras. 1(3), 4(3)(b) (with Sch. 1 paras. 8, 14); S.I. 2015/993, art. 2(x)(i) (with transitional provisions in S.I. 2015/995)

Commencement Information

I34S. 25 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

26Services designed to promote well-being and social developmentS

(1)A local authority—

(a)shall—

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

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

(b)may—

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

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

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

(a)social, cultural and recreational activities;

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

(c)assistance for such of those persons as are over school age in obtaining and in undertaking employment.

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

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

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

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

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Modifications etc. (not altering text)

C5Ss. 25-27 excluded (1.4.2015) by Care Act 2014 (c. 23), s. 127(1), Sch. 1 paras. 1(3), 4(3)(b) (with Sch. 1 paras. 8, 14); S.I. 2015/993, art. 2(x)(i) (with transitional provisions in S.I. 2015/995)

Commencement Information

I35S. 26 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

27Assistance with travelS

A local authority—

(a)shall—

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

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

(b)may—

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

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

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Modifications etc. (not altering text)

C5Ss. 25-27 excluded (1.4.2015) by Care Act 2014 (c. 23), s. 127(1), Sch. 1 paras. 1(3), 4(3)(b) (with Sch. 1 paras. 8, 14); S.I. 2015/993, art. 2(x)(i) (with transitional provisions in S.I. 2015/995)

Commencement Information

I36S. 27 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Charging for servicesS

28Services under sections 25 to 27: chargingS

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

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

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

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

(2)In—

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

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

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

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

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

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

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

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

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Commencement Information

I37S. 28 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Relationship with general dutiesS

29Relationship between duties under sections 25 to 27 and duties under Social Work (Scotland) Act 1968 and Children (Scotland) Act 1995S

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

(2)Those enactments are—

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

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

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Commencement Information

I38S. 29 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Co-operation and assistanceS

30Co-operation with Health Boards and othersS

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

(a)Health Boards;

(b)Special Health Boards;

(c)National Health Service trusts; or

(d)voluntary organisations,

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

[F62(1A)If, in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014, a local authority delegates the carrying out any of the functions conferred by sections 25 to 27 of this Act—

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

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

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

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

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

for the person.

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Amendments (Textual)

Commencement Information

I39S. 30 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

31Assistance from Health Boards and othersS

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

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

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

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

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

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

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

comply with the request.

(3)This section is without prejudice to section 21 of the Children (Scotland) Act 1995 (c. 36) (which enables a local authority to require assistance from a Health Board, a National Health Service trust or others in the exercise of the authority’s functions under Part II of that Act) [F63and section 183 of the Children’s Hearings (Scotland) Act 2011 (asp 1) (which enables a local authority to obtain assistance from another local authority or a health board in the carrying out of the authority’s functions under the Act)].

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Amendments (Textual)

Commencement Information

I40S. 31 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Appointment of mental health officersS

32Appointment of mental health officersS

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

(a)this Act;

(b)the 1995 Act; and

(c)the Adults with Incapacity (Scotland) Act 2000 (asp 4).

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

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

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

(i)registration;

(ii)education and training;

(iii)experience;

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

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

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

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

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

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

(b)does not satisfy—

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

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

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

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

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Commencement Information

I41S. 32 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I42S. 32 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Duty to inquire into individual casesS

33Duty to inquireS

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

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

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

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

(2)Those circumstances are—

(a)that the person may be, or may have been, subject, or exposed, at some place other than a hospital to—

(i)ill-treatment;

(ii)neglect; or

(iii)some other deficiency in care or treatment;

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

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

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

(c)that the person may be—

(i)living alone or without care; and

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

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

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Commencement Information

I43S. 33 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

34Inquiries under section 33: co-operationS

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

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

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

(b)would assist the inquiries,

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

(3)Those persons are—

(a)the Commission;

(b)the Public Guardian;

[F64(ba)Healthcare Improvement Scotland;]

[F65(c)Social Care and Social Work Improvement Scotland;]

(d)a Health Board; and

(e)a National Health Service trust.

(4)Where—

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

(b)complying with the request—

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

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

the person shall comply with the request.

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Amendments (Textual)

F64S. 34(3)(ba) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 17 para. 32; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F65S. 34(3)(c) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 14 para. 18; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I44S. 34 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

35Inquiries under section 33: warrantsS

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

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

(b)that the mental health officer—

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

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

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

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

(a)authorising—

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

(ii)any other persons so specified; and

[F66(iiia)any constable of the Police Service of Scotland,]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(12)References to a relevant mental health officer—

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

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

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Amendments (Textual)

F66S. 35(2)(a)(iiia) substituted for s. 35(2)(a)(iii) (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 23(4); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Commencement Information

I45S. 35 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Part 5 SEmergency detention

Emergency detention certificateS

36Emergency detention in hospitalS

(1)Where—

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

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

(c)subsection (3) below applies,

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

(2)The patient falls within this subsection if, immediately before the medical examination mentioned in subsection (1)(a) above is carried out, the patient is [F67subject to]

(a)an emergency detention certificate;

(b)a short-term detention certificate;

(c)an extension certificate;

(d)section 68 of this Act; or

[F68(da)section 113(5) of this Act;]

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

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

F69(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F70(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)The emergency detention certificate—

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

(b)shall be signed by the medical practitioner.

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

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

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

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

[F71(13)A reference in this section to a hospital may be read as a reference to a hospital unit.

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

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Amendments (Textual)

Commencement Information

I46S. 36 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I47S. 36 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

37Notification by medical practitionerS

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

(2)Those matters are—

(a)the reason for granting the certificate;

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

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

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

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

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

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Commencement Information

I48S. 37 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Duties on hospital managersS

38Duties on hospital managers: examination, notification etc.S

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

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

(3)The managers of the hospital shall—

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

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

(i)give notice to the [F72Commission of the granting of the certificate and] of the matters notified to them under that section; and

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

[F73(3A)The managers of the hospital may, so far as they consider it appropriate, give notice of the matters notified to them under section 37 of this Act to the persons mentioned in subsection (4) below.]

(4)The persons referred to in [F74subsections (3)(a) and (3A)] above are—

(a)the patient’s nearest relative;

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

(c)if—

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

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

the patient’s named person; F75...

[F76(ca)if known to the managers and not falling within paragraph (a) or (b) above—

(i)any guardian of the patient; and

(ii)any welfare attorney of the patient.]

F75(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

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

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Amendments (Textual)

F72Words in s. 38(3)(b)(i) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 4(3)(a), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 5)

F74Words in s. 38(4) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 4(3)(c)(i), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 5)

Commencement Information

I49S. 38 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Revocation of certificateS

39Approved medical practitioner’s duty to revoke emergency detention certificateS

[F77Where a medical examination has been carried out under section 38(2) of this Act and an approved medical practitioner] is not satisfied—

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

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

the approved medical practitioner shall revoke the certificate.

