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

Assessment order: sections 52B to 52J

188.These provisions create a new type of disposal – the assessment order.

189.Section 52B provides that, where a person has been charged with an offence, disposal has not yet been made in the proceedings in respect of the offence and the person appears to the prosecutor to be suffering from a mental disorder, the prosecutor may apply to the court for an assessment order. Section 52C provides the Scottish Ministers with similar power where the person is in custody but has not yet been sentenced. Section 52E provides that a court may also make an assessment order on its own initiative if it appears to the court that the person may have a mental disorder and the court is satisfied as to the matters set out in section 52D.

190.Section 52D sets out the matters as to which the court must be satisfied before it can make an assessment order. The court may make an assessment order only if it is satisfied on the evidence of a medical practitioner that:

  • there are reasonable grounds for believing that the person has a mental disorder, that detention in hospital is necessary to assess whether the conditions in subsection (7) are met and that there would be a significant risk to the health, safety or welfare of the person or to the safety of any other person if the order were not made;

  • the hospital proposed by the medical practitioner is suitable for assessing whether the conditions in subsection (7) are satisfied and could admit the person within 7 days of the making of the order; and

  • it would not be reasonably practicable to carry out the assessment unless the assessment order was made.

191.The court must also be satisfied that the order is appropriate in all the circumstances and have regard to any alternