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

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Mental Health (Care and Treatment) (Scotland) Act 2003, Part 2 is up to date with all changes known to be in force on or before 15 October 2019. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Part 2SThe Mental Welfare Commission for Scotland

Modifications etc. (not altering text)

Continued existence of CommissionS

4The Mental Welfare Commission for ScotlandS

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

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

(a)this Act;

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

(c)any other enactment.

[F1(2A)In so discharging its functions, the Commission shall act in a manner which seeks to protect the welfare of persons who have a mental disorder.]

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

Textual Amendments

F1S. 4(2A) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(2), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I1S. 4(1)(2) in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

I2S. 4(3) in force at 1.7.2003 for specified purposes by S.S.I. 2003/316, art. 2

I3S. 4(3) in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F24ZANational Confidential ForumS

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

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

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

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

Textual Amendments

F2Ss. 4ZA-4ZD inserted (18.1.2014 for the purpose of the insertion of s. 4ZA, 1.7.2014 in so far as not already in force) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 30, 34(1); S.S.I. 2014/117, art. 3

4ZBGeneral functions of NCFS

The general functions of NCF are—

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

(i)experiences of that care,

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

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

(c)based on testimony received—

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

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

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

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

Textual Amendments

F2Ss. 4ZA-4ZD inserted (18.1.2014 for the purpose of the insertion of s. 4ZA, 1.7.2014 in so far as not already in force) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 30, 34(1); S.S.I. 2014/117, art. 3

4ZCCarrying out NCF functionsS

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

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

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

Textual Amendments

F2Ss. 4ZA-4ZD inserted (18.1.2014 for the purpose of the insertion of s. 4ZA, 1.7.2014 in so far as not already in force) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 30, 34(1); S.S.I. 2014/117, art. 3

4ZDModifications in relation to NCFS

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

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

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

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

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

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

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

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

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

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

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

Textual Amendments

F2Ss. 4ZA-4ZD inserted (18.1.2014 for the purpose of the insertion of s. 4ZA, 1.7.2014 in so far as not already in force) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 30, 34(1); S.S.I. 2014/117, art. 3

[F3Commission VisitorsS

Textual Amendments

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

4ACommission VisitorsS

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

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

(a)section 8A of this Act;

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

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

(4)A Commission Visitor must—

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

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

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

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

General dutiesS

5Duty to monitor operation of Act and promote best practiceS

The Commission shall—

(a)monitor the [F4practical application of the observance of Part 1] of this Act; and

(b)promote best practice in relation to the [F5practical application of the observance of Part 1 of this Act].

Textual Amendments

F4Words in s. 5(a) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(4)(a), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F5Words in s. 5(b) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(4)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I4S. 5 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

6Reporting on operation of ActS

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

Commencement Information

I5S. 6 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Particular functionsS

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

The Commission shall bring to the attention of—

(a)the Scottish Ministers;

(b)a local authority;

(c)a Health Board;

(d)a Special Health Board;

(e)a National Health Service trust;

[F6(ea)Healthcare Improvement Scotland;]

[F7(f)Social Care and Social Work Improvement Scotland;]

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

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

Textual Amendments

F6S. 7(ea) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 17 para. 28; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F7S. 7(f) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 14 para. 14; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I6S. 7 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

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

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

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

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

(2)Those circumstances are—

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

(b)that—

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

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

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

(a)the Scottish Ministers;

(b)the Public Guardian;

(c)a local authority;

(d)a Health Board;

(e)a Special Health Board;

(f)a National Health Service trust;

(g)a mental health officer;

(h)a responsible medical officer;

(i)the managers of a registered care service;

(j)the managers of—

(i)a prison; or

(ii)a young offenders institution;

[F8(ja)Healthcare Improvement Scotland;]

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

[F10(la)the Police Service of Scotland;]

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

(4)In subsection (3)(i) above, “registered care service” means a care service registered under [F11Part 5 of the Public Services Reform (Scotland) Act 2010] (asp 8).

Textual Amendments

F8S. 8(3)(ja) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 17 para. 29; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F9S. 8(3)(k) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 14 para. 15; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F10S. 8(3)(la) substituted for s. 8(3)(l) (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 23(2); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Commencement Information

I7S. 8 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F128ADuty to raise service concerns with certain bodiesS

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

(a)Social Care and Social Work Improvement Scotland;

(b)Healthcare Improvement Scotland; or

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

(2)The services are—

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

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

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

Textual Amendments

F12S. 8A inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(5), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

9Duty to give adviceS

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

(2)Those persons are—

(a)the Scottish Ministers;

(b)a local authority;

(c)a Health Board;

(d)a Special Health Board;

[F13(da)Healthcare Improvement Scotland;]

[F14(e)Social Care and Social Work Improvement Scotland;]

(f)the Scottish Public Services Ombudsman.