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Amendments (Textual)

Commencement Information

I50S. 39 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

40Revocation of emergency detention certificate: notificationS

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

(a)the patient; and

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

of the revocation.

(2)The managers of the hospital shall, as soon as practicable after being informed of the revocation, inform [F78the Commission and] the persons mentioned in section 38(4) and (5) of this Act of the revocation.

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Amendments (Textual)

Commencement Information

I51S. 40 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Suspension of authority to detainS

41Suspension of authority to detainS

(1)Where—

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

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

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

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

(a)the duration of—

(i)an event; or

(ii)a series of events; or

(b)the duration of—

(i)an event; or

(ii)a series of events,

and any associated travel.

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

(a)in the interests of the patient; or

(b)for the protection of any other person,

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

(4)Those conditions are—

(a)that, during the period specified in the certificate, the patient be kept in the charge of a person authorised in writing for the purpose by the responsible medical officer;

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

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Commencement Information

I52S. 41 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

42Certificate under section 41: revocationS

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

(2)If the patient’s responsible medical officer is satisfied that it is necessary—

(a)in the interests of the patient; or

(b)for the protection of any other person,

that the certificate be revoked, the responsible medical officer may revoke the certificate.

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

(a)the patient;

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

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

of the revocation.

(4)The managers of the hospital shall, as soon as practicable after being informed of the revocation, inform [F79the Commission and] the persons mentioned in section 38(4) and (5) of this Act of the revocation.

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Amendments (Textual)

Commencement Information

I53S. 42 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F80Effect of emergency detention certificate on certain orders]S

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Amendments (Textual)

43[F81Effect of emergency detention certificate on certain orders]S

(1)This section applies where—

(a)a patient is subject to a [F82relevant order]; and

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

(2)[F83A relevant order] shall, subject to subsection (3) below, cease to authorise the measures specified in it for the period during which the patient is subject to the emergency detention certificate.

(3)If the measure mentioned in section 66(1)(b) of this Act [F84or (as the case may be) section 57A(8)(b) of the 1995 Act] is specified in the [F85relevant order], the [F85relevant order] shall continue to authorise that measure during the period mentioned in subsection (2) above.

[F86(4)In this section, the references to a relevant order are to—

(a)a compulsion order, or

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

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Amendments (Textual)

F81S. 43 title substituted (30.6.2017) by virtue of Mental Health (Scotland) Act 2015 (asp 9), ss. 7(3)(a), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 7)

F82Words in s. 43(1)(a) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 7(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 7)

F83Words in s. 43(2) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 7(2)(b), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 7)

Commencement Information

I54S. 43 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Part 6 SShort-term detention

Short-term detention certificateS

44Short-term detention in hospitalS

(1)Where—

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

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

(c)subsection (3) below applies,

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

(2)The patient falls within this subsection if, immediately before the medical examination mentioned in subsection (1)(a) above is carried out, the patient is [F87subject to]

(a)a short-term detention certificate;

(b)an extension certificate;

(c)section 68 of this Act; or

[F88(ca)section 113(5) of this Act;]

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

(3)This subsection applies where—

F89(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(c)the approved medical practitioner consults a mental health officer; and

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

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

(a)that the patient has a mental disorder;

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

(c)that it is necessary to detain the patient in hospital for the purpose of—

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

(ii)giving medical treatment to the patient;

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

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

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

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

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

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

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

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

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

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

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

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

F90(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)The short-term detention certificate—

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

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

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

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

[F91(12)In this section and sections 46 to 49 of this Act, a reference to a hospital may be read as a reference to a hospital unit.

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

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Amendments (Textual)

Commencement Information

I55S. 44 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I56S. 44 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

45Mental health officer’s duty to interview patient etc.S

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

(a)interview the patient;

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

(c)inform the patient of the availability of independent advocacy services under section 259 of this Act; and

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

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

(a)interview the patient; or

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

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

(3)Those requirements are—

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

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

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Commencement Information

I57S. 45 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Duties on hospital managersS

46Hospital managers' duties: notificationS

(1)This section applies where a patient is [F92subject to] a short-term detention certificate.

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

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient; and

(d)any welfare attorney of the patient.

(3)The managers of the hospital shall, before the expiry of the period of 7 days beginning with the day on which the certificate is granted, give notice of its granting F93... to—

(a)the Tribunal; and

(b)the Commission.

[F94(4)When giving notice under subsection (2) or (3) above, the managers of the hospital are to send a copy of the certificate to each recipient of the notice.]

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Amendments (Textual)

Commencement Information

I58S. 46 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Extension certificateS

47Extension of detention pending application for compulsory treatment orderS

(1)Where—

(a)a patient is [F95subject to] a short-term detention certificate;

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

(c)subsections (2) and (3) below apply,

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

(2)This subsection applies where—

F96(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the approved medical practitioner considers—

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

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

(3)This subsection applies where—

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

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

(c)subject to subsection (6) below—

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

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

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

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

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

F97(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

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

(a)Saturday;

(b)Sunday; or

(c)a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in Scotland.

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Amendments (Textual)

Commencement Information

I59S. 47 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I60S. 47 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

48Extension certificate: notificationS

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

(a)of the granting of the extension certificate;

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

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

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

(2)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)the Tribunal;

(d)the Commission;

(e)any guardian of the patient;

(f)any welfare attorney of the patient; and

(g)the mental health officer.

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Commencement Information

I61S. 48 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Revocation of certificatesS

49Responsible medical officer’s duty to review continuing need for detentionS

(1)Where a patient is [F98subject to] a short-term detention certificate or an extension certificate, the patient’s responsible medical officer shall, from time to time, consider—

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

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

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

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

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

the responsible medical officer shall revoke the certificate.

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

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient; and

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

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

(a)the Tribunal; and

(b)the Commission.

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Amendments (Textual)

Commencement Information

I62S. 49 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

50Patient’s right to apply for revocation of short-term detention certificate or extension certificate etc.S

(1)Where a patient is [F99subject to] a short-term detention certificate or an extension certificate—

(a)the patient; or

(b)the patient’s named person,

may apply to the Tribunal for revocation of the certificate.

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

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

(b)of leading, or producing, evidence.

(3)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

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

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

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

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

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

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

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

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

revoke the certificate.

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

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Amendments (Textual)

Commencement Information

I63S. 50 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

51Commission’s power to revoke short-term detention certificate or extension certificateS

Where—

(a)[F100a patient is subject to] a short-term detention certificate or an extension certificate; and

(b)the Commission is satisfied—

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

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

the Commission may revoke the certificate.

