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Mental Health (Scotland) Act 1984

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This is the original version (as it was originally enacted).

74Further provisions as to prisoners under sentence

(1)Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and the Secretary of State is satisfied—

(a)that the person is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

(b)that it is not necessary for the health or safety of the person or for the protection of other persons that he should receive such treatment; and (in either case)

(c)that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment,

he shall—

(i)by warrant direct that the person be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed ; or

(ii)exercise any power of releasing the person on licence or discharging the person under supervision, which would have been exercisable if he had been remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital,

and on his arrival in the prison or other institution, or as the case may be his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.

(2)Where in the case of any such person as is mentioned in subsection (1) of this section the Secretary of State is satisfied as to the matter referred to in paragraph (a) or (b) of that subsection but not as to the matters referred to in paragraph (c) of that subsection he may—

(a)by warrant direct that the person be remitted to any prison or other institution in which he might have been detained if he had not been removed to a hospital, there to be dealt with as if he had not been removed ; or

(b)exercise any power of releasing the person on licence or discharging the person under supervision, which would have been exercisable if he had been remitted to any prison or other institution in which he might have been detained if he had not been removed to a hospital ; or

(c)decide that the person should continue to be detained in a hospital,

and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.

(3)A restriction direction given in respect of a person serving a sentence of imprisonment shall cease to have effect on the expiration of the sentence.

(4)Subject to the following provisions of this section, where a restriction direction ceases to have effect in respect of a person that person shall be discharged unless a report is furnished in respect of him under subsection (5) of this section.

(5)Within a period of 28 days before a restriction direction ceases to have effect in respect of a person, the responsible medical officer shall obtain from another medical practitioner a report on the condition of the patient in the prescribed form and thereafter shall assess the need for the detention of the patient to be continued; and, if it appears to him that it is necessary in the interests of the health or safety of the patient or for the protection of other persons that the patient should continue to be liable to be detained in hospital, he shall furnish to the managers of the hospital where the patient is liable to be detained and to the Mental Welfare Commission a report to that effect in the prescribed form along with the report first mentioned.

(6)Where a report is duly furnished under subsection (5) of this section, the patient shall be treated as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction direction ceased to have effect, but the provisions of section 30(5) and (6) and of section 35 of this Act shall apply to him in like manner as they apply to a patient the authority for whose detention in hospital has been renewed in pursuance of subsection (4) of the said section 30.

(7)Subject to subsection (8) of this section, references in this section to the expiration of a person's sentence are references to the expiration of the period during which he would have been liable to be detained in a prison or other institution if the transfer direction had not been given and if he had not forfeited remission of any part of the sentence after his removal in pursuance of the direction.

(8)For the purposes of subsection (2) of section 37 of the Prisons (Scotland) Act 1952 (which subsection provides for discounting from the sentence of certain prisoners periods while they are unlawfully at large) a patient who, having been transferred in pursuance of a transfer direction from any such institution as is referred to in that subsection, is at large, in circumstances in which he is liable to be taken into custody under any provision of this Act, shall be treated as unlawfully at large and absent from that institution.

(9)In this section " prescribed " means prescribed by regulations made by the Secretary of State.

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