Search Legislation

Mental Health (Patients in the Community) Act 1995

Status:

This is the original version (as it was originally enacted).

Scotland

4Community care orders

(1)After section 35 of the [1984 c. 36.] Mental Health (Scotland) Act 1984 there shall be inserted the following sections—

Community care orders

35ACommunity care orders

(1)As respects a patient who is liable to be detained in a hospital in pursuance of an application for admission the responsible medical officer may, in accordance with section 35B of this Act, make an application (in this Act referred to as a “community care application”) to the sheriff for an order (in this Act referred to as a “community care order”) providing that the patient shall, instead of continuing to be liable to be so detained, be subject to the conditions specified in the order, being conditions imposed with a view to ensuring that he receives—

(a)medical treatment; and

(b)after-care services provided for him under section 8 of this Act.

(2)Sections 21(1), (2)(a) and (b), (3), (4) and (5) and 113 of this Act shall apply with respect to a community care application as they apply with respect to an application for admission.

(3)The sheriff shall, as respects a community care application—

(a)make a community care order in respect of the patient, subject to the conditions set out in the application or to such other conditions as the sheriff considers appropriate; or

(b)refuse the application.

(4)A community care order shall specify—

(a)the conditions to which the patient is to be subject;

(b)the name of the medical practitioner (the “special medical officer”) who is to be principally concerned with the patient’s medical treatment while the order is in force, who shall be a practitioner approved for the purposes of section 20 of this Act by a Health Board as having special experience in the diagnosis or treatment of mental disorder; and

(c)the name of the person (the “after-care officer”) who is to be responsible for co-ordinating the provision of the after-care services to be provided for the patient under section 8 of this Act while the order is in force, who shall be a mental health officer of the local authority which is to provide the after-care services to be so provided.

(5)The sheriff may defer the making of a community care order until such arrangements as appear to him to be necessary for the provision of medical treatment and after-care services to the patient following the making of the order have been made to the sheriff’s satisfaction.

(6)If, on the date when a patient ceases to be liable to be detained in a hospital in pursuance of an application for admission, a community care application has been made in respect of him but has not been determined, his liability to be so detained shall continue until the community care order comes into force or, as the case may be, the application is refused by the sheriff.

(7)If, on the date when a patient ceases to be liable to be detained in a hospital in pursuance of an application for admission, a community care order has been made in respect of him but has not come into force, his liability to be so detained shall continue until the order comes into force.

(8)On the coming into force of a community care order in respect of a patient, he shall cease to be liable to be detained in a hospital under this Part of this Act.

(9)The responsible medical officer shall, within 7 days of the making of a community care order, send a copy of the order to—

(a)the patient and any other person who has been consulted under subsection (3)(a) or (f) or (4) of section 35B of this Act;

(b)the Mental Welfare Commission;

(c)the patient’s special medical officer; and

(d)the patient’s after-care officer.

(10)The patient’s after-care officer shall, on receiving a copy of the community care order, take such steps as are practicable to explain to the patient, both orally and in writing—

(a)the purpose and effect of the order and of the conditions specified in it;

(b)the patient’s right of appeal to the sheriff under section 35F of this Act; and

(c)that the patient may make representations to the Mental Welfare Commission,

and shall send a copy of any written explanation to any other person who has been consulted under subsection (3)(a) or (4) of section 35B of this Act.

35BCommunity care applications

(1)A community care application may be made at any time after the expiry of the period of 28 days beginning with the day on which the patient was admitted to a hospital in pursuance of an application for admission.

(2)Before making a community care application the responsible medical officer shall—

(a)consult the persons specified in subsection (3) below; and

(b)consider the matters specified in subsection (5) below.

(3)The persons referred to in subsection (2)(a) above are—

(a)the patient and, if practicable and the patient does not object, his nearest relative;

(b)the persons who have been principally concerned with the patient’s medical treatment in hospital;

(c)the medical practitioner who is to be the patient’s special medical officer and the other persons who are to be concerned with the patient’s medical treatment after the community care order comes into force;

(d)the person who is to be the patient’s after-care officer;

(e)each other person who the responsible medical officer believes is to have a continuing professional involvement in any aspect of the after-care services which are to be provided for the patient under section 8 of this Act after the order comes into force; and

(f)any person who the responsible medical officer believes will play a substantial part in the care of the patient after the order comes into force but will not be professionally concerned with the after-care services to be so provided.

(4)If the patient has a propensity to violent or dangerous behaviour the responsible medical officer may consult the patient’s nearest relative notwithstanding any objection by the patient to such consultation under subsection (3)(a) above.

