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

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Commencement Orders bringing provisions within this Act into force:

SCHEDULE 1SThe Mental Welfare Commission for Scotland

(introduced by section 4)

Part 1SMembership, proceedings etc.

1The Commission shall not be regarded as the servant or agent of the Crown, or as having any status, immunity or privilege of the Crown, nor shall its members or employees be regarded as civil servants, nor its property as property of, or held on behalf of, the Crown.S

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Commencement Information

I1Sch. 1 para. 1 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

2The Commission may do anything which appears to it to be necessary or expedient for the purposes of, or in connection with, the exercise of its functions; and without prejudice to that generality the Commission may in particular—S

(a)acquire and dispose of land and other property; and

(b)enter into contracts.

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Commencement Information

I2Sch. 1 para. 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)

[F1MembershipS

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Amendments (Textual)

F1Sch. 1 paras. 2A-2E and cross-headings inserted (1.8.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 4; S.S.I. 2010/221, art. 3(2)(3), sch.

2A(1)The Commission is to consist of the following members—S

(a)a person appointed by the Scottish Ministers to chair the Commission; and

(b)no fewer than 6 nor more than 8 other members appointed by the Scottish Ministers.

(2)The Scottish Ministers may by order amend sub-paragraph (1)(b) by substituting for the minimum or maximum number of members for the time being specified there such other number as they think fit.

2B(1)In appointing members, the Scottish Ministers are to have regard to the desirability of including—S

(a)persons who have experience of, and have shown capacity and capability in, the provision of services to those who have a mental disorder;

(b)persons who use, or have used, such services;

(c)persons who are, or have been, carers of those who have a mental disorder;

(d)persons who have such other skills, knowledge or experience as the Scottish Ministers consider to be relevant in relation to the exercise of the Commission's functions.

(2)In appointing members under paragraph 2A(1)(b), the Scottish Ministers must appoint at least—

(a)one person who falls within paragraph (b) of sub-paragraph (1) of this paragraph; and

(b)one person who falls within paragraph (c) of sub-paragraph (1) of this paragraph.]

[F1 Terms of appointment etc. S

2C(1)Each member of the Commission is to be appointed for such period as the Scottish Ministers think fit.S

(2)A member—

(a)holds and vacates office in accordance with the terms and conditions of appointment; but

(b)may, by written notice to the Scottish Ministers, resign office as a member.

(3)A person is, on ceasing to be a member, eligible for reappointment.]

[F1Removal of membersS

2DThe Scottish Ministers may, by written notice, remove a member from office if they are satisfied that—S

(a)the member—

(i)has been adjudged bankrupt;

(ii)has granted a trust deed for creditors or a composition contract;

(iii)has proposed a voluntary arrangement which has been approved;

(b)the member's estate has been sequestrated;

(c)the member has been absent from 3 consecutive meetings of the Commission without the permission of the Commission;

(d)the member is otherwise unfit or unable to discharge the functions of a member.]

[F1Disqualification from membershipS

2EA person is disqualified from appointment, and from holding office, as a member of the Commission if that person is—S

(a)a member of the Scottish Parliament;

(b)a member of the House of Commons;

(c)a member of the European Parliament.]

F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

Commencement Information

I3Sch. 1 para. 3 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I4Sch. 1 para. 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)

F34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

Commencement Information

I5Sch. 1 para. 4 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)

F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

Commencement Information

I6Sch. 1 para. 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)

6The Commission shall pay—S

(a)to its members (and to the members of its committees and sub-committees who are not members of the Commission) such remuneration and allowances—

(i)on such terms; and

(ii)subject to such conditions,

as the Scottish Ministers may determine;

(b)to, or in respect of, persons who have been a member of it (or such members of committees and sub-committees as are mentioned in paragraph (a) above) such pensions, allowances and gratuities—

(i)on such terms; and

(ii)subject to such conditions,

as the Scottish Ministers may determine; or

(c)to any person who ceases, other than on the expiry of a term of office, to be a member of it, such compensation as the Scottish Ministers may determine.

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Commencement Information

I7Sch. 1 para. 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)

7(1)Subject to sub-paragraphs (2) and (3) below [F5and paragraph 10A], the Commission—S

(a)shall appoint a chief [F6executive ]; and

(b)may appoint such other staff as it considers appropriate,

on such terms and conditions as it may, with the approval of the Scottish Ministers, determine.

(2)A member of the Commission may not be appointed as a member of its staff.

(3)The Commission shall obtain the approval of the Scottish Ministers before appointing a chief [F7executive].

(4)The Commission may pay to the members of its staff, including its chief [F8executive], (referred to in this paragraph collectively as “employees”) such remuneration and allowances as the Scottish Ministers may determine.

(5)The Commission may—

(a)pay, or make arrangements for the payment of;

(b)make payments towards the provision of; and

(c)provide and maintain schemes (whether contributory or not) for the payment of,

such pensions, allowances and gratuities to or in respect of such of its employees, or former employees, as the Scottish Ministers may determine.

(6)The reference in sub-paragraph (5) above to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment or reduction in remuneration.

(7)A determination under sub-paragraph (4) or (5) above may make different provision for different cases or descriptions of case.

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Amendments (Textual)

F5Words in sch. 1 para. 7(1) inserted (1.8.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 5(a); S.S.I. 2010/221, art. 3(2)(3), sch.

F6Word in sch. 1 para. 7(1)(a) substituted (1.8.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 5(b); S.S.I. 2010/221, art. 3(2)(3), sch.

F7Word in sch. 1 para. 7(3) substituted (1.8.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 5(c); S.S.I. 2010/221, art. 3(2)(3), sch.

F8Word in sch. 1 para. 7(4) substituted (1.8.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 5(d); S.S.I. 2010/221, art. 3(2)(3), sch.

Commencement Information

I8Sch. 1 para. 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)

[F9Commission VisitorsS

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Amendments (Textual)

F9Sch. 1 paras. 7A-7I and cross-headings inserted (1.8.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 7; S.S.I. 2010/221, art. 3(2)(3), sch.

7A(1)The Commission must appoint such staff, employed under paragraph 7(1)(a) or (b), to exercise the functions of Commission Visitors; and when doing so those staff are to be known as Commission Visitors.S

(2)The Commission may arrange for such other persons as it thinks fit to be appointed as and exercise the functions of Commission Visitors; and when doing so those persons are to be known as Commission Visitors.

(3)There may be no more than 10 Commission Visitors appointed by the Commission under sub-paragraph (2).

(4)The Scottish Ministers may by order amend sub-paragraph (3) by substituting for the maximum number of Commission Visitors for the time being specified there such other number as they think fit.

(5)In appointing Commission Visitors, the Commission is to have regard to the desirability of appointing—

(a)persons who have experience of, and have shown capacity and capability in, the provision of services to those who have a mental disorder;

(b)persons who use, or have used, such services;

(c)persons who are, or have been, carers of those who have a mental disorder;

(d)persons who have such other skills, knowledge or experience as the Commission considers to be relevant in relation to the exercise of the functions of Commission Visitors.

(6)In appointing Commission Visitors, the Commission must appoint at least—

(a)one person who falls within paragraph (b) of sub-paragraph (5); and

(b)one person who falls within paragraph (c) of sub-paragraph (5).

(7)In this Act (unless the context otherwise requires), any reference to a function of a Commission Visitor (or the functions of Commission Visitors) is a reference to a function conferred by this Act or any other enactment.]

[F9Commission Visitors: further provisionS

7B(1)The arrangements entered into by virtue of paragraph 7A(2) may include provision with respect to the payment of remuneration and allowances to, or amounts in respect of, such persons.S

(2)Persons appointed as Commission Visitors by virtue of paragraph 7A(2) are not members of staff of the Commission.]

[F9Medical VisitorsS

7C(1)In appointing Commission Visitors, the Commission must appoint one or more persons who have such qualifications, training and experience as may be prescribed by regulations for the purposes of carrying out the functions of Commission Visitors under section 15 of this Act.S

(2)Persons so appointed may also be known as Medical Visitors.]

[F9CommitteesS

7D(1)The Commission may establish committees for any purpose relating to its functions.S

(2)Subject to sub-paragraph (7), the Commission is to determine the composition of its committees.

(3)The Commission may appoint persons who are not members of the Commission to be members of a committee.

(4)A committee of the Commission is to comply with any directions given to it by the Commission.

(5)The Commission must establish at least one committee (an “advisory committee”) for the purpose of giving advice to it about matters connected to its functions.

(6)In considering how to exercise its functions, the Commission must have regard to relevant advice and information given to it by any advisory committee (whether or not given at its request).

(7)An advisory committee must include persons of a description as may be prescribed by regulations.]

[F9Procedure and meetingsS

7E(1)The Commission may determine its own procedure and that of its committees, including a quorum for meetings.S

(2)The validity of any proceedings of the Commission, or any of its committees, is not affected by a vacancy in membership nor by any defect in the appointment of a member.

(3)Members of the Scottish Executive and persons authorised by the Scottish Ministers may attend and take part in meetings of the Commission or any of its committees, but are not entitled to vote at such meetings.]

[F9Exercise of certain functions etc.S

7F(1)A member of the Commission may not—S

(a)exercise the functions of a Commission Visitor;

(b)be appointed as a Commission Visitor.

(2)The chief executive may not be a member of the Commission.

(3)A member of staff of the Commission (other than a Commission Visitor) may not exercise the functions of a Commission Visitor.

(4)An appointment as a Commission Visitor under paragraph 7A(1) does not affect the appointed person's—

(a)status as employed under paragraph 7(1)(a) or (b); or

(b)ability to perform the duties of the person as so employed.]

[F9Delegation of functionsS

7G(1)The Commission may, subject to sub-paragraphs (2), (3) and (4), authorise—S

(a)the chief executive;

(b)any other employee;

(c)any of its committees,

to exercise such of its functions, and to such extent, as it may determine.

(2)The Commission may not authorise any of the following functions to be exercised by any other person—

(a)the functions of the Commission under section 12 (investigations: further provision);

(b)the approval of any acquisition or disposal of land or other property with a value greater than £50,000 or such other amount as the Commission may, with the consent of the Scottish Ministers, determine;

(c)the approval of annual reports and accounts;

(d)the approval of any budget or other financial plan.

(3)Any function conferred on a Commission Visitor may not be delegated by the Commission.

(4)Sub-paragraph (1) does not affect the responsibility of the Commission for the exercise of its functions.

(5)The chief executive may, with the consent of the Commission, authorise—

(a)any other employee;

(b)any of the Commission's committees,

to exercise such of the chief executive's functions, and to such extent, as the chief executive, with such consent, may determine.

(6)Sub-paragraph (5) does not affect the responsibility of the chief executive for the exercise of the chief executive's functions.]

[F9Mandatory delegation of functions to chief executiveS

7H(1)The Commission must delegate to the chief executive the functions mentioned in sub-paragraph (2).S

(2)The functions are—

(a)the Commission's functions relating to the discharge of patients under this Act;

(b)the Commission's functions under section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4).

(3)When exercising those functions so delegated, the chief executive must—

(a)consult the Commission;

(b)consult a Commission Visitor in every case in which it appears to the chief executive appropriate to do so;

(c)have regard to any relevant guidance issued by the Commission.

(4)Sub-paragraph (1) does not affect the responsibility of the Commission for the exercise of its functions.]

[F9Location of officeS

7IThe Commission's determination of the location of its office premises is subject to the approval of the Scottish Ministers.]S

F108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

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Amendments (Textual)

Commencement Information

I9Sch. 1 para. 8 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I10Sch. 1 para. 8 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)

9The following provisions of the National Health Service (Scotland) Act 1978 (c. 29) shall continue to apply to the Commission as they apply to a Special Health Board—S

(a)section 85 (which makes provision for payment of funds by the Scottish Ministers towards expenditure attributable to performance of functions by the Board);

(b)section 85A(1) and (3) (which imposes corresponding financial duties on the Board); and

(c)section 86 (which provides for the keeping, transmission to Scottish Ministers and auditing, of accounts).

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Commencement Information

I11Sch. 1 para. 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)

Part 2STransitional provision

10(1)The Mental Health (Scotland) Act 1984 (c. 36) shall be amended as follows.S

(2)In section 2 (membership etc. of the Mental Welfare Commission)—

(a)in subsection (2), after “commissioners”, where it first occurs, insert “ appointed under subsection (4) of this section ”;

(b)in subsection (4), at the beginning, insert “ Subject to subsection (5A) of this section, ”;

(c)after subsection (5), insert—

(5A)The person who holds the post of chief officer of the Mental Welfare Commission shall—

(a)be a member ex officio of the Commission; and

(b)cease automatically to hold office as such member on ceasing to hold that post.; and

(d)in subsection (7), for “the said commissioners”, in both places where it occurs, substitute “ commissioners appointed under subsection (4) of this section ”.

(3)In section 6 (appointment and payment etc. of officers and staff)—

(a)at the beginning, insert—

(1)The Mental Welfare Commission shall appoint a chief officer on such terms and conditions as the Scottish Ministers may determine.

(2)Before appointing a chief officer under subsection (1) above, the Commission shall obtain the approval of the Scottish Ministers.

(3); and

(b)in subsection (3) (being the existing wording of the section)—

(i)in paragraph (a), after “appoint”, insert “ other ”; and

(ii)in paragraph (b)(ii), after “of”, insert “ its chief officer or in respect of ”.

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Commencement Information

I12Sch. 1 para. 10 in force at 1.7.2003 by S.S.I. 2003/316, art. 2

[F11Transitional provision: first chief executiveS

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Amendments (Textual)

F11 Sch. 1 para. 10A, 10B and cross-heading inserted (1.8.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 9; S.S.I. 2010/221, art. 3(2)(3), sch.

10A(1)The person who, immediately before the coming into force of this paragraph, holds (by virtue of paragraph 7) the post of chief officer of the Commission becomes the first chief executive of the Commission.S

(2)But if—

(a)there is no person holding that post immediately before the coming into force of this paragraph; or

(b)the person holding the post immediately before the coming into force of this paragraph is unwilling or unable to be the chief executive,

the Scottish Ministers are to make the first appointment of the chief executive of the Commission on such terms and conditions as the Scottish Ministers may determine.