Textual Amendments

F13S. 9(2)(da) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 17 para. 30; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F14S. 9(2)(e) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 14 para. 16; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I8S. 9 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

[F159ADuty to give advice: further provisionS

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

Textual Amendments

F15S. 9A inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(6), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

10Publishing information, guidance etc.S

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

(a)its conclusions in relation to—

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

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

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

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

(i)such investigations or inquiries; or

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

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

[F16(3)The Commission may, with the agreement of a person to whom advice is provided under section 9A, publish that advice.]

Textual Amendments

F16S. 10(3) added (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(7), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I9S. 10 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

11InvestigationsS

(1)If it appears to [F17a Commission Visitor] that any of the circumstances mentioned in subsection (2) below apply in respect of a patient, the Commission [F18Visitor] may—

(a)carry out such investigation as [F19the Commission Visitor] considers appropriate into the patient’s case; and

(b)make such recommendations as [F20the Commission Visitor] considers appropriate as respects the case.

[F21(1A)Where it is brought to the attention of the Commission that any of the circumstances mentioned in subsection (2) below may apply in respect of a patient, the Commission may—

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

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

(2)Those circumstances are—

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

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

(i)this Act; or

(ii)the 1995 Act;

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

(i)a compulsory treatment order;

(ii)an interim compulsory treatment order;

(iii)an emergency detention certificate;

(iv)a short-term detention certificate;

(v)a compulsion order;

(vi)an interim compulsion order;

(vii)an assessment order;

(viii)a treatment order;

(ix)a hospital direction; or

(x)a transfer for treatment direction;

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

(i)ill-treatment;

(ii)neglect; or

(iii)some other deficiency in care or treatment;

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

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

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

(f)that the patient may be—

(i)living alone or without care; and

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

Textual Amendments

F17Words in s. 11(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(8)(a)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F18Word in s. 11(1) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(8)(a)(ii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

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

F20Words in s. 11(1)(b) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(8)(a)(iv), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F21S. 11(1A) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(8)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I10S. 11 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

12Investigations: further provisionS

(1)The Commission may, if it considers it appropriate to do so, cause an inquiry to be held for the purpose of carrying out an investigation, [F22in relation to any of the circumstances mentioned in section 11(2)] of this Act, into any case.

(2)The Commission—

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

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

(i)remuneration; and

(ii)expenses,

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

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

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

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

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

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

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

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

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

(7)A person—

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

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

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

Textual Amendments

F22Words in s. 12(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(9), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I11S. 12 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

13Visits in relation to patientsS

(1)The Commission shall secure that a [F23Commission Visitor] visits, as often as the Commission [F24Visitor] considers it appropriate to do so, such patients who fall within the categories mentioned in subsection (2) below as [F25the Commission Visitor] considers appropriate.

(2)Those categories are—

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

(i)this Act; or

(ii)the 1995 Act;

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

(i)a compulsory treatment order;

(ii)an interim compulsory treatment order;

(iii)an emergency detention certificate;

(iv)a short-term detention certificate;

(v)a compulsion order;

(vi)an interim compulsion order;

(vii)an assessment order;

(viii)a treatment order;

(ix)a hospital direction; or

(x)a transfer for treatment direction;

(c)patients who are subject to—

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

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

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

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

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

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

(b)may use facilities provided in such premises,

a [F26Commission Visitor] may visit such premises for F27... the purposes mentioned in [F28subsection (5A)] below.

(4)Those premises are—

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

(b)premises in which—

(i)an independent health care service is provided;

(ii)a care home service is provided; or

(iii)a secure accommodation service is provided;

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

(d)a prison; and

(e)a young offenders institution.

[F29(5A)The purposes are—

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

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

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

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

F30(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)In—

(a)subsection (4)(b)(ii) above, “care home service” has the meaning given to that expression by [F31paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8)]; and

(b)subsection (4)(b)(iii) above, “secure accommodation service” has the meaning given to that expression by [F32paragraph 6 of schedule 12 to] that Act.