(5)The matters referred to in subsection (2)(b) above are—

(a)the after-care services mentioned in subsection (3)(e) above; and

(b)the conditions which should be specified in the order with a view to ensuring that the patient receives medical treatment and such after-care services.

(6)A community care application shall be in the prescribed form and shall include—

(a)the conditions which the responsible medical officer considers should be specified in the community care order for the purpose mentioned in subsection (5)(b) above;

(b)the name of the medical practitioner who is to be the patient’s special medical officer after the order comes into force;

(c)the name of the person who is to be the patient’s after-care officer after the order comes into force; and

(d)subject to section 35C(1) of this Act, the period for which the responsible medical officer considers the order should have effect.

(7)A community care application shall be accompanied by—

(a)two medical recommendations, in the prescribed form and complying with subsection (8) below, one of which shall be given by a medical practitioner approved for the purposes of section 20 of this Act by a Health Board as having special experience in the diagnosis or treatment of mental disorder and the other of which shall, if practicable, be given by another medical practitioner who has previous acquaintance with the patient; and

(b)a report in the prescribed form from the person who is to be the patient’s after-care officer after the order comes into force, and complying with subsection (9) below.

(8)The medical recommendations referred to in subsection (7)(a) above shall consist of statements of opinion that both the following conditions are satisfied, namely—

(a)that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment, but that the grounds set out in section 17(1) of this Act for admission to and detention in a hospital do not apply to the patient; and

(b)that the patient requires to be subject to a community care order—

(i)with a view to ensuring that he receives medical treatment and the after-care services to be provided for him under section 8 of this Act; and

(ii)in the interests of his health or safety or with a view to the protection of other persons;

and for the purposes of subsection (7)(a) above the recommendations do not comply with this subsection unless the patient is described in each of them as suffering from the same form of mental disorder (that is to say, mental illness or mental handicap), whether or not he is described in either recommendation as suffering also from the other form.

(9)The report referred to in subsection (7)(b) above shall include—

(a)information as to—

(i)the patient’s social circumstances;

(ii)the after-care services which are to be provided for the patient under section 8 of this Act after the order comes into force;

(iii)the care, other than medical treatment and the after-care services so provided, which is to be provided for the patient after the order comes into force; and

(b)a statement that in the opinion of the person making the report the patient requires to be subject to a community care order—

(i)with a view to ensuring that he receives medical treatment and the after-care services to be so provided; and

(ii)in the interests of his health or safety or with a view to the protection of other persons.

(10)Before making a community care application the responsible medical officer shall take such steps as are reasonably practicable to inform any person, other than the patient, who has been consulted under subsection (3)(a) or (4) above of his right, by virtue of section 35A(2) of this Act, to be heard by the sheriff regarding the proposed community care order.

35CDuration and renewal of community care order

(1)Subject to section 35J of this Act and the following provisions of this section, a community care order shall have effect for such period, not exceeding 6 months, as may be specified in the order.

(2)A community care order may be renewed under this section—

(a)from the expiry of the period referred to in subsection (1) above, for a further period not exceeding 6 months;

(b)from the expiry of any period of renewal under paragraph (a) above, for a further period not exceeding one year, and so on for periods not exceeding one year at a time.

(3)The special medical officer shall, within the period of two months ending with the day on which the community care order, if not renewed, would expire—

(a)examine the patient; and

(b)consult—

(i)the patient and, if practicable and the patient does not object, his nearest relative;

(ii)the patient’s after-care officer;

(iii)the other persons concerned with the patient’s medical treatment or professionally concerned with any aspect of the after-care services provided for him under section 8 of this Act; and

(iv)any person who the special medical officer believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services so provided.

(4)If the patient has a propensity to violent or dangerous behaviour the responsible medical officer may consult the patient’s nearest relative notwithstanding any objection by the patient to such consultation under subsection (3)(b)(i) above.

(5)If, after the examination and consultation required by subsection (3) above and any consultation under subsection (4) above, the special medical officer considers that the conditions set out in section 35B(8)(a) and (b) of this Act continue to apply to the patient, he shall send to the Mental Welfare Commission a report to that effect in the prescribed form, and the community care order shall thereby be renewed for such period as is, subject to subsection (2) above, specified in the report.

(6)The special medical officer shall notify—

(a)the patient and any other person who has been consulted under subsection (3)(b)(i) or (iv) or (4) above; and

(b)the patient’s after-care officer,

of any renewal of the community care order and of the period of such renewal.