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Amendments (Textual)

Commencement Information

I64S. 51 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

52Revocation of short-term detention certificate or extension certificate: notificationS

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

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

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

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

(g)the Tribunal.

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Commencement Information

I65S. 52 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Suspension of detentionS

53Suspension of measure authorising detentionS

(1)Where—

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

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

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

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

(a)the duration of—

(i)an event; or

(ii)a series of events; or

(b)the duration of—

(i)an event; or

(ii)a series of events,

and any associated travel.

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

(a)in the interests of the patient; or

(b)for the protection of any other person,

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

(4)Those conditions are—

(a)that, during the period specified in the certificate, the patient be kept in the charge of a person authorised in writing for the purpose by the responsible medical officer;

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

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Commencement Information

I66S. 53 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

54Certificate under section 53: revocationS

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

(2)If the patient’s responsible medical officer is satisfied that it is necessary—

(a)in the interests of the patient; or

(b)for the protection of any other person,

that the certificate be revoked, the responsible medical officer may revoke the certificate.

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

(a)the patient;

(b)the patient’s named person;

(c)the mental health officer;

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

(e)the Commission.

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Commencement Information

I67S. 54 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Effect of short-term detention certificate on emergency detention certificateS

55Effect of subsequent short-term detention certificate on emergency detention certificateS

If a short-term detention certificate is granted in respect of a patient who is [F101subject to] an emergency detention certificate, the emergency detention certificate shall, on the granting of the short-term detention certificate, be revoked.

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Amendments (Textual)

Commencement Information

I68S. 55 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F102Effect of short-term detention certificate etc. on certain orders]S

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Amendments (Textual)

56[F103Effect of short-term detention certificate etc. on certain orders]S

(1)Subsection (2) below applies where—

(a)a patient is subject to a [F104relevant order]; and

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

[F105(2)A relevant order shall cease to authorise the measures specified in it for the period during which the patient is subject to—

(a)the short-term detention certificate, or

(b)an extension certificate.]

[F106(3)In this section, the references to a relevant order are to—

(a)a compulsion order, or

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

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Amendments (Textual)

F103S. 56 title substituted (30.6.2017) by virtue of Mental Health (Scotland) Act 2015 (asp 9), ss. 8(3)(a), 61(2); S.S.I. 2017/197, art. 2, sch.

F104Words in s. 56(1)(a) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 8(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 8)

Commencement Information

I69S. 56 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Part 7 SCompulsory treatment orders

Chapter 1SApplication for, and making of, orders

Pre-application proceduresS

57Mental health officer’s duty to apply for compulsory treatment orderS

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

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

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

(a)that the patient has a mental disorder;

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

(i)prevent the mental disorder worsening; or

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

is available for the patient;

(c)that if the patient were not provided with such medical treatment there would be a significant risk—

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

(ii)to the safety of any other person;

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

(e)that the making of a compulsory treatment order is necessary.

(4)This subsection applies where each of the medical practitioners who carries out a medical examination mentioned in subsection (2) above submits to the mental health officer a report (any such report being referred to in this Act as a “mental health report”)—

(a)stating that the medical practitioner submitting the report is satisfied that the conditions mentioned in paragraphs (a) to (e) of subsection (3) above are met in respect of the patient;

(b)stating, in relation to each of the conditions mentioned in paragraphs (b) to (e) of subsection (3) above, the medical practitioner’s reasons for believing the condition to be met in respect of the patient;

(c)specifying (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;

(d)setting out a description of—

(i)the symptoms that the patient has of the mental disorder; and

(ii)the ways in which the patient is affected by the mental disorder;

(e)specifying the measures that should, in the medical practitioner’s opinion, be authorised by the compulsory treatment order;

(f)specifying the date or dates on which the medical practitioner carried out the medical examination mentioned in subsection (2) above; and

(g)setting out any other information that the medical practitioner considers to be relevant.

(5)This subsection applies where—

(a)for the purposes of subsection (4)(c) above each of the mental health reports specifies at least one type of mental disorder that is also specified in the other report;

(b)for the purposes of subsection (4)(e) above each of the mental health reports specifies the same measures; and

(c)one of the mental health reports (being a report by an approved medical practitioner) states the views of that medical practitioner as to—

(i)subject to subsection (6) below, whether notice should be given to the patient under section 60(1)(a) of this Act; and

(ii)whether the patient is capable of arranging for a person to represent the patient in connection with the application under section 63 of this Act.

(6)A medical practitioner may state the view that notice should not be given under section 60(1)(a) of this Act only if, in the opinion of that medical practitioner, the giving of notice would be likely to cause significant harm to the patient or any other person.

(7)Where a mental health officer is required by subsection (1) above to make an application for a compulsory treatment order, the mental health officer shall make the application before the expiry of the period of 14 days beginning with—

(a)in the case where each of the mental health reports specifies the same date (or dates) for the purposes of subsection (4)(f) above, that date (or the later, or latest, of those dates); or

(b)in the case where each of those reports specifies for those purposes a different date (or different dates), the later (or latest) of those dates.

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Commencement Information

I70S. 57 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

58Medical examination: requirementsS

(1)The requirements referred to in section 57(2) of this Act are set out in subsections (2) to (6) below.

(2)Subject to subsection (4) below and to regulations under subsection (5) below—

(a)each medical examination of the patient shall be carried out by an approved medical practitioner; and

(b)subject to subsection (6) below, each such examination shall be carried out separately.

(3)Where the medical examinations are carried out separately, the second shall be completed no more than five days after the first.

(4)The patient’s general medical practitioner may carry out one of the medical examinations of the patient although not an approved medical practitioner.

F107(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The medical examinations need not be carried out separately if—

(a)where the patient is capable of consenting to the examinations, the patient consents to the examinations being carried out at the same time; or

(b)where the patient is incapable of consenting to the examinations—

(i)the patient’s named person;

(ii)any guardian of the patient; or

(iii)any welfare attorney of the patient,

consents to the examinations being carried out at the same time.

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Amendments (Textual)

Commencement Information

I71S. 58 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I72S. 58 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

59Mental health officer’s duty to identify named personS

Where a mental health officer is required by 57(1) of this Act to make an application under section 63 of this Act in respect of a patient, the mental health officer shall, as soon as practicable after the duty to make the application arises, take such steps as are reasonably practicable to ascertain the name and address of the patient’s named person.

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Commencement Information

I73S. 59 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

60Application for compulsory treatment order: notificationS

(1)Where a mental health officer is required by section 57(1) of this Act to make an application under section 63 of this Act in respect of a patient, the mental health 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—

(a)subject to subsection (2) below, to the patient in respect of whom the application is to be made;

(b)to the patient’s named person; and

(c)to the Commission.

(2)If the view set out in one of the mental health reports by virtue of section 57(5)(c) of this Act is that notice should not be given under paragraph (a) of subsection (1) above, the mental health officer—

(a)need not give such notice; but

(b)may, if the mental health officer considers it appropriate to do so, give such notice.

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Commencement Information

I74S. 60 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

61Mental health officer’s duty to prepare reportS

(1)This section applies where a mental health officer is required by section 57(1) of this Act to make an application under section 63 of this Act in respect of a patient.

(2)The mental health officer shall, before the date on which, by virtue of section 57(7) of this Act, the application is to be made—

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

(b)if the patient has not been given notice under section 60(1)(a) of this Act, inform the patient that the application is to be made;

(c)inform the patient of—

(i)the patient’s rights in relation to the application; and

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

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

(e)prepare in relation to the patient a report in accordance with subsection (4) below.

(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 report shall state—

(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 steps that the mental health officer has taken in pursuance of the requirements imposed by subsection (2) above;

(d)if it was impracticable for the mental health officer to comply with the requirement in subsection (2)(a) above, the reason for that being the case;

(e)in so far as relevant for the purposes of the application, details of the personal circumstances of the patient;

(f)the mental health officer’s views on the mental health reports relating to the patient;

(g)if known by the mental health officer, details of any advance statement that the patient has made (and not withdrawn); and

(h)any other information that the mental health officer considers relevant to the determination by the Tribunal of the application.

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Commencement Information

I75S. 61 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

62Mental health officer’s duty to prepare proposed care planS

(1)This section applies where a mental health officer is required by section 57(1) of this Act to make an application under section 63 of this Act in respect of a patient.

(2)The mental health officer shall, before the date on which, by virtue of section 57(7) of this Act, the application is to be made, prepare a plan (a “proposed care plan”) relating to the patient.

(3)Before preparing the proposed care plan, the mental health officer shall consult—

(a)the medical practitioners who provided the mental health reports relating to the patient;

(b)subject to subsection (7) below, the persons mentioned in subsection (4) below; and

(c)such other persons as the mental health officer considers appropriate.

(4)The persons referred to in subsection (3)(b) above are persons who appear to the mental health officer to provide—

(a)medical treatment of the kind that it is proposed to specify, by virtue of paragraph (d) of subsection (5) below, in the proposed care plan;

(b)community care services, or relevant services, of the kind that it is proposed to specify, by virtue of paragraph (e) of that subsection, in that plan; or

(c)other treatment, care or services of the kind that it is proposed to specify, by virtue of paragraph (f) of that subsection, in that plan.

(5)The proposed care plan shall specify—

(a)(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 which the patient has;

(b)the needs of the patient for medical treatment that have been assessed by the medical practitioners who submitted the mental health reports relating to the patient;

(c)in so far as relevant for the purposes of the application—

(i)where the patient is a child, the needs of the patient that have been assessed under section 23(3) of the Children (Scotland) Act 1995 (c. 36);

(ii)where the patient is not a child, the needs of the patient that have been assessed under section 12A(1)(a) of the Social Work (Scotland) Act 1968 (c. 49);

(d)the medical treatment which it is proposed to give to the patient in relation to each of the needs specified by virtue of paragraph (b) above (including the names of the persons who would give the treatment and the addresses at which the treatment would be given);

(e)any community care services or relevant services which it is proposed to provide to the patient in relation to each of the needs specified by virtue of paragraph (c) above (including the names of the persons who would provide such services and the addresses at which such services would be provided);

(f)in so far as relevant for the purposes of the application—

(i)any treatment or care (other than treatment or care specified, by virtue of paragraph (d) above, in the proposed care plan); or

(ii)any service (other than a service specified, by virtue of paragraph (e) above, in the proposed care plan),

which it is proposed to provide to the patient (including the names of the persons who would provide such treatment, care or service and the addresses at which such treatment, care or service would be provided);

(g)which of the measures mentioned in section 66(1) of this Act it is proposed that the compulsory treatment order should authorise;

(h)where it is proposed that the compulsory treatment order should authorise the detention of the patient in hospital, the name and address of the hospital;

(i)where it is proposed that the compulsory treatment order should authorise any of the measures mentioned in section 66(1)(c) to (h) of this Act, details of the measure (or measures);

(j)where it is proposed that the compulsory treatment order should specify—

(i)any medical treatment specified, by virtue of paragraph (d) above, in the proposed care plan;

(ii)any community care services, or relevant services, specified, by virtue of paragraph (e) above, in the proposed care plan; or

(iii)any treatment, care or service specified, by virtue of paragraph (f) above, in the proposed care plan,

that medical treatment, those services or that treatment, care, or service, as the case may be;

(k)where it is proposed that the compulsory treatment order should authorise measures other than the detention of the patient in hospital, the name of the hospital the managers of which should have responsibility for appointing the patient’s responsible medical officer; and

(l)the objectives of—

(i)the medical treatment which it is proposed, by virtue of paragraph (d) above, to give to the patient;

(ii)any community care services or relevant services which it is proposed, by virtue of paragraph (e) above, to provide to the patient;

(iii)any treatment, care or service which, by virtue of paragraph (f) above, it is proposed to provide to the patient; and

(iv)the measures (other than detention of the patient in hospital) that it is proposed that the compulsory treatment order should authorise.

(6)The proposed care plan shall be signed by the mental health officer.

(7)The mental health officer need not consult any person such as is mentioned in subsection (4) above in any case where it is impracticable to do so.

(8)In this section “child” has the same meaning as in section 23(3) of the Children (Scotland) Act 1995 (c. 36).

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Commencement Information

I76S. 62 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Application for orderS

63Application for compulsory treatment orderS

(1)An application to the Tribunal for a compulsory treatment order may be made by, and only by, a mental health officer.

(2)An application—

(a)shall specify—

(i)the measures that are sought in relation to the patient in respect of whom the application is made;

(ii)any medical treatment, community care services, relevant services or other treatment, care or service specified in the proposed care plan by virtue of section 62(5)(j) of this Act; and

(iii)where it is proposed that the order should authorise measures other than the detention of the patient in hospital, the name of the hospital the managers of which should have responsibility for appointing the patient’s responsible medical officer; and

(b)shall be accompanied by the documents that are mentioned in subsection (3) below.

(3)Those documents are—

(a)the mental health reports;

(b)the report prepared under section 61 of this Act; and

(c)the proposed care plan,

relating to the patient.

