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Mental Health (Scotland) Act 1984

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This is the original version (as it was originally enacted).

Care and treatment of patients: guardianship

43Regulations as to guardianship

(1)Subject to the provisions of this Part of this Act, the Secretary of State may make regulations for regulating the exercise by the guardians of patients received into guardianship under this Part of this Act of their powers as such, and for imposing on such guardians, and upon any local authority concerned, such duties as he considers necessary or expedient in the interests of the patients.

(2)Regulations under this section may in particular make provision for requiring the patients to be visited, on such occasions or at such intervals as may be prescribed by the regulations, on behalf of such local authorities as may be so prescribed.

44Return of patients absent without leave: guardianship

(1)Where a patient who is for the time being subject to guardianship under this Part of this Act absents himself without the leave of the guardian from the place at which he is required by the guardian to reside, he may, subject to the provisions of this section, be taken into custody and returned to that place by the guardian, by any officer on the staff of a local authority, by any constable, or by any person authorised in writing by the guardian or a local authority.

(2)A patient shall not be taken into custody under this section after the expiration of the period of 28 days beginning with the first day of his absence without leave and a patient who has not returned or been taken into custody under this section within the said period shall cease to be subject to guardianship at the expiration of that period.

45Transfer of patients: guardianship

(1)A patient who is for the time being subject to the guardianship of any person, including a local authority, by virtue of a guardianship application may be transferred by the local authority concerned into the guardianship of another such person with the consent of that other person; but no patient shall be so transferred except with the consent of his guardian, or, if that consent is refused, with the approval of the sheriff to the transfer.

(2)Any transfer of a patient under the last foregoing subsection shall be intimated to his nearest relative and to the Mental Welfare Commission by the local authority concerned within 7 days of the date of transfer.

(3)Where a patient is transferred under this section, the provisions of this Part of this Act (including this subsection) shall apply to him as if the person into whose guardianship he is transferred had been the person named in the guardianship application.

46Transfer of guardianship in case of death, incapacity etc of guardian

(1)If any person (other than a local authority) having the guardianship of a patient received into guardianship under this Part of this Act—

(a)dies; or

(b)gives notice in writing to the local authority concerned that he desires to relinquish the functions of guardian,

the guardianship of the patient shall thereupon vest in the local authority concerned, but without prejudice to any power to transfer the patient into the guardianship of another person under section 45 of this Act.

(2)If any such person, not having given notice under subsection (1)(b) of this section, is incapacitated by illness or any other cause from performing the functions of guardian of the patient, those functions may, during his incapacity, be performed on his behalf by the local authority concerned, or by any other person approved for the purpose by that authority.

(3)Where the guardianship of a patient is transferred to a local authority or other person by or under subsection (1) of this section, section 45(3) of this Act shall apply as if the patient had been transferred into the guardianship of that authority or person in pursuance of that section.

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