(7)Subsection (10) of section 35A of this Act shall apply in relation to a renewal of a community care order under this section as it applies in relation to a community care order made under that section, but with the substitution of references to subsections (3)(b)(i) and (4) of this section for the references to subsections (3)(a) and (4) of section 35B.

35DVariation of conditions in community care order

(1)This section applies where the special medical officer, after consulting—

(a)the patient and, if practicable and the patient does not object, his nearest relative;

(b)the other persons concerned with the patient’s medical treatment;

(c)the patient’s after-care officer;

(d)the other persons professionally concerned with any aspect of the after-care services provided for the patient under section 8 of this Act; and

(e)any person who the special medical officer believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services so provided,

considers that the conditions specified in the order should be varied (whether by adding further conditions or deleting or amending existing conditions).

(2)If the patient has a propensity to violent or dangerous behaviour the special medical officer may consult the patient’s nearest relative notwithstanding any objection by the patient to such consultation under subsection (1)(a) above.

(3)Where this section applies the special medical officer shall prepare a note, in the prescribed form, of the proposed variation of the conditions and shall send a copy of the note to—

(a)the patient and any other person who has been consulted under subsection (1)(a) or (2) above;

(b)the patient’s after-care officer; and

(c)the sheriff clerk for the sheriff of the sheriffdom within which the patient is resident.

(4)If the patient wishes to object to or make representations concerning the proposed variation of the conditions he shall, within 7 days of receiving the copy of the note under subsection (3) above, so advise the sheriff clerk; and in that event the sheriff shall not approve the variation without holding a hearing.

(5)If the patient does not indicate, in accordance with subsection (4) above, that he wishes to be heard concerning the proposed variation of the conditions the sheriff shall, if he thinks fit, approve the variation without a hearing.

(6)Where a variation of conditions is approved under this section the special medical officer shall send a copy of the variation as so approved to—

(a)the patient and any other person who has been consulted under subsection (1)(a) or (e) or (2) above;

(b)the Mental Welfare Commission; and

(c)the patient’s after-care officer.

(7)Subsection (10) of section 35A of this Act shall apply in relation to a variation of conditions approved under this section as it applies in relation to a community care order made under that section, but with the substitution of references to subsections (1)(a) and (2) of this section for the references to subsections (3)(a) and (4) of section 35B.

35EChange of special medical officer or after-care officer

(1)This subsection applies where a patient’s special medical officer, after consulting the persons mentioned in subsection (3) below, agrees with another medical practitioner (“the new special medical officer”), who shall be a practitioner approved for the purposes of section 20 of this Act by a Health Board as having special experience in the diagnosis or treatment of mental disorder, that the new special medical officer should, from a date so agreed, assume principal responsibility for the patient’s medical treatment while the community care order is in force.

(2)This subsection applies where a patient’s after-care officer, after consulting the persons mentioned in subsection (4) below, agrees with another person (“the new after-care officer”), who shall be a mental health officer of the local authority which is providing (or, if different, the local authority which is to provide) the after-care services to be provided for the patient under section 8 of this Act while the community care order is in force, that the new after-care officer should, from a date so agreed, assume responsibility for co-ordinating the provision of the after-care services to be so provided.

(3)The persons referred to in subsection (1) above are—

(a)the patient and, if practicable and the patient does not object, his nearest relative;

(b)the other persons concerned or to be concerned with the patient’s medical treatment (including the new special medical officer);

(c)the patient’s after-care officer;

(d)the other persons professionally concerned or to be so concerned with any aspect of the after-care services provided or to be provided for the patient under section 8 of this Act; and

(e)any person who the special medical officer believes plays or is to play a substantial part in the care of the patient but is not, and will not be, professionally concerned with the after-care services so provided or to be so provided.

(4)The persons referred to in subsection (2) above are—

(a)the patient and, if practicable and the patient does not object, his nearest relative;

(b)the patient’s special medical officer;

(c)the other persons concerned or to be concerned with the patient’s medical treatment;

(d)the other persons professionally concerned or to be so concerned with any aspect of the after-care services provided or to be provided for the patient under section 8 of this Act (including the new after-care officer); and

(e)any person who the after-care officer believes plays or is to play a substantial part in the care of the patient but is not, and will not be, professionally concerned with the after-care services so provided or to be so provided.

(5)If the patient has a propensity to violent or dangerous behaviour the special medical officer or, as the case may be, the after-care officer may consult the patient’s nearest relative notwithstanding any objection by the patient to such consultation under subsection (3)(a) or, as the case may be, (4)(a) above.