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Commencement Information

I77S. 63 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Making of order etc.S

64Powers of Tribunal on application under section 63: compulsory treatment orderS

(1)This section applies where an application is made under section 63 of this Act.

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

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

(b)of leading, or producing, evidence.

(3)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

(e)the mental health officer;

(f)the medical practitioners who submitted the mental health reports which accompany the application;

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

(h)the patient’s primary carer;

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

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

(4)The Tribunal may—

(a)if satisfied that all of the conditions mentioned in subsection (5) below are met, make an order—

(i)authorising, for the period of 6 months beginning with the day on which the order is made, such of the measures mentioned in section 66(1) of this Act as may be specified in the order;

(ii)specifying such medical treatment, community care services, relevant services, other treatment, care or service as the Tribunal considers appropriate (any such medical treatment, community care services, relevant services, other treatment, care or service so specified being referred to in this Act as a “recorded matter”);

(iii)recording (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

(iv)if the order does not authorise the detention of the patient in hospital, specifying the name of the hospital the managers of which are to have responsibility for appointing the patient’s responsible medical officer; or

(b)refuse the application.

(5)The conditions referred to in subsection (4)(a) above 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;

(c)that if the patient were not provided with such medical treatment there would be a significant risk—

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

(ii)to the safety of any other person;

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

(e)that the making of a compulsory treatment order in respect of the patient is necessary; and

(f)where the Tribunal does not consider it necessary for the patient to be detained in hospital, such other conditions as may be specified in regulations.

(6)Subject to subsection (7) below, an order under subsection (4)(a) above may, in addition to, or instead of, specifying some or all of the measures sought in the application to which the order relates, specify measures other than those set out in that application.

(7)The Tribunal may specify in the order under subsection (4)(a) above measures other than those set out in the application only if, before making the order—

(a)subject to subsection (8) below, the Tribunal gives notice to the persons mentioned in subsection (3) above—

(i)stating what it is proposing to do; and

(ii)setting out what those measures are;

(b)the Tribunal affords those persons the opportunity—

(i)of making representations (whether orally or in writing) in relation to the proposal; and

(ii)of leading, or producing, evidence.

(8)Where the duty under subsection (7)(a) above arises during a hearing of the application, notice need not be given under that subsection to any person mentioned in subsection (3) above who is present at the hearing.

(9)Before making regulations under subsection (5)(f) above, the Scottish Ministers shall consult such persons as they consider appropriate.

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Commencement Information

I78S. 64 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I79S. 64 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

65Powers of Tribunal on application under section 63: interim compulsory treatment orderS

(1)This section applies where an application is made under section 63 of this Act.

(2)Subject to subsections (3) and (4) below and to section 69 of this Act, on the application of any person having an interest in the proceedings, or ex proprio motu, the Tribunal may, if satisfied as to the matters mentioned in subsection (6) below, make an order (an “interim compulsory treatment order”)—

(a)authorising for such period not exceeding 28 days as may be specified in the order such of the measures mentioned in section 66(1) of this Act as may be so specified; and

(b)if the order does not authorise the detention of the patient in hospital, specifying the name of the hospital the managers of which are to have responsibility for appointing the patient’s responsible medical officer.

(3)The Tribunal may not make an interim compulsory treatment order if its effect, when taken with any other interim compulsory treatment order made in respect of the patient, would be to authorise measures in respect of the patient for a continuous period of more than 56 days.

(4)Before making an interim compulsory treatment order, the Tribunal shall afford the persons mentioned in subsection (5) below the opportunity—

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

(b)of leading, or producing, evidence.

(5)Those persons are—

(a)the persons referred to in section 64(3)(a) to (e) and (g) to (i) of this Act;

(b)the medical practitioners who submitted the mental health reports which accompany the application under section 63 of this Act; and

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

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

(a)that the conditions mentioned in paragraphs (a) to (d) of section 64(5) of this Act are met in respect of the patient; and

(b)that it is necessary to make an interim compulsory treatment order.

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Commencement Information

I80S. 65 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

66Measures that may be authorisedS

(1)Subject to subsection (2) below, the measures referred to in sections 64(4)(a)(i) and 65(2)(a) of this Act are—

(a)the detention of the patient in the specified hospital;

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

(c)the imposition of a requirement on the patient to attend—

(i)on specified or directed dates; or

(ii)at specified or directed intervals,

specified or directed places with a view to receiving medical treatment;

(d)the imposition of a requirement on the patient to attend—

(i)on specified or directed dates; or

(ii)at specified or directed intervals,

specified or directed places with a view to receiving community care services, relevant services or any treatment, care or service;

(e)the imposition of a requirement on the patient to reside at a specified place;

(f)the imposition of a requirement on the patient to allow—

(i)the mental health officer;

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

(iii)any person responsible for providing medical treatment, community care services, relevant services or any treatment, care or service to the patient who is authorised for the purposes of this paragraph by the patient’s responsible medical officer,

to visit the patient in the place where the patient resides;

(g)the imposition of a requirement on the patient to obtain the approval of the mental health officer to any proposed change of address; and

(h)the imposition of a requirement on the patient to inform the mental health officer of any change of address before the change takes effect.

(2)Regulations may make provision for measures prescribed by the regulations to be treated as included among the measures mentioned in subsection (1) above.

(3)In this section—

  • directed” means in accordance with directions given by the patient’s responsible medical officer; and

  • specified” means specified in the compulsory treatment order or, as the case may be, the interim compulsory treatment order.

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Commencement Information

I81S. 66 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I82S. 66 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

67Order authorising detention: ancillary authorisationS

(1)Where a compulsory treatment order or an interim compulsory treatment order—

(a)authorises the detention of a patient in a hospital specified in the order; or

(b)imposes a requirement on a patient to reside at a place specified in the order,

this section authorises the removal, before the expiry of the period of 7 days beginning with the appropriate day, of the patient in respect of whom the order is made to that hospital or, as the case may be, place.

(2)In subsection (1) above, “appropriate day” means the day on which—

(a)a compulsory treatment order or, as the case may be, an interim compulsory treatment order authorising detention of a patient in hospital is made; or

(b)a compulsory treatment order is varied so as to authorise the detention of a patient in the hospital specified in the order.

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Commencement Information

I83S. 67 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Extension of short-term detention: special caseS

68Extension of short-term detention pending determination of applicationS

(1)Where—

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

(i)a short-term detention certificate; or

(ii)an extension certificate; and

(b)before the expiry of the period of detention so authorised, an application is made under section 63 of this Act,

the measures mentioned in subsection (2) below are authorised.

(2)Those measures are—

(a)the detention in hospital of the patient for the period of 5 days beginning with the expiry of the period for which the certificate authorises the detention of the patient in hospital; and

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

(3)In reckoning the period of days mentioned in subsection (2)(a) above, there shall be left out of account any day which is not a working day.

(4)In this section “working day” has the meaning given by section 47(8) of this Act.

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Commencement Information

I84S. 68 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Time limit for Tribunal’s determination: special caseS

69Time limit for determining application etc. where section 68 appliesS

Where section 68 of this Act applies, the Tribunal shall, before the expiry of the period of 5 days referred to in section 68(2)(a) of this Act—

(a)determine whether an interim compulsory treatment order should be made; and

(b)if it determines that an interim compulsory treatment order should not be made, determine the application.

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Commencement Information

I85S. 69 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Effect of making of orders on short-term detentionS

70Effect of subsequent order on short-term detention certificateS

If a compulsory treatment order, or an interim compulsory treatment order, is made in respect of a patient who is in hospital under authority of a short-term detention certificate, the certificate shall, on the making of the order, be revoked.

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Commencement Information

I86S. 70 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Application of Chapter where patient subject to hospital direction or transfer for treatment directionS

71Application of Chapter where patient subject to hospital direction or transfer for treatment directionS

Where a patient is subject to—

(a)a hospital direction; or

(b)a transfer for treatment direction,

this Chapter shall have effect in accordance with schedule 3 to this Act.

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Commencement Information

I87S. 71 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F10871ACompulsory treatment in hospital unitS

(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.]

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Amendments (Textual)

Chapter 2SInterim compulsory treatment orders: review and revocation

72Interim compulsory treatment order: responsible medical officer’s duty to keep under reviewS

(1)Where a patient is subject to an interim compulsory treatment order, the patient’s responsible medical officer shall from time to time consider—

(a)whether the conditions mentioned in paragraphs (a) to (d) of section 64(5) 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 an interim compulsory treatment order.

(2)If, having considered the matters mentioned in paragraphs (a) and (b) of subsection (1) above, the responsible medical officer is not satisfied—

(a)that the conditions mentioned in paragraphs (a) to (d) of section 64(5) 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 an interim compulsory treatment order,

the responsible medical officer shall make a determination revoking the interim compulsory treatment order.

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

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Commencement Information

I88S. 72 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

73Commission’s power to revoke interim compulsory treatment orderS

(1)This section applies where a patient is subject to an interim compulsory treatment order.

(2)If the Commission is satisfied—

(a)that not all of the conditions mentioned in paragraphs (a) to (d) of section 64(5) 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 an interim compulsory treatment order,

the Commission may revoke the interim compulsory treatment order.

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Commencement Information

I89S. 73 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

74Revocation under section 72 or 73: notificationS

(1)Where a patient’s responsible medical officer makes a determination under section 72 of this Act, the responsible medical officer shall, as soon as practicable after doing so—

(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 73 of this Act, it shall, as soon as practicable after doing so—

(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;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

(e)the mental health officer; and

(f)the Tribunal.

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Commencement Information

I90S. 74 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

75Effect of subsequent compulsory treatment order on interim compulsory treatment orderS

If a compulsory treatment order is made in respect of a patient who is subject to an interim compulsory treatment order, the interim compulsory treatment order shall, on the making of the compulsory treatment order, be revoked.

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Commencement Information

I91S. 75 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Chapter 3SCompulsory treatment orders: care plan

76Care plan: preparation, placing in medical records etc.S

[F109(A1)This section applies where a compulsory treatment order is made in respect of a patient.]

(1)As soon as practicable after a patient’s responsible medical officer is appointed under section 230 of this Act, the responsible medical officer shall—

(a)prepare a plan (any such plan being referred to in this Act as a “care plan”) relating to the patient; and

(b)ensure that the patient’s care plan is included in the patient’s medical records.

(2)The care plan shall set out—

(a)the medical treatment—

(i)which it is proposed to give; and

(ii)which is being given,

to the patient while the patient is subject to the compulsory treatment order; and

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

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

(4)Regulations may prescribe—

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

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

(5)Where a patient’s responsible medical officer amends the patient’s care plan—

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

(b)subsections (2) to (4) above and this subsection shall apply as if references to the care plan were references to the amended care plan.

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Amendments (Textual)

Modifications etc. (not altering text)

Commencement Information

I92S. 76 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I93S. 76 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Chapter 4SReview of orders

Mandatory reviews by responsible medical officerS

77First mandatory reviewS

(1)This section applies where a compulsory treatment 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 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 paragraphs (a) to (d) of section 64(5) of this Act continue to apply in respect of the patient; and

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

(c)to consult—

(i)the mental health officer;

(ii)such persons as are mentioned in subsection (4) below as the responsible medical officer considers appropriate; and

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

(4)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 set out in the patient’s 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.

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

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Modifications etc. (not altering text)

Commencement Information

I94S. 77 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

78Further mandatory reviewsS

(1)This section applies where a compulsory treatment order is extended—

(a)by a determination under section 86 of this Act; or

(b)by virtue of an order under section 103 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 compulsory treatment order (such review being referred to in this Part of this Act as a “further review”) by complying with the requirements set out in section 77(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 compulsory treatment order as extended by the determination, or by virtue of the order under section 103 of this Act, ceases to authorise the measures specified in it.

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Modifications etc. (not altering text)

Commencement Information

I95S. 78 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Revocation of order by responsible medical officer or CommissionS

79Responsible medical officer’s duty to revoke order: mandatory reviewsS

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

(a)the first review of the compulsory treatment 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 77(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 paragraphs (a) to (d) of section 64(5) 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 compulsory treatment order,

the responsible medical officer shall make a determination revoking the compulsory treatment order.

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

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Commencement Information

I96S. 79 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

80Revocation of order: responsible medical officer’s duty to keep under reviewS

(1)This section applies where a patient is subject to a compulsory treatment order.

(2)Without prejudice to the duties imposed on the patient’s responsible medical officer by sections 77(2), 78(2), 79(2) and 93(2) of this Act, the responsible medical officer shall from time to time consider—

(a)whether the conditions mentioned in paragraphs (a) to (d) of section 64(5) 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 compulsory treatment 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 paragraphs (a) to (d) of section 64(5) 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 compulsory treatment order,

the responsible medical officer shall make a determination revoking the compulsory treatment order.

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

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Commencement Information

I97S. 80 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

81Commission’s power to revoke orderS

(1)This section applies where a patient is subject to a compulsory treatment order.

(2)If the Commission is satisfied—

(a)that not all of the conditions mentioned in paragraphs (a) to (d) of section 64(5) 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 compulsory treatment order,

it may make a determination revoking the compulsory treatment order.

