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

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Other hospitalsS

268Detention in conditions of excessive security: hospitals other than state hospitalsS

(1)This section applies where a F1... patient’s detention in a qualifying hospital is authorised by—

(a)a compulsory treatment order;

(b)a compulsion order;

(c)a hospital direction; or

(d)a transfer for treatment direction;

and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.

(2)On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that [F2the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient], make an order—

(a)declaring that the patient is being detained in conditions of excessive security; and

(b)specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed.

(3)Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital—

(a)which is not a state hospital;

(b)which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient’s case; and

(c)in which accommodation is available for the patient.

(4)Where the Tribunal makes an order under subsection (2) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital—

(a)which is not a state hospital;

(b)which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient’s case; and

(c)in which accommodation is available for the patient.

(5)Where the Tribunal makes an order under subsection (2) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (3) or, as the case may be, (4) above, give notice [F3of the name of the hospital so identified to the managers of the hospital in which the patient is detained].

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

(a)the F4... patient;

(b)the F4... patient’s named person;

(c)any guardian of the F4... patient;

(d)any welfare attorney of the F4... patient; and

(e)the Commission.

(7)An application may not be made under subsection (2) above—

(a)if the compulsory treatment order that authorises the patient’s detention in hospital has not been extended;

(b)during the period of 6 months beginning with the making of the compulsion order that authorises the patient’s detention in hospital; or

(c)before the expiry of the period of 6 months beginning with the making of—

(i)the hospital direction; or

(ii)the transfer for treatment direction,

that authorises the patient’s detention in hospital.

[F5(7A)An application may not be made under subsection (2) above unless it is accompanied by a report prepared by [F6an approved medical] practitioner which—

(a)states that in the practitioner's opinion the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient, and

(b)sets out the practitioner's reasons for being of that opinion.]

(8)No more than one application may be made under subsection (2) above in respect of the same patient—

(a)during the period of 12 months beginning with the day on which the order, or direction, authorising the patient’s detention in hospital is made;

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

(9)Before determining an application under subsection (2) above, the Tribunal shall—

(a)afford the persons mentioned in subsection (10) 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.

(10)Those persons are—

(a)the F7... patient;

(b)the F7... patient’s named person;

(c)the relevant Health Board;

(d)the F7... patient’s responsible medical officer;

(e)the managers of the [F8hospital in which the patient is detained];

(f)the mental health officer;

(g)any guardian of the F9... patient;

(h)any welfare attorney of the F9... patient;

(i)any curator ad litem appointed by the Tribunal in respect of the F9... patient;

(j)the Commission;

(k)in the case of a relevant patient, the Scottish Ministers; and

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

F10(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2Words in s. 268(2) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(b), 61(2); S.S.I. 2015/361, art. 2

F3Words in s. 268(5) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(c), 61(2); S.S.I. 2015/361, art. 2

F7Word in s. 268(10)(a)-(d) repealed (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(e)(i), 61(2); S.S.I. 2015/361, art. 2

F8Words in s. 268(10)(e) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(e)(ii), 61(2); S.S.I. 2015/361, art. 2

F9Word in s. 268(10)(f)-(l) repealed (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(e)(i), 61(2); S.S.I. 2015/361, art. 2

Commencement Information

I1Part 17 Chapter 3 (ss. 264 - 273) in force 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

I2S. 268 in force at 6.1.2006 for specified purposes by S.S.I. 2005/161, art. 4, Sch. 2

I3S. 268 in force at 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

269Order under section 268: further provisionS

(1)This section applies where—

(a)an order is made under section 268(2) of this Act in respect of a F11... patient; and

(b)the order is not recalled under section 271 of this Act;

and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.

(2)If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the F11... patient has been transferred to another hospital, there shall be a hearing before the Tribunal.

(3)Where such a hearing is held, the Tribunal may, if satisfied that [F12the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient], make an order—

(a)declaring that the patient is being detained in conditions of excessive security; and

(b)specifying—

(i)a period of 28 days; or

(ii)such longer period not exceeding 3 months as the Tribunal thinks fit,

beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed.

(4)Where the Tribunal makes an order under subsection (3) above in respect of a relevant patient, the relevant Health Board shall identify a hospital—

(a)which is not a state hospital;

(b)which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient’s case; and

(c)in which accommodation is available for the patient.

(5)Where the Tribunal makes an order under subsection (3) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital—

(a)which is not a state hospital;

(b)which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient’s case; and

(c)in which accommodation is available for the patient.

(6)Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4) or, as the case may be, (5) above, give notice [F13of the name of the hospital so identified to the managers of the hospital in which the patient is detained].

(7)Before making an order under subsection (3) above, the Tribunal shall afford the persons mentioned in section 268(10) of this Act the opportunity—

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

(b)of leading, or producing, evidence.

Textual Amendments

F12Words in s. 269(3) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(3)(b), 61(2); S.S.I. 2015/361, art. 2

F13Words in s. 269(6) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(3)(c), 61(2); S.S.I. 2015/361, art. 2

Commencement Information

I4Part 17 Chapter 3 (ss. 264 - 273) in force 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

I5S. 269 in force at 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

F14270Order under section 269: further provisionS

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

Textual Amendments

271[F15Order under section 268 or 269: recall]S

(1)This section applies where an order is made under section 268(2) [F16or 269(3)] of this Act in respect of a F17... patient.

(2)On the application of any of the persons mentioned in subsection (4) below, the Tribunal—

(a)shall, if satisfied that [F18the test specified in regulations made under section 271A(2) of this Act is not met in relation to the patient], recall the order;

(b)may, on any other grounds, recall the order.

(3)Where the order is recalled, the relevant Health Board ceases to be subject to the duties under section 268(3) to (5) [F19or 269(4) to (6)] to which it became subject by virtue of the making of the order.

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

(a)the relevant Health Board;

(b)in the case of a relevant patient, the Scottish Ministers;

(c)in the case of a patient who is not a relevant patient, the patient’s responsible medical officer.

(5)Before determining an application under subsection (2) above, the Tribunal shall—

(a)afford the persons mentioned in section 268(10) of this Act 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.

Textual Amendments

F15S. 271 title substituted (16.11.2015) by virtue of Mental Health (Scotland) Act 2015 (asp 9), ss. 15(7), 61(2); S.S.I. 2015/361, art. 2 (with arts. 4-6)

F16Words in s. 271(1) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 15(6)(a), 61(2); S.S.I. 2015/361, art. 2 (with arts. 4-6)

F18Words in s. 271(2)(a) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(4)(b), 61(2); S.S.I. 2015/361, art. 2

F19Words in s. 271(3) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 15(6)(b), 61(2); S.S.I. 2015/361, art. 2 (with arts. 4-6)

Commencement Information

I6Part 17 Chapter 3 (ss. 264 - 273) in force 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

I7S. 271 in force at 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

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