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

  • Explanatory Notes Table of contents

  1. Introduction

  2. The 2003 Act – an Overview

  3. Commentary on Sections

    1. Part 1 - Introductory

      1. Section 1: principles for discharging certain functions

      2. Section 2: welfare of the child

      3. Section 3: equal opportunities

    2. Part 2 – the Mental Welfare Commission for Scotland

      1. Sections 4 to 20: the Mental Welfare Commission for Scotland

        1. Continued existence of the Mental Welfare Commission for Scotland

        2. General duties

        3. Particular functions

        4. Duty to give advice

        5. Publishing information, guidance etc.

        6. Investigations: further provisions

        7. Visits in relation to patients

        8. Interviews

        9. Medical examination and inspection of records

        10. Duties of Scottish Ministers, local authorities and others with respect to the Commission

        11. Annual report; statistical information

        12. Protection from actions of defamation

    3. Part 3 – the Mental Health Tribunal for Scotland

      1. Section 21: the Mental Health Tribunal for Scotland

    4. Part 4 – Local Authority and Health Board Functions

      1. Chapter 1: Health Board duties

        1. Sections 22 to 24

          1. Approved medical practitioners

          2. Provision of services and accommodation: children and young people

          3. Provision of services and accommodation: mothers with post-natal depression

      2. Chapter 2: local authority functions

        1. Sections 25 to 35

          1. Provision of services

          2. Charging for services

          3. Relationship with general duties

          4. Co-operation and assistance

          5. Appointment of mental health officers

          6. Duty to inquire into individual cases

    5. Part 5 – Emergency Detention

      1. Section 36: emergency detention in hospital

        1. Issuing the emergency detention certificate

        2. Consent of mental health officer

        3. Criteria for emergency detention: tests applied by medical practitioner

        4. Measures authorised by certificate

        5. Contents of emergency detention certificate

      2. Sections 37 to 40: actions following emergency detention

        1. Duties of medical practitioner who issued the detention certificate

        2. Medical examination following admission

        3. Other duties following admission

        4. Medical treatment during emergency detention

      3. Sections 41 and 42: temporary suspension of emergency detention

      4. Section 43: effect of an emergency detention certificate on a compulsory treatment order

    6. Part 6 – Short-Term Detention

      1. Sections 44 to 56: short-term detention in hospital

        1. Procedure for initiating short-term detention

        2. Criteria for short-term detention

        3. Effect of granting of short-term detention certificate

        4. Hospital managers’ duties

        5. Extension of short-term detention

        6. Revocation of detention

        7. Revocation on application of patient

        8. Commission’s power to revoke detention certificates

        9. Temporary suspension of detention

        10. Revocation of temporary suspension

        11. Relationship between certificate and other measures under Act authorising detention

    7. Part 7 – Compulsory Treatment Orders

      1. Chapter 1: application for, and making of, orders

        1. Pre-application procedures

          1. Sections 57 and 58: medical examinations and mental health reports

          2. Sections 59 to 62: duties and powers of mental health officer on receiving reports

        2. Application for order

          1. Sections 63, 64 and 67 to 69: consideration by the Tribunal

        3. Outcome of application

          1. Section 65: interim compulsory treatment order

          2. Section 66: measures which may be authorised by a compulsory treatment order or an interim compulsory treatment order

          3. Sections 67, 70, 71, 75 and 76: actions following the making of a compulsory treatment order

      2. Chapter 2: interim compulsory treatment orders: review and revocation

        1. Sections 72 to 75: revocation of interim compulsory treatment orders

      3. Chapter 3: compulsory treatment orders: care plan

      4. Chapter 4: review of orders

        1. Section 77: first mandatory review of compulsory treatment order

        2. Section 78: further mandatory reviews

        3. First possible outcome: revocation

        4. Second possible outcome: determination that order be extended for 6 months in same form

          1. Section 83: further steps to be taken where order not revoked

          2. Sections 84 to 87: determination that order be extended in same form

          3. Sections 101 and 102: review of determination by Tribunal

        5. Third possible outcome: application to tribunal for extension and variation of order

          1. Sections 83, 88 to 92, 103(1) and 105 to 110: application to Tribunal for extension and variation of order

        6. Variation of order: application by responsible medical officer

          1. Sections 93, 95, 96, 97, 104 and 106 to 108: recorded matters – reference to Tribunal by responsible medical officer

        7. Reference to Tribunal by Commission

          1. Sections 98, 104 and 106 to 108: reference to Tribunal by Commission

        8. Applications by patients etc.

          1. Sections 99, 100, 103(2) to (4) and 106 to 108: applications by patients etc for revocation of determination extending order and for revocation or variation of order

        9. Ancillary powers of Tribunal

          1. Sections 109 to 111

        10. Interpretative provisions

      5. Chapter 5: breach of orders

        1. Sections 112 to 123: non-compliance with compulsory treatment order or interim compulsory treatment order

          1. Detention provisions

          2. Notification duties

          3. Revocation of detention certificates issued under sections 114(2) and 115(2)

          4. Interaction of Chapter and orders

      6. Chapter 6: transfers

        1. Sections 124 to 126: transfers between hospitals

      7. Chapter 7: suspension

        1. Sections 127 to 129: suspension of order

    8. Part 8 – Mentally Disordered Persons: Criminal Proceedings

      1. Chapter 1: pre-sentence orders

        Assessment orders and treatment orders

        1. Section 130: mentally disordered persons subject to criminal proceedings: assessment and treatment

        2. Remit of cases to sheriff court

        3. Assessment order: sections 52B to 52J

        4. Treatment order: sections 52K – 52S

        5. Prevention of delay in trials

        6. Effect on pre-existing mental health orders

        7. Interim compulsion orders

          1. Section 131: mentally disordered offenders: interim compulsion orders

        8. Remand for inquiry into mental condition

          1. Section 132: remand for inquiry into mental condition: time limit for appeals

    9. Part 8Chapter 2: disposals on conviction and acquittal

      1. Compulsion orders

        1. Section 133: mentally disordered offenders: compulsion orders

      2. Urgent detention of acquitted persons

        1. Section 134: power of court to detain acquitted persons

      3. Probation with a requirement for treatment

        1. Section 135: amendment of 1995 Act: probation for treatment of mental disorder

        2. Chapter 3: mentally disordered prisoners

          1. Section 136: transfer of prisoners for treatment for mental disorder

    10. Part 9 - Compulsion Orders

      1. Chapter 1: duties following making of order

        1. Section 137: Part 9 care plan

        2. Section 138: mental health officer’s duty to identify named person

      2. Chapter 2: review of compulsion orders

        1. Mandatory reviews by responsible medical officer

          1. Section 139: first review of compulsion order

          2. Section 140: further reviews of compulsion order

        2. Revocation of order by responsible medical officer or Commission

          1. Section 141: responsible medical officer’s duty to revoke compulsion order: mandatory reviews

          2. Section 142: revocation of compulsion order: responsible medical officer’s duty to keep under review

          3. Section 143: Commission’s power to revoke compulsion order

          4. Section 144: revocation of compulsion order: notification

        3. Further steps to be taken where order not revoked

          1. Section 145: mandatory reviews: further steps to be taken where compulsion order not revoked

        4. Extension of order following first review

          1. Section 146: first review: responsible medical officer’s duty where extension proposed

          2. Section 147: proposed extension on first review: mental health officer’s duties

          3. Section 148: first review: responsible medical officer’s duty to apply for extension of compulsion order

          4. Section 149: application to Tribunal for extension of order following first review

        5. Extension of order following further review

          1. Section 150: further review: responsible medical officer’s duty where extension proposed

          2. Section 151: proposed extension of order on further review: mental health officer’s duties

          3. Section 152: further review: responsible medical officer’s duty to extend compulsion order

          4. Section 153: determination extending compulsion order: notification

        6. Extension and variation of order

          1. Section 154: responsible medical officer’s duty where extension and variation proposed

          2. Section 155: mental health officer’s duties: extension and variation of compulsion order

          3. Section 156: responsible medical officer’s duty to apply for extension and variation of compulsion order

          4. Section 157: application for extension and variation of compulsion order: notification

          5. Section 158: application to Tribunal for extension and variation of compulsion order

        7. Variation of order

          1. Section 159: responsible medical officer’s duties: variation of compulsion order

          2. Section 160: application for variation of compulsion order: notification

          3. Section 161: application to Tribunal by responsible medical officer

        8. Reference to Tribunal by Commission

          1. Section 162: Commission’s power to make reference to Tribunal

        9. Applications to Tribunal by patient etc.

          1. Section 163: application to Tribunal by patient etc for revocation of determination extending compulsion order

          2. Section 164: application to Tribunal by patient etc for revocation or variation of compulsion order

        10. Review by Tribunal of determination extending order

          1. Section 165: Tribunal’s duty to review determination under section 152

