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Public Services Reform (Scotland) Act 2010

Schedule 18 – Mental Welfare Commission for Scotland: Modifications of the Mental Health (Care and Treatment) (Scotland) Act 2003

477.Schedule 18 is introduced by section 111(15) and modifies the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) in relation to the governance of the Mental Welfare Commission for Scotland (MWCS).

478.Paragraph 1 of schedule 18 amends section 326(4)(a) of the 2003 Act, which sets out the order or regulation making powers which are subject to affirmative procedure. The new powers under paragraph 2A(2) and 7A(4), which enable Scottish Ministers to adjust the numbers of those who can be appointed as Board members and Commission Visitors respectively, are added to section 326(4)(a) in replacement for the existing order making power in relation to numbers of Board members.

479.Paragraph 2 of schedule 18 provides for schedule 1 to the 2003 Act to be amended in accordance with the remainder of schedule 18.

480.Paragraph 3 of schedule 18 repeals paragraphs 3 (Membership), 4 (Terms of office etc.) and 5 (Eligibility for reappointment) of schedule 1 to the 2003 Act with paragraph 4 of schedule 18 making replacement provisions, to be inserted after paragraph 2 of schedule 1, as follows:

481.New paragraphs 2A and 2B inserted into schedule 1 to the 2003 Act make replacement provision about membership of MWCS. Paragraph 2A provides that membership of MWCS is to consist of a chairing member, and no fewer than 6 nor more than 8 other members. All members of MWCS are to be appointed by Scottish Ministers. Its sub-paragraph (2) gives the Scottish Ministers power to substitute, by order made by statutory instrument, different numbers of minimum and maximum members in sub-paragraph (1)(b).

482.New paragraph 2B provides that it is desirable to include as members of MWCS persons with experience of the provision of any service to those with mental disorder, persons who use or have used mental health services, persons who are or have been carers of those with a mental disorder, and persons with other relevant skills, knowledge or experience relating to the MWCS’ functions. Sub-paragraph (2) provides that the Scottish Ministers must appoint at least:

(a)

1 person who is a past or present user of mental health services, and

(b)

1 person who is a past or present carer of a person with a mental disorder.

483.New paragraph 2C (Terms of appointment etc) provides that each member of MWCS is to be appointed for such a period as the Scottish Minsters think fit. A member of MWCS holds and vacates office in accordance with the terms and conditions of appointment but may resign office as a member by giving written notice to Scottish Ministers. Sub-paragraph (3) provides that once a person ceases to be a member of MWCS they are eligible to be reappointed as a member for another term.

484.New paragraph 2D (Removal of members) provides that the Scottish Ministers have the power to remove a member of MWCS from office if they are satisfied that the member is insolvent (see sub-paragraphs (a) and (b)), has been absent from three consecutive meetings without the MWCS’ permission, or is otherwise unfit or unable to discharge the functions of a member of MWCS.

485.New paragraph 2E (Disqualification from membership) provides that members of the Scottish Parliament, members of the House of Commons and members of the European Parliament are disqualified from appointment and from holding office as members of MWCS.

486.Paragraphs 5 and 6 of schedule 18 amends paragraph 7 of schedule 1 to the 2003 Act (Appointment etc. of chief officer and other staff). The amendments substitute references to the updated terminology of chief executive from the existing references to chief officer in paragraph 7, including in its title.

487.Paragraph 7 of schedule 18 inserts a raft of new paragraphs into schedule 1 to the 2003, after its paragraph 7, making provision in relation to Commission Visitors (new paragraphs 7A and 7B), Medical Visitors (new paragraph 7C), Committees (new paragraph 7D), Procedure and meetings (new paragraph 7E), Exercise of certain functions (new paragraph 7F), Delegation of functions (new paragraph 7G), Mandatory delegation of functions to chief executive (new paragraph 7H) and Location of office (new paragraph 7I), as follows:

488.New paragraphs 7A and 7B make provision in relation to Commission Visitors. Paragraph 7A requires the MWCS to appoint Commission Visitors to exercise the functions conferred on them under the 2003 Act or any other enactment.

489.Paragraph 7A provides for Commission Visitors to be appointed by the MWCS from amongst its staff (sub-paragraph (1)) or by the MWCS arranging for such other non-staff persons as it thinks fit to be appointed (sub-paragraph (2)). Those non-staff appointees as Commission Visitors do not become staff by virtue of that appointment, but the MWCS may arrange to pay them remuneration and allowances or amounts under the appointment (paragraph 7B). There cannot be more than 10 non-staff appointments as Commission Visitors, but sub-paragraph (4) gives the Scottish Ministers power to substitute, by order made by statutory instrument, a different maximum number of such non-staff appointments. Sub-paragraph (5) of paragraph 7A provides that it is desirable for the MWCS to include as Commission Visitors persons with experience of the provision of any service to those with mental disorder, persons who use or have used mental health services, persons who are or have been carers of those with a mental disorder and persons with other relevant skills, knowledge or experience relating to the MWCS’ functions; and sub-paragraph (6) provides that the MWCS must appoint as Commission Visitors at least:

(a)

1 person who is a past or present user of mental health services, and

(b)

1 person who is a past or present carer of a person with a mental disorder.

490.New paragraph 7C makes provision in relation to Medical Visitor, by requiring the MWCS in appointing Commission Visitors under paragraph 7A of schedule 1 to appoint one or more persons who have qualifications, training and experience as Ministers prescribe in regulations for the purposes of carrying out the medical examination functions under section 15 of the 2003 Act which have been conferred on Commission Visitors. Persons appointed to carry out that medical examination function may be known as Medical Visitors as well as the more generic name of Commission Visitors.

491.New paragraph 7D (Committees) enables the MWCS to establish committees for any purpose relating to its functions. The MWCS may appoint persons other than board members to be members of a committee, however such persons are not entitled to vote at meetings of the committee. A committee of MWCS is to comply with any directions given to it by MWCS (see sub-paragraph (4)). The MWCS is required to establish at least one advisory committee, constituted of persons of a description which Scottish Ministers can prescribe in regulations, for the purpose of giving advice to it about matters connected to its functions; the MWCS is bound when considering how to exercise its functions to have regard to relevant advice and information which an advisory committee gives it, whether or not the MWCS has requested that advice or information).

492.New paragraph 7E (Procedure and meetings) enables the MWCS to determine its own procedure and the procedure of its committees, including quorum. The validity of any proceedings of the MWCS or any of its committees is not affected by any irregularity in the membership of the MWCS or vacancy in the membership. Sub-paragraph (3) provides that members of the Scottish Executive, and persons authorised by the Scottish Ministers, may attend and take part in meetings of the MWCS or any of its committees, but are not entitled to vote at such meetings.

493.New paragraph 7F (Exercise of certain functions etc.) makes clear how certain functions are to be exercised. Members of the MWCS cannot be appointed as a Commission Visitor, and neither members nor any member of staff who is not so appointed as a Commission Visitor cannot otherwise exercise Visitors’ functions (sub-paragraphs (1) and (3)). It is also made clear at sub-paragraph (4) that appointment as a Commission Visitor does not affect that person’s employment status, whether a staff or non-staff appointment, nor does it affect any other duties which they have been employed to perform (sub-paragraph (4)). Sub-paragraph (2) sets out that the chief executive cannot be a member of the MWCS.

494.New paragraph 7G (Delegation of functions) enables the MWCS to delegate functions to the chief executive, any other employee or any of its committees (sub-paragraph (1)), although any such delegation does not affect the responsibility of MWCS for the exercise of its functions (see sub-paragraph (4)). Sub-paragraphs (2) and (3) set out a number of exceptions to the functions that the MWCS can delegate: its functions under section 12 in relation to investigations, the approval of any acquisition or disposal of land or other property above £50,000 (or such other amount as the MWCS may with consent of Scottish Ministers determine), the approval of annual reports and accounts and approval of any budget or financial plan (see sub paragraph (2)); and any function which has been conferred on a Commission Visitor under the 2003 Act or other enactment. Sub-paragraph (5) enables the chief executive, with consent of the MWCS, to delegate his or her functions to any other employee or any MWCS committee.

495.New paragraph 7H (Mandatory delegation of functions to chief executive) requires the MWCS to delegate its functions relating to discharge of patients under the 2003 Act and its powers to recall welfare guardianship orders under the 2000 Act. Sub-paragraph (2) in exercising those delegated functions to consult the Commission, to consult a Commission Visitor in every case as appears appropriate to do so, and also requires the chief executive to have regard to any relevant MWCS guidance. Sub-paragraph (3) makes clear that delegation of those functions to the chief executive does not affect the responsibility of the MWCS for their exercise.

496.New paragraph 7I (Location of office) requires the MWCS to obtain the approval of the Scottish Ministers before determining the location of its office premises.

497.Paragraph 8 of schedule 18 repeals paragraph 8 of schedule 1 to the 2003 Act, which makes provision for regulations to be made as to the MWCS’ proceedings and delegation of its functions. Provision in respect of the MWCS’ proceedings and delegations of its functions is now on the face of schedule 1 instead (new paragraphs 7E, 7G and 7H).

498.Paragraph 9 of schedule 18 inserts new paragraphs 10A (Transitional provision: first chief executive) and 10B (Transitional provision: Commissioners) into schedule 1 to the 2003, after its paragraph 10.

499.New paragraph 10A (Transitional provision: first chief executive) provides for the person who is the MWCS’ chief officer immediately before the provision takes effect to become the first chief executive of the MWCS under the new arrangements, under his or her existing terms and conditions of employment. If there is no chief officer at the relevant date, or the person who is chief officer is unwilling or unable to be the new chief executive, then Scottish Minsters are to appoint and determine the terms and conditions of the first chief executive. But thereafter the chief executive is to be appointed and their terms and conditions determined, with the approval of the Scottish Ministers, by the MWCS, in accordance with paragraph 7 of schedule 1 to the 2003 Act.

500.New paragraph 10B (Transitional provision: Commissioners) is a sunset provision, to terminate the appointment of any members of the Commission (including the ex officio membership of the MWCS which its chief officer holds) who continue to hold office as at the date that the new arrangements come into place.

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