(3)Each subsequent chief executive is appointed in accordance with paragraph 7.

(4)Where sub-paragraph (1) applies, the person becoming the first chief executive of the Commission does so on the terms and conditions which applied to the post of chief officer held by that person.]

[F11Transitional provision: CommissionersS

10BAny person who, immediately before the coming into force of this paragraph, is a member of the Commission (including any ex officio members) by virtue of paragraph 3 ceases automatically to hold office as such a member.]S

SCHEDULE 2SThe Mental Health Tribunal for Scotland

(introduced by section 21)

Part 1SMembers of the Tribunal etc.

1(1)The Scottish Ministers shall appoint as members of the Tribunal—S

(a)a panel of persons who have such legal—

(i)qualifications;

(ii)training; and

(iii)experience,

as may be prescribed in regulations for the purposes of serving as legal members of the Tribunal;

(b)a panel of persons who have such qualifications, training and experience—

(i)in medicine; and

(ii)in the diagnosis and treatment of mental disorder,

as may be prescribed in regulations for the purposes of serving as medical members of the Tribunal; and

(c)a panel of persons who have—

(i)such qualifications, training, skills and experience in caring for, or providing services to, persons having a mental disorder; or

(ii)experience of such description,

as may be prescribed in regulations for the purposes of serving as general members of the Tribunal.

(2)A person is disqualified from appointment as, and being, a member of the Tribunal if the person—

(a)is a member of the Scottish Parliament;

(b)is a member of the Scottish Executive or a junior Scottish Minister; or

(c)is of such other description as may be prescribed in regulations.

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Commencement Information

I13Sch. 2 para. 1(1)(2)(c) in force at 26.3.2004 for specified purposes by S.S.I. 2004/153, art. 2, Sch. 1

I14Sch. 2 para. 1(1) in force at 1.9.2004 in so far as not already in force by S.S.I. 2004/367, art. 2, Sch. 1

I15Sch. 2 para. 1(2)(a)(b) in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

I16Sch. 2 para. 1(2)(c) in force at 3.5.2004 in so far as not already in force by S.S.I. 2004/153, art. 3, Sch. 2

2There shall be a panel consisting of each person who for the time being holds the office of—S

(a)sheriff principal;

(b)sheriff; or

(c)part-time sheriff,

for the purposes of serving as sheriff conveners of the Tribunal.

3(1)The Scottish Ministers shall appoint a person to be known as the President of the Mental Health Tribunal for Scotland (the “President”).S

(2)The President—

(a)shall preside over the discharge of the Tribunal’s functions; and

(b)may serve as a convener of the Tribunal.

(3)The Scottish Ministers may not appoint a person to be the President unless that person has such—

(a)qualifications;

(b)training; and

(c)experience,

as may be prescribed by regulations.

(4)The following provisions of this schedule apply (with the necessary modifications) to the President as they apply to a member of the Tribunal—

(a)paragraph 1(2);

(b)paragraph 4;

(c)paragraph 5; and

(d)paragraph 6.

(5)The functions of the President may, if the President is absent or otherwise unable to act, be discharged by one of the members of the panel mentioned in paragraph 1(1)(a) above appointed for that purpose by the Scottish Ministers.

(6)Regulations may make provision as to the delegation by the President of any of the President’s functions to any of the members of the Tribunal or its staff.

(7)Regulations made under sub-paragraph (6) above may include provision for different functions to be delegated to different persons for different areas.

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Commencement Information

I17Sch. 2 para. 3(1)(2)(4)-(7)in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

I18Sch. 2 para. 3(3) in force at 26.3.2004 for specified purposes by S.S.I. 2004/153, art. 2, Sch. 1

I19Sch. 2 para. 3(3) in force at 3.5.2004 in so far as not already in force by S.S.I. 2004/153, art. 3, Sch. 2

Terms of office etc.S

4(1)Subject to this paragraph and paragraph 5 below, each member of the Tribunal shall hold office in accordance with the terms of such member’s instrument of appointment.

(2)An appointment as a member of the Tribunal shall, subject to sub-paragraphs (3) and (4) below, last for 5 years.

(3)A member of the Tribunal—

(a)may at any time resign office by notice to the Scottish Ministers;

F12(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)shall vacate office on becoming disqualified from being a member of the Tribunal by virtue of paragraph 1(2) above.

(4)A member of the Tribunal’s appointment shall come to an end upon the member’s being removed from office under paragraph 5(1) below.

(5)A member of the Tribunal whose appointment comes to an end by operation of sub-paragraph (2) above may be reappointed and, except in the circumstances set out in sub-paragraph (6) below, shall be reappointed.

(6)The circumstances referred to in sub-paragraph (5) above are that—

(a)the member of the Tribunal has declined that reappointment;

F13(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the President has made a recommendation to the Scottish Ministers against the reappointment;

(d)there has, since the member of the Tribunal was last appointed, been a reduction in the number of members of the panel to which the member belongs required by the Tribunal to discharge its functions;

(e)since the member of the Tribunal was last appointed, the member has, without reasonable excuse, failed to comply with the terms of the member’s appointment; or

(f)the member of the Tribunal does not have such qualifications, training, skills or experience as are for the time being prescribed under paragraph 1(1) above for appointment to the panel to which the member of the Tribunal belongs.

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Amendments (Textual)

Commencement Information

I20Sch. 2 para. 4 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

5(1)A member of the Tribunal may be removed from office only by order of the disciplinary committee constituted under sub-paragraph (3) below.S

(2)The disciplinary committee may order the removal from office of a member of the Tribunal only if, after investigation carried out at the request of the Scottish Ministers, it finds that the member is unfit for office by reason of inability, neglect of duty or misbehaviour.

(3)The disciplinary committee shall consist of—

(a)a Senator of the College of Justice or a sheriff principal (who shall preside);

(b)a person who is a solicitor or an advocate of at least ten years' standing; and

(c)one other person,

all appointed by the Lord President of the Court of Session.

(4)Regulations—

(a)may make provision—

(i)enabling the disciplinary committee, at any time during an investigation, to suspend a member of the Tribunal from office; and

(ii)as to the effect and duration of such suspension; and

(b)shall make such further provision as respects the disciplinary committee (including in particular provision for the procedure of the committee) as the Scottish Ministers consider necessary or expedient.

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Commencement Information

I21Sch. 2 para. 5 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

6(1)The Scottish Ministers may pay, or make provision for paying, to, or in respect of, each member of the Tribunal such remuneration, expenses, pensions, allowances and gratuities (including by way of compensation for loss of office) as the Scottish Ministers may determine.S

(2)Sub-paragraph (1) above, so far as relating to pensions, allowances and gratuities, shall not have effect in relation to persons to whom Part I of the Judicial Pensions and Retirement Act 1993 (c. 8) applies, except to the extent provided by virtue of that Act.

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Commencement Information

I22Sch. 2 para. 6 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

Part 2SOrganisation and administration of the Tribunal

7(1)The functions of the Tribunal shall be discharged by such number of tribunals as may be determined from time to time by the President.S

(2)The Tribunal shall sit at such times and in such places as the President may determine.