        11. Powers of Tribunal

          1. Section 166: powers of Tribunal on review under section 165

          2. Section 167: powers of Tribunal on application under section 149, 158, 161, 163 or 164

          3. Section 168: interim extension etc of order: application under section 149

          4. Section 169: interim variation of order following application, reference or review under Chapter

          5. Section 170: limit on power of Tribunal to make interim order

          6. Section 171: powers of Tribunal on reference under section 162

          7. Section 172: Tribunal’s order varying compulsion order

          8. Section 173: applications to Tribunal: ancillary powers

          9. Section 174: effect of interim orders: calculation of time periods in Chapter

        12. Meaning of “modify”

          1. Section 175: meaning of “modify”

      3. Chapter 3: applications of Chapters 5 to 7 of Part 7

        1. Breach of order

          1. Section 176: medical treatment: failure to attend

          2. Section 177: non-compliance generally with compulsion order

        2. Transfers

          1. Section 178: transfers

        3. Suspension of measures

          1. Section 179: suspension of measures

    11. Part 10 - Compulsion Orders and Restriction Orders

      1. Chapter 1: preliminary

        1. Section 181: mental health officer’s duty to identify named person

      2. Chapter 2: review of orders

        1. Annual review of orders

          1. Section 182: review of compulsion order and restriction order

        2. Consequences of annual review

          1. Section 183: responsible medical officer’s report and recommendation following review of compulsion order and restriction order

        3. Responsible medical officer’s duty to keep orders under review

          1. Section 184: responsible medical officer’s duty to keep compulsion order and restriction order under review

        4. Reference to Tribunal by Scottish Ministers

          1. Section 185: duty of Scottish Ministers on receiving report and recommendation from responsible medical officer

          2. Section 186: Commission’s power to require Scottish Ministers to make reference to Tribunal

          3. Section 187: duty of Scottish Ministers to refer to Tribunal if required to do so by Commission

        5. Scottish Ministers’ duty to keep orders under review

          1. Section 188: duty of Scottish Ministers to keep compulsion order and restriction order under review

          2. Section 189: reference to Tribunal by Scottish Ministers

          3. Section 190: application by Scottish Ministers: notification

          4. Section 191: application to Tribunal

        6. Application by patient etc

          1. Section 192: application to Tribunal by patient and named person

        7. Proceedings before Tribunal

          1. Section 193: powers of Tribunal on reference under section 185(1), 187(2) or 189(2) or application under section 191 or 192(2)

          2. Section 194: Tribunal’s powers etc when varying compulsion order

          3. Section 195: deferral of conditional discharge

        8. Effect of modification or revocation of orders

          1. Section 196: general effect of orders under section 193

          2. Section 197: effect of revocation of compulsion order

          3. Section 198: effect of revocation of restriction order

        9. Meaning of “modify”

          1. Section 199: meaning of “modify”

      3. Chapter 3: conditional discharge

        1. Section 200: variation of conditions imposed on conditional discharge

        2. Section 201: appeal to Tribunal against variation of conditions imposed on conditional discharge

        3. Section 202: recall of patients from conditional discharge

        4. Section 203: effect of recall from conditional discharge

        5. Section 204: appeal to Tribunal against recall from conditional discharge

    12. Part 11 – Hospital Directions and Transfer for Treatment Directions

      1. Preliminary

        1. Section 205: mental health officer’s duty to identify named person

      2. Review of directions

        1. Section 206: review of hospital direction and transfer for treatment direction

      3. Consequences of review

        1. Section 207: responsible medical officer’s report following review of direction

      4. Responsible medical officer’s duty to keep directions under review

        1. Section 208: responsible medical officer’s duty to keep directions under review

      5. Reference to Tribunal by Scottish Ministers

        1. Section 209: Commission’s power to require Scottish Ministers to make reference to Tribunal

        2. Section 210: duty of Scottish Ministers on receiving report from responsible medical officer

        3. Section 211: notice under section 209(2): reference to Tribunal

      6. Scottish Ministers’ duty to keep directions under review

        1. Section 212: duty of Scottish Ministers to keep directions under review

        2. Section 213: reference to Tribunal by Scottish Ministers

      7. Application by patient etc

        1. Section 214: application to Tribunal by patient and named person

      8. Proceedings before Tribunal

        1. Section 215: powers of Tribunal on reference under section 210(3), 211(2) or 213(2) or on application under section 214(2)