(6)Where subsection (1) or (2) above applies the new special medical officer or, as the case may be, the new after-care officer shall, from the agreed date, assume responsibility as mentioned in that subsection and shall within seven days of that date intimate the change, in the prescribed form, to—

(a)the patient and any other person who has been consulted under paragraph (a) or (e) of subsection (3) or, as the case may be, (4) above or subsection (5) above;

(b)the Mental Welfare Commission; and

(c)the patient’s after-care officer or, as the case may be, special medical officer.

(7)On a change of special medical officer or after-care officer by virtue of this section, the community care order shall have effect in respect of the patient as if the new special medical officer or, as the case may be, the new after-care officer had been the special medical officer or after-care officer specified in the community care order by virtue of section 35A(4) of this Act.

35FAppeal against community care order

(1)Any patient subject to a community care order may, at any time when the order is in force following renewal under section 35C(5) of this Act, appeal to the sheriff for revocation of the order.

(2)An appeal under subsection (1) above shall be by way of summary application and shall be made to the sheriff of the sheriffdom within which the patient is resident.

(3)On an appeal under subsection (1) above—

(a)if the sheriff is satisfied that the patient—

(i)does not require to be subject to a community care order with a view to ensuring that he receives medical treatment and after-care services provided for him under section 8 of this Act; and

(ii)does not require to be subject to such an order in the interests of his health or safety or with a view to the protection of other persons,

he shall revoke the order; and

(b)in any other case, the sheriff shall refuse the appeal and affirm the order, either without amendment or subject to such variation as he considers appropriate.

(4)Where, under subsection (3)(a) above, the sheriff revokes a community care order he may order that the revocation shall have effect either immediately or from such date, not later than 28 days after the date of his decision, as he may specify.

(5)The special medical officer shall notify the patient’s after-care officer of any revocation or variation of a community care order under this section.

35GAdmission to hospital for reassessment

(1)This section applies where, as respects a patient in respect of whom a community care order is in force, the special medical officer, after consulting the persons mentioned in subsection (2) below, considers that the patient’s mental condition—

(a)has, since the making of the order or, where the order has been renewed under section 35C(5) of this Act, the most recent renewal, deteriorated; and

(b)is, or is likely to become, such as to give grounds for serious concern regarding his health or safety or the protection of other persons.

(2)The persons referred to in subsection (1) above are—

(a)if practicable and the patient does not object, his nearest relative;

(b)the other persons concerned with the patient’s medical treatment;

(c)the patient’s after-care officer;

(d)the other persons professionally concerned with any aspect of the after-care services provided for the patient under section 8 of this Act; and

(e)any person who the special medical officer believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services so provided.

(3)If the patient has a propensity to violent or dangerous behaviour the special medical officer may consult the patient’s nearest relative notwithstanding any objection by the patient to such consultation under subsection (2)(a) above.

(4)Where this section applies, the special medical officer shall—

(a)examine the patient and prepare a report on his condition; and

(b)arrange for another medical practitioner to carry out such an examination and provide such a report.

(5)Where both reports conclude that—

(a)the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be admitted to and detained in a hospital for assessment, or for assessment followed by medical treatment, for at least a limited period; and

(b)he ought to be so admitted and detained in the interests of his own health or safety or with a view to the protection of other persons,

the special medical officer may, with the consent of the patient’s after-care officer, direct the patient to attend a hospital specified in the direction to be admitted and detained there by virtue of this section, and the direction shall be sufficient authority for the patient’s removal to the hospital so specified and for his admission to and detention in that hospital in accordance with this section.

(6)Reports under subsection (4) above and directions under subsection (5) above shall be in the prescribed form.

(7)The special medical officer shall send a copy of the reports under subsection (4) above and of the direction under subsection (5) above to—

(a)any person who has been consulted under subsection (2)(a) or (e) or (3) above;

(b)the Mental Welfare Commission;

(c)the managers of the hospital specified in the direction; and

(d)the patient’s after-care officer.

(8)Subject to section 35H(4)(b) of this Act, a patient admitted to a hospital by virtue of this section may be detained there for a period not exceeding 7 days beginning with the day on which he is admitted and shall not be further detained in a hospital by virtue of this section immediately after the expiry of the period of detention.

(9)While a patient is detained in a hospital by virtue of this section the period for which, under section 35C of this Act, the community care order has effect shall continue to run but the conditions to which he is subject under the order shall not apply in relation to him.

35HReassessment: further provisions

(1)Where a patient is detained in a hospital by virtue of section 35G of this Act, the responsible medical officer shall—

(a)examine the patient and prepare a report, in the prescribed form, on his condition; and

(b)arrange for another medical practitioner to carry out such an examination and provide such a report.