(3)Subject to sub-paragraph (4) below, and to any rules made under paragraph 10(1) below, a tribunal constituted under sub-paragraph (1) above shall consist of—

(a)a convener who shall be—

(i)the President; or

(ii)a member selected by the President from the panel mentioned in paragraph 1(1)(a) above; and

(b)a member selected by the President from each of the panels mentioned in paragraph 1(1)(b) and (c) above.

(4)In relation to [F14proceedings (other than proceedings relating solely to an application under section 255 or 256 of this Act) before the Tribunal in relation to a patient subject to a compulsion order and a restriction order, a hospital direction or a transfer for treatment direction], the convener shall be—

(a)the President; or

(b)a person selected by the President from the panel mentioned in paragraph 2 above.

(5)Subject to the provisions of this Act, regulations made under section 21 of this Act and rules made under paragraph 10 below, the President shall secure that the functions of the Tribunal are discharged efficiently and effectively.

(6)The President may—

(a)give such directions; and

(b)issue such guidance,

about the administration of the Tribunal as appear to the President to be necessary or expedient for the purpose of securing that the functions of the Tribunal are discharged efficiently and effectively.

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Amendments (Textual)

Modifications etc. (not altering text)

Commencement Information

I23Sch. 2 para. 7 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

8(1)The Scottish Ministers may appoint such staff and provide such accommodation for the Tribunal as they may determine.S

(2)The Scottish Ministers may pay, or make provision for paying, to, or in respect of, the Tribunal’s staff, such remuneration, expenses, pensions, allowances and gratuities (including by way of compensation for loss of employment) as the Scottish Ministers may determine.

(3)The persons mentioned in sub-paragraph (4) below shall, in so far as it is reasonably practicable to do so, provide, in response to a request by the President, accommodation for the holding of hearings by the Tribunal.

(4)The persons referred to in sub-paragraph (3) above are—

(a)a Health Board;

(b)the State Hospitals Board for Scotland;

(c)a local authority.

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Modifications etc. (not altering text)

Commencement Information

I24Sch. 2 para. 8 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

9Such expenses of the Tribunal as the Scottish Ministers may determine shall be defrayed by the Scottish Ministers.S

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Commencement Information

I25Sch. 2 para. 9 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

Part 3STribunal procedure

10(1)The Scottish Ministers may make rules as to the practice and procedure of the Tribunal.S

(2)Such rules may, without prejudice to the generality of sub-paragraph (1) above, include provision for or in connection with—

(a)the composition of the Tribunal for the purposes of its discharge of particular functions;

(b)where the functions of the Tribunal are being discharged by more than one tribunal—

(i)determining by which tribunal any proceedings are to be dealt with; and

(ii)transferring proceedings from one tribunal to another;

(c)the form of applications to the Tribunal;

(d)the recovery and inspection of documents;

(e)the persons who may appear on behalf of the parties;

(f)enabling specified persons other than the parties to appear or be represented in specified circumstances;

(g)requiring specified persons to give notice to other specified persons of specified matters in such form and by such method as may be specified;

(h)as to the time within which any notice by virtue of sub-paragraph (g) above shall be given;

(i)enabling any matters that are preliminary or incidental to the determination of proceedings to be determined by the convener alone or with such other members of the Tribunal as may be specified;

(j)enabling hearings to be held in private;

(k)enabling the Tribunal (or the convener, with such other members of the Tribunal as may be specified, as the case may be) to exclude the person to whom the proceedings relate from attending all or part of hearings;

(l)enabling specified proceedings or specified matters that are preliminary or incidental to the determination of proceedings to be determined in specified circumstances without the holding of a hearing;

(m)enabling the Tribunal to hear and determine concurrently two or more sets of proceedings relating to the same person;

(n)the recording, publication and enforcement of decisions and orders of the Tribunal;

(o)the admissibility of evidence to the Tribunal;

(p)enabling matters to be referred to the Commission;

(q)enabling the Tribunal to commission medical and other reports in specified circumstances;

(r)requiring specified proceedings, or specified matters that are preliminary or incidental to the determination of proceedings, to be determined, or other specified actions to be taken, within specified periods;

(s)the circumstances in which a curator ad litem may be appointed.

(3)In sub-paragraph (2) above, “specified” means specified in the rules.

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Commencement Information

I26Sch. 2 para. 10 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

11Subject to rules made under paragraph 10 above the President may give directions as to the practice and procedure to be followed by the Tribunal in relation to any matter.S

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Commencement Information

I27Sch. 2 para. 11 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

12(1)The Tribunal may by citation require any person to attend, at such time and place as is specified in the citation, for the purpose of—S

(a)giving evidence; or

(b)producing any document in the custody, or under the control, of such person which the Tribunal considers it necessary to examine.

(2)In relation to persons giving evidence the Tribunal may administer oaths and take affirmations.

(3)A person who is cited to attend the Tribunal and—

(a)refuses or fails—

(i)to attend; or

(ii)to give evidence; or

(b)alters, conceals or destroys, or refuses to produce, a document which such person may be required to produce for the purposes of proceedings before the Tribunal,

shall, subject to sub-paragraph (4) below, be guilty of an offence.

(4)A person need not give evidence or produce any document if, were it evidence which might be given or a document that might be produced in any court in Scotland, the person having that evidence or document could not be compelled to give or produce it in such proceedings.

(5)It shall be a defence for a person charged with contravening sub-paragraph (3) above to show that the person has a reasonable excuse for such contravention.

(6)A person guilty of an offence under sub-paragraph (3)(a) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(7)A person guilty of an offence under sub-paragraph (3)(b) above shall be liable—

(a)on summary conviction to a fine not exceeding the statutory maximum;

(b)on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine or both.

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Commencement Information

I28Sch. 2 para. 12 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

13(1)Subject to sub-paragraph (2) below, where a decision is to be made by more than one member of the Tribunal, the decision of the Tribunal shall be made by majority.S

(2)If there is a tie, the convener shall have a second vote as a casting vote.

(3)A decision of the Tribunal shall be recorded in a document which contains a full statement of the facts found by the Tribunal and the reasons for the decision.

(4)The Tribunal shall—

(a)inform each party of its decision; and

(b)as soon as practicable after [F15completion] of the document mentioned in sub-paragraph (3) above[F16, send a copy] to each party.

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Amendments (Textual)

Commencement Information

I29Sch. 2 para. 13 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

Withdrawn applications to be disregarded for certain purposesS

[F1713AFor the purposes of sections 101(3)(c), 189(2)(a)(ii) and (b)(ii) and 213(2)(a)(ii) and (b)(ii) of this Act, an application to the Tribunal which is withdrawn by the applicant before it is determined is to be treated as not having been made.]

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Amendments (Textual)

F17 Sch. 2 para. 13A and cross-heading inserted (30.6.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 73, 79(3); S.S.I. 2007/334, art. 2(a), sch. 1

Part 4SReports, information etc.

14(1)The President shall, in respect of each period of 12 months beginning on 1st April, prepare a written report as to the Tribunal’s discharge of its functions during that period.S

(2)The President shall submit each report prepared under sub-paragraph (1) above, as soon as practicable after the period to which it relates, to the Scottish Ministers.