      9. Effect of revocation of direction

        1. Section 216: effect of revocation of direction

      10. Termination of direction on release of patient

        1. Section 217: termination of hospital direction on release of patient

    13. Part 12 - Parts 10 and 11: Transfers

      1. Section 218: transfer of patients between hospitals

      2. Section 219: appeal to Tribunal against transfer under section 218 to hospital other than state hospital

      3. Section 220: appeal to Tribunal against transfer under section 218 to state hospital

    14. Part 13 - Parts 8, 10 and 11: Suspension

      1. Assessment orders

        1. Section 221: assessment order: suspension of measure authorising detention

        2. Section 222: certificate under section 221: revocation by responsible medical officer

        3. Section 223: certificate under section 221: revocation by Scottish Ministers

      2. Certain other orders and directions

        1. Section 224: patients subject to certain other orders and directions: suspension of measure authorising detention

        2. Section 225: certificate under section 224: revocation by responsible medical officer

        3. Section 226: certificate under section 224: revocation by Scottish Ministers

    15. Part 14 – Assessment of Needs

      1. Section 227: assessment of needs for community care services etc

      2. Section 228: request for assessment of needs: duty on local authorities and Health Boards

    16. Part 15 – Preliminary Duties on the Making of Orders

      1. Section 229: designation of mental health officer responsible for patient’s case

      2. Section 230: appointment of patient’s responsible medical officer

      3. Section 231: mental health officer’s duty to prepare social circumstances report

    17. Part 16 – Medical Treatment

      1. Designated medical practitioners

        1. Section 233: designated medical practitioners

        2. Sections 234 to 236: safeguards for certain surgical operations etc

      2. Patients capable of consenting

      3. Patients incapable of consenting

        1. Sections 237 to 241: safeguards for other medical treatment

          1. Electro-convulsive therapy etc

      4. Patients capable of consenting and not refusing consent

      5. Patients incapable of consenting

      6. Patients refusing consent or incapable of consenting

        1. Section 242: treatment not mentioned in section 234(2), 237(3) or 240(3)

      7. Urgent medical treatment where patient detained in hospital

        1. Section 243: urgent medical treatment

      8. Additional safeguards for certain informal patients

        1. Section 244: Scottish Ministers’ power to make provision in relation to treatment for certain informal patients

        2. Section 245 to 247: certificates

          1. Certificates under sections 235, 236, 239, and 241

      9. Certificates under section 238

      10. Scope of consent or certificate under sections 235, 236, 238, 239 and 241

        1. Section 248: sections 235, 236, 238, 239 and 241: review of treatment etc.

    18. Part 17 – Patient Representation

      1. Chapter 1: named persons

        1. Sections 250 to 257: named persons

          1. Nomination of named person

          2. Named person where no person nominated or nominated person declines to act

          3. Named person in relation to child

          4. Declaration in relation to named person

          5. Meaning of “nearest relative”

        2. Section 255: named person: mental health officer’s duties

        3. Section 256: named person: application by patient

        4. Section 257: named person: Tribunal’s powers

      2. Chapter 2: Advocacy

        1. Advocacy

          1. Section 259: advocacy

          2. Section 260: provision of information to the patient

          3. Section 261: provision of assistance to patient with communication difficulties

          4. Sections 262 to 263: access to medical practitioner and inspection of medical records

      3. Chapter 3: detention in conditions of excessive security

        1. Sections 264 to 267: detention in conditions of excessive security: state hospitals

        2. Sections 268 to 271: detention in conditions of excessive security: hospitals other than state hospitals

        3. Section 272: proceedings for specific performance of statutory duty

    19. Part 18 – Miscellaneous

      1. Section 274: Code of Practice

      2. Section 275 to 276: advance statements

        1. Advance statements: making and withdrawal

      3. Advance statements: effect

        1. Section 277: education of persons who have mental disorder

        2. Section 278: duty to mitigate adverse effects of compulsory measures on parental relations

        3. Section 279: information for research