(2)If the responsible medical officer is not a practitioner approved for the purposes of section 20 of this Act by a Health Board as having special experience in the diagnosis or treatment of mental disorder, the medical practitioner referred to in subsection (1)(b) above shall require to be such a practitioner.

(3)Where both reports conclude that the conditions set out in section 35B(8)(a) and (b) of this Act apply in relation to the patient, the patient shall, as soon as is practicable, be discharged from hospital and the conditions to which he is subject under the community care order shall again apply in relation to him.

(4)Where both reports conclude that the grounds set out in section 17(1)(a) and (b) of this Act apply in relation to the patient and, within the period specified in section 35G(8) of this Act, an application for admission is made in respect of the patient—

(a)the community care order in respect of the patient shall cease to have effect; and

(b)the submission to the sheriff, in accordance with section 21(1) of this Act, of the application for admission shall be sufficient authority for the detention of the patient in a hospital until the expiry of a further period of 21 days immediately following the expiry of the period specified in section 35G(8).

(5)The responsible medical officer shall send to the Mental Welfare Commission copies of the reports prepared under subsection (1) above.

(6)A patient detained in a hospital by virtue of section 35G of this Act shall cease to be liable to be so detained, and the community care order in respect of him shall cease to have effect—

(a)if the period mentioned in subsection (8) of that section expires without the patient having been discharged from hospital or an application for his admission having been submitted to the sheriff; or

(b)where an application for his admission has been submitted to the sheriff within that period, if the period of 21 days mentioned in subsection (4)(b) above expires without the sheriff having approved the application.

(7)For the purposes of this section, an application for admission is submitted to the sheriff when it is lodged with his sheriff clerk.

35IRevocation of community care order

(1)Where the special medical officer, after consulting the persons mentioned in subsection (2) below, considers that the patient—

(a)does not require to be subject to a community care order with a view to ensuring that he receives medical treatment and after-care services provided for him under section 8 of this Act; and

(b)does not require to be subject to such an order in the interests of his health or safety or with a view to the protection of other persons,

he shall revoke the order and shall notify the patient, his nearest relative (if practicable), his after-care officer, any person falling within subsection (2)(e) below and the Mental Welfare Commission of the revocation.

(2)The persons to be consulted under subsection (1) above are—

(a)the patient and, if practicable and the patient does not object, his nearest relative;

(b)the other persons concerned with the patient’s medical treatment;

(c)the patient’s after-care officer;

(d)the other persons professionally concerned with any aspect of the after-care services provided for the patient under section 8 of this Act; and

(e)any person who the special medical officer believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services so provided.

(3)If the patient has a propensity to violent or dangerous behaviour the special medical officer may consult the patient’s nearest relative notwithstanding any objection by the patient to such consultation under subsection (2)(a) above.

(4)Where the Mental Welfare Commission consider that the patient—

(a)does not require to be subject to a community care order with a view to ensuring that he receives medical treatment and after-care services provided for him under section 8 of this Act; and

(b)does not require to be subject to such an order in the interests of his health or safety or with a view to the protection of other persons,

they shall revoke the order and shall notify the persons mentioned in subsection (5) below of the revocation.

(5)The persons to be notified under subsection (4) above are—

(a)the patient and (if practicable) his nearest relative;

(b)the patient’s special medical officer;

(c)the patient’s after-care officer; and

(d)any person who the Mental Welfare Commission believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services provided for the patient under section 8 of this Act.

35JPatients in custody or admitted to hospital in pursuance of emergency recommendations

(1)This section applies where a patient who is subject to a community care order—

(a)is detained in custody in pursuance of any sentence or order passed or made by a court in the United Kingdom (including an order committing or remanding him in custody); or

(b)is detained in a hospital under section 24, 26 or 26A of this Act.

(2)For so long as the patient is detained as mentioned in subsection (1)(a) or (b) above the period for which, under section 35C of this Act, the community care order has effect shall continue to run but the conditions to which he is subject under that order shall not apply in relation to him.

(3)If the patient is detained as mentioned in paragraph (a) of subsection (1) above for a period of, or successive periods amounting in the aggregate to, 6 months or less, or is detained as mentioned in paragraph (b) of that subsection, and, apart from this subsection, the community care order—

(a)would have ceased to have effect during the period for which he is so detained; or

(b)would cease to have effect during the period of 28 days beginning with the day on which he ceases to be so detained,

the order shall be deemed not to have ceased, and shall not cease, to have effect until the end of that period of 28 days.