(3)The Scottish Ministers shall lay before the Scottish Parliament a copy of each report submitted to them under sub-paragraph (2) above.

15The President shall, at such times and in respect of such periods as the Scottish Ministers may specify, provide to—S

(a)the Scottish Ministers;

(b)such persons as the Scottish Ministers may specify,

such information relating to the discharge of the Tribunal’s functions as the Scottish Ministers may direct.

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Commencement Information

I30Sch. 2 para. 15 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

16(1)The Tribunal may pay to any person (other than a member of the Tribunal or a member of the staff of the Tribunal) such allowances and expenses as the President shall determine for the purposes of, or in connection with, the person’s attendance at hearings of the Tribunal.S

(2)The Tribunal may pay to any person (other than a member of the Tribunal or a member of the staff of the Tribunal) such amounts as the President shall determine in connection with any report prepared by the person in accordance with rules made under paragraph 10(2)(q) above.

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Modifications etc. (not altering text)

Commencement Information

I31Sch. 2 para. 16 in force at 3.5.2004 by S.S.I. 2004/153, art. 3, Sch. 2

SCHEDULE 3SApplication of Chapter 1 of Part 7 to certain patients

(introduced by section 71)

1Section 57(3) of this Act shall have effect as if, for paragraph (e), there were substituted the following—S

(e)that it will be necessary, immediately after the hospital direction or, as the case may be, transfer for treatment direction to which the patient is subject ceases to have effect, for the patient to be subject to a compulsory treatment order..

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Commencement Information

I32Sch. 3 para. 1 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

2(1)Section 64(4)(a)(i) of this Act shall have effect subject to the following—S

(a)where a compulsory treatment order is made in respect of a patient who is subject to—

(i)a hospital direction; or

(ii)a transfer for treatment direction,

that order shall authorise the measures specified in it only if the direction to which the patient is subject ceases, by virtue of section 217(2) of this Act, to have effect before the expiry of the period of 28 days beginning with the day on which the order is made; and

(b)where—

(i)a compulsory treatment order is made in respect of such a patient; and

(ii)the direction to which the patient is subject ceases, by virtue of section 217(2) of this Act, to have effect before the expiry of the period of 28 days mentioned in sub-sub-paragraph (a) above,

the compulsory treatment order shall authorise the measures specified in it for the period of 6 months beginning with the day on which that direction ceases to have effect.

(2)Section 64(5) shall have effect as if, for paragraph (e), there were substituted—

(e)that it will be necessary, immediately after the hospital direction or, as the case may be, transfer for treatment direction to which the patient is subject ceases to have effect, for the patient to be subject to a compulsory treatment order..

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Commencement Information

I33Sch. 3 para. 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)

3Section 65 of this Act shall not have effect.S

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Commencement Information

I34Sch. 3 para. 3 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

SCHEDULE 4SMinor and consequential amendments

(introduced by section 331(1))

1(1)The Social Work (Scotland) Act 1968 shall be amended as follows.S

(2)In section 4 (assistance by voluntary organisations in performance of functions), for the words from “section 7” to “1984” substitute “ section 25 (provision of care and support services for persons who have or have had a mental disorder), 26 (provision of 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) ”.

(3)In section 5(1B) (compliance by local authorities with directions by Scottish Ministers in exercise of functions under certain Acts), for paragraph (k) substitute—

(k)the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);.

(4)In section 5A(4) (local authority plans for community care services), in the definition of “community care services”, for the words from “section 7” to “1984” substitute “ section 25 (provision of care and support services for persons who have or have had a mental disorder), 26 (provision of 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) ”.

F18(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)In section 59(1) (provision by local authorities of residential and other establishments etc.), for the words “section 13A” substitute “ sections 12 and 13A ”.

(7)In section 86(1) (recovery of expenditure on provision of services for person ordinarily resident in the area of another local authority), for paragraph (e) substitute—

(e)in the provision, for persons ordinarily so resident, of services under section 25 (care and support services for persons who have or who 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);.

(8)In section 94(1) (interpretation), for the definition of “mental health officer” substitute—

mental health officer” means a person appointed under subsection (1) of section 32 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13); and includes a person deemed, by virtue of subsection (3) of that section, to be so appointed;.

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Amendments (Textual)

Commencement Information

I35Sch. 4 para. 1 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

2In section 64(5) of the Local Government (Scotland) Act 1973 (enactments concerning appointment of officers continuing to have effect), for paragraph (bb) substitute—S

(bb)section 32 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);.

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Commencement Information

I36Sch. 4 para. 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)

3In section 102(1) of the National Health Service (Scotland) Act 1978 (duty of Scottish Ministers to provide state hospitals)—S

(a)after the word “under” insert “ the Criminal Procedure (Scotland) Act 1995 (c. 46) or ”; and

(b)for the words “Mental Health (Scotland) Act 1984” substitute “ Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”.

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Commencement Information

I37Sch. 4 para. 3 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

4(1)The Disabled Persons (Services, Consultation and Representation) Act 1986 shall be amended as follows.S

(2)In section 2(5)(b) (right of authorised representative to visit disabled person in accommodation provided by virtue of certain enactments), for the words “section 7 of the 1984 Act” substitute “ section 25 of the 2003 Act ”.

(3)In section 16(1) (interpretation)—

(a)for the definition of “the 1984 Act” substitute—

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

(b)in paragraph (b) of the definition of “the welfare enactments”, for the words “sections 7 and 8 of the 1984 Act” substitute “ sections 25 and 26 of the 2003 Act ”.

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Commencement Information

I38Sch. 4 para. 4 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)

5In Part II of Schedule 1 to the Tribunals and Inquiries Act 1992 (tribunals under the supervision of the Scottish Committee of the Council on Tribunals), after paragraph 54 insert— S

Mental health54A. The Mental Health Tribunal for Scotland constituted under section 21 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)..
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Commencement Information

I39Sch. 4 para. 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)

6In section 4(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (persons detained under the Mental Health (Scotland) Act 1984 (c. 36) by virtue of transfer direction and restriction direction), for the words from first “direction” to “given”, substitute “ for treatment direction under section 136(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) is made ”.S

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Commencement Information

I40Sch. 4 para. 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)

7In section 23(2) of the Children (Scotland) Act 1995 (children affected by disability), for the words from “suffers” to the end substitute “ has a mental disorder (as defined in section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)) ”.S

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Commencement Information

I41Sch. 4 para. 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)

8(1)The Criminal Procedure (Scotland) Act 1995 shall be amended as follows.S

(2)In section 54 (insanity in bar of trial)—

(a)in paragraph (c) of subsection (1)—

(i)in sub-paragraph (i), for the words from “he” to “1984” substitute “ the conditions mentioned in subsection (2A) below are met in respect of the person ”;

(ii)for the words “temporary hospital order” there shall be substituted “ temporary compulsion order ”;

(iii)for the words “committing him to that hospital” substitute “ authorising the measures mentioned in subsection (2B) below in respect of the person ”;

(b)after subsection (2) insert—

(2A)The conditions referred to in subsection (1)(c)(i) 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—

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

(b)to the safety of any other person.

