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

Status:

This is the original version (as it was originally enacted).

Part 1Introductory

1Principles for discharging certain functions

(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 section 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.

2Welfare of the child

(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.

3Equal opportunities

(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;

(g)the managers of a hospital;

(h)a mental health officer;

(i)a patient’s responsible medical officer;

(j)a medical practitioner; and

(k)a nurse.

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

Part 2The Mental Welfare Commission for Scotland

Continued existence of Commission

4The Mental Welfare Commission for Scotland

(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.

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

General duties

5Duty to monitor operation of Act and promote best practice

The Commission shall—

(a)monitor the operation of this Act; and

(b)promote best practice in relation to the operation of this Act (including, without prejudice to that generality, the observance of Part 1 of this Act).

6Reporting on operation of Act

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

Particular functions

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

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;

(f)the Scottish Commission for the Regulation of Care; or

(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.

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

(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;

(k)the Scottish Commission for the Regulation of Care;

(l)a police force; or

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

(4)In subsection (3)(i) above, “registered care service” means a care service registered under Part 1 of the Regulation of Care (Scotland) Act 2001 (asp 8).

9Duty to give advice

(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;

(e)the Scottish Commission for the Regulation of Care; or

(f)the Scottish Public Services Ombudsman.

10Publishing information, guidance etc.

(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.

11Investigations

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

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

(b)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.

12Investigations: further provision

(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, under section 11(1) 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.

13Visits in relation to patients

(1)The Commission shall secure that a person authorised by it visits, as often as the Commission considers it appropriate to do so, such patients who fall within the categories mentioned in subsection (2) below as it 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 person authorised by the Commission may visit such premises for either of the purposes mentioned in subsection (5) 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.

(5)The purposes are—

(a)to inspect such premises or the facilities available in such premises; and

(b)to provide an opportunity for any patients who may be present in the premises at the time when the visit takes place to meet representatives of the Commission and to discuss with such representatives any concerns that such patients may have.

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

(7)A person proposing to conduct a visit under subsection (1) or (3) above shall, if requested to do so, produce an authenticated document showing that the Commission has given the requisite authority for the visit.

(8)In—

(a)subsection (4)(b)(ii) above, “care home service” has the meaning given to that expression by section 2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8); and

(b)subsection (4)(b)(iii) above, “secure accommodation service” has the meaning given to that expression by section 2(9) of that Act.

14Interviews

(1)A person authorised to do so by the Commission (an “authorised person”) 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 authorised person 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)an authorised person 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 authorised person,

to be interviewed in private by the authorised person; and

(b)an authorised person 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 authorised person, to be so interviewed.

(3)An authorised person proposing to interview a person under subsection (1) or (2) above shall, if requested to do so, produce an authenticated document showing that the Commission has given the requisite authority for the purposes of this section.

15Medical examination

(1)A person authorised by the Commission (an “authorised person”) 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.

(2)An authorised person shall be—

(a)a medical commissioner; or

(b)a member of staff of the Commission who has such qualifications and experience, and has undertaken such training, as may be prescribed by regulations.

(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 Commission has given the requisite authority for the purposes of this section.

16Inspection etc. of records

(1)A person authorised by the Commission (an “authorised person”) 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.

(2)An authorised person shall be—

(a)a member of the Commission; or

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

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

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

(1)The persons mentioned in subsection (2) below shall afford the Commission, 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;

(f)a police force;

(g)the managers of a registered care service;

(h)the managers of—

(i)a prison; or

(ii)a young offenders institution;

(i)the Scottish Commission for the Regulation of Care;

(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.

18Annual Report

(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.

19Statistical information

The Commission shall, in accordance with directions given to it by the Scottish Ministers, provide the Ministers with, and publish, statistical or other information relating to the discharge of its functions.

20Protection from actions of defamation

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

(2)In this section—

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

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

Part 3The Mental Health Tribunal for Scotland

21The Mental Health Tribunal for Scotland

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

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

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

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

Part 4Health Board and local authority functions

Chapter 1Health Board duties

Approved medical practitioners

22Approved medical practitioners

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

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

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

(2)Those persons are—

(a)a Health Board; and

(b)the State Hospitals Board for Scotland.

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

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

Services and accommodation: particular cases

23Provision of services and accommodation for certain patients under 18

(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.

24Provision of services and accommodation for certain mothers with post-natal depression

(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 for 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.

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

Chapter 2Local authority functions

Provision of services

25Care and support services etc.

(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 section 2(28) of the Regulation of Care (Scotland) Act 2001 (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”.

26Services designed to promote well-being and social development

(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).

27Assistance with travel

A local authority—

(a)shall—

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

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

(b)may—

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

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

Charging for services

28Services under sections 25 to 27: charging

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

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

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

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

(2)In—

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

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

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

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

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

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

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

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

Relationship with general duties

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

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

(2)Those enactments are—

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

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

Co-operation and assistance

30Co-operation with Health Boards and others

(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.

(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.

31Assistance from Health Boards and others

(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).

Appointment of mental health officers

32Appointment of mental health officers

(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.

Duty to inquire into individual cases

33Duty to inquire

(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.

34Inquiries under section 33: co-operation

(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;

(c)the Scottish Commission for the Regulation of Care;

(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.

35Inquiries under section 33: warrants

(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

(iii)any constable of the police force maintained for the area in which the premises are situated,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(12)References to a relevant mental health officer—

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

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

Part 5Emergency detention

Emergency detention certificate

36Emergency detention in hospital

(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 detained in hospital under authority of—

(a)an emergency detention certificate;

(b)a short-term detention certificate;

(c)an extension certificate;

(d)section 68 of this Act; or

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

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

(a)there is no conflict of interest in relation to the medical examination;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(9)Regulations may specify—

(a)the circumstances in which there is to be taken to be; and

(b)the circumstances in which there is not to be taken to be,

a conflict of interest in relation to the medical examination.

(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.

37Notification by medical practitioner

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

(2)Those matters are—

(a)the reason for granting the certificate;

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

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

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

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

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

Duties on hospital managers

38Duties on hospital managers: examination, notification etc.

(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 persons mentioned in subsection (4) below 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.

(4)The persons referred to in subsection (3)(a) and (b)(i) 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; and

(d)the Commission.

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

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

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

Revocation of certificate

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

If the approved medical practitioner who carries out the medical examination required by section 38(2) of this Act 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.

40Revocation of emergency detention certificate: notification

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

(a)the patient; and

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

of the revocation.

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

Suspension of authority to detain

41Suspension of authority to detain

(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.

42Certificate under section 41: revocation

(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 the persons mentioned in section 38(4) and (5) of this Act of the revocation.

Effect of emergency detention certificate on compulsory treatment order

43Effect of subsequent emergency detention certificate on compulsory treatment order

(1)This section applies where—

(a)a patient is subject to a compulsory treatment order; and

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

(2)The compulsory treatment 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 is specified in the compulsory treatment order, the compulsory treatment order shall continue to authorise that measure during the period mentioned in subsection (2) above.

Part 6Short-term detention

Short-term detention certificate

44Short-term detention in hospital

(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 detained in hospital under authority of—

(a)a short-term detention certificate;

(b)an extension certificate;

(c)section 68 of this Act; or

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

(3)This subsection applies where—

(a)there is no conflict of interest in relation to the medical examination;

(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.

(8)Regulations may specify—

(a)the circumstances in which there is to be taken to be; and

(b)the circumstances in which there is not to be taken to be,

a conflict of interest in relation to the medical examination.

(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.

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

(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.

Duties on hospital managers

46Hospital managers' duties: notification

(1)This section applies where a patient is detained in hospital under authority of 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, and send a copy of it, to—

(a)the Tribunal; and

(b)the Commission.

Extension certificate

47Extension of detention pending application for compulsory treatment order

(1)Where—

(a)a patient is detained in hospital under authority of 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—

(a)there is no conflict of interest in relation to the medical examination; and

(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.

(5)Regulations may specify—

(a)the circumstances in which there is to be taken to be; and

(b)the circumstances in which there is not to be taken to be,

a conflict of interest in relation to the medical examination.

(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.

48Extension certificate: notification

(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.

Revocation of certificates

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

(1)Where a patient is detained in hospital under authority of 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.

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

(1)Where a patient is in hospital under authority of 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.

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

Where—

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

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

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.

Suspension of detention

53Suspension of measure authorising detention

(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.

54Certificate under section 53: revocation

(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.

Effect of short-term detention certificate on emergency detention certificate

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

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

Effect of short-term detention certificate on compulsory treatment order

56Effect of subsequent short-term detention certificate on compulsory treatment order

(1)Subsection (2) below applies where—

(a)a patient is subject to a compulsory treatment order; and

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

(2)The compulsory treatment order shall cease to authorise the measures specified in it for the period during which the patient is subject to the short-term detention certificate.

Part 7Compulsory treatment orders

Chapter 1Application for, and making of, orders

Pre-application procedures

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

(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.

58Medical examination: requirements

(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.

(5)Except in circumstances specified in regulations, there must not be a conflict of interest in relation to the medical examination; and regulations shall specify the circumstances in which there is to be taken to be such a conflict of interest.

(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.

59Mental health officer’s duty to identify named person

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.

60Application for compulsory treatment order: notification

(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.

61Mental health officer’s duty to prepare report

(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.

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

(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).

Application for order

63Application for compulsory treatment order

(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.

Making of order etc.

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

(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.

65Powers of Tribunal on application under section 63: interim compulsory treatment order

(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.

66Measures that may be authorised

(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.

67Order authorising detention: ancillary authorisation

(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.

Extension of short-term detention: special case

68Extension of short-term detention pending determination of application

(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.

Time limit for Tribunal’s determination: special case

69Time limit for determining application etc. where section 68 applies

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.

Effect of making of orders on short-term detention

70Effect of subsequent order on short-term detention certificate

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.

Application of Chapter where patient subject to hospital direction or transfer for treatment direction

71Application of Chapter where patient subject to hospital direction or transfer for treatment direction

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.

Chapter 2Interim compulsory treatment orders: review and revocation

72Interim compulsory treatment order: responsible medical officer’s duty to keep under review

(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.

73Commission’s power to revoke interim compulsory treatment order

(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.

74Revocation under section 72 or 73: notification

(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.

75Effect of subsequent compulsory treatment order on interim compulsory treatment order

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.

Chapter 3Compulsory treatment orders: care plan

76Care plan: preparation, placing in medical records etc.

(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.

Chapter 4Review of orders

Mandatory reviews by responsible medical officer

77First mandatory review

(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.

78Further mandatory reviews

(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.

Revocation of order by responsible medical officer or Commission

79Responsible medical officer’s duty to revoke order: mandatory reviews

(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.

80Revocation of order: responsible medical officer’s duty to keep under review

(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.

81Commission’s power to revoke order

(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.

82Revocation of order: notification

(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.

Further steps to be taken where order not revoked

83Mandatory reviews: further steps to be taken where order not revoked

(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.

Extension of order by responsible medical officer

84Responsible medical officer’s duty where extension of order appears appropriate

(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.

85Mental health officer’s duties: extension of order

(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.

86Responsible medical officer’s duty to extend order

(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.

87Determination extending order: notification etc.

(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.

Extension and variation of order: application by responsible medical officer

88Responsible medical officer’s duty where extension and variation of order appear appropriate

(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.

89Mental health officer’s duties: extension and variation of order

(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.

90Responsible medical officer’s duty to apply for extension and variation of order

(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.

91Application for extension and variation of order: notification

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.

92Application to Tribunal

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.

Variation of order: application by responsible medical officer

93Responsible medical officer’s duties: variation of order

(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.

(5)If, having regard to any views expressed by persons consulted under subsection (4)(c) 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.

94Application by responsible medical officer for variation of order: notification

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.

95Application to Tribunal by responsible medical officer

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 the matters mentioned in section 92(a)(i) to (vi) of this Act; and

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

Recorded matters: reference to Tribunal by responsible medical officer

96Recorded matters: reference to Tribunal by responsible medical officer

(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.

97Reference to Tribunal under section 96(3): notification

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.

Reference to Tribunal by Commission

98Reference to Tribunal by Commission

(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.

Applications by patient etc.

99Application by patient etc. for revocation of determination extending order

(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.

100Application by patient etc. for revocation or variation of order

(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.

Review by Tribunal of determination extending order

101Tribunal’s duty to review determination under section 86

(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

(b)no decision has been made by the Tribunal under this section or section 103 of this Act in respect of the compulsory treatment order to which the determination relates during the period of 2 years ending with the day on which the order, had it not been extended by the determination, would have ceased to authorise the measures specified in it,

the Tribunal shall review the determination.

Powers of Tribunal

102Powers of Tribunal on review under section 101

(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.

103Powers of Tribunal on application under section 92, 95, 99 or 100

(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

(ii)any recorded matter,

specified in it;

(b)extending the compulsory treatment order for that period;

(c)refusing the application; or

(d)refusing the application and revoking the compulsory treatment order.

(2)Where an application is made under section 99 of this Act, the Tribunal may make an order—

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

(b)revoking—

(i)the determination; and

(ii)the compulsory treatment order to which the determination relates;

(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.

(3)Where an application is made under section 100(2)(a) of this Act, the Tribunal may make an order—

(a)revoking the compulsory treatment order to which the application relates;

(b)varying the compulsory treatment order by modifying—

(i)the measures; or

(ii)any recorded matter,

specified in it; or

(c)refusing the application.

(4)Where an application is made under section 95 or 100(2)(b) of this Act, the Tribunal may make an order—

(a)varying the compulsory treatment order to which the application relates by modifying—

(i)the measures; or

(ii)any recorded matter,

specified in it;

(b)refusing the application; or

(c)refusing the application and revoking that order.