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Commencement Information

I98S. 81 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

82Revocation of order: notificationS

(1)Where a patient’s responsible medical officer makes a determination under section 79 or 80 of this Act, that 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 81 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;

(c)any guardian of the patient;

(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 paragraphs (a) to (d) of subsection (3) 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 paragraphs (e) and (f) of that subsection,

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

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Commencement Information

I99S. 82 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Further steps to be taken where order not revokedS

83Mandatory reviews: further steps to be taken where order not revokedS

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

(a)the first review of the compulsory treatment 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 77(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 paragraphs (a) to (d) of section 64(5) 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 compulsory treatment 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 compulsory treatment 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;

(c)to consider—

(i)whether the compulsory treatment order should be varied by modifying the measures, or any recorded matter, specified in it; and

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

(d)to consider any views expressed on the matters mentioned in paragraphs (a) to (c) above by persons consulted under section 77(3)(c) of this Act.

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Commencement Information

I100S. 83 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Extension of order by responsible medical officerS

84Responsible medical officer’s duty where extension of order appears appropriateS

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

(a)the first review of the compulsory treatment 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 77(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 compulsory treatment order after the day on which the order will cease (unless extended) to authorise the measures specified in it; and

(b)that the order should not be varied by modifying the measures, or any recorded matter, 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 86 of this Act extending the order.

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Commencement Information

I101S. 84 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

85Mental health officer’s duties: extension of orderS

(1)The mental health officer shall, as soon as practicable after receiving notice under section 84(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 86 of this Act extending the compulsory treatment order to which the patient is subject for the period mentioned in section 86(2) of this Act;

(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;

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

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

(i)of 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.

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Commencement Information

I102S. 85 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

86Responsible medical officer’s duty to extend orderS

(1)If, having regard to—

(a)any views expressed by persons consulted under section 77(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 85(2)(d) of this Act for the purpose of that review,

the responsible medical officer is satisfied as to the matters mentioned in section 84(2)(a) and (b) of this Act, the responsible medical officer shall make a determination extending the compulsory treatment order for the period mentioned in subsection (2) below.

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

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

(b)where a determination 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 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.

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Commencement Information

I103S. 86 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

87Determination extending order: notification etc.S

(1)Where a patient’s responsible medical officer makes a determination under section 86 of this Act, that officer shall, as soon as practicable after the determination is made and, in any event, before the day on which the compulsory treatment order will cease, if it is not extended by the determination, 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 85(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 compulsory treatment 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)If 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, that 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.

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Commencement Information

I104S. 87 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I105S. 87 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F11087AFurther information where order extendedS

(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.]

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Amendments (Textual)

Extension and variation of order: application by responsible medical officerS

88Responsible medical officer’s duty where extension and variation of order appear appropriateS

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

(a)the first review of the compulsory treatment 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 77(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 compulsory treatment order after the day on which the order will cease (unless extended) to authorise the measures specified in it; but

(b)that the order should be varied by modifying the measures, or any recorded matter, specified in it,

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

(3)That 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 92 of this Act for an order under section 103 of this Act—

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

(ii)varying that order by modifying the measures, or a recorded matter, specified in it; and

(b)of the modification of the measures, or any recorded matter, specified in that order that the responsible medical officer is proposing.

(4)The period referred to in subsection (3) 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 compulsory treatment order will (unless extended) cease 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.

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Commencement Information

I106S. 88 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

89Mental health officer’s duties: extension and variation of orderS

(1)The mental health officer shall, as soon as practicable after receiving notice under section 88(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;

(c)to inform the patient of the availability of independent advocacy services under section 259 of this Act;

(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 92 of this Act for an order—

(i)extending the compulsory treatment order to which the patient is subject for the period mentioned in section 88(4) of this Act; and

(ii)varying the compulsory treatment order by modifying the measures or a recorded matter specified in it;

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

(c)the patient’s rights in relation to such an application.

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Commencement Information

I107S. 89 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

90Responsible medical officer’s duty to apply for extension and variation of orderS

(1)If, having regard to—

(a)any views expressed by persons consulted under section 77(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 89(2)(e) of this Act for the purpose of that review,

the responsible medical officer is satisfied as to the matters mentioned in section 88(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 92 of this Act for an order—

(a)extending the compulsory treatment order for the period mentioned in section 88(4) of this Act; and

(b)varying that order by modifying the measures, or a recorded matter, specified in it.

(3)An application made under section 92 of this Act, by virtue of subsection (1) above, for an order mentioned in subsection (2) above shall be made as soon as practicable after the duty to make it arises.

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Commencement Information

I108S. 90 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

91Application for extension and variation of order: notificationS

Where, by virtue of section 90(1) of this Act, an application is to be made under section 92 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;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

(e)the mental health officer; and

(f)the Commission.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I109S. 91 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

92Application to TribunalS

An application under this section to the Tribunal by a patient’s responsible medical officer for an order extending and varying a compulsory treatment 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, or any recorded matter, specified in the compulsory treatment 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 89(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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I110S. 92 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I111S. 92 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Variation of order: application by responsible medical officerS

93Responsible medical officer’s duties: variation of orderS

(1)This section applies where a patient is subject to a compulsory treatment order.

(2)Without prejudice to the duties imposed on the patient’s responsible medical officer by sections 77(2), 78(2) and 83(2) of this Act, the responsible medical officer shall from time to time consider whether the compulsory treatment order should be varied by modifying the measures, or any recorded matter, specified in it.

(3)If it appears to the responsible medical officer that the compulsory treatment order should be varied as mentioned in subsection (2) above, 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, or any recorded matter, specified in the compulsory treatment order is appropriate;

(c)to consult—

(i)the mental health officer; and

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

[F111(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 compulsory treatment order should be varied as mentioned in subsection (2) above, 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 95 of this Act for an order under section 103 of this Act varying the compulsory treatment order; and

(b)the modification of the measures, or any recorded matter, 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;

(c)to inform the patient of the availability of independent advocacy services under section 259 of this Act;

(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 95 of this Act for an order varying the compulsory treatment order by modifying the measures or a recorded matter specified in it;

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

(c)the patient’s rights in relation to such an application.]

(5)If, having regard to any views expressed by persons consulted under subsection (4)(c) above[F112and any views expressed by the mental health officer under subsection (4C)(e) above], the responsible medical officer is satisfied that the compulsory treatment order should be varied as mentioned in subsection (2) above, the responsible medical officer shall make an application to the Tribunal under section 95 of this Act for an order under section 103 of this Act varying the compulsory treatment order in that way.