(2B)The measures referred to in subsection (1)(c)F19... above are—

(a)in the case of a person who, when the temporary 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 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.;

(c)in subsection (4), for the word “hospital” there shall be substituted “ compulsion ”; and

(d)in subsection (8), after “section” insert—

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

specified” means specified in the temporary compulsion order; and.

(3)In section 57 (disposals in cases where accused found to be insane)—

(a)in subsection (2)—

(i)in paragraph (a), for the words from “make” to the end substitute “ subject to subsection (4) below, make a compulsion order authorising the detention of the person in a hospital ”;

(ii)in paragraph (b), for the words from first “an” to the end substitute “ such a compulsion order, subject to subsection (4A) below, make a restriction order in respect of the person ”;

(iii)for paragraph (bb), substitute—

(bb)subject to subsections (3A) and (4B) below, make an interim compulsion order in respect of the person;;

(iv)in paragraph (c), for the words from “make” to the end substitute “ subject to subsections (4C) and (6) below, make a guardianship order in respect of the person ”;

(v)in paragraph (d)—

((A))at the beginning insert “ subject to subsection (5) below, ”; and

((B))after “Act)” insert “ in respect of the person ”;

(b)in subsection (3), for the word “hospital” substitute “ compulsion ”;

(c)after subsection (3) insert—

(3A)The court may make an interim compulsion order under paragraph (bb) of subsection (2) above in respect of a person only where it has not previously made such an order in respect of the person under that paragraph.; and

(d)for subsection (4) substitute—

(4)For the purposes of subsection (2)(a) above—

(a)subsections (2) to (16) of section 57A of this Act shall apply as they apply for the purposes of subsection (1) of that section, subject to the following modifications—

(i)references to the offender shall be construed as references to the person to whom this section applies; and

(ii)in subsection (4)(b)(i), the reference to the offence of which the offender was convicted shall be construed as a reference to the offence with which the person to whom this section applies was charged;

(b)section 57B of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies;

(c)section 57C of this Act shall have effect subject to the following modifications—

(i)references to the offender shall be construed as references to the person to whom this section applies; and

(ii)references to section 57A of this Act shall be construed as references to subsection (2)(a) above; and

(d)section 57D of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies.

(4A)For the purposes of subsection (2)(b) above, section 59 of this Act shall have effect.

(4B)For the purposes of subsection (2)(bb) above—

(a)subsections (2) to (13) of section 53 of this Act shall apply as they apply for the purposes of subsection (1) of that section, subject to the following modifications—

(i)references to the offender shall be construed as references to the person to whom this section applies;

(ii)in subsection (3)(a)(ii), the reference to one of the disposals mentioned in subsection (6) of that section shall be construed as a reference to the disposal mentioned in subsection (6)(a) of that section;

(iii)in subsection (4)(a), the reference to the offence of which the offender is convicted shall be construed as a reference to the offence with which the person to whom this section applies is charged; and

(iv)subsection (6)(b) shall not apply;

(b)section 53A of this Act shall have effect subject to the modification that references to the offender shall be construed as references to the person to whom this section applies;

(c)section 53B of this Act shall have effect subject to the following modifications—

(i)references to the offender shall be construed as references to the person to whom this section applies; and

(ii)for paragraphs (a) and (b) of subsection (8) there shall be substituted , revoke the interim compulsion order and—

(a)make an order in respect of the person under paragraph (a), (b), (c) or (d) of subsection (2) of section 57 of this Act; or

(b)decide, under paragraph (e) of that subsection, to make no order in respect of the person.;

(d)section 53C of this Act shall have effect subject to the following modifications—

(i)references to the offender shall be construed as references to the person to whom this section applies; and

(ii)for paragraphs (a) to (c) of subsection (1) there shall be substituted—

(a)makes an order in respect of the person under paragraph (a), (b), (c) or (d) of subsection (2) of section 57 of this Act; or

(b)decides, under paragraph (e) of that subsection, to make no order in respect of the person.; and

(e)section 53D of this Act shall have effect subject to the modification that the reference to the offender shall be construed as a reference to the person to whom this section applies.

(4C)For the purposes of subsection (2)(c) above, subsections (1A), (6) to (8) and (11) of section 58 of this Act shall apply, subject to the modifications that the reference to a person convicted and any references to the offender shall be construed as references to the person to whom this section applies..

(4)In section 58 (orders for hospital admission or guardianship)—

(a)in subsection (1A), for the words “as mentioned in subsection (1) above” there shall be substituted “ in the High Court or the sheriff court of an offence, other than an offence the sentence for which is fixed by law, punishable by that court with imprisonment, ”; and

(b)in subsection (7)—

(i)for the words from first “the” to first “suffering” substitute “ (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 the offender has ”; and

(ii)for the words from [F20"the offender is described"] to third “form” substitute “ the descriptions of the offender’s mental disorder by each of the medical practitioners, whose evidence is taken into account under subsection (1A)(a) above, specifies at least one type of mental disorder that is also specified by the other ”.

(5)In section 59 (hospital orders: restrictions on discharge)—

(a)in subsection (1)—

(i)for the words “hospital order” there shall be substituted “ compulsion order authorising the detention of a person in a hospital by virtue of paragraph (a) of section 57A(8) of this Act ”; and

(ii)for the words “section 62(1) of the Mental Health (Scotland) Act 1984” there shall be substituted “ Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”;

(b)in subsection (2)—

(i)for the words “medical practitioner approved by the Health Board for the purposes of section 20 of the Mental Health (Scotland) Act 1984” there shall be substituted “ approved medical practitioner ”; and

(ii)for the words “section 58(1)(a)” there shall be substituted “ section 57A(2)(a) ”; and

(c)after subsection (2) insert—

(2A)The court may, in the case of a person in respect of whom it did not, before making the compulsion order, make an interim compulsion order, make a restriction order in respect of the person only if satisfied that, in all the circumstances, it was not appropriate to make an interim compulsion order in respect of the person..

(6)For section 59A (hospital directions) substitute—

Hospital directionsS

59AHospital direction

(1)This section applies where a person, not being a child, (in this section and in sections 59B and 59C of this Act referred to as the “offender”) is convicted on indictment in—

(a)the High Court; or

(b)the sheriff court,

of an offence punishable by imprisonment.

(2)If the court is satisfied—

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

(i)that the conditions mentioned in subsection (3) below are met in respect of the offender; and

(ii)as to the matters mentioned in subsection (4) below; and

(b)that, having regard to the matters mentioned in subsection (5) below, it is appropriate,

the court may, in addition to any sentence of imprisonment which it has the power or the duty to impose, make, subject to subsection (6) below, a direction (in this Act referred to as a “hospital direction”) authorising the measures mentioned in subsection (7) below.

(3)The conditions referred to in subsection (2)(a)(i) 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 hospital direction in respect of the offender is necessary.

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

(a)that the hospital proposed by the two medical practitioners mentioned in subsection (2)(a) above is suitable for the purpose of giving the medical treatment mentioned in paragraph (b) of subsection (3) above to the offender; and

(b)that, were a hospital direction 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 direction is made.