(5)Before making a decision under any of subsections (1) to (4) above, the Tribunal shall afford the persons mentioned in subsection (6) below the opportunity—

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

(b)of leading, or producing, evidence.

(6)Those persons are—

(a)the persons mentioned in section 102(3)(a) to (h) of this Act; and

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

104Powers of Tribunal on reference under section 96 or 98

(1)Where a reference is made under section 96 or 98 of this Act, the Tribunal may make an order—

(a)varying the compulsory treatment order in respect of which the reference is made by modifying—

(i)the measures; or

(ii)any recorded matter,

specified in it; or

(b)revoking the compulsory treatment order.

(2)Before making an order under subsection (1) above, the Tribunal shall allow the persons mentioned in subsection (3) below the opportunity—

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

(b)of leading, or producing, evidence.

(3)Those persons are—

(a)the persons mentioned in section 102(3)(a) to (h) of this Act; and

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

105Interim extension etc. of order: application under section 92

(1)This section applies where an application is made under section 92 of this Act.

(2)Subject to section 107 of this Act, on the application of any person having an interest in the proceedings, or ex proprio motu, the Tribunal may, if it considers—

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

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

(i)extend the order; or

(ii)extend and vary the order by modifying the measures, or any recorded matter, specified in it,

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

106Interim variation of order: application, reference or review under Chapter

(1)This section applies where—

(a)an application is made under section 92, 95, 99 or 100 of this Act;

(b)a reference is made under section 96 or 98 of this Act; or

(c)the Tribunal is reviewing a determination under section 101 of this Act.

(2)Subject to section 107 of this Act, on the application of any person having an interest in the proceedings, or ex proprio motu, the Tribunal may, if it considers that it is appropriate to do so pending its—

(a)determining the application or reference; or

(b)making its decision on the review;

make an interim order varying the compulsory treatment order by modifying the measures, or any recorded matter, specified in it, for such period not exceeding 28 days as may be specified in the order of the Tribunal.

107Limit on Tribunal’s power to make interim orders

The Tribunal may not make an interim order under section 105 or 106 of this Act if the effect of making the order would be that interim orders under either, or both, of those sections would be in force for a continuous period of more than 56 days.

108Tribunal’s order varying compulsory treatment order

Where the Tribunal makes—

(a)an order under section 102, 103, 104 or 106 of this Act varying a compulsory treatment order; or

(b)an order under section 103 or 105 of this Act extending and varying such an order,

the Tribunal shall specify in its order the modifications made by its order to the measures, and any recorded matter, specified in the compulsory treatment order.

109Ancillary powers of Tribunal

(1)This section applies where—

(a)an application is made to the Tribunal under section 92, 95, 99 or 100 of this Act;

(b)the Tribunal is, under section 101 of this Act, reviewing a determination; or

(c)a reference is made to the Tribunal under section 96 or 98 of this Act.

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

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

(b)the mental health officer,

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

Effect of interim orders on calculation of time periods in Chapter

110Effect of interim orders on calculation of time periods in Chapter

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

(a)ceases;

(b)will cease; or

(c)would have ceased,

to authorise the measures specified in it, there shall be left out of account any period for which the order is extended (or extended and varied) by an interim order under section 105 of this Act.

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

Meaning of “modify”

111Meaning of “modify”

In this Chapter, any reference to modifying measures, or recorded matters, specified in a compulsory treatment order includes a reference to—

(a)amending those measures or recorded matters;

(b)removing from the order any measure or recorded matter;

(c)adding to the order any measure or recorded matter;

(d)specifying a recorded matter in an order which does not specify a recorded matter.

Chapter 5Breach of orders

Failure to attend for medical treatment

112Failure to attend for medical treatment

(1)Subject to subsection (2) below, where—

(a)a patient is subject to—

(i)a compulsory treatment order; or

(ii)an interim compulsory treatment order,

that imposes on the patient a requirement mentioned in section 66(1)(c) of this Act (“the attendance requirement”); and

(b)the patient fails to comply with the attendance requirement,

the patient’s responsible medical officer may exercise the power conferred by subsection (3) below.

(2)The responsible medical officer may exercise the power conferred by subsection (3) below only if—

(a)the responsible medical officer has consulted a mental health officer; and

(b)the mental health officer consents to the power being exercised.

(3)The responsible medical officer may take, or may cause a person authorised for the purpose by the responsible medical officer to take, the patient into custody and convey the patient—

(a)to the place the patient is required to attend by the attendance requirement; or

(b)to any hospital.

(4)Subject to subsection (5) below, where by virtue of subsection (3) above the patient is conveyed to the place the patient is required to attend or a hospital—

(a)if the order to which the patient is subject authorises the measure mentioned in section 66(1)(b) of this Act, the patient may be detained there for so long as is necessary for the purpose of giving to the patient any medical treatment that could have been given to the patient had the patient complied with the attendance requirement;

(b)if the order to which the patient is subject does not authorise that measure, the patient may be detained there for so long as is necessary to determine whether the patient is capable of consenting to medical treatment and, if so, whether the patient consents to receive any medical treatment.

(5)The patient may not be detained by virtue of subsection (4) above for more than a period of 6 hours beginning with the arrival of the patient in the place or hospital.

Non-compliance generally with order

113Non-compliance generally with order

(1)Where—

(a)a patient is subject to—

(i)a compulsory treatment order; or

(ii)an interim compulsory treatment order,

that does not authorise the detention of the patient in hospital;

(b)the patient fails to comply with any measure authorised by the order; and

(c)subsection (2) or (3) below applies,

the power conferred by subsection (4) below may be exercised.

(2)This subsection applies if the patient’s responsible medical officer considers that—

(a)reasonable steps have been taken to contact the patient following the patient’s failure to comply with the measure;

(b)if contact has been made with the patient, the patient has been afforded a reasonable opportunity to comply with the measure; and

(c)if the patient were to continue to fail to comply with the measure, it is reasonably likely that there would be a significant deterioration in the patient’s mental health.

(3)This subsection applies if the patient’s responsible medical officer considers that—

(a)if the patient were to continue to fail to comply with the measure, it is reasonably likely that there would be a significant deterioration in the patient’s mental health; and

(b)it is necessary as a matter of urgency that the power conferred by subsection (4) below be exercised.

(4)The patient’s responsible medical officer may take, or may cause a person authorised for the purpose by the responsible medical officer to take, the patient into custody and convey the patient to a hospital.

(5)Where the power conferred by subsection (4) above is exercised in relation to a patient, the patient may be detained in hospital for the period of 72 hours beginning with the arrival by virtue of that subsection of the patient in hospital.

(6)As soon as reasonably practicable after the patient has been conveyed to a hospital, the responsible medical officer shall—

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

(b)make arrangements for an approved medical practitioner to carry out such an examination.

114Compulsory treatment order: detention pending review or application for variation

(1)Subsection (2) below applies where—

(a)a patient who is subject to an order such as is mentioned in subsection (1)(a)(i) of section 113 of this Act is detained in hospital by virtue of subsection (5) of that section;

(b)the patient has been examined under subsection (6) of that section;

(c)the patient’s responsible medical officer—

(i)is considering under subsection (2) of section 93 of this Act whether that order should be varied by modifying the measures specified in it; or

(ii)by virtue of subsection (5) of that section, is required to make an application to the Tribunal; and

(d)the patient’s responsible medical officer considers that if the patient does not continue to be detained in hospital it is reasonably likely that there will be a significant deterioration in the patient’s mental health.

(2)Subject to subsections (3) and (4) below, the responsible medical officer may grant a certificate authorising the continued detention in hospital of the patient for the period of 28 days beginning with the granting of the certificate.

(3)The power in subsection (2) above may be exercised only if—

(a)the responsible medical officer has consulted the mental health officer; and

(b)the mental health officer consents to the power being exercised.

(4)Before granting a certificate under subsection (2) above the responsible medical officer shall, if it is practicable to do so, consult the patient’s named person.

(5)A certificate under subsection (2) above—

(a)shall state the responsible medical officer’s reasons for believing that paragraph (d) of subsection (1) applies in the patient’s case; and

(b)shall be signed by the responsible medical officer.

115Interim compulsory treatment order: detention pending further procedure

(1)Subsection (2) below applies where—

(a)a patient who is subject to an order such as is mentioned in subsection (1)(a)(ii) of section 113 of this Act is detained in hospital by virtue of subsection (5) of that section;

(b)the patient has been examined under subsection (6) of that section;

(c)the patient’s responsible medical officer considers that if the patient does not continue to be detained in hospital it is reasonably likely that there will be a significant deterioration in the patient’s mental health; and

(d)on the expiry of the period of detention authorised by subsection (5) of that section the period for which the order authorises the measures specified in it will not have expired.

(2)Subject to subsections (3) and (4) below, the responsible medical officer may grant a certificate authorising the continued detention in hospital of the patient for the period beginning with the granting of the certificate and ending with the expiry of the period for which the order authorises the measures specified in it.

(3)The power in subsection (2) above may be exercised only if—

(a)the patient’s responsible medical officer has consulted a mental health officer; and

(b)the mental health officer consents to the power being exercised.

(4)Before granting a certificate the responsible medical officer shall, if it is practicable to do so, consult the patient’s named person.

(5)A certificate under subsection (2) above—

(a)shall state the responsible medical officer’s reasons for believing that subsection (1)(c) above applies in the patient’s case; and

(b)shall be signed by the responsible medical officer.

116Certificate under section 114(2) or 115(2): notification

(1)This section applies where a certificate is granted under section 114(2) or 115(2) of this Act in respect of a patient.

(2)The managers of the hospital in which the patient is detained shall, as soon as practicable after the granting of the 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 in which the patient is detained shall, before the expiry of the period of 7 days beginning with the granting of the certificate, give notice of its granting, and send a copy of it, to—

(a)the Tribunal; and

(b)the Commission.

Revocation of certificates

117Certificate under section 114(2): responsible medical officer’s duty to revoke

(1)Where—

(a)a patient’s responsible medical officer grants, by virtue of subsection (1)(c)(i) of section 114 of this Act, a certificate under subsection (2) of that section; and

(b)the responsible medical officer determines that the order should not be varied as mentioned in section 93(2) of this Act,

the responsible medical officer shall revoke the certificate.

(2)Where—

(a)a patient’s responsible medical officer grants, by virtue of subsection (1)(c)(ii) of section 114 of this Act, a certificate under subsection (2) of that section; and

(b)the responsible medical officer is not satisfied that if the patient does not continue to be detained in hospital it is reasonably likely that there will be a significant deterioration in the patient’s mental health,

the responsible medical officer shall revoke the certificate.

118Certificate under section 115(2): responsible medical officer’s duty to revoke

Where—

(a)a patient’s responsible medical officer grants a certificate under section 115(2) of this Act; and

(b)the responsible medical officer is not satisfied that if the patient does not continue to be detained in hospital it is reasonably likely that there will be a significant deterioration in the patient’s mental health,

the responsible medical officer shall revoke the certificate.

119Revocation of certificate granted under section 114(2) or 115(2): notification

Where a patient’s responsible medical officer revokes, under section 117 or 118 of this Act, a certificate, the responsible medical officer shall—

(a)as soon as practicable after the revocation, give notice of the revocation to the persons mentioned in subsection (2) of section 116 of this Act; and

(b)before the expiry of the period of 7 days beginning with the revocation, give notice of the revocation to the persons mentioned in subsection (3) of that section.

120Certificates under sections 114(2) and 115(2): patient’s right to apply to Tribunal

(1)This section applies where a certificate is granted under section 114(2) or 115(2) of this Act in respect of a patient.

(2)On the application of the patient or the patient’s named person, the Tribunal shall, if not satisfied that if the patient does not continue to be detained in hospital it is reasonably likely that there will be a significant deterioration in the patient’s mental health, revoke the certificate.

Effect of section 113(5) on order

121Effect of section 113(5) on order

(1)Subject to subsection (2) below, where a patient is detained in hospital under section 113(5) of this Act, the compulsory treatment order or, as the case may be, interim compulsory treatment order to which the patient is subject shall cease, during the period mentioned in that section, to authorise the measures specified in it.

(2)If the measure mentioned in section 66(1)(b) of this Act is specified in the order, the order shall continue to authorise that measure during the period referred to in subsection (1) above.

Effect of certificate under section 114(2) on order

122Effect of certificate under section 114(2) on order

(1)Subject to subsection (2) below, where a certificate is granted under section 114(2) of this Act in respect of a patient, the compulsory treatment order to which the patient is subject shall cease, during the period mentioned in that section, to authorise the measures specified in it.

(2)If the measure mentioned in section 66(1)(b) of this Act is specified in the order, the order shall continue to authorise that measure during the period referred to in subsection (1) above.

Effect of certificate under section 115(2) on order

123Effect of certificate under section 115(2) on order

(1)Subject to subsection (2) below, where a certificate is granted under section 115(2) of this Act in respect of a patient, the interim compulsory treatment order to which the patient is subject shall cease, during the period mentioned in that section, to authorise the measures specified in it.

(2)If the measure mentioned in section 66(1)(b) of this Act is specified in the order, the order shall continue to authorise that measure during the period referred to in subsection (1) above.

Chapter 6Transfers

124Transfer to other hospital

(1)This section applies where the detention of a patient in hospital is authorised by a compulsory treatment order.

(2)The managers of the hospital in which the patient is detained may, where the condition mentioned in subsection (3) below is satisfied, transfer the patient to another hospital.

(3)The condition is that the managers of the hospital to which it is proposed to transfer the patient consent to the transfer.

(4)Where the managers of a hospital propose to transfer the patient under subsection (2) above, they shall, subject to subsections (5) and (7) below, give the persons mentioned in subsection (8) below at least 7 days' notice of the transfer.

(5)The managers of a hospital need not give notice under subsection (4) above where it is necessary that the patient be transferred urgently.