        4. Section 280: restriction of Scottish Ministers’ powers to delegate management of state hospitals

        5. Sections 281 to 283: correspondence

          1. Correspondence of certain persons detained in hospital

      4. Correspondence: supplementary

      5. Review of decision to withhold postal packet

        1. Sections 284 and 285: telephone calls

          1. Certain patients detained in hospital: use of telephones

      6. Directions as to implementation of regulations under section 284(1)

        1. Section 286: safety and security in hospitals

      7. Information

        1. Section 287: information

      8. Payments for expenses

        1. Section 288: payments to persons in hospital to meet personal expenses

      9. Cross-border transfers

        1. Sections 289 and 290: cross-border transfer of patients

      10. Informal patients

        1. Section 291: application to Tribunal in relation to unlawful detention

    20. Part 19 – Entry, Removal and Detention Powers

      1. Section 292: entry to premises

      2. Sections 293 to 296: removal order

        1. Application for a removal order

        2. Recall or variation of a removal order

        3. Appeals against a removal order or an order recalling or varying a removal order

      3. Sections 297 and 298: removal to a place of safety from a public place

      4. Section 299: nurse’s power to detain pending medical examination

    21. Part 20 – Absconding

      1. Section 301: absconding etc. by patients subject to compulsory treatment order

      2. Section 302: absconding etc. by other patients

      3. Section 303: taking into custody and return of absconding patients

      4. Sections 304 to 308: effect of period of unauthorised absence on expiry of compulsory treatment order

      5. Sections 309: patients from other jurisdictions

      6. Section 310: regulations as to absconding by other patients

    22. Part 21 – Offences

      1. Section 311: non-consensual sexual acts

      2. Section 312: offences under section 311: extended sentences

      3. Section 313: persons providing care services: sexual offences

      4. Section 314: notification requirements for offenders under sections 311 and 313

      5. Section 315: ill treatment and wilful neglect of a mentally disordered person

      6. Section 316: inducing and assisting absconding etc

      7. Section 317: obstruction

      8. Section 318: false statements

      9. Section 319: time limit for summary proceedings for offences under sections 311 and 313

    23. Part 22 – Appeals

      1. Section 320: appeal to the sheriff principal against certain decisions of the Tribunal

      2. Section 321: appeal to the Court of Session against decisions of sheriff principal

      3. Section 322: appeal to Court of Session against certain decisions of the Tribunal

      4. Section 323: suspension of decision of Tribunal pending determination of certain appeals

      5. Section 324: appeals: general provisions

    24. Part 23: General

    25. SCHEDULE 1 (Introduced by Section 4): THE MENTAL WELFARE COMMISSION FOR SCOTLAND

      1. Part 1: membership, proceedings etc

      2. Part 2: transitional provisions

    26. Schedule 2 (Introduced by Section 21): the Mental Health Tribunal for Scotland

      1. Part 1: members of the Tribunal

      2. Part 2: organisation and administration of the functions of the Tribunal

      3. Part 3: Tribunal procedure

      4. Part 4: reports, information etc.

    27. Schedule 3 (Introduced by Section 71) – Application of Chapter 1 of Part 7 to Certain Patients

    28. SCHEDULE 4 (Introduced by section 331(1)) – MINOR AND CONSEQUENTIAL AMENDMENTS

      1. The Social Work (Scotland) Act 1968 (c.49)

      2. The Local Government (Scotland) Act 1973 (c.65)

      3. The National Health Service (Scotland) Act 1978 (c.29)

      4. The Disabled Persons (Services, Consultation and Representation) Act 1986 (c.33)

      5. The Tribunals and Inquiries Act 1992 (c.53)

      6. The Prisoners and Criminal Proceedings (Scotland) Act 1993 (c.9)

      7. The Children (Scotland) Act 1995 (c.36)

      8. The Criminal Procedure (Scotland) Act 1995 (c.46)

      9. The Adults with Incapacity (Scotland) Act 2000 (asp 4)

      10. The Regulation of Care (Scotland) Act 2001 (asp 8)

      11. The Housing (Scotland) Act 2001 (asp 10)

      12. The Community Care and Health (Scotland) Act 2002 (asp 5)

      13. The Scottish Public Services Ombudsman Act 2002 (asp 11)

    29. SCHEDULE 5 (Introduced by section 331(2) and (3)) – REPEALS

    30. SCHEDULE 6 (Introduced by section 332(1)) – TRANSITORY AMENDMENTS OF THE MENTAL HEALTH (SCOTLAND) ACT 1984

  4. Parliamentary History of Mental Health (Care and Treatment) (Scotland) Act 2003

  • Explanatory Notes Table of contents

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