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The Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Amendment Regulations 2017

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New regulations 10A to 10E

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13.  After regulation 10 insert—

Warrant for fast-track removal with consent

10A.(1) If the conditions in paragraph (2) are met, the Scottish Ministers are to state in a warrant under regulation 10 that—

(a)it authorises the patient’s removal from Scotland before the end of the standstill period; but

(b)that is subject to the patient not withdrawing consent and there being neither an appeal nor a reference to the Tribunal under regulation 13 or 17 respectively.

(2) The conditions for the purpose of paragraph (1) are—

(a)that the application for the warrant—

(i)requests that the warrant authorise the patient’s removal before the end of the standstill period; and

(ii)complies with the requirements set out in regulation 7A(4);

(b)more than 3 days have elapsed since the responsible medical officer informed the Commission of the officer’s intention to make the request mentioned in sub-paragraph (a)(i); and

(c)the Scottish Ministers have not received—

(i)notice under regulation 13B(1) of an appeal against the proposed removal of the patient from Scotland; or

(ii)notice under regulation 17(2) of a reference by the Commission in respect of the proposed removal of the patient from Scotland.

Removal in accordance with warrant

10B.(1) A patient may be removed from Scotland under the authority of a warrant under regulation 10 at any time between—

(a)the end of the standstill period; and

(b)the end of the day that falls 7 days after the last day of the standstill period.

(2) A patient may be removed from Scotland under the authority of a warrant under regulation 10 before the end of the standstill period if—

(a)the warrant states that it authorises the patient’s removal from Scotland before the end of the standstill period;

(b)the proposed removal of the patient from Scotland has not been appealed against under regulation 13;

(c)the Commission has not made a reference to the Tribunal in respect of the proposed removal under regulation 17; and

(d)the patient has not indicated an unwillingness to be removed from Scotland before the end of the standstill period.

(3) For the purposes of this regulation, the end of the standstill period in relation to a warrant is to be determined in accordance with regulations 10C to 10E.

End of the standstill period where removal unchallenged

10C.(1) The standstill period referred to in regulation 10B comes to an end in accordance with this regulation where—

(a)the proposed removal of the patient from Scotland has not been appealed against to the Tribunal under regulation 13; and

(b)the Commission has not made a reference to the Tribunal in respect of the proposed removal under regulation 17.

(2) Once the standstill period has come to an end in accordance with this regulation, it remains at an end despite an appeal or reference to the Tribunal subsequently being made.

(3) If the patient is to be transferred to a place within the United Kingdom, the standstill period ends at the end of the day which falls—

(a)7 days after the warrant is issued; or

(b)3 working days after the warrant is issued if—

(i)the Scottish Ministers consider it necessary that the patient be removed from Scotland as a matter of urgency; and

(ii)the Commission agrees that is necessary.

(4) If the patient is to be transferred to a place outwith the United Kingdom, the standstill period ends—

(a)at the end of the day which falls 28 days after the warrant is issued;

(b)at the end of the day which falls 7 days after the warrant is issued if—

(i)the Scottish Ministers consider it necessary that the patient be removed from Scotland as a matter of urgency; and

(ii)the Commission agrees that is necessary; or

(c)if the Scottish Ministers specify a day in the warrant in accordance with paragraph (5), at the end of the specified day.

(5) The Scottish Ministers—

(a)may specify a day under paragraph (4)(c) only if they are satisfied that—

(i)appropriate care and treatment would be given to the patient at the place to which the patient is to be transferred were the patient to arrive there on that day; and

(ii)it would be in the patient’s best interests to arrive there earlier than the patient would be likely to arrive were a day not specified under paragraph (4)(c);

(b)may not specify a day under paragraph (4)(c) which falls fewer than 7 days after the warrant is issued;

(c)must, if they specify a day under paragraph (4)(c), draw the fact that they have done so to the Commission’s attention.

(6) For the purposes of paragraph (3), a working day is any day which is not a—

(a)Saturday;

(b)Sunday; or

(c)bank holiday in Scotland under the Banking and Financial Dealings Act 1971(1).

End of the standstill period following appeal against removal

10D.(1) The standstill period referred to in regulation 10B comes to an end in accordance with this regulation if (before the period has come to an end in accordance with regulation 10C) the proposed removal of the patient from Scotland has been appealed against to the Tribunal under regulation 13.

(2) The standstill period ends at the end of the day on which the Scottish Ministers give notice to the patient’s responsible medical officer that the period has ended.

(3) If—

(a)the Tribunal makes an order that the proposed removal shall not take place; and

(b)that decision by the Tribunal is appealed against,

the Scottish Ministers are to give the notice mentioned in paragraph (2) as soon as practicable after that appeal has been finally determined.

(4) If—

(a)the Tribunal refuses to make an order that the proposed removal shall not take place; and

(b)that decision by the Tribunal is appealed against within 21 days of it being made,

the Scottish Ministers are to give the notice mentioned in paragraph (2) as soon as practicable after that appeal has been finally determined.

(5) If—

(a)the Tribunal refuses to make an order that the proposed removal shall not take place; and

(b)that decision by the Tribunal is not appealed against within 21 days of it being made,

the Scottish Ministers are to give the notice mentioned in paragraph (2) as soon as practicable after that period of 21 days has ended.

(6) But, the Scottish Ministers may give the notice mentioned in paragraph (2) before the end of the 21 day period referred to in paragraph (5) if—

(a)the patient consents in writing to being removed from Scotland without delay;

(b)an approved medical practitioner, who is not the patient’s responsible medical officer, certifies that the patient is capable of giving that consent; and

(c)the patient’s named person (if the patient has one) gives written consent to the patient being removed from Scotland without delay.

(7) The references in this regulation to an appeal against a decision by the Tribunal are to an appeal under section 320 or 322 of the 2003 Act (as applied by these Regulations).

(8) For the purposes of this regulation, where an appeal against a decision by the Tribunal is made to the sheriff principal, the appeal is finally determined—

(a)at the end of the period of 21 days beginning on the day that the sheriff principal decides the appeal; or

(b)if, before the end of that period, the sheriff principal’s decision is appealed against to the Court of Session, when the Court has finally determined that further appeal.

End of standstill period following reference by Commission

10E.(1) The standstill period referred to in regulation 10B comes to an end in accordance with this regulation if—

(a)(before the period has come to an end in accordance with regulation 10C) the Commission makes a reference to the Tribunal under regulation 17 in respect of the proposed removal; and

(b)the proposed removal of the patient from Scotland has not been appealed against to the Tribunal under regulation 13.

(2) The standstill period ends at the end of the day on which the Scottish Ministers give notice to the patient’s responsible medical officer that the period has ended.

(3) The Scottish Ministers are to give the notice mentioned in paragraph (2) as soon as practicable after the reference to the Tribunal has been finally determined..

(1)

1971 c.80; which has been relevantly amended by the St Andrew’s Day Bank Holiday (Scotland) Act 2007 (asp 2), section 1.

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