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

(a)the mental health officer’s report, prepared in accordance with section 59B 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.

(6)A hospital direction 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 a state hospital under conditions of special security; and

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

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

(a)in the case of an offender who, when the hospital direction 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 direction 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 of the offender in the specified hospital; and

(c)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.

(8)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.

(9)A hospital direction—

(a)shall specify, 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 is also specified by the other; and

(b)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)In this section—

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

  • specified” means specified in the hospital direction.

59BHospital direction: mental health officer’s report

(1)This section applies where the court is considering making a hospital direction in relation to an offender under section 59A 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 59A 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”, “primary”, in relation to a carer, and “mental health officer” have the same meanings as in section 57C of this Act.

59CHospital direction: supplementary

(1)If, before the expiry of the period of 7 days beginning with the day on which a hospital direction 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 hospital direction, the court, or, as the case may be, the Scottish Ministers, may direct that the offender be admitted to such other hospital as is specified.

(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 hospital direction shall have effect as if the hospital specified in the hospital direction were the hospital specified by the court, or, as the case may be, the Scottish Ministers, under subsection (1) above.

(4)In this section, “court” means the court which made the hospital direction..

(7)In section 60 (appeals against hospital orders)—

(a)for the word “hospital” where it first, second and fourth occurs there shall be substituted “ compulsion ”; and

(b)for the word “renewal” there shall be substituted “ extension ”.

(8)In section 60A (appeal by prosecutor against hospital orders etc.), in subsection (1), for paragraphs (a) and (b) substitute—

(a)a compulsion order;

(b)a restriction order;

(c)a guardianship order;

(d)a decision under section 57(2)(e) of this Act to make no order; or

(e)a hospital direction..

(9)In section 60B (intervention orders), for the word “hospital” there shall be substituted “ compulsion ”.

(10)In section 61 (requirements as to medical evidence)—

(a)in subsection (1), for the words from second “a” to “disorder” substitute “ an approved medical practitioner ”;

(b)in subsection (1A)—

(i)for “53(1)” substitute “ 52M(2)(a), 53(2)(a) ”; and

(ii)for “58(1)(a)(i)” substitute “ 57A(2)(a) ”;

(c)in subsection (2), after first “of” insert “ section 52D(2)(a) or ”;

(d)in subsection (3), after “section” insert “ 52D(2)(a) or ”;

(e)in subsection (6), for “53(1), 54(1)(c), 58(1)(a) and 59A(3)(a) and (b)” substitute “ 52M(2)(a), 53(2)(a), 54(1)(c), 57A(2)(a), 58(1A)(a), 59A(2)(a) and 60C(2)(a) ”; and

(f)after subsection (6) insert—

(7)In this section, “approved medical practitioner” has the meaning given by section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)..

(11)In section 118 (disposal of appeals), in subsection (6), for the words “(3) and (4)” substitute “ (3) to (6) ”.

(12)In section 190 (disposal of appeal where appellant insane), in subsection (2), for the words “Subsection (4)” substitute “ Subsections (3) to (6) ”.

(13)In section 200 (remand for inquiry into physical or mental conditions)—

(a)in subsection (2), for paragraph (b)(ii) there shall be substituted—

(ii)that the accused could be admitted to a hospital that is suitable for his detention,; and

(b)in subsection (3)(a), for the words “a suitable hospital is available” there shall be substituted “ he could be admitted to a hospital that is suitable ”.

(14)In section 210 (consideration of time spent in custody), in subsection (1)—

(a)in paragraph (a), after “virtue” insert “ of an assessment order, a treatment order or an interim compulsion order or by virtue ”; and

(b)in paragraph (c)(iii), after “virtue” insert “ of an assessment order, a treatment order or an interim compulsion order or by virtue ”.

(15)In section 230 (probation orders requiring treatment for mental disorder)—

(a)in subsection (1)—

(i)for the words “a registered medical practitioner approved under section 20 of the Mental Health (Scotland) Act 1984” there shall be substituted “ an approved medical practitioner ”; and

(ii)for the words “hospital order under Part V of that Act, or under this Act,” there shall be substituted “ compulsory treatment order under section 64 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or a compulsion order ”; and

(b)in subsection (2), in paragraph (a), for “1984” there shall be substituted “ 2003 ”.

(16)In section 307 (interpretation), in subsection (1)—

(a)after the definition of “appropriate court” there shall be inserted—

assessment order” has the meaning given by section 52D of this Act;;

(b)after the definition of “complaint” there shall be inserted—

compulsion order” has the meaning given by section 57A of this Act;;

(c)after the definition of “indictment” there shall be inserted—

interim compulsion order” has the meaning given by section 53 of this Act;;

(d)after the definition of “Lord Commissioner of Justiciary” there shall be inserted—

mental disorder” has the meaning given by section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

Mental Welfare Commission” means the Mental Welfare Commission for Scotland;; and

(e)after the definition of “training school order” there shall be inserted—

treatment order” has the meaning given by section 52M of this Act;.

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Amendments (Textual)

F19Word in sch. 4 para. 8(2)(b) (in the inserted 1995 c. 46, s. 54(2B)) repealed (27.9.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), art. 1, sch. 2

Commencement Information

I42Sch. 4 para. 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)

9(1)The Adults with Incapacity (Scotland) Act 2000 shall be amended as follows.S

(2)In section 35(5) (definitions of certain expressions for the purposes of Part 4 of Act), for the words “who is liable to be detained there under the 1984 Act” substitute “ whose detention there is authorised by virtue of the Criminal Procedure (Scotland) Act 1995 (c. 46) or the 2003 Act ”.

(3)In section 47(2) (authority in relation to medical treatment of incapable adult), after “section” insert “ and sections 234, 237, 240, 242, 243 and 244 of the 2003 Act ”.

(4)In section 57 (application for guardianship order)—

(a)in subsection (3)(a), for “a” where it second occurs substitute “ an approved ”; and

(b)after subsection (6) insert—

(7)In subsection (3)(a), “approved medical practitioner” has the meaning given by section 22 of the 2003 Act..

(5)In section 87(1) (interpretation)—

(a)in the definition of “mental disorder”, for the words from “means” to the end substitute “ has the meaning given by section 328 of the 2003 Act ”;

(b)after the definition of “mental disorder” insert—

mental health officer” has the meaning given by section 329 of the 2003 Act;;

(c)in the definition of “Mental Welfare Commission”, for the words “section 2 of the 1984 Act” substitute “ section 4 of the 2003 Act ”;

(d)in the definition of “nearest relative”, for the words from “means” to the end substitute “ has the meaning given by section 254 of the 2003 Act ”; and

(e)after the definition of “the 1984 Act” insert—

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

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Commencement Information

I43Sch. 4 para. 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)

10In section 77(1) of the Regulation of Care (Scotland) Act 2001 (interpretation)—S

(a)in the definition of “independent hospital”, for the words from “is” to the end substitute “ , subject to subsection (2) below, is not a health service hospital ”; and

(b)in the definition of “mental disorder”, for “Mental Health (Scotland) Act 1984 (c. 36)” substitute “ Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”.