(6)Where, by virtue of subsection (5) above, notice is not given under subsection (4) above, the managers of the hospital shall, subject to subsection (7) below, give the persons mentioned in subsection (8) below notice—

(a)where the proposed transfer has not taken place, of the proposed transfer; or

(b)where the transfer has taken place, of the transfer,

as soon as practicable before, on or, as the case may be, after the transfer.

(7)The managers of the hospital need not give notice to the patient under subsection (4) or, as the case may be, (6) above where the patient consents to the transfer.

(8)The persons referred to in subsections (4) and (6) above are—

(a)the patient;

(b)the patient’s named person; and

(c)the patient’s primary carer.

(9)Where—

(a)notice is given under subsection (4) or (6)(a) above of a proposed transfer under subsection (2) above; and

(b)the proposed transfer does not take place before the end of the period of 3 months beginning with the day on which notice is given,

the managers of the hospital may transfer the patient as proposed only if subsection (10) below applies.

(10)This subsection applies where—

(a)the condition mentioned in subsection (3) above continues to be satisfied; and

(b)the persons mentioned in subsection (8) above are given at least 7 days' notice of the proposed transfer.

(11)Subsections (5) to (7) above shall apply to the giving of notice under subsection (10)(b) above as they apply to the giving of notice under subsection (4) above.

(12)Where the patient is transferred under subsection (2) above, the managers of the hospital from which the patient is transferred shall, before the expiry of the period of 7 days beginning with the transfer, give notice to the Commission of the matters mentioned in subsection (13) below.

(13)Those matters are—

(a)the date on which the patient was transferred;

(b)the hospital to which the patient was transferred;

(c)that—

(i)notice was given under subsection (4) above; or

(ii)if no such notice was given, the reasons why it was necessary that the patient be transferred urgently; and

(d)whether notice was given under subsection (6) or (10)(b) above.

(14)Where the patient is transferred under subsection (2) above, the compulsory treatment order shall, for the purposes of this Act (other than sections 125 and 126), be taken to specify the hospital to which the patient is transferred.

125Transfer to hospital other than state hospital: appeal to Tribunal

(1)This section applies where a patient—

(a)receives notice under subsection (4), (6)(a) or (10)(b) of section 124 of this Act that it is proposed to transfer the patient; or

(b)is transferred under subsection (2) of that section,

to any hospital other than a state hospital.

(2)The patient, or the patient’s named person, may, during the period mentioned in subsection (3) below, appeal to the Tribunal against the proposed transfer or, as the case may be, the transfer.

(3)That period is—

(a)in the case of the patient—

(i)where notice is given to the patient before the proposed transfer, the period beginning with the day on which notice is given and ending 28 days after the transfer;

(ii)where notice is given to the patient on or after the transfer, the period beginning with the day on which the patient is transferred and ending 28 days after the day on which notice is given; or

(iii)where notice is not given to the patient, the period of 28 days beginning with the day on which the patient is transferred;

(b)in the case of the patient’s named person—

(i)where notice is given to the patient’s named person before the proposed transfer, the period beginning with the day on which notice is given and ending 28 days after the transfer; or

(ii)where notice is given to the patient’s named person on or after the transfer, the period of 28 days beginning with the day on which notice is given.

(4)If, when an appeal under subsection (2) above against a proposed transfer is made to the Tribunal, the proposed transfer has not taken place—

(a)the managers of the hospital shall not transfer the patient as proposed; but

(b)the Tribunal may, if satisfied that, pending the determination of the appeal, the patient should be transferred as proposed, make an order that the patient be so transferred.

(5)On an appeal under subsection (2) above, the Tribunal may make an order that the proposed transfer not take place or, as the case may be, that the patient be returned to the hospital from which the patient was transferred.

126Transfer to state hospital: appeal to Tribunal

(1)This section applies where a patient—

(a)receives notice under subsection (4), (6)(a) or (10)(b) of section 124 of this Act that it is proposed to transfer the patient; or

(b)is transferred under subsection (2) of that section,

to a state hospital.

(2)The patient, or the patient’s named person, may, during the period mentioned in subsection (3) below, appeal to the Tribunal against the proposed transfer or, as the case may be, the transfer.

(3)That period is—

(a)in the case of the patient—

(i)where notice is given to the patient before the proposed transfer, the period beginning with the day on which notice is given and ending 12 weeks after the transfer;

(ii)where notice is given to the patient on or after the transfer, the period beginning with the day on which the patient is transferred and ending 12 weeks after the day on which notice is given; or

(iii)where notice is not given to the patient, the period of 12 weeks beginning with the day on which the patient is transferred;

(b)in the case of the patient’s named person—

(i)where notice is given to the patient’s named person before the proposed transfer, the period beginning with the day on which notice is given and ending 12 weeks after the transfer; or

(ii)where notice is given to the patient’s named person on or after the transfer, the period of 12 weeks beginning with the day on which notice is given.

(4)If, when an appeal under subsection (2) above against a proposed transfer is made to the Tribunal, the proposed transfer has not taken place—

(a)the managers of the hospital shall not transfer the patient as proposed; but

(b)the Tribunal may, if satisfied that, pending determination of the appeal, the patient should be transferred as proposed, make an order that the patient be so transferred.

(5)On an appeal under subsection (2) above, the Tribunal may, if not satisfied as to the matter mentioned in subsection (6) below, make an order that the proposed transfer not take place or, as the case may be, that the patient be returned to the hospital from which the patient was transferred.

(6)That matter is—

(a)that the patient requires to be detained in hospital under conditions of special security; and

(b)that those conditions of special security can be provided only in a state hospital.

Chapter 7Suspension

127Suspension of measure authorising detention

(1)Where—

(a)a patient is subject to a compulsory treatment order that authorises the measure mentioned in section 66(1)(a) of this Act; and

(b)subject to subsection (2) below, the patient’s responsible medical officer grants a certificate specifying a period not exceeding 6 months during which the order shall not authorise that measure,

the order does not authorise that measure during that period.

(2)If the sum of—

(a)the period that the responsible medical officer proposes to specify in a certificate under subsection (1) above; and

(b)the period specified in any other certificate granted under that subsection in respect of the same patient,

would exceed 9 months in the period of 12 months ending with the expiry of the period mentioned in paragraph (a) above, the responsible medical officer may not grant a certificate under that subsection.

(3)Where—

(a)a patient is subject to an interim compulsory treatment order that authorises the measure mentioned in section 66(1)(a) of this Act; and

(b)the patient’s responsible medical officer grants a certificate specifying a period during which the order shall not authorise that measure,

the order does not authorise that measure during that period.

(4)A period specified in a certificate under subsection (1) or (3) 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.

(5)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 under subsection (1) or (3) above may include conditions such as are mentioned in subsection (6) below; and any such conditions shall have effect.

(6)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 patient’s responsible medical officer; and

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

(7)Where a patient’s responsible medical officer proposes to grant a certificate under subsection (1) above specifying—

(a)a period of more than 28 days; or

(b)a period which, when taken together with the period specified in any other certificate granted under that subsection, would exceed 28 days,

the responsible medical officer shall, before granting such a certificate, give notice of the proposal to the persons mentioned in subsection (8) below.

(8)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)the patient’s general medical practitioner; and

(d)the mental health officer.

(9)Where a certificate is granted under subsection (1) above specifying a period of more than 28 days, the patient’s responsible medical officer shall, before the expiry of the period of 14 days beginning with the day on which the certificate is granted, give notice of it to the Commission.

128Suspension of other measures

(1)Where—

(a)a patient is subject to a compulsory treatment order that authorises any of the measures mentioned in section 66(1)(b) to (h) of this Act; and

(b)subject to subsection (2) below, the patient’s responsible medical officer grants a certificate specifying a period not exceeding 3 months during which the order shall not authorise such of those measures as are specified in the certificate,

the order does not authorise the measures specified in the certificate during that period.

(2)If the sum of—

(a)the period that the responsible medical officer proposes to specify in a certificate under subsection (1) above; and

(b)the period specified in any other certificate granted under that subsection in respect of the same patient,

would exceed 3 months, the responsible medical officer may not grant a certificate under that subsection.

(3)Where a patient’s responsible medical officer proposes to grant a certificate under subsection (1) above, the responsible medical officer shall, before granting such a certificate, give notice to the persons mentioned in subsection (4) below of—

(a)the measures and the period that the responsible medical officer proposes to specify in the certificate; and

(b)the responsible medical officer’s reasons for proposing to specify those measures.

(4)Those persons are—

(a)the patient;

(b)the patient’s named person; and

(c)the mental health officer.

(5)Where a certificate is granted under subsection (1) above, the patient’s responsible medical officer shall, before the expiry of the period of 14 days beginning with the day on which the certificate is granted, give notice to the Commission of—

(a)the granting of the certificate;

(b)the measures and the period specified in the certificate; and

(c)the responsible medical officer’s reasons for specifying those measures.

129Certificates under sections 127 and 128: revocation

(1)Subsection (2) below applies where a certificate is granted under section 127(1) or (3) or 128(1) of this Act.

(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 the responsible medical officer revokes under subsection (2) above a certificate granted under subsection (1) or (3) of section 127 of this Act, the responsible medical officer shall, as soon as practicable after the revocation, give notice of it to—

(a)the patient;

(b)the patient’s named person;

(c)the mental health officer;

(d)where a person is authorised for the purposes of subsection (6)(a) of that section, that person; and

(e)the patient’s general medical practitioner.

(4)Where the responsible medical officer revokes under subsection (2) above a certificate granted under section 128(1) of this Act, the responsible medical officer shall, as soon as practicable after the revocation, give notice to the persons mentioned in paragraphs (a) to (c) of subsection (3) above of—

(a)the revocation; and

(b)the responsible medical officer’s reasons for revoking the certificate.

(5)Where the responsible medical officer revokes under subsection (2) above a certificate granted under section 127(1) or (3) or 128(1) of this Act, the responsible medical officer shall, before the expiry of the period of 14 days beginning with the day on which the certificate is revoked, give notice of the revocation to the Commission.

Part 8Mentally disordered persons: criminal proceedings

Chapter 1Pre-sentence orders

Assessment orders and treatment orders

130Mentally disordered persons subject to criminal proceedings: assessment and treatment

After section 52 of the 1995 Act there shall be inserted—

Remit of mentally disordered persons from district court
52ARemit of certain mentally disordered persons from district court to sheriff court

Where—

(a)a person has been charged in a district court with an offence punishable by imprisonment; and

(b)it appears to the court that the person has a mental disorder,

the district court shall remit the person to the sheriff in the manner provided by section 7(9) and (10) of this Act.

Assessment orders
52BProsecutor’s power to apply for assessment order

(1)Where—

(a)a person has been charged with an offence;

(b)a relevant disposal has not been made in the proceedings in respect of the offence; and

(c)it appears to the prosecutor that the person has a mental disorder,

the prosecutor may apply to the court for an order under section 52D(2) of this Act (in this Act referred to as an “assessment order”) in respect of that person.

(2)Where the prosecutor applies for an assessment order under subsection (1) above, the prosecutor shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3)Those persons are—

(a)the person in respect of whom the application is made;

(b)any solicitor acting for the person; and

(c)in a case where the person is in custody, the Scottish Ministers.

(4)In this section—

  • “court” means any court, other than a district court, competent to deal with the case; and

  • “relevant disposal” means—

    (a)

    the liberation in due course of law of the person charged;

    (b)

    the desertion of summary proceedings pro loco et tempore or simpliciter;

    (c)

    the desertion of solemn proceedings simpliciter;

    (d)

    the acquittal of the person charged; or

    (e)

    the conviction of the person charged.

52CScottish Ministers' power to apply for assessment order

(1)Where—

(a)a person has been charged with an offence;

(b)the person has not been sentenced;

(c)the person is in custody; and

(d)it appears to the Scottish Ministers that the person has a mental disorder,

the Scottish Ministers may apply to the court for an assessment order in respect of that person.

(2)Where the Scottish Ministers apply for an order under subsection (1) above, they shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3)Those persons are—

(a)the person in respect of whom the application is made;

(b)any solicitor acting for the person; and

(c)in a case where a relevant disposal has not been made in the proceedings in respect of the offence with which the person is charged, the prosecutor.

(4)In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.

52DAssessment order

(1)This section applies where an application for an assessment order is made under section 52B(1) or 52C(1) of this Act.

(2)If the court is satisfied—

(a)on the written or oral evidence of a medical practitioner, as to the matters mentioned in subsection (3) below; and

(b)that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (5) below, make an assessment order authorising the measures mentioned in subsection (6) below and specifying any matters to be included in the report under section 52G(1) of this Act.

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

(a)that there are reasonable grounds for believing—

(i)that the person in respect of whom the application is made has a mental disorder;

(ii)that it is necessary to detain the person in hospital to assess whether the conditions mentioned in subsection (7) below are met in respect of the person; and

(iii)that if the assessment order were not made there would be a significant risk to the health, safety or welfare of the person or a significant risk to the safety of any other person;

(b)that the hospital proposed by the medical practitioner is suitable for the purpose of assessing whether the conditions mentioned in subsection (7) below are met in respect of the person;

(c)that, if an assessment order were made, the person could be admitted to such hospital before the expiry of the period of 7 days beginning with the day on which the order is made; and

(d)that it would not be reasonably practicable to carry out the assessment mentioned in paragraph (b) above unless an order were made.

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

(a)all the circumstances (including the nature of the offence with which the person in respect of whom the application is made is charged or, as the case may be, of which the person was convicted); and

(b)any alternative means of dealing with the person.

(5)The court may make an assessment order only if the person in respect of whom the application is made has not been sentenced.