(6)An application made under section 95 of this Act, by virtue of subsection (5) above, for an order mentioned in that subsection shall be made as soon as practicable after the duty to make it arises.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Commencement Information

I112S. 93 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

94Application by responsible medical officer for variation of order: notificationS

Where, by virtue of section 93(5) of this Act, an application is to be made under section 95 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 91(a) to (f) of this Act.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I113S. 94 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

95Application to Tribunal by responsible medical officerS

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

(a)shall state

(i)[F113the matters mentioned in section 92(a)(i) to [F114(iv)] of this Act;]

[F115(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 93(4C)(e)(i) of this Act; and

(iii)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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Commencement Information

I114S. 95 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I115S. 95 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Recorded matters: reference to Tribunal by responsible medical officerS

96Recorded matters: reference to Tribunal by responsible medical officerS

(1)This section applies where a patient is subject to a compulsory treatment order which specifies one or more recorded matters.

(2)Without prejudice to the duties imposed on the patient’s responsible medical officer by sections 77(2), 78(2) and 83(2) of this Act and subject to subsection (6) below, if it appears to the responsible medical officer that any recorded matter specified in the compulsory treatment order is not being provided, the responsible medical officer shall, as soon as practicable, consult—

(a)the mental health officer; and

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

(3)If, having regard to any views expressed by persons consulted under subsection (2) above, the responsible medical officer is satisfied that a recorded matter specified in the compulsory treatment order is not being provided, the responsible medical officer shall make a reference to the Tribunal.

(4)A reference under subsection (3) above—

(a)shall state—

(i)the name and address of the patient;

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

(iii)the reason for making the reference; and

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

(5)A reference under subsection (3) above shall be made as soon as practicable after the duty to make it arises.

(6)Subsections (2) to (5) above do not apply where—

(a)the responsible medical officer is required, by virtue of section 79 or 80 of this Act, to revoke the compulsory treatment order; or

(b)the responsible medical officer is making an application under section 92 or 95 of this Act in respect of the compulsory treatment order.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I116S. 96 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I117S. 96 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

97Reference to Tribunal under section 96(3): notificationS

Where a patient’s responsible medical officer is required by section 96(3) of this Act to make a reference to the Tribunal, the responsible medical officer shall, as soon as practicable after the duty to make the reference arises, give notice that the reference is to be made to the persons mentioned in section 91(a) to (f) of this Act.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I118S. 97 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Reference to Tribunal by CommissionS

98Reference to Tribunal by CommissionS

(1)This section applies where a patient is subject to a compulsory treatment 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 compulsory treatment 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 91(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

(c)the reason for making the reference.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I119S. 98 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Applications by patient etc.S

99Application by patient etc. for revocation of determination extending orderS

(1)Where a patient’s responsible medical officer makes a determination under section 86 of this Act, subject to subsection (3) below, either of the persons mentioned in subsection (2) below may make an application under this section to the Tribunal for an order under section 103 of this Act revoking the determination.

(2)Those persons are—

(a)the patient;

(b)the patient’s named person.

(3)Subsection (1) above does not apply where the Tribunal is required, by virtue of section 101 of this Act, to review the determination.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I120S. 99 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

100Application by patient etc. for revocation or variation of orderS

(1)This section applies where a patient is subject to a compulsory treatment order.

(2)Either of the persons mentioned in subsection (3) below may, subject to subsections (4) and (6) below, make an application under this section to the Tribunal for an order under section 103 of this Act—

(a)revoking the compulsory treatment order; or

(b)varying that order by modifying—

(i)the measures; or

(ii)any recorded matter,

specified in it.

(3)Those persons are—

(a)the patient;

(b)the patient’s named person.

(4)An application under this section may not be made during the period of 3 months beginning with the making of any of the orders mentioned in subsection (5) below.

(5)Those orders are—

(a)the compulsory treatment order;

(b)an order in respect of the compulsory treatment order made under section 102 of this Act;

(c)an order in respect of the compulsory treatment order made, by virtue of section 92 of this Act, under section 103 of this Act.

(6)If—

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

(b)an application is made under this section for variation of a compulsory treatment 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 compulsory treatment order during the period mentioned in subsection (8) below.

(7)If an application under section 99 of this Act for revocation of a determination under section 86 of this Act is refused, the person who made the application shall not be entitled to make more than one application under this section in respect of the compulsory treatment order which is the subject of the determination during the period mentioned in subsection (8) below.

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

(a)where the application mentioned in subsection (6)(a) or (b) or (7) above is made before the expiry of the period of 6 months beginning with the day on which the compulsory treatment order was made, that period of 6 months; or

(b)where that application is made before the expiry of—

(i)the period of 6 months beginning with the expiry of the period mentioned in paragraph (a) above, that period of 6 months; or

(ii)any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period of 6 months mentioned in sub-paragraph (i) above, that subsequent period of 12 months.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Commencement Information

I121S. 100 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Review by Tribunal of determination extending orderS

101Tribunal’s duty to review determination under section 86S

(1)This section applies where a patient’s responsible medical officer makes a determination under section 86 of this Act.

(2)If—

(a)the record submitted to the Tribunal under section 87(2)(b) 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 compulsory treatment 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 85(2)(d)(i) of this Act; or

[F116(b)the conditions in subsection (3) are satisfied in relation to the compulsory treatment order to which the determination relates,]

the Tribunal shall review the determination.

[F117(3)The conditions mentioned in subsection (2)(b) above are—

(a)that the order was made 2 or more years before the renewal day;

(b)that this section did not require the Tribunal to review the previous determination made under section 86 of this Act in relation to the order; and

(c)that, in the period of 2 years ending with the day before the renewal day, no application has been [F118determined by] the Tribunal under section 92, 99, 95 or 100 in relation to the order.

(4)In subsection (3) above, the renewal day is the first day on which the order, had it not been extended by the determination, would not authorise the measures specified in it.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F118Words in s. 101(3)(c) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 21(2), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 12(a))

Commencement Information

I122S. 101(1) in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

I123S. 101(2)(a) in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Powers of TribunalS

102Powers of Tribunal on review under section 101S

(1)On the review of a determination under section 101 of this Act, the Tribunal may make an order under this section—

(a)revoking the determination;

(b)revoking both the determination and the compulsory treatment order;

(c)confirming the determination; or

(d)confirming the determination and varying the compulsory treatment order by modifying—

(i)the measures; or

(ii)any recorded matter,

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;

(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 determination.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I124S. 102 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

103Powers of Tribunal on application under section 92, 95, 99 or 100S

(1)Where an application is made under section 92 of this Act, the Tribunal may make an order—

(a)extending the compulsory treatment order to which the application relates for the period mentioned in section 88(4) of this Act and varying the compulsory treatment order by modifying—

(i)the measures; or