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Commencement Information

I44Sch. 4 para. 10(b) 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)

11In paragraph 4(6) of schedule 7 to the Housing (Scotland) Act 2001 (power of Scottish Ministers to remove director, trustee, etc. of a registered social landlord), for the words “Mental Health (Scotland) Act 1984 (c. 36)” substitute “ Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”.S

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Commencement Information

I45Sch. 4 para. 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)

12(1)The Community Care and Health (Scotland) Act 2002 shall be amended as follows.S

(2)In section 4(1) (payment towards cost of accommodation more expensive than local authority would expect usually to provide), for the words from “section 7” to “authorities)” substitute “ section 25 of the 2003 Act (provision of care and support services for persons who have or have had a mental disorder) ”.

(3)In section 6(1)(a) (deferred payment of accommodation costs) for the words from “section 7” to “authorities)” substitute “ section 25 of the 2003 Act (provision of care and support services for persons who have or have had a mental disorder) ”.

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Commencement Information

I46Sch. 4 para. 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)

13In schedule 3 to the Scottish Public Services Ombudsman Act 2002 (which specifies tribunals for the purpose of making the administrative actions of certain administrative staff of those tribunals liable to investigation under that Act), after paragraph 4 insert—S

4AThe Mental Health Tribunal for Scotland..

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Commencement Information

I47Sch. 4 para. 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)

SCHEDULE 5SRepeals and revocations

(introduced by section 331(2) and (3))

Part 1SRepeals

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Commencement Information

I48Sch. 5 Pt. 1 in force at 5.10.2005 for specified purposes 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)

EnactmentExtent of repeal
The National Health Service (Scotland) Act 1978 (c. 29)In section 102, paragraph (a) of subsection (4), the word “or” immediately following that paragraph and subsection (5).
The Mental Health (Scotland) Act 1984 (c. 36)The whole Act[F21with the exception of section 10(1)(b) and (c) and (2) and section 95].
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73)Section 51(2)(b).
The Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)In section 7(9), in paragraph (c) of the definition of “the managers”, the words from “a State Hospital Management Committee” to “constituted)”.
The Children Act 1989 (c. 41)In Schedule 13, paragraph 50.
The National Health Service and Community Care Act 1990 (c. 19)

In Schedule 5, paragraph 13.

In Schedule 9, paragraph 28.

The Access to Health Records Act 1990 (c. 23)In section 11, in the definition of “health service body”, paragraph (c).
The Mental Health (Detention) (Scotland) Act 1991 (c. 47)The whole Act.
The Further and Higher Education (Scotland) Act 1992 (c. 37)In Schedule 9, paragraph 9.
The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)

Section 4(2) and (3).

In Schedule 5, paragraph 2.

The State Hospitals (Scotland) Act 1994 (c. 16)Section 2(4) and (5).
The Children (Scotland) Act 1995 (c. 36)In Schedule 4, paragraph 33.
The Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39)Section 13(3).
The Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40)In Schedule 4, paragraph 50.
The Criminal Procedure (Scotland) Act 1995 (c. 46)

In section 52, subsections (2) to (7).

In section 58, subsection (1); in subsections (2) and (3), the words “(1) or”; subsections (4) and (5); in subsection (7), the words “hospital order or” and F22...; subsection (9); subsection (10); in subsection (11), the words “subsection (1) of”.

Section 59(3).

In section 200(9), the words “within 24 hours of his remand or, as the case may be, committal,”.

In section 210(1), in paragraphs (a) and (c)(iii), the words “52, 53 or”.

In section 230(1), the words “, not extending beyond 12 months from the date of the requirement,”.

In section 307(1), the definitions of “hospital order”, “residential establishment” and “responsible medical officer”.

The Mental Health (Patients in the Community) Act 1995 (c. 52)

Sections 4 to 6.

Schedule 2.

The Crime (Sentences) Act 1997 (c. 43)In schedule 3, paragraphs 6 to 10.
The Crime and Punishment (Scotland) Act 1997 (c. 48)

Sections 7 and 8.

In Schedule 1, paragraph 9.

The Crime and Disorder Act 1998 (c. 37)In Schedule 8, paragraph 55.
The Health Act 1999 (c. 8)In Schedule 4, paragraph 70.
The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 (asp 1)The whole Act.
The Mental Health (Amendment) (Scotland) Act 1999 (c. 32)The whole Act.
The Immigration and Asylum Act 1999 (c. 33)

Section 120(4) and (5).

In Schedule 15, paragraph 10.

The Adults with Incapacity (Scotland) Act 2000 (asp 4)

In section 9(1), the words “Without prejudice to their functions under the 1984 Act,” and paragraphs (a), (b), (e) and (f).

In section 12(1)(b), the words “or (e)”.

In section 35(1)(b), the words “or private psychiatric hospital”.

Section 38(4).

In section 47(2), the words “and to”.

Section 48(1).

In section 57(3)(a), the words from “approved” to the end.

Section 87(2) and (3).

In schedule 1, paragraph 1(c)(ii) and the word “or” immediately following it.

In schedule 5, paragraph 17(3) to (24).

The Regulation of Care (Scotland) Act 2001 (asp 8)

Section 2(5)(b).

In section 77, in subsection (1), the definition of “private psychiatric hospital” and, in subsection (2), the words “(not being a private psychiatric hospital)”.

In schedule 3, paragraph 11(2) to (7).

The International Criminal Court (Scotland) Act 2001 (asp 13)Section 25.
The Scottish Public Services Ombudsman Act 2002 (asp 11)In schedule 6, paragraph 6.
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Amendments (Textual)

Part 2SRevocations

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Commencement Information

I49Sch. 5 Pt. 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)

EnactmentExtent of repeal
The Scotland Act 1998 (Consequential Modifications) (No.2) Order 1999 (S.I. 1999/1820)In Schedule 2, paragraph 74.
The Postal Services Act 2000 (Consequential Modifications No.1) Order 2001 (S.I. 2001/1149)In Schedule 1, paragraph 60.

SCHEDULE 6STransitory amendments of the Mental Health (Scotland) Act 1984

(introduced by section 332(1))

1Sections 33, 64 and 66 of the Mental Health (Scotland) Act 1984 (c. 36) shall, until their repeal by this Act, have effect as follows.S

2In section 33 (discharge of patients from hospital), in subsection (4)—S

(a)after “is”, where secondly occurring, insert “ not ”; and

(b)in each of paragraphs (a) and (b) omit “not”.

3In section 64 (appeal by patient subject to restriction order)—S

(a)in subsection (1)—

(i)after “shall” insert “ , subject to subsection (2) of this section, ”;

(ii)after “is”, where first occurring, insert “ not ”;

(iii)in each of paragraphs (a) and (b) omit “not”;

(iv)omit “and (in either case)” and paragraph (c);

(b)in subsection (2)—

(i)for “(1)” substitute “ (A1) ”;

(ii)after “is”, where secondly occurring, insert “ not ”;

(iii)for the words from “not” to “subsection”, where thirdly occurring, substitute “ is satisfied that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment ”.

4In section 66 (further consideration of case of conditionally discharged patient) in subsection (3) after “is”, where first, secondly and thirdly occurring, insert “ not ”.S

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