(4)Where the period for which the patient is subject to a community care order is extended by subsection (3) above, any examination and report to be made and furnished in respect of the patient under section 35C(3) and (5) of this Act may be made and furnished within the period as so extended.

(5)Where, by virtue of subsection (4) above, a community care order is renewed for a further period after the day on which (apart from subsection (3) above) the order would have ceased to have effect, the further period shall be deemed to have commenced with that day.

35KPatients moving from England and Wales to Scotland

(1)A community care application may be made in respect of a patient who is subject to after-care under supervision under the [1983 c. 20.] Mental Health Act 1983 and who intends to leave England and Wales in order to reside in Scotland.

(2)Sections 35A to 35J of this Act shall apply in relation to a patient in respect of whom a community care application is or is to be made by virtue of this section subject to such modifications as may be prescribed.

(2)Schedule 2 to this Act (supplementary provisions about community care orders) shall have effect.

5Absence without leave

(1)In section 28 of the [1984 c. 36.] Mental Health (Scotland) Act 1984 (return of hospital patients absent without leave), for subsection (3) (which provides that a patient may not be taken into custody after the end of the period of 28 days beginning with the first day of his absence without leave) there shall be substituted the following subsection—

(3)A patient shall not be taken into custody under this section after the later of—

(a)the end of the period of six months beginning with the first day of his absence without leave; and

(b)the end of the period for which (apart from section 31 of this Act) he is liable to be detained;

and, in determining for the purposes of paragraph (b) above or any other provision of this Act whether a person who is or has been absent without leave is at any time liable to be detained, a report furnished under section 30 or 31B of this Act before the first day of his absence shall not be taken to have renewed the authority for his detention unless the period of renewal began before that day.

(2)In section 30(6) of that Act (right of appeal where authority for detention renewed), after the word “section” where it first occurs there shall be inserted “or section 31B of this Act”.

(3)For section 31 of that Act (duration of authority for detention: special provisions as to patients absent without leave) there shall be substituted the following sections—

31Special provisions as to patients absent without leave: hospital

(1)Where a patient is absent without leave—

(a)on the day on which (apart from this section) he would cease to be liable to be detained under this Part of this Act; or

(b)within the period of one week ending with that day,

he shall not cease to be so liable until the relevant time.

(2)For the purposes of subsection (1) above the relevant time—

(a)where the patient is taken into custody under section 28 of this Act, is the end of the period of one week beginning with the day on which he is returned to the hospital;

(b)where the patient returns to the hospital within the period during which he can be taken into custody under section 28 of this Act, is the end of the period of one week beginning with the day on which he so returns; and

(c)otherwise, is the end of the period during which he can be taken into custody under section 28 of this Act.

31APatients who are taken into custody or return within 28 days: hospital

(1)This section applies where a patient who is absent without leave is taken into custody under section 28 of this Act, or returns to the hospital, not later than the end of the period of 28 days beginning with the first day of his absence without leave.

(2)Where the period for which the patient is liable to be detained is extended by section 31 of this Act, any examination and report to be made and furnished in respect of the patient under section 30(3) of this Act may be made and furnished within the period as so extended.

(3)Where the authority for the detention of a patient is renewed by virtue of subsection (2) above after the day on which (apart from section 31 of this Act) that authority would have expired, the renewal shall take effect as from that day.

31BPatients who are taken into custody or return after more than 28 days: hospital

(1)This section applies where a patient who is absent without leave is taken into custody under section 28 of this Act, or returns to the hospital, later than the end of the period of 28 days beginning with the first day of his absence without leave.

(2)The responsible medical officer shall, within the period of one week beginning with the day on which the patient returns, or is returned, to the hospital—

(a)examine the patient or obtain from another medical practitioner a report on the condition of the patient; and

(b)consult—

(i)such other person or persons who appear to him to be principally concerned with the patient’s medical treatment; and

(ii)a mental health officer,

and thereafter assess the need for the detention of the patient to be continued; and if it appears to him that the grounds set out in section 17(1) of this Act apply to the patient 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 if such a report has been obtained.

(3)Where a report under this section is furnished to them in respect of a patient, the managers of a hospital shall, unless they discharge the patient, cause him and his nearest relative to be informed.

(4)Where the patient would (apart from any renewal of the authority for his detention on or after the day on which he is returned or returns to the hospital) be liable to be detained after the end of the period of one week beginning with that day, he shall cease to be so liable at the end of that period unless a report is duly furnished in respect of him under subsection (2) above.

(5)Where the patient would (apart from section 31 of this Act) have ceased to be liable to be detained on or before the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall renew the authority for his detention for the period prescribed in that case by section 30(2) of this Act.

(6)Where the authority for the detention of the patient is renewed by virtue of subsection (5) above—

(a)the renewal shall take effect as from the day on which (apart from section 31 of this Act and subsection (5) above) the authority would have expired; and

(b)if (apart from this paragraph) the renewed authority would expire on or before the day on which the report is furnished, the report shall further renew the authority, as from the day on which it would expire, for the period prescribed in that case by section 30(2) of this Act.

(7)Where the authority for the detention of the patient would expire within the period of two months beginning with the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall, if it so provides, have effect also as a report duly furnished under section 30(3) of this Act; and the reference in this subsection to authority includes any authority renewed under subsection (5) above by the report.

(4)In section 32 of that Act (special provisions as to patients sentenced to imprisonment etc: hospital)—

(a)in subsection (2) (detained person in whose case application for admission does not cease to have effect), for the words “and 31” there shall be substituted “, 31 and 31A”; and

(b)after that subsection there shall be inserted the following subsection—

(3)In its application by virtue of subsection (2) above section 28(3) of this Act shall have effect with the substitution of the words “end of the period of 28 days beginning with the first day of his absence without leave.” for the words from “later of” onwards.

(5)In section 44 of that Act (return of patients subject to guardianship absent without leave), for subsection (2) (which provides that a patient may not be taken into custody after the end of the period of 28 days beginning with the first day of his absence without leave) there shall be substituted the following subsections—

(2)A patient shall not be taken into custody under this section after the later of—

(a)the end of the period of six months beginning with the first day of his absence without leave; and

(b)the end of the period for which (apart from section 48 of this Act) he is subject to guardianship;

and, in determining for the purposes of paragraph (b) above or any other provision of this Act whether a person who is or has been absent without leave is at any time subject to guardianship, a report furnished under section 47 or 48B of this Act before the first day of his absence shall not be taken to have renewed the authority for his guardianship unless the period of renewal began before that day.

(6)In section 47(6) of that Act (right of appeal where authority for guardianship renewed), after the word “section” where it first occurs there shall be inserted “or section 48B of this Act”.

(7)For section 48 of that Act (duration of authority for guardianship: special provisions as to patients absent without leave) there shall be substituted the following sections—

48Special provisions as to patients absent without leave: guardianship

(1)Where a patient is absent without leave—

(a)on the day on which (apart from this section) he would cease to be subject to guardianship under this Part of this Act; or

(b)within the period of one week ending with that day,

he shall not cease to be so subject until the relevant time.

(2)For the purposes of subsection (1) above the relevant time—

(a)where the patient is taken into custody under section 44 of this Act, is the end of the period of one week beginning with the day on which he is returned to the place where he ought to be;

(b)where the patient returns to the place where he ought to be within the period during which he can be taken into custody under section 44 of this Act, is the end of the period of one week beginning with the day on which he so returns; and

(c)otherwise, is the end of the period during which he can be taken into custody under section 44 of this Act.

48APatients who are taken into custody or return within 28 days: guardianship

(1)This section applies where a patient who is absent without leave is taken into custody under section 44 of this Act, or returns to the place where he ought to be, not later than the end of the period of 28 days beginning with the first day of his absence without leave.

(2)Where the period for which the patient is subject to guardianship is extended by section 48 of this Act, any examination and report to be made and furnished in respect of the patient under section 47(3) of this Act may be made and furnished within the period as so extended.

(3)Where the authority for the guardianship of a patient is renewed by virtue of subsection (2) above after the day on which (apart from section 44 of this Act) that authority would have expired, the renewal shall take effect as from that day.

48BPatients who are taken into custody or return after more than 28 days: guardianship

(1)This section applies where a patient who is absent without leave is taken into custody under section 44 of this Act, or returns to the place where he ought to be, later than the end of the period of 28 days beginning with the first day of his absence without leave.

(2)Within the period of one week beginning with the day on which the patient returns, or is returned, to the place where he ought to be—

(a)the responsible medical officer shall examine the patient or obtain from another medical practitioner a report on the condition of the patient; and, if it appears to him that the ground set out in section 36(a) of this Act continues to apply in relation to the patient, he shall furnish to such mental health officer as the local authority concerned may direct a report to that effect in the prescribed form, along with the report first mentioned if such a report has been obtained; and

(b)the mental health officer shall consider whether the ground set out in section 36(a) of this Act continues to apply in relation to the patient; and, if it appears to him it does continue so to apply, he shall furnish to the local authority concerned and to the Mental Welfare Commission a report to that effect in the prescribed form along with the report or reports furnished to him under paragraph (a) of this subsection.

(3)Where a report under this section is furnished to them in respect of a patient, the local authority shall, unless they discharge the patient, cause him, his nearest relative and his guardian to be informed.

(4)Where the patient would (apart from any renewal of the authority for his guardianship on or after the day on which he is returned or returns to the place where he ought to be) be subject to guardianship after the end of the period of one week beginning with that day, he shall cease to be so subject at the end of that period unless a report is duly furnished in respect of him under subsection (2) above.

(5)Where the patient would (apart from section 48 of this Act) have ceased to be subject to guardianship on or before the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall renew the authority for his guardianship for the period prescribed in that case by section 47(2) of this Act.

(6)Where the authority for the guardianship of the patient is renewed by virtue of subsection (5) above—

(a)the renewal shall take effect as from the day on which (apart from section 48 of this Act and subsection (5) above) the authority would have expired; and

(b)if (apart from this paragraph) the renewed authority would expire on or before the day on which the report is furnished, the report shall further renew the authority, as from the day on which it would expire, for the period prescribed in that case by section 47(2) of this Act.

(7)Where the authority for the guardianship of the patient would expire within the period of two months beginning with the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall, if it so provides, have effect also as a report duly furnished under section 47(3) of this Act; and the reference in this subsection to authority includes any authority renewed under subsection (5) above by the report.

(8)In section 49 of that Act (special provisions as to patients sentenced to imprisonment etc: guardianship)—

(a)in subsection (2) (detained person in whose case guardianship application does not cease to have effect), for the words “and 48” there shall be substituted “, 48 and 48A”; and

(b)after that subsection there shall be inserted the following subsection—

(3)In its application by virtue of subsection (2) above section 44(2) of this Act shall have effect with the substitution of the words “end of the period of 28 days beginning with the first day of his absence without leave.” for the words from “later of” onwards.

(9)In section 60 of that Act (effect of hospital orders), after subsection (4) there shall be inserted the following subsection—

(5)Where—

(a)a patient admitted to a hospital in pursuance of a hospital order is absent without leave;

(b)a warrant to arrest him has been issued under section 13 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975; and

(c)he is held pursuant to the warrant in any country or territory other than the United Kingdom, any of the Channel Islands and the Isle of Man,

he shall be treated as having been taken into custody under section 28 of this Act on first being so held.

(10)In section 99 of that Act (review of treatment), in subsection (1) (report on treatment and patient’s condition to be given to Mental Welfare Commission), in paragraph (a) (report to be given when report furnished under section 30), for the words “in respect of the patient under section 30 of this Act” there shall be substituted “under section 30 or 31B of this Act renewing the authority for the detention of the patient”.

(11)In Schedule 2 to that Act (application of Part V to patients subject to hospital or guardianship orders)—

(a)in paragraph 1 of Part I (provisions applying without modifications to patients subject to hospital order without restriction or transfer order without restriction), after “31” there shall be inserted “to 31B”; and

(b)in paragraph 1 of Part III (provisions applying without modifications to patients subject to guardianship), after “48” there shall be inserted “to 48B”.

6Leave of absence from hospital

(1)Section 27 of the [1984 c. 36.] Mental Health (Scotland) Act 1984 (leave of absence from hospital) shall be amended in accordance with subsections (2) and (3) below.

(2)In subsection (2), after the word “may” in the second place where it occurs there shall be inserted “, subject to subsection (2A) below,”.

(3)After subsection (2) there shall be inserted the following subsections—

(2A)Subject to subsections (2B) and (2C) below, the total period of leave of absence for specified consecutive periods under this section shall not exceed 12 months.

(2B)If, on the date of expiry of leave of absence granted to a patient under this section, a community care application has been made in respect of him but has not been determined, the leave of absence shall continue until the community care order comes into force or, as the case may be, the application is refused by the sheriff.

(2C)If, on the date of expiry of leave of absence granted to a patient under this section, a community care order has been made in respect of him but has not come into force, the leave of absence shall continue until the order comes into force.

(4)In paragraph 4 of Part II of Schedule 2 to that Act (application of section 27 to hospital orders with restriction orders, etc.), at the end of sub-paragraph (b) there shall be inserted the following sub-paragraph—

(bb)subsections (2A) to (2C) shall be omitted;.

(5)Where, on the day when this section comes into force, a patient has been absent from a hospital for more than 6 months in pursuance of leave of absence granted under section 27 of that Act, the leave may, notwithstanding subsection (3) above, be extended for a single period of not more than 6 months.

Back to top

Options/Help

Print Options

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources