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

269 Order under section 268: further provision

(1) This section applies where—

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

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

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

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

(3) Where such a hearing is held, the Tribunal may, if satisfied that detention of the 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—

(i) a period of 28 days; or

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

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

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

(a) which is not a state hospital;

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

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

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

(a) which is not a state hospital;

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

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

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

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

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

(b) of leading, or producing, evidence.