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

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This is the original version (as it was originally enacted).

268Detention in conditions of excessive security: hospitals other than state hospitals
This section has no associated Explanatory Notes

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

(a)a compulsory treatment order;

(b)a compulsion order;

(c)a hospital direction; or

(d)a transfer for treatment direction;

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

(2)On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that detention of the qualifying patient in the qualifying hospital involves the patient being subject to a level of security that is excessive in the patient’s case, make an order—

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

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

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

(a)which is not a state hospital;

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

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

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

(a)which is not a state hospital;

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

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

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

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

(a)the qualifying patient;

(b)the qualifying patient’s named person;

(c)any guardian of the qualifying patient;

(d)any welfare attorney of the qualifying patient; and

(e)the Commission.

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

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

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

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

(i)the hospital direction; or

(ii)the transfer for treatment direction,

that authorises the patient’s detention in hospital.

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

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

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

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

(a)afford the persons mentioned in subsection (10) below the opportunity—

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

(ii)of leading, or producing, evidence; and

(b)whether or not any such representations are made, hold a hearing.

(10)Those persons are—

(a)the qualifying patient;

(b)the qualifying patient’s named person;

(c)the relevant Health Board;

(d)the qualifying patient’s responsible medical officer;

(e)the managers of the qualifying hospital;

(f)the mental health officer;

(g)any guardian of the qualifying patient;

(h)any welfare attorney of the qualifying patient;

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

(j)the Commission;

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

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

(11)A patient is a “qualifying patient” for the purposes of this section and sections 269 to 271 of this Act if the patient is of a description specified in regulations.

(12)A hospital is a “qualifying hospital” for the purposes of this section and sections 269 to 271 of this Act if—

(a)it is not a state hospital; and

(b)it is specified, or of a description specified, in regulations.

(13)Regulations under subsection (11) or (12) above may in particular have the effect—

(a)that “qualifying patient” means a patient;

(b)that “qualifying hospital” means—

(i)a hospital other than a state hospital; or

(ii)a part of a hospital.

(14)Regulations may make provision as to when for the purposes of this section and sections 269 to 271 of this Act a patient’s detention in a hospital is to be taken as involving the patient being subject to a level of security that is excessive in the patient’s case.

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