(6)The measures are—

(a)in the case of a person who, when the assessment order is made, has not been admitted to the specified hospital, the removal, before the expiry of the period of 7 days beginning with the day on which the order is made, of the person to the specified hospital by—

(i)a constable;

(ii)a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii)a specified person;

(b)the detention, for the period of 28 days beginning with the day on which the order is made, of the person in the specified hospital; and

(c)during the period of 28 days beginning with the day on which the order is made, the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment.

(7)The conditions referred to in paragraphs (a)(ii) and (b) of subsection (3) above are—

(a)that the person in respect of whom the application is made 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 person; and

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

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

(ii)to the safety of any other person.

(8)The court may make an assessment order in the absence of the person in respect of whom the application is made only if—

(a)the person is represented by counsel or a solicitor;

(b)that counsel or solicitor is given an opportunity of being heard; and

(c)the court is satisfied that it is—

(i)impracticable; or

(ii)inappropriate,

for the person to be brought before it.

(9)An assessment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and detention of the person in, a place of safety pending the person’s admission to the specified hospital.

(10)The court shall, as soon as reasonably practicable after making an assessment order, give notice of the making of the order to—

(a)the person subject to the order;

(b)any solicitor acting for the person;

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor;

(d)in a case where the person, immediately before the order was made, was in custody, the Scottish Ministers; and

(e)the Mental Welfare Commission.

(11)In this section—

  • “court” has the same meaning as in section 52B of this Act;

  • “medical treatment” has the meaning given by section 329(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

  • “relevant disposal” has the same meaning as in section 52B of this Act; and

  • “specified” means specified in the assessment order.

52EAssessment order made ex proprio motu: application of section 52D

(1)Where—

(a)a person has been charged with an offence;

(b)the person has not been sentenced; and

(c)it appears to the court that the person has a mental disorder,

the court may, subject to subsections (2) and (3) below, make an assessment order in respect of that person.

(2)The court may make an assessment order under subsection (1) above only if it would make one under subsections (2) to (11) of section 52D of this Act; and those subsections shall apply for the purposes of subsection (1) above as they apply for the purposes of subsection (1) of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make an assessment order.

(3)An assessment order made under subsection (1) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52D(2) of this Act.

(4)In this section, “court” has the same meaning as in section 52B of this Act.

52FAssessment order: supplementary

(1)If, before the expiry of the period of 7 days beginning with the day on which an assessment order is made—

(a)in the case of a person who, immediately before the order was made, was in custody, it appears to the Scottish Ministers; or

(b)in any other case, it appears to the court,

that, by reason of emergency or other special circumstances, it is not reasonably practicable for the person to be admitted to the hospital specified in the order, the Scottish Ministers, or, as the case may be, the court, may direct that the person be admitted to the hospital specified in the direction.

(2)Where the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the person subject to the assessment order of the making of the direction.

(3)Where the Scottish Ministers make a direction under subsection (1) above, they shall, as soon as reasonably practicable after making the direction, inform—

(a)the court;

(b)the person having custody of the person subject to the assessment order; and

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor,

of the making of the direction.

(4)Where a direction is made under subsection (1) above, the assessment order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(5)In this section—

  • “court” means the court which made the assessment order; and

  • “relevant disposal” has the same meaning as in section 52B of this Act.

52GReview of assessment order

(1)The responsible medical officer shall, before the expiry of the period of 28 days beginning with the day on which the assessment order is made, submit a report in writing to the court—

(a)as to whether the conditions mentioned in section 52D(7) of this Act are met in respect of the person subject to the order; and

(b)as to any matters specified by the court under section 52D(2) of this Act.

(2)The responsible medical officer shall, at the same time as such officer submits the report to the court, send a copy of such report—

(a)to the person in respect of whom the report is made;

(b)to any solicitor acting for the person;

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

to the prosecutor; and

(d)to the Scottish Ministers.

(3)Subject to subsection (4) below, the court shall, on receiving a report submitted under subsection (1) above, revoke the assessment order and—

(a)subject to subsections (7) and (8) below, make a treatment order; or

(b)commit the person to prison or such other institution to which the person might have been committed had the assessment order not been made or otherwise deal with the person as the court considers appropriate.

(4)If, on receiving a report submitted under subsection (1) above, the court is satisfied that further time is necessary to assess whether the conditions mentioned in section 52D(7) of this Act are met in respect of the person subject to the assessment order, it may, on one occasion only, make an order extending the assessment order for a period not exceeding 7 days beginning with the day on which the order otherwise would cease to authorise the detention of the person in hospital.

(5)The court may, under subsection (4) above, extend an assessment order in the absence of the person subject to the order only if—

(a)the person is represented by counsel or a solicitor;

(b)that counsel or solicitor is given an opportunity of being heard; and

(c)the court is satisfied that it is—

(i)impracticable; or

(ii)inappropriate,

for the person to be brought before it.

(6)Where the court makes an order under subsection (4) above, it shall, as soon as reasonably practicable after making the order, give notice of the making of the order to—

(a)the persons mentioned in paragraphs (a) and (b) of subsection (2) above;

(b)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor;

(c)the Scottish Ministers; and

(d)the person’s responsible medical officer.

(7)The court shall make a treatment order under subsection (3)(a) above only if it would make one under subsections (2) to (10) of section 52M of this Act; and those subsections shall apply for the purposes of subsection (3)(a) above as they apply for the purposes of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make a treatment order.

(8)A treatment order made under subsection (3)(a) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52M(2) of this Act.

(9)The responsible medical officer shall, where that officer is satisfied that there has been a change of circumstances since the assessment order was made which justifies the variation of the order, submit a report to the court in writing.

(10)Where a report is submitted under subsection (9) above, the court shall—

(a)if satisfied that the person need not be subject to an assessment order, revoke the order and take any action mentioned in subsection (3)(b) above; or

(b)if not so satisfied—

(i)confirm the order;

(ii)vary the order; or

(iii)revoke the order and take any action mentioned in subsection (3)(b) above.

(11)Sections 52D, 52F, 52H and 52J of this Act and subsections (1) to (3) above apply to the variation of an order under subsection (10)(b)(ii) above as they apply to an assessment order.

(12)In this section—

  • “court” means the court which made the assessment order;

  • “relevant disposal” has the same meaning as in section 52B of this Act; and

  • “responsible medical officer” means the person’s responsible medical officer appointed under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

52HEarly termination of assessment order

(1)This section applies where—

(a)in the case of a person who, when the assessment order is made, has not been removed to the hospital specified in the order, the period of 7 days beginning with the day on which the order is made has not expired;

(b)in the case of a person—

(i)who, when the assessment order is made, has been admitted to the hospital specified in the order; or

(ii)who has been removed under paragraph (a) of subsection (6) of section 52D of this Act to the hospital so specified,

the period of 28 days beginning with the day on which the order is made has not expired; or

(c)in the case of a person in respect of whom the court has made an order under section 52G(4) of this Act extending the assessment order for a period, the period for which the order was extended has not expired.

(2)An assessment order shall cease to have effect on the occurrence of any of the following events—

(a)the making of a treatment order in respect of the person subject to the assessment order;

(b)in a case where—

(i)the person subject to the assessment order has been charged with an offence; and

(ii)a relevant disposal had not been made in the proceedings in respect of that offence when the order was made,

the making of a relevant disposal in such proceedings;

(c)in a case where the person subject to the assessment order has been convicted of an offence but has not been sentenced—

(i)the deferral of sentence by the court under section 202(1) of this Act;

(ii)the making of one of the orders mentioned in subsection (3) below or

(iii)the imposition of any sentence.

(3)The orders are—

(a)an interim compulsion order;

(b)a compulsion order;

(c)a guardianship order;

(d)a hospital direction;

(e)any order under section 57 of this Act; or

(f)a probation order which includes a requirement imposed by virtue of section 230(1) of this Act.

(4)In this section, “relevant disposal” has the same meaning as in section 52B of this Act.

52JPower of court on assessment order ceasing to have effect

(1)Where, otherwise than by virtue of section 52G(3) or (10) or 52H(2) of this Act, an assessment order ceases to have effect the court shall commit the person who was subject to the order to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate.

(2)In this section, “court” has the same meaning as in section 52B of this Act.

Treatment orders
52KProsecutor’s power to apply for treatment order

(1)Where—

(a)a person has been charged with an offence;

(b)a relevant disposal has not been made in the proceedings in respect of the offence; and

(c)it appears to the prosecutor that the person has a mental disorder,

the prosecutor may apply to the court for an order under section 52M of this Act (in this Act referred to as a “treatment order”) in respect of that person.

(2)Where the prosecutor applies for a treatment order under subsection (1) above, the prosecutor shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3)Those persons are—

(a)the person in respect of whom the application is made;

(b)any solicitor acting for the person; and

(c)in a case where the person is in custody, the Scottish Ministers.

(4)In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.

52LScottish Ministers' power to apply for treatment order

(1)Where—

(a)a person has been charged with an offence;

(b)the person has not been sentenced;

(c)the person is in custody; and

(d)it appears to the Scottish Ministers that the person has a mental disorder,

the Scottish Ministers may apply to the court for a treatment order in respect of that person.

(2)Where the Scottish Ministers apply for an order under subsection (1) above, they shall, as soon as reasonably practicable after making the application, inform the persons mentioned in subsection (3) below of the making of the application.

(3)Those persons are—

(a)the person in respect of whom the application is made;

(b)any solicitor acting for the person; and

(c)in a case where a relevant disposal has not been made in the proceedings in respect of the offence with which the person is charged, the prosecutor.

(4)In this section, “court” and “relevant disposal” have the same meanings as in section 52B of this Act.

52MTreatment order

(1)This section applies where an application for a treatment order is made under section 52K(1) or 52L(1) of this Act.

(2)If the court is satisfied—

(a)on the written or oral evidence of two medical practitioners, as to the matters mentioned in subsection (3) below; and

(b)that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (5) below, make a treatment order authorising the measures mentioned in subsection (6) below.

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

(a)that the conditions mentioned in subsection (7) of section 52D of this Act are met in relation to the person in respect of whom the application is made;

(b)that the hospital proposed by the approved medical practitioner and the medical practitioner is suitable for the purpose of giving medical treatment to the person; and

(c)that, if a treatment order were made, such person could be admitted to such hospital before the expiry of the period of 7 days beginning with the day on which the order is made.

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

(a)all the circumstances (including the nature of the offence with which the person in respect of whom the application is made is charged or, as the case may be, of which the person was convicted); and

(b)any alternative means of dealing with the person.

(5)The court may make a treatment order only if the person in respect of whom the application is made has not been sentenced.

(6)The measures are—

(a)in the case of a person who, when the treatment order is made, has not been admitted to the specified hospital, the removal, before the expiry of the period of 7 days beginning with the day on which the order is made, of the person to the specified hospital by—

(i)a constable;

(ii)a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii)a specified person;

(b)the detention of the person in the specified hospital; and

(c)the giving to the person, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment.

(7)The court may make a treatment order in the absence of the person in respect of whom the application is made only if—

(a)the person is represented by counsel or solicitor;

(b)that counsel or solicitor is given an opportunity of being heard; and

(c)the court is satisfied that it is—

(i)impracticable; or

(ii)inappropriate,

for the person to be brought before it.

(8)A treatment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and detention of the person in, a place of safety pending the person’s admission to the specified hospital.

(9)The court shall, as soon as reasonably practicable after making a treatment order, give notice of the making of the order to—

(a)the person subject to the order;

(b)any solicitor acting for the person;

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor;

(d)in a case where the person, immediately before the order was made—

(i)was in custody; or

(ii)was subject to an assessment order and, immediately before that order was made, was in custody,

the Scottish Ministers; and

(e)the Mental Welfare Commission.

(10)In this section—

  • “court” has the same meaning as in section 52B of this Act;

  • “medical treatment” has the same meaning as in section 52D of this Act; and

  • “specified” means specified in the treatment order.

52NTreatment order made ex proprio motu: application of section 52M

(1)Where—

(a)a person has been charged with an offence;

(b)the person has not been sentenced; and

(c)it appears to the court that the person has a mental disorder,

the court may, subject to subsections (2) and (3) below, make a treatment order in respect of that person.

(2)The court may make a treatment order under subsection (1) above only if it would make one under subsections (2) to (10) of section 52M of this Act; and those subsections shall apply for the purposes of subsection (1) above as they apply for the purposes of subsection (1) of that section, references in those subsections to the person in respect of whom the application is made being construed as references to the person in respect of whom it is proposed to make a treatment order.

(3)A treatment order made under subsection (1) above shall, for the purposes of this Act and the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), be treated as if made under section 52M(2) of this Act.

(4)In this section, “court” has the same meaning as in section 52B of this Act.

52PTreatment order: supplementary

(1)If, before the expiry of the period of 7 days beginning with the day on which the treatment order is made—

(a)in the case of a person to whom subsection (2) below applies, it appears to the Scottish Ministers; or

(b)in any other case, it appears to the court,

that, by reason of emergency or other special circumstances, it is not reasonably practicable for the person to be admitted to the hospital specified in the order, the Scottish Ministers, or, as the case may be, the court, may direct that the person be admitted to the hospital specified in the direction.

(2)This subsection applies to—

(a)a person who is in custody immediately before the treatment order is made; or

(b)a person—

(i)who was subject to an assessment order immediately before the treatment order is made; and

(ii)who was in custody immediately before that assessment order was made.

(3)Where the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the person subject to the treatment order of the making of the direction.

(4)Where the Scottish Ministers make a direction under subsection (1) above, they shall, as soon as reasonably practicable after making the direction, inform—

(a)the court;

(b)the person having custody of the person subject to the treatment order; and

(c)in a case where—

(i)the person has been charged with an offence; and

(ii)a relevant disposal has not been made in the proceedings in respect of the offence,

the prosecutor,

of the making of the direction.

(5)Where a direction is made under subsection (1) above, the treatment order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(6)In this section—

  • “court” means the court which made the treatment order; and

  • “relevant disposal” has the same meaning as in section 52B of this Act.

52QReview of treatment order

(1)The responsible medical officer shall, where that officer is satisfied—

(a)that any of the conditions mentioned in section 52D(7) of this Act are no longer met in respect of the person subject to the treatment order; or

(b)that there has otherwise been a change of circumstances since the order was made which makes the continued detention of the person in hospital by virtue of the order no longer appropriate,

submit a report in writing to the court.

(2)Where a report is submitted under subsection (1) above, the court shall—

(a)if satisfied that the person need not be subject to the treatment order—

(i)revoke the order; and

(ii)commit the person to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate; or

(b)if not so satisfied—

(i)confirm the order;

(ii)vary the order; or

(iii)revoke the order and take any action mentioned in paragraph (a)(ii) above.

(3)Sections 52M, 52P, this section and sections 52R and 52S of this Act apply to the variation of a treatment order under subsection (2)(b)(ii) above as they apply to a treatment order.

(4)In this section—

  • “court” means the court which made the treatment order; and

  • “responsible medical officer” means the person’s responsible medical officer appointed under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

52RTermination of treatment order

(1)This section applies—

(a)where, in the case of a person who, when the treatment order is made, has not been removed to the hospital specified in the order, the period of 7 days beginning with the day on which the order is made has not expired; or

(b)in the case of a person—

(i)who, when the treatment order is made, has been admitted to the hospital specified in the order; or

(ii)who has been removed under paragraph (a) of subsection (6) of section 52M of this Act to the hospital so specified.

(2)A treatment order shall cease to have effect on the occurrence of any of the following events—

(a)in a case where—

(i)the person subject to the treatment order has been charged with an offence; and

(ii)a relevant disposal had not been made in the proceedings in respect of such offence when the order was made,

the making of a relevant disposal in such proceedings;

(b)in a case where the person subject to the treatment order has been convicted of an offence but has not been sentenced—

(i)the deferral of sentence by the court under section 202(1) of this Act;

(ii)the making of one of the orders mentioned in subsection (3) below; or

(iii)the imposition of any sentence.

(3)The orders are—

(a)an interim compulsion order;

(b)a compulsion order;

(c)a guardianship order;

(d)a hospital direction;

(e)any order under section 57 of this Act; or

(f)a probation order which includes a requirement imposed by virtue of section 230(1) of this Act.

(4)In this section, “relevant disposal” has the same meaning as in section 52B of this Act.

52SPower of court on treatment order ceasing to have effect

(1)Where, otherwise than by virtue of section 52Q(2) or 52R(2) of this Act, a treatment order ceases to have effect the court shall commit the person who was subject to the order to prison or such other institution to which the person might have been committed had the order not been made or otherwise deal with the person as the court considers appropriate.

(2)In this section, “court” has the same meaning as in section 52B of this Act.

Prevention of delay in trials
52TPrevention of delay in trials: assessment orders and treatment orders

(1)Subsections (4) to (9) of section 65 of this Act shall apply in the case of a person charged on indictment who is detained in hospital by virtue of an assessment order or a treatment order as those subsections apply in the case of an accused who is—

(a)committed for an offence until liberated in due course of law; and

(b)detained by virtue of that committal.

(2)Section 147 of this Act shall apply in the case of a person charged with an offence in summary proceedings who is detained in hospital by virtue of an assessment order or a treatment order as it applies in the case of an accused who is detained in respect of that offence.

(3)Any period during which, under—

(a)section 221 (as read with sections 222 and 223) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); or

(b)section 224 (as read with sections 225 and 226) of that Act,

a patient’s detention is not authorised shall be taken into account for the purposes of the calculation of any of the periods mentioned in subsection (4) below.

(4)Those periods are—

(a)the total periods of 80 days and 110 days referred to respectively in paragraphs (a) and (b) of subsection (4) of section 65 of this Act as applied by subsection (1) above;

(b)those total periods as extended under subsection (5) or (7) respectively or, on appeal, under subsection (8) of that section as so applied;

(c)the total of 40 days referred to in section 147 of this Act (prevention of delay in trials in summary proceedings) as applied by subsection (2) above; and

(d)that period as extended under subsection (2) of that section or, on appeal, under subsection (3) of that section as so applied.

Effect of assessment and treatment orders on pre-existing mental health orders
52UEffect of assessment order and treatment order on pre-existing mental health order

(1)This section applies where—

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

(b)an assessment order or a treatment order is made in respect of the patient.

(2)The 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 assessment order or, as the case may be, treatment order.

(3)For the purposes of sections 112 to 120, and Part 20, of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (the “2003 Act”), the patient shall be deemed not to be subject to the relevant order during the period mentioned in subsection (2) above.

(4)In this section, a “relevant order” means—

(a)an interim compulsory treatment order made under section 65(2) of the 2003 Act; and

(b)a compulsory treatment order made under section 64(4)(a) of that Act..

Interim compulsion orders

131Mentally disordered offenders: interim compulsion orders

For section 53 of the 1995 Act (interim hospital orders), there shall be substituted—

Interim compulsion orders
53Interim compulsion order

(1)This section applies where a person (referred to in this section and in sections 53A to 53D of this Act as an “offender”)—

(a)is convicted in the High Court or the sheriff court of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law); or

(b)is remitted to the High Court by the sheriff under any enactment for sentence for such an offence.

(2)If the court is satisfied—

(a)on the written or oral evidence of two medical practitioners—

(i)that the offender has a mental disorder; and

(ii)as to the matters mentioned in subsection (3) below; and

(b)that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (7) below, make an order (in this Act referred to as an “interim compulsion order”) authorising the measures mentioned in subsection (8) below and specifying any matters to be included in the report under section 53B(1) of this Act.

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

(a)that there are reasonable grounds for believing—

(i)that the conditions mentioned in subsection (5) below are likely to be met in respect of the offender; and

(ii)that the offender’s mental disorder is such that it would be appropriate to make one of the disposals mentioned in subsection (6) below in relation to the offender;

(b)that the hospital to be specified in the order is suitable for the purpose of assessing whether the conditions mentioned in subsection (5) below are met in respect of the offender;

(c)that, were an interim compulsion order made, the offender could be admitted to such hospital before the expiry of the period of 7 days beginning with the day on which the order is made; and

(d)that it would not be reasonably practicable for the assessment mentioned in paragraph (b) above to be made unless an order were made.

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

(a)all the circumstances (including the nature of the offence of which the offender is convicted); and

(b)any alternative means of dealing with the offender.

(5)The conditions referred to in paragraphs (a)(i) and (b) of subsection (3) above are—

(a)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 offender;

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

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

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

(c)that the making of an interim compulsion order in respect of the offender is necessary.

(6)The disposals are—

(a)both a compulsion order that authorises detention in hospital by virtue of section 57A(8)(a) of this Act and a restriction order; or

(b)a hospital direction.

(7)An interim compulsion order may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court—

(a)that the offender requires to be detained in hospital under conditions of special security; and

(b)that such conditions of special security can be provided only in a state hospital.

(8)The measures are—

(a)in the case of an offender who, when the interim compulsion order is made, has not been admitted to the specified hospital, the removal, before the expiry of the period of 7 days beginning with the day on which the order is made, of the offender to the specified hospital by—

(i)a constable;

(ii)a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii)a specified person;

(b)the detention, for a period not exceeding 12 weeks beginning with the day on which the order is made, of the offender in the specified hospital; and

(c)during the period of 12 weeks beginning with the day on which the order is made, the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment.

(9)An interim compulsion order may include such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender’s admission to the specified hospital.

(10)The court may make an interim compulsion order in the absence of the offender only if—

(a)the offender is represented by counsel or solicitor;

(b)that counsel or solicitor is given an opportunity of being heard; and

(c)the court is satisfied that it is—

(i)impracticable; or

(ii)inappropriate,

for the offender to be brought before it.

(11)The court shall, as soon as reasonably practicable after making an interim compulsion order, give notice of the making of the order to—

(a)the person subject to the order;

(b)any solicitor acting for that person;

(c)the Scottish Ministers; and

(d)the Mental Welfare Commission.

(12)Where a court makes an interim compulsion order in relation to an offender, the court—

(a)shall not, at the same time—

(i)make an order under section 200 of this Act;

(ii)impose a fine;

(iii)pass sentence of imprisonment;

(iv)make a compulsion order;

(v)make a guardianship order;

(vi)make a probation order; or

(vii)make a community service order,

in relation of the offender;

(b)may make any other order which it has power to make apart from this section.

(13)In this section—

  • “medical treatment” has the same meaning as in section 52D of this Act;

  • “sentence of imprisonment” includes any sentence or order for detention; and

  • “specified” means specified in the interim compulsion order.

53AInterim compulsion order: supplementary

(1)If, before the expiry of the period of 7 days beginning with the day on which the interim compulsion order is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the order, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to the hospital specified in the direction.

(2)Where—

(a)the court makes a direction under subsection (1) above, it shall, as soon as reasonably practicable after making the direction, inform the person having custody of the offender; and

(b)the Scottish Ministers make such a direction, they shall, as soon as reasonably practicable after making the direction, inform—

(i)the court; and

(ii)the person having custody of the offender.

(3)Where a direction is made under subsection (1) above, the interim compulsion order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(4)In this section, “court” means the court which made the interim compulsion order.

53BReview and extension of interim compulsion order

(1)The responsible medical officer shall, before the expiry of the period specified by the court under section 53(8)(b) of this Act, submit a report in writing to the court—

(a)as to the matters mentioned in subsection (2) below; and

(b)as to any matters specified by the court under section 53(2) of this Act.

(2)The matters are—

(a)whether the conditions mentioned in section 53(5) of this Act are met in respect of the offender;

(b)the type (or types) of mental disorder that the offender has; and

(c)whether it is necessary to extend the interim compulsion order to allow further time for the assessment mentioned in section 53(3)(b) of this Act.

(3)The responsible medical officer shall, at the same time as such officer submits the report to the court, send a copy of such report to—

(a)the offender; and

(b)any solicitor acting for the offender.

(4)The court may, on receiving the report submitted under subsection (1) above, if satisfied that the extension of the order is necessary, extend the order for such period (not exceeding 12 weeks beginning with the day on which the order would cease to have effect were such an extension not made) as the court may specify.

(5)The court may extend an interim compulsion order under subsection (4) above for a period only if, by doing so, the total period for which the offender will be subject to the order does not exceed 12 months beginning with the day on which the order was first made.

(6)The court may, under subsection (4) above, extend an interim compulsion order in the absence of the offender only if—

(a)the offender is represented by counsel or a solicitor;

(b)that counsel or solicitor is given an opportunity of being heard; and

(c)the court is satisfied that it is—

(i)impracticable; or

(ii)inappropriate,

for the offender to be brought before it.

(7)Subsections (1) to (9) of this section shall apply for the purposes of an interim compulsion order extended under subsection (4) above as they apply for the purposes of an interim compulsion order, references in those subsections to the period specified by the court under section 53(8)(b) of this Act being construed as references to the period specified by the court under subsection (4) above.

(8)Where a report is submitted under subsection (1) above, the court may, before the expiry of the period specified by the court under section 53(8)(b) of this Act—

(a)revoke the interim compulsion order and make one of the disposals mentioned in section 53(6) of this Act; or

(b)revoke the interim compulsion order and deal with the offender in any way (other than by making an interim compulsion order) in which the court could have dealt with the offender if no such order had been made.

(9)In this section—

  • “court” means the court which made the interim compulsion order; and

  • “responsible medical officer” means the responsible medical officer appointed in respect of the offender under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

53CEarly termination of interim compulsion order

(1)An interim compulsion order shall cease to have effect if the court—

(a)makes a compulsion order in relation to the offender;

(b)makes a hospital direction in relation to the offender; or

(c)deals with the offender in some other way, including the imposing of a sentence of imprisonment on the offender.

(2)In this section, “court” means the court which made the interim compulsion order.

53DPower of court on interim compulsion order ceasing to have effect

(1)Where, otherwise than by virtue of section 53B(8) or 53C of this Act, an interim compulsion order ceases to have effect the court may deal with the offender who was subject to the order in any way (other than the making of a new interim compulsion order) in which it could have dealt with the offender if no such order had been made.

(2)In this section, “court” means the court which made the interim compulsion order..

Remand for inquiry into mental condition

132Remand for inquiry into mental condition: time-limit for appeals

In section 200 of the 1995 Act (remand for inquiry into physical or mental condition), in subsection (9)—

(a)after the word “may”, where it first occurs, there shall be inserted “, before the expiry of the period of 24 hours beginning with his remand,”;

(b)after the word “may”, where it second occurs, there shall be inserted “, at any time during the period when the order for his committal, or, as the case may be, renewal of such order, is in force,”; and

(c)the words “within 24 hours of his remand or, as the case may be, committal,” shall cease to have effect.

Chapter 2Disposals on conviction and acquittal

Compulsion orders

133Mentally disordered offenders: compulsion orders

After section 57 of the 1995 Act there shall be inserted—

Compulsion orders
57ACompulsion order

(1)This section applies where a person (in this section and in sections 57C and 57D of this Act, referred to as the “offender”)—

(a)is convicted in the High Court or the sheriff court of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law); or

(b)is remitted to the High Court by the sheriff under any enactment for sentence for such an offence.

(2)If the court is satisfied—

(a)on the written or oral evidence of two medical practitioners, that the conditions mentioned in subsection (3) below are met in respect of the offender; and

(b)that, having regard to the matters mentioned in subsection (4) below, it is appropriate,

it may, subject to subsection (5) below, make an order (in this Act referred to as a “compulsion order”) authorising, subject to subsection (7) below, for the period of 6 months beginning with the day on which the order is made such of the measures mentioned in subsection (8) below as may be specified in the order.

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

(a)that the offender 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 offender;

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

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

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

(d)that the making of a compulsion order in respect of the offender is necessary.

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

(a)the mental health officer’s report, prepared in accordance with section 57C of this Act, in respect of the offender;

(b)all the circumstances, including—

(i)the nature of the offence of which the offender was convicted; and

(ii)the antecedents of the offender; and

(c)any alternative means of dealing with the offender.

(5)The court may, subject to subsection (6) below, make a compulsion order authorising the detention of the offender in a hospital by virtue of subsection (8)(a) below only if satisfied, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, that—

(a)the medical treatment mentioned in subsection (3)(b) above can be provided only if the offender is detained in hospital;

(b)the offender could be admitted to the hospital to be specified in the order before the expiry of the period of 7 days beginning with the day on which the order is made; and

(c)the hospital to be so specified is suitable for the purpose of giving the medical treatment to the offender.

(6)A compulsion order may authorise detention in a state hospital only if, on the written or oral evidence of the two medical practitioners mentioned in subsection (2)(a) above, it appears to the court—

(a)that the offender requires to be detained in hospital under conditions of special security; and

(b)that such conditions of special security can be provided only in a state hospital.

(7)Where the court—

(a)makes a compulsion order in respect of an offender; and

(b)also makes a restriction order in respect of the offender,

the compulsion order shall authorise the measures specified in it without limitation of time.

(8)The measures mentioned in subsection (2) above are—

(a)the detention of the offender in the specified hospital;

(b)the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), of medical treatment;

(c)the imposition of a requirement on the offender 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 offender 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)subject to subsection (9) below, the imposition of a requirement on the offender to reside at a specified place;

(f)the imposition of a requirement on the offender to allow—

(i)the mental health officer;

(ii)the offender’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 offender who is authorised for the purposes of this paragraph by the offender’s responsible medical officer,

to visit the offender in the place where the offender resides;

(g)the imposition of a requirement on the offender to obtain the approval of the mental health officer to any change of address; and

(h)the imposition of a requirement on the offender to inform the mental health officer of any change of address before the change takes effect.

(9)The court may make a compulsion order imposing, by virtue of subsection (8)(e) above, a requirement on an offender to reside at a specified place which is a place used for the purpose of providing a care home service only if the court is satisfied that the person providing the care home service is willing to receive the offender.

(10)The Scottish Ministers may, by regulations made by statutory instrument, make provision for measures prescribed by the regulations to be treated as included among the measures mentioned in subsection (8) above.

(11)The power conferred by subsection (10) above may be exercised so as to make different provision for different cases or descriptions of case or for different purposes.

(12)No regulations shall be made under subsection (10) above unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the Scottish Parliament.

(13)The court shall be satisfied as to the condition mentioned in subsection (3)(a) above only if the description of the offender’s mental disorder by each of the medical practitioners mentioned in subsection (2)(a) above specifies, by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), at least one type of mental disorder that the offender has that is also specified by the other.

(14)A compulsion order—

(a)shall specify—

(i)by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), the type (or types) of mental disorder that each of the medical practitioners mentioned in subsection (2)(a) above specifies that the offender has that is also specified by the other; and

(ii)if the order does not, by virtue of subsection (8)(a) above, authorise the detention of the offender in hospital, the name of the hospital the managers of which are to have responsibility for appointing the offender’s responsible medical officer; and

(b)may include—

(i)in a case where a compulsion order authorises the detention of the offender in a specified hospital by virtue of subsection (8)(a) above; or

(ii)in a case where a compulsion order imposes a requirement on the offender to reside at a specified place by virtue of subsection (8)(e) above,

such directions as the court thinks fit for the removal of the offender to, and the detention of the offender in, a place of safety pending the offender’s admission to the specified hospital or, as the case may be, place.

(15)Where the court makes a compulsion order in relation to an offender, the court—

(a)shall not—

(i)make an order under section 200 of this Act;

(ii)make an interim compulsion order;

(iii)make a guardianship order;

(iv)pass a sentence of imprisonment;

(v)impose a fine;

(vi)make a probation order; or

(vii)make a community service order,

in relation to the offender;

(b)may make any other order that the court has power to make apart from this section.

(16)In this section—

  • “care home service” has the meaning given by section 2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8);

  • “community care services” has the meaning given by section 5A(4) of the Social Work (Scotland) Act 1968 (c. 49);

  • “medical treatment” has the same meaning as in section 52D of this Act;

  • “relevant services” has the meaning given by section 19(2) of the Children (Scotland) Act 1995 (c. 36);

  • “responsible medical officer”, in relation to an offender, means the responsible medical officer appointed in respect of the offender under section 230 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

  • “restriction order” means an order under section 59 of this Act;

  • “sentence of imprisonment” includes any sentence or order for detention; and

  • “specified” means specified in the compulsion order.

57BCompulsion order authorising detention in hospital or requiring residence at place: ancillary provision

(1)Where a compulsion order—

(a)authorises the detention of an offender in a specified hospital; or

(b)imposes a requirement on an offender to reside at a specified place,

this section authorises the removal, before the expiry of the period of 7 days beginning with the day on which the order is made, of the offender to the specified hospital or place, by any of the persons mentioned in subsection (2) below.

(2)Those persons are—

(a)a constable;

(b)a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; and

(c)a specified person.

(3)In this section, “specified” means specified in the compulsion order.

57CMental health officer’s report

(1)This section applies where the court is considering making a compulsion order in relation to an offender under section 57A of this Act.

(2)If directed to do so by the court, the mental health officer shall—

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

(b)prepare a report in relation to the offender 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 offender;

(b)if known by the mental health officer, the name and address of the offender’s primary carer;

(c)in so far as relevant for the purposes of section 57A of this Act, details of the personal circumstances of the offender; and

(d)any other information that the mental health officer considers relevant for the purposes of that section.

(5)In this section—

  • “carer”, and “primary”, in relation to a carer, have the meanings given by section 329(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

  • “mental health officer” means a person appointed (or deemed to be appointed) under section 32(1) of that Act; and

  • “named person” has the meaning given by section 329(1) of that Act.

57DCompulsion order: supplementary

(1)If, before the expiry of the period of 7 days beginning with the day on which a compulsion order authorising detention of the offender in a hospital is made, it appears to the court, or, as the case may be, the Scottish Ministers, that, by reason of emergency or other special circumstances, it is not reasonably practicable for the offender to be admitted to the hospital specified in the order, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to the hospital specified in the direction.

(2)Where—

(a)the court makes a direction under subsection (1) above, it shall inform the person having custody of the offender; and

(b)the Scottish Ministers make such a direction, they shall inform—

(i)the court; and

(ii)the person having custody of the offender.

(3)Where a direction is made under subsection (1) above, the compulsion order shall have effect as if the hospital specified in the direction were the hospital specified in the order.

(4)In this section, “court” means the court which made the compulsion order..

Urgent detention of acquitted persons

134Power of court to detain acquitted persons

After section 60B of the 1995 Act, there shall be inserted—

60CAcquitted persons: detention for medical examination

(1)Subject to subsection (7) below, this section applies where a person charged with an offence is acquitted.

(2)If the court by or before which the person is acquitted is satisfied—

(a)on the written or oral evidence of two medical practitioners that the conditions mentioned in subsection (3) below are met in respect of the person; and

(b)that it is not practicable to secure the immediate examination of the person by a medical practitioner,

the court may, immediately after the person is acquitted, make an order authorising the measures mentioned in subsection (4) below for the purpose of enabling arrangements to be made for a medical practitioner to carry out a medical examination of the person.

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

(a)that the person 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 person; and

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

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

(ii)to the safety of any other person.

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

(a)the removal of the person to a place of safety by—

(i)a constable; or

(ii)a person specified by the court; and

(b)the detention, subject to subsection (6) below, of the person in that place of safety for a period of 6 hours beginning with the time at which the order under subsection (2) above is made.

(5)If the person absconds—

(a)while being removed to a place of safety under subsection (4) above; or

(b)from the place of safety,

a constable or the person specified by the court under paragraph (a) of that subsection may, at any time during the period mentioned in paragraph (b) of that subsection, take the person into custody and remove the person to a place of safety.

(6)An order under this section ceases to authorise detention of a person if, following the medical examination of the person, a medical practitioner grants—

(a)an emergency detention certificate under section 36 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); or

(b)a short-term detention certificate under section 44 of that Act.

(7)This section does not apply—

(a)in a case where a declaration is made by virtue of section 54(6) of this Act that the person is acquitted on account of the person’s insanity at the time of doing the act or making the omission constituting the offence with which the person was charged; or

(b)in a case where the court states under section 55(4) of this Act that the person is so acquitted on the ground of such insanity.

(8)In this section, “medical treatment” has the same meaning as in section 52D of this Act.

60DNotification of detention under section 60C

(1)This section applies where a person has been removed to a place of safety under section 60C of this Act.

(2)The court shall, before the expiry of the period of 14 days beginning with the day on which the order under section 60C(2) of this Act is made, ensure that the Mental Welfare Commission is given notice of the matters mentioned in subsection (3) below.

(3)Those matters are—

(a)the name and address of the person removed to the place of safety;

(b)the date on and time at which the person was so removed;

(c)the address of the place of safety;

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

(e)any other matter that the Scottish Ministers may, by regulations made by statutory instrument, prescribe.

(4)The power conferred by subsection (3)(e) above may be exercised so as to make different provision for different cases or descriptions of case or for different purposes.

(5)A statutory instrument containing regulations under subsection (3)(e) above shall be subject to annulment in pursuance of a resolution of the Scottish Parliament..

Probation with a requirement of treatment

135Amendment of 1995 Act: probation for treatment of mental disorder

In section 230 of the 1995 Act (probation orders requiring treatment for mental disorder)—

(a)in subsection (1)—

(i)at the beginning there shall be inserted “Subject to subsection (3) below,”; and

(ii)the words “, not extending beyond 12 months from the date of the requirement,” shall cease to have effect; and

(b)for subsection (3) there shall be substituted—

(3)A court may make a probation order including a requirement under subsection (1) above only if it is satisfied—

(a)on the written or oral evidence of the registered medical practitioner or chartered psychologist by whom or under whose direction the treatment intended to be specified in the order is to be provided, that the treatment is appropriate; and

(b)that arrangements have been made for that treatment, including, where the offender is to be treated as a resident patient, arrangements for his reception in the hospital intended to be specified in the order..

Chapter 3Mentally disordered prisoners

136Transfer of prisoners for treatment for mental disorder

(1)This section applies where a person (in this section referred to as the “prisoner”) is serving a sentence of imprisonment.

(2)If the Scottish Ministers are satisfied, on the written reports of an approved medical practitioner and a medical practitioner as to the matters mentioned in subsection (3) below, they may, subject to subsection (5) below, make a direction (referred to in this Act as a “transfer for treatment direction”) authorising the measures mentioned in subsection (6) below.

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

(a)that the conditions mentioned in subsection (4) below are met in respect of the prisoner;

(b)that the prisoner could be admitted to the hospital to be specified in the direction before the expiry of the period of 7 days beginning with the day on which the direction is made; and

(c)that the hospital to be so specified is suitable for the purpose of giving medical treatment to the prisoner.

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

(a)that the prisoner 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 prisoner;

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

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

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

(d)that the making of a transfer for treatment direction in respect of the prisoner is necessary.

(5)A transfer for treatment direction may authorise detention in a state hospital only if, on the written reports of the approved medical practitioner and the medical practitioner mentioned in subsection (2) above, it appears to the Scottish Ministers—

(a)that the prisoner requires to be detained in hospital under conditions of special security; and

(b)that such conditions of special security can be provided only in a state hospital.

(6)The measures are—

(a)the removal, before the expiry of the period of 7 days beginning with the day on which the direction is made, of the prisoner to the specified hospital by—

(i)a constable;

(ii)a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of this section; or

(iii)a specified person;

(b)the detention of the prisoner in the specified hospital; and

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

(7)The Scottish Ministers shall be satisfied as to the condition mentioned in subsection (4)(a) above only if the descriptions of the prisoner’s mental disorder by each of the medical practitioners mentioned in subsection (2) above specifies, by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of this Act, at least one type of mental disorder that the prisoner has that is also specified by the other.

(8)A transfer for treatment direction—

(a)shall specify, 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 each of the medical practitioners mentioned in subsection (2) above specifies that the prisoner has that is also specified by the other; and

(b)may include such directions as the Scottish Ministers think fit for the removal of the prisoner to, and the detention of the prisoner in, a place of safety pending the prisoner’s admission to the specified hospital.

(9)In subsection (1) above, the reference to a prisoner serving a sentence of imprisonment includes a reference—

(a)to a prisoner detained in pursuance of any sentence or order for detention made by a court (other than an order under section 52D(2), 52M(2), 53(2), 54, 57(2), 57A(2), 118(5) or 190 of the 1995 Act); and

(b)to a prisoner committed by a court to prison in default of payment of any fine to be paid on the prisoner’s conviction.

(10)In this section—

  • “place of safety” has the same meaning as in section 300 of this Act; and

  • “specified” means specified in the transfer for treatment direction.

Part 9Compulsion orders

Chapter 1Duties following making of order

137Part 9 care plan

(1)This section applies where a compulsion order authorising the measures specified in it for the period mentioned in section 57A(2) of the 1995 Act (any such compulsion order being referred to in this Part of this Act as a “relevant compulsion order”) is made in respect of a patient.

(2)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 Part of this Act as a “Part 9 care plan”) relating to the patient; and

(b)ensure that the patient’s Part 9 care plan is included in the patient’s medical records.