Textual Amendments

F23Words in s. 13(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(a)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F24Word in s. 13(1) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(a)(ii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

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

F26Words in s. 13(3) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), 111(10)(b)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

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

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

F29 S. 13(5A)(5B) substituted for s. 13(5) (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(c), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F30 S. 13(7) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(10)(d), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

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

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

Commencement Information

I12S. 13 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

14InterviewsS

(1)A [F33Commission Visitor] may, in connection with the discharge by the Commission of any of its functions under this Act or the Adults with Incapacity (Scotland) Act 2000 (asp 4)—

(a)interview—

(i)any patient; or

(ii)any other person that the [F34Commission Visitor] considers it appropriate to interview; and

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

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

(a)[F35a Commission Visitor] conducting a visit under subsection (1) of section 13 of this Act shall afford an opportunity, on request, during the visit, to—

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

(ii)other patients whose presence in the premises where the visit takes place is known to the [F36Commission Visitor],

to be interviewed in private by the [F37Commission Visitor]; and

(b)[F38a Commission Visitor] conducting a visit under subsection (3) of that section shall afford an opportunity, on request, during the visit, to patients whose presence in the premises that are being visited is known to the [F39Commission Visitor], to be so interviewed.

F40(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F33Words in s. 14(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(a), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F34Words in s. 14(1)(a)(ii) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

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

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

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

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

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

F40S. 14(3) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(11)(e), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I13S. 14 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

15Medical examinationS

(1)A [F41Commission Visitor] may, in connection with the discharge by the Commission of any of its functions under—

(a)this Act; or

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

carry out in private a medical examination of a patient.

[F42(1A)Only a Commission Visitor who has also been appointed as a Medical Visitor may exercise the functions under subsection (1).]

F43(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F41Words in s. 15(1) substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(12)(a), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F42S. 15(1A) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(12)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F43S. 15(2)(3) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(12)(c), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I14S. 15 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I15S. 15 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

16Inspection etc. of recordsS

(1)A person authorised by the Commission (an “authorised person”) [F44or Commission Visitor] may, in connection with the discharge by the Commission of any of its functions under—

(a)this Act; or

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

require any person holding medical or other records of a patient to produce them for inspection by the authorised person [F45or, as the case may be, the Commission Visitor].

(2)An authorised person shall be—

F46(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(3)An authorised person proposing to exercise the power conferred by subsection (1) above shall, if requested to do so, produce an authenticated document showing that the authorised person is F47... a member of staff of the Commission.

Textual Amendments

F44Words in s. 16(1) inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(13)(a)(i), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F45Words in s. 16(1) added (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(13)(a)(ii), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F46S. 16(2)(a) repealed (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(13)(b), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

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

Commencement Information

I16S. 16 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

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

(1)The persons mentioned in subsection (2) below shall afford the Commission, [F48any Commission Visitor,] or a person authorised by the Commission, all facilities necessary to enable the Commission, or that person, to discharge the Commission's, or (as the case may be) that person's, functions under this Act.

(2)Those persons are—

(a)the Scottish Ministers;

(b)a local authority;

(c)a Health Board;

(d)a Special Health Board;

(e)a National Health Service trust;

[F49(fa)the Police Service of Scotland;]

(g)the managers of a registered care service;

(h)the managers of—

(i)a prison; or

(ii)a young offenders institution;

[F50(ha)Healthcare Improvement Scotland;]

[F51(i)Social Care and Social Work Improvement Scotland;]

(j)the Scottish Public Services Ombudsman; and

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

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

Textual Amendments

F48Words in s. 17 inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 111(14), 134(7); S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F49S. 17(2)(fa) substituted for s. 17(2)(f) (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 23(3); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F50S. 17(2)(ha) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 17 para. 31; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

F51S. 17(2)(i) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 14 para. 17; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.

Commencement Information

I17S. 17 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I18S. 17 in force at 5.10.2005 in so far as not already in force by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

18Annual ReportS

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

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

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

Commencement Information

I19S. 18 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

19Statistical informationS

[F52(1)]The Commission shall F53... provide the Ministers with, and publish, statistical or other information [F54of such kind as may be prescribed in regulations] relating to the discharge of its functions.

[F55(2)Before making regulations under subsection (1) above, the Scottish Ministers shall consult such persons as they consider appropriate.]

Textual Amendments

F52S. 19 renumbered as s. 19(1) (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 36(2)(c), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 18)

Commencement Information

I20S. 19 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

20Protection from actions of defamationS

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

(2)In this section—

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

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

Commencement Information

I21S. 20 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

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