(3)The Part 9 care plan shall record—

(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 compulsion order; and

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

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

(5)Regulations may prescribe—

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

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

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

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

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

138Mental health officer’s duty to identify named person

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

Chapter 2Review of compulsion orders

Mandatory reviews by responsible medical officer

139First review of compulsion order

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

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

(3)Those requirements are—

(a)to—

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

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

(b)to consider—

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

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

(c)to consult—

(i)the mental health officer;

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

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

(4)Those conditions are—

(a)that the patient has a mental disorder;

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

(i)prevent the mental disorder worsening; or

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

is available for the patient; and

(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.

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

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

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

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

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

140Further reviews of compulsion order

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

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

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

Revocation of order by responsible medical officer or Commission

141Responsible medical officer’s duty to revoke compulsion order: mandatory reviews

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

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

(b)a further review of that order.

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

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

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

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

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

142Revocation of compulsion order: responsible medical officer’s duty to keep under review

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

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

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

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

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

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

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

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

143Commission’s power to revoke compulsion order

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

(2)If the Commission is satisfied—

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

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

it may make a determination revoking the compulsion order.

144Revocation of compulsion order: notification

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

(a)give notice of the determination; and

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

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

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

(a)give notice of the determination; and

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

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

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

(a)the patient;

(b)the patient’s named person;

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

(b)to—

(i)the Commission;

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

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

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

Further steps to be taken where order not revoked

145Mandatory reviews: further steps to be taken where compulsion order not revoked

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

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

(b)a further review of that order.

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

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

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

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

(3)Those requirements are—

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

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

(c)to consider—

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

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

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

Extension of order following first review

146First review: responsible medical officer’s duty where extension proposed

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

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

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

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

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

147Proposed extension on first review: mental health officer’s duties

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

(2)Those requirements are—

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

(b)to inform the patient—

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

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

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

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

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

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

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

148First review: responsible medical officer’s duty to apply for extension of compulsion order

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

(2)If, having regard to—

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

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

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

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

149Application to Tribunal for extension of order following first review

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

(a)shall state—

(i)the name and address of the patient;

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

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

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

Extension of order following further review

150Further review: responsible medical officer’s duty where extension proposed

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

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

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

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

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

151Proposed extension of order on further review: mental health officer’s duties

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

(2)Those requirements are—

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

(b)to inform the patient—

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

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

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

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

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

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

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

152Further review: responsible medical officer’s duty to extend compulsion order

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

(2)If, having regard to—

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

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

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

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

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

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

153Determination extending compulsion order: notification

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

(2)Those requirements are—

(a)to prepare a record stating—

(i)the determination;

(ii)the reasons for it;

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

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

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

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

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

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

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

(ii)to the patient’s named person;

(iii)to the mental health officer; and

(iv)to the Commission.

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

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

(5)Those matters are—

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

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

Extension and variation of order

154Responsible medical officer’s duty where extension and variation proposed

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

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

(b)a further review of that order.

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

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

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

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

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

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

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

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

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

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

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

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

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

155Mental health officer’s duties: extension and variation of compulsion order

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

(2)Those requirements are—

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

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

(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 158 of this Act for an order—

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

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

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

(c)the patient’s rights in relation to such an application.

156Responsible medical officer’s duty to apply for extension and variation of compulsion order

(1)If, having regard to—

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

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

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

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

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

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

157Application for extension and variation of compulsion order: notification

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

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

(e)the mental health officer; and

(f)the Commission.

158Application to Tribunal for extension and variation of compulsion order

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

(a)shall state—

(i)the name and address of the patient;

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

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

(iv)the reasons for seeking that modification; and

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

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

Variation of order

159Responsible medical officer’s duties: variation of compulsion order

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

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

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

(4)Those requirements are—

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

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

(c)to consult—

(i)the mental health officer; and

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

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

160Application for variation of compulsion order: notification

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

161Application to Tribunal by responsible medical officer

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

(a)shall state the matters mentioned in section 158(a) of this Act; and

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

Reference to Tribunal by Commission

162Commission’s power to make reference to Tribunal

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

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

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

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

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

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

(a)the name and address of the patient;

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

(c)the reason for making the reference.

Applications to Tribunal by patient etc.

163Application to Tribunal by patient etc. for revocation of determination extending compulsion order

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

(a)the patient; or

(b)the patient’s named person,

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

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

164Application to Tribunal by patient etc. for revocation or variation of compulsion order

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

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

(a)revoking the compulsion order; or

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

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

(a)the patient; and

(b)the patient’s named person.

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

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

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

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

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

(5)If—

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

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

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

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

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

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

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

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

Review by Tribunal of determination extending order

165Tribunal’s duty to review determination under section 152

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

(2)If—

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

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

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

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

the Tribunal shall review the determination.

Powers of Tribunal

166Powers of Tribunal on review under section 165

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

(a)revoking the determination;

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

(c)confirming the determination; or

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

(2)Before making a decision under subsection (1) above, the Tribunal shall allow the persons mentioned in subsection (3) below the opportunity—

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

(b)of leading, or producing, evidence.

(3)Those persons are—

(a)the patient;

(b)the patient’s named person;

(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.

167Powers of Tribunal on application under section 149, 158, 161, 163 or 164

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

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

(b)refusing the application; or

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

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

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

(b)extending the compulsion order for that period;

(c)refusing the application; or

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

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

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

(b)revoking—

(i)the determination; and

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

(c)confirming the determination; or

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

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

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

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

(c)refusing the application.

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

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

(b)refusing the application; or

(c)refusing the application and revoking that order.

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

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

(b)of leading, or producing, evidence.

(7)Those persons are—

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

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

168Interim extension etc. of order: application under section 149

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

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

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

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

(i)extend the order; or

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

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

169Interim variation of order following application, reference or review under Chapter

(1)This section applies where—

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

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

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

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

(a)determining the application or reference; or

(b)making its decision on the review,

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

170Limit on power of Tribunal to make interim order

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

171Powers of Tribunal on reference under section 162

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

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

(b)revoking the compulsion order.

(2)Before making an order under subsection (1) above, the Tribunal shall allow the persons mentioned in subsection (3) below the opportunity—

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

(b)of leading, or producing, evidence.

(3)Those persons are—

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

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

172Tribunal’s order varying compulsion order

Subject to subsection (2) below, where the Tribunal makes an order under section 166, 167 or 171 of this Act varying a compulsion order, the Tribunal—

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

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

173Applications to Tribunal: ancillary powers

(1)This section applies where—

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

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

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

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

(b)the mental health officer,

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

Effect of interim orders: calculation of time periods in Chapter

174Effect of interim orders: calculation of time periods in Chapter

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

(a)ceases;

(b)will cease; or

(c)would have ceased,

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

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

Meaning of “modify”

175Meaning of “modify”

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

(a)amending those measures;

(b)removing from the order any measure;

(c)adding to the order any measure.

Chapter 3Application of Chapters 5 to 7 of Part 7

Breach of order

176Medical treatment: failure to attend

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

(2)Those modifications are—

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

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

177Non-compliance generally with compulsion order

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

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

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

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

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

Transfers

178Transfers

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

Suspension of measures

179Suspension of measures

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

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

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

Chapter 4Interpretation of Part

180Interpretation of Part

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

Part 10Compulsion orders and restriction orders

Chapter 1Preliminary

181Mental health officer’s duty to identify named person

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

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

Chapter 2Review of orders

Annual review of orders

182Review of compulsion order and restriction order

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

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

(3)Those requirements are—

(a)to—

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

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

(b)to consider—

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

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

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

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

(c)to consult the mental health officer.

(4)Those conditions are—

(a)that the patient has a mental disorder;

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

(i)prevent the mental disorder worsening; or

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

is available for the patient; and

(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.

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

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

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

Consequences of annual review

183Responsible medical officer’s report and recommendation following review of compulsion order and restriction order

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

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

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

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

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

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

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

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

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

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

(b)is not satisfied—

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

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

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

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

(a)is satisfied—

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

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

(b)is not satisfied—

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

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

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

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

(a)is satisfied—

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

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

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

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

(8)Where the responsible medical officer—

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

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

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

Responsible medical officer’s duty to keep orders under review

184Responsible medical officer’s duty to keep compulsion order and restriction order under review

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

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

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

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

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

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

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

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

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

(b)is not satisfied—

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

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

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

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

(a)is satisfied—

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

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

(b)is not satisfied that—

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

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

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

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

(a)is satisfied—

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

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

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

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

(7)Where the responsible medical officer—

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

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

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

Reference to Tribunal by Scottish Ministers

185Duty of Scottish Ministers on receiving report from responsible medical officer

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

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

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

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

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

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

(e)the patient’s responsible medical officer;

(f)the mental health officer; and

(g)the Commission.

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

(a)the name and address of the patient;

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

(c)the recommendation included in the report submitted by the responsible medical officer.

186Commission’s power to require Scottish Ministers to make reference to Tribunal

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

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

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

187Notice under section 186(2): reference to Tribunal

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

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

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

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

(a)the name and address of the patient;

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

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

Scottish Ministers' duty to keep orders under review

188Duty of Scottish Ministers to keep compulsion order and restriction order under review

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

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

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

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

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

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

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

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

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

(b)are not satisfied—

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

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

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

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

(a)are satisfied—

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

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

(b)are not satisfied—

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

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

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

(6)Where the Scottish Ministers—

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

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

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

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

(a)are satisfied—

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

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

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

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

189Reference to Tribunal by Scottish Ministers

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

(2)If—

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

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

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

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

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

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

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

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

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

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

(a)the name and address of the patient;

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

(c)the reason for making the reference.

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

190Application by Scottish Ministers: notification

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

191Application to Tribunal

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

(a)shall state—

(i)the name and address of the patient;

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

(iii)the order (or orders) sought;

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

(v)the reasons for seeking that modification; and

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

Application by patient etc.

192Application to Tribunal by patient and named person

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

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

(a)conditionally discharging the patient;

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

(c)revoking the restriction order and varying the compulsion order by modifying the measures specified in it; or

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

(3)Those persons are—

(a)the patient; and

(b)the patient’s named person.

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

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

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

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

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

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

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

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

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

Proceedings before Tribunal

193Powers of Tribunal on reference under section 185(1), 187(2) or 189(2) or application under section 191 or 192(2)

(1)This section applies where—

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

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

(2)If the Tribunal is satisfied—

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

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

it shall make no order under this section.

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

(4)If the Tribunal—

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

(b)is not satisfied—

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

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

it shall make an order revoking the compulsion order.

(5)If the Tribunal—

(a)is satisfied—

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

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

(b)is not satisfied—

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

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

it shall make an order revoking the restriction order.

(6)If the Tribunal—

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

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

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

(7)If the Tribunal—

(a)is satisfied—

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

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

(b)is not satisfied—

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

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

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

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

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

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

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

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

(9)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)the patient’s primary carer;

(d)any guardian of the patient;

(e)any welfare attorney of the patient;

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

(g)the Scottish Ministers;

(h)the patient’s responsible medical officer;

(i)the mental health officer; and

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

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

194Tribunal’s powers etc. when varying compulsion order

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

195Deferral of conditional discharge

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

Effect of modification or revocation of orders

196General effect of orders under section 193

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

(a)revoking a compulsion order;

(b)revoking a restriction order;

(c)conditionally discharging a patient; or

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

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

(2)Those events are—

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

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

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

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

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

(3)In subsection (2) above—

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

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

197Effect of revocation of compulsion order

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

198Effect of revocation of restriction order

(1)This section applies where the Tribunal—

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

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

(2)Part 9 of this Act shall apply to the patient as if the compulsion order to which the patient is subject were a relevant compulsion order made on the day on which the Tribunal revoked the restriction order.

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

Meaning of “modify”

199Meaning of “modify”

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

(a)amending those measures;

(b)removing from the order any measure; or

(c)adding to the order any measure.

Chapter 3Conditional discharge

200Variation of conditions imposed on conditional discharge

(1)This section applies where—

(a)a patient has been conditionally discharged by the Tribunal under section 193(7) of this Act; and

(b)the Tribunal imposed conditions on that discharge under that section.

(2)The Scottish Ministers may, if satisfied that it is necessary, vary such of the conditions imposed by the Tribunal under section 193(7) of this Act as they think fit.

(3)Where the Scottish Ministers vary, under subsection (2) above, conditions imposed by the Tribunal under section 193(7) of this Act, the Scottish Ministers shall, as soon as practicable, give notice of that variation to—

(a)the patient;

(b)the patient’s named person;

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

(d)the mental health officer.

201Appeal to Tribunal against variation of conditions imposed on conditional discharge

(1)Where the Scottish Ministers vary, under section 200(2) of this Act, conditions imposed by the Tribunal under section 193(7) of this Act on a patient who has been conditionally discharged under that section, the persons mentioned in subsection (2) below may, before the expiry of the period of 28 days beginning with the day on which notice is given under section 200(3) of this Act, appeal against the variation of those conditions to the Tribunal.

(2)Those persons are—

(a)the patient; and

(b)the patient’s named person.

(3)Where an appeal is made to the Tribunal under subsection (1) above, section 193 of this Act shall apply as if the patient had applied under section 192 of this Act for an order conditionally discharging the patient.

202Recall of patients from conditional discharge

(1)This section applies to a patient conditionally discharged by the Tribunal under section 193(7) of this Act.

(2)If the Scottish Ministers are satisfied that it is necessary for the patient to be detained in hospital, they may, by warrant, recall the patient to hospital.

203Effect of recall from conditional discharge

Where the Scottish Ministers recall a patient to hospital under section 202 of this Act, if the hospital specified in the warrant is not the hospital specified in the compulsion order to which the patient is subject, that order shall have effect as if the hospital specified in the warrant were the hospital specified in the order.

204Appeal to Tribunal against recall from conditional discharge

(1)Where a patient has been recalled to hospital under section 202 of this Act, each of the persons mentioned in subsection (2) below may, before the expiry of the period of 28 days beginning with the day on which the patient returns or is returned to hospital, appeal against that recall to the Tribunal.

(2)Those persons are—

(a)the patient; and

(b)the patient’s named person.

(3)Where an appeal is made to the Tribunal under subsection (1) above, section 193 of this Act shall apply as if the patient had applied under section 192 of this Act for an order conditionally discharging the patient.

Part 11Hospital directions and transfer for treatment directions

Preliminary

205Mental health officer’s duty to identify named person

(1)This section applies where—

(a)a hospital direction; or

(b)a transfer for treatment direction,

is made in respect of a patient.

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

Review of directions

206Review of hospital direction and transfer for treatment direction

(1)This section applies where a patient is subject to—

(a)a hospital direction; or

(b)a transfer for treatment direction.

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

(3)Those requirements are—

(a)to—

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

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

(b)to consider—

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

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

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

(c)to consult—

(i)the mental health officer; and

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

(4)Those conditions are—

(a)that the patient has a mental disorder;

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

(i)prevent the mental disorder worsening; or

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

is available for the patient; and

(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.

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

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

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

Consequences of review

207Responsible medical officer’s report following review of direction

(1)This section applies where a patient’s responsible medical officer carries out a review under section 206(2) of this Act.

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

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

(a)whether the conditions mentioned in section 206(4) of this Act continue to apply in respect of the patient;

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

(c)whether it continues to be necessary for the patient to be subject to the direction.

(4)If, after having regard to any views expressed by persons consulted under section 206(3)(c) of this Act, the responsible medical officer is not satisfied that the patient has a mental disorder, the responsible medical officer shall include in the report submitted to the Scottish Ministers under subsection (2) above a recommendation that the direction be revoked.

(5)If, after having regard to any views expressed by persons consulted under section 206(3)(c) of this Act, the responsible medical officer—

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

(b)is not satisfied—

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

(ii)that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,

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

Responsible medical officer’s duty to keep directions under review

208Responsible medical officer’s duty to keep directions under review

(1)This section applies where a patient is subject to—

(a)a hospital direction; or

(b)a transfer for treatment direction.

(2)Without prejudice to the duty imposed on the patient’s responsible medical officer by section 206(2) of this Act, the responsible medical officer shall from time to time consider—

(a)whether the conditions mentioned in section 206(4) of this Act continue to apply in respect of the patient;

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

(c)whether it continues to be necessary for the patient to be subject to the direction.

(3)If, having considered the matters mentioned in paragraphs (a) to (c) of subsection (2) above, the responsible medical officer is not satisfied that the patient has a mental disorder, the responsible medical officer shall, as soon as practicable after considering those matters, submit to the Scottish Ministers a report complying with the requirements set out in section 207(3) of this Act and including a recommendation that the direction be revoked.

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

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

(b)is not satisfied—

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

(ii)that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,

the responsible medical officer shall, as soon as practicable after considering those matters, submit to the Scottish Ministers a report complying with the requirements set out in section 207(3) of this Act and including a recommendation that the direction be revoked.

Reference to Tribunal by Scottish Ministers

209Commission’s power to require Scottish Ministers to make reference to Tribunal

(1)This section applies where a patient is subject to—

(a)a hospital direction; or

(b)a transfer for treatment direction.

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

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

210Duty of Scottish Ministers on receiving report from responsible medical officer

(1)This section applies where a patient’s responsible medical officer submits to the Scottish Ministers—

(a)a report under section 207(2) of this Act that includes a recommendation; or

(b)a report under section 208(3) or (4) of this Act.

(2)If, having considered the matters mentioned in paragraphs (a) to (c) of section 212(2) of this Act, the Scottish Ministers—

(a)are not satisfied that the patient has a mental disorder; or

(b)are so satisfied but are not satisfied—

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

(ii)that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,

the Scottish Ministers shall revoke the direction to which the patient is subject.

(3)Where the Scottish Ministers do not, under subsection (2) above, revoke the direction to which the patient is subject, they shall make a reference to the Tribunal in respect of the direction.

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

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

(e)the patient’s responsible medical officer;

(f)the mental health officer; and

(g)the Commission.

(5)A reference under subsection (3) 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 recommendation made by the responsible medical officer.

(6)Nothing in section 102 (state hospitals) of the National Health Service (Scotland) Act 1978 (c. 29) prevents or restricts the detention of a patient in a state hospital as a result of a decision under this section by the Scottish Ministers not to revoke the direction to which the patient is subject.

211Notice under section 209(2): reference to Tribunal

(1)This section applies where, under section 209(2) of this Act, the Commission gives notice to the Scottish Ministers.

(2)The Scottish Ministers shall, as soon as practicable after receiving notice under section 209(2) of this Act, make a reference to the Tribunal in respect of the direction to which the patient is subject.

(3)Where a reference is made under subsection (2) above, the Scottish Ministers shall, as soon as practicable, give notice that a reference is to be made to the persons mentioned in paragraphs (a) to (g) of section 210(4) of this Act.

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

(a)the name and address of the patient;

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

(c)the reason given by the Commission in the notice under section 209(2) of this Act for requiring the Scottish Ministers to make the reference.

Scottish Ministers' duty to keep directions under review

212Duty of Scottish Ministers to keep directions under review

(1)This section applies where a patient is subject to—

(a)a hospital direction; or

(b)a transfer for treatment direction.

(2)Without prejudice to the duties imposed on the Scottish Ministers by sections 210(2) and (3), 211(2) and 213(2) of this Act, the Scottish Ministers shall from time to time consider—

(a)whether the conditions mentioned in section 206(4) of this Act continue to apply in respect of the patient;

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

(c)whether it continues to be necessary for the patient to be subject to the direction.

(3)If, having considered the matters mentioned in paragraphs (a) to (c) of subsection (2) above, the Scottish Ministers are not satisfied that the patient has a mental disorder, they shall revoke the direction.

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

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

(b)are not satisfied—

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

(ii)that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,

they shall revoke the direction.

(5)Nothing in section 102 (state hospitals) of the National Health Service (Scotland) Act 1978 (c. 29) prevents or restricts the detention of a patient in a state hospital as a result of a decision under this section by the Scottish Ministers not to revoke the direction to which the patient is subject.

213Reference to Tribunal by Scottish Ministers

(1)This section applies where a patient is subject to—

(a)a hospital direction; or

(b)a transfer for treatment direction.

(2)If—

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

(i)no reference under section 210(3) or 211(2) of this Act has been made to the Tribunal; and

(ii)no application under section 214(2) of this Act has been made to the Tribunal; and

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

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

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

the Scottish Ministers shall make a reference to the Tribunal in respect of the direction to which the patient is subject.

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

(4)Where a reference is made under subsection (2) above, the Scottish Ministers shall, as soon as practicable, give notice that a reference is to be made to the persons mentioned in paragraphs (a) to (g) of section 210(4) of this Act.

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

(a)the name and address of the patient;

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

(c)the reason for making the reference.

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

Application by patient etc.

214Application to Tribunal by patient and named person

(1)This section applies where a patient is subject to—

(a)a hospital direction; or

(b)a transfer for treatment direction.

(2)Each of the persons mentioned in subsection (3) below may, subject to subsections (4) to (6) below, make an application under this section to the Tribunal for the revocation of the direction to which the patient is subject.

(3)Those persons are—

(a)the patient; and

(b)the patient’s named person.

(4)Where a patient is subject to a hospital direction, an application under this section may not be made before the expiry of the period of 6 months beginning with the day on which the direction was made.

(5)Where a patient is subject to a transfer for treatment direction, an application under this section—

(a)may be made during the period of 12 weeks beginning with the day on which the direction is made; but

(b)otherwise may not be made before the expiry of the period of 6 months beginning with the day on which the direction was made.

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

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

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

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

Proceedings before Tribunal

215Powers of Tribunal on reference under section 210(3), 211(2) or 213(2) or on application under section 214(2)

(1)This section applies where—

(a)a reference is made under section 210(3), 211(2) or 213(2) of this Act; or

(b)an application is made under section 214(2) of this Act.

(2)If the Tribunal is satisfied—

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

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

it shall make no direction to the Scottish Ministers under this section.

(3)If the Tribunal is not satisfied that the patient has a mental disorder, it shall direct the Scottish Ministers to revoke the direction to which the patient is subject.

(4)If the Tribunal—

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

(b)is not satisfied—

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

(ii)that the conditions mentioned in paragraphs (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient,

the Tribunal shall direct the Scottish Ministers to revoke the direction to which the patient is subject.

(5)The Scottish Ministers shall, if directed to do so by the Tribunal under subsection (3) or (4) above, revoke the direction to which the patient is subject.

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

(a)afford the persons mentioned in subsection (7) below the opportunity—

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

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

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

(7)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)the patient’s primary carer;

(d)any guardian of the patient;

(e)any welfare attorney of the patient;

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

(g)the Scottish Ministers;

(h)the patient’s responsible medical officer;

(i)the mental health officer; and

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

(8)Nothing in section 102 (state hospitals) of the National Health Service (Scotland) Act 1978 (c. 29) prevents or restricts the detention of a patient in a state hospital as a result of a decision under this section by the Tribunal not to direct the Scottish Ministers to revoke the direction to which the patient is subject.

Effect of revocation of direction

216Effect of revocation of direction

(1)This section applies where, under section 210(2), 212(3) or (4) or 215(5) of this Act, the Scottish Ministers revoke—

(a)a hospital direction; or

(b)a transfer for treatment direction.

(2)Where the Scottish Ministers revoke a direction they shall direct that the patient be admitted to a prison, institution or other place in which the patient might have been detained had the patient not been detained in hospital by virtue of the direction.

(3)The direction shall cease to have effect on the patient’s admission to the prison, institution or place to which the patient is admitted by virtue of the direction under subsection (2) above.

Termination of direction on release of patient

217Termination of hospital direction on release of patient

(1)This section applies where a patient is subject to—

(a)a hospital direction; or

(b)a transfer for treatment direction.

(2)Where a patient is released under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9) or otherwise the direction to which the patient is subject shall cease to have effect.

Part 12Parts 10 and 11: transfers

218Transfer of patients between hospitals

(1)This section applies where a patient is subject to—

(a)a compulsion order and a restriction order;

(b)a hospital direction; or

(c)a transfer for treatment direction.

(2)The managers of the hospital in which the patient is detained may, where the conditions mentioned in subsection (3) below are satisfied, transfer the patient to another hospital.

(3)Those conditions are—

(a)that the managers of the hospital to which it is proposed to transfer the patient; and

(b)the Scottish Ministers,

consent to the transfer.

(4)Where the managers of a hospital propose to transfer a patient under subsection (2) above, they shall, subject to subsections (5) and (7) below, give the persons mentioned in subsection (8) below at least 7 days' notice of the transfer.

(5)The managers of a hospital need not give notice under subsection (4) above where it is necessary that the patient be transferred urgently.

(6)Where, by virtue of subsection (5) above, no notice is given under subsection (4) above, the managers of the hospital shall, subject to subsection (7) below, give the persons mentioned in subsection (8) below notice—

(a)where the proposed transfer has not taken place, of the proposed transfer; or

(b)where the transfer has taken place, of the transfer,

as soon as practicable before, on or, as the case may be, after the transfer.

(7)The managers of the hospital need not give notice under subsection (4) or (6) above to the patient where the patient consents to the transfer.

(8)The persons referred to in subsections (4) and (6) above and (10)(b) below are—

(a)the patient; and

(b)the patient’s named person.

(9)Where—

(a)notice is given under subsection (4) or (6)(a) above of a proposed transfer under subsection (2) above; and

(b)the proposed transfer does not take place before the end of the period of 3 months beginning with the day on which notice is given,

the managers of the hospital may transfer the patient as proposed only if subsection (10) below applies.

(10)This subsection applies where—

(a)the conditions mentioned in subsection (3) above continue to be satisfied; and

(b)the persons mentioned in subsection (8) above are given at least 7 days' notice of the proposed transfer.

(11)Subsections (5) to (7) above shall apply to the giving of notice under subsection (10)(b) above as they apply to the giving of notice under subsection (4) above.

(12)Where the patient is transferred under subsection (2) above, the managers of the hospital from which the patient is transferred shall, before the expiry of the period of 7 days beginning with the transfer, give notice to the Commission of the matters mentioned in subsection (13) below.

(13)Those matters are—

(a)the date on which the patient was transferred;

(b)the hospital to which the patient was transferred;

(c)that—

(i)notice was given under subsection (4) above; or

(ii)if no such notice was given, the reasons why it was necessary that the patient be transferred urgently; and

(d)whether notice was given under subsection (6) or (10)(b) above.

(14)Where a patient is transferred under subsection (2) above, the compulsion order, hospital direction or, as the case may be, transfer for treatment direction to which the patient is subject shall, for the purposes of this Act (other than sections 219 and 220), be taken to specify the hospital to which the patient is transferred.

219Appeal to Tribunal against transfer under section 218 to hospital other than state hospital

(1)This section applies where—

(a)a patient—

(i)receives notice under subsection (4), (6)(a) or (10)(b) of section 218 of this Act that it is proposed to transfer the patient; or

(ii)is transferred under subsection (2) of that section,

to any hospital other than a state hospital; and

(b)the hospital to which the patient is, or is proposed to be, transferred is not specified in the compulsion order, hospital direction or, as the case may be, transfer for treatment direction to which the patient is subject.

(2)The patient, or the patient’s named person, may, during the period mentioned in subsection (3) below, appeal to the Tribunal against the proposed transfer or, as the case may be, the transfer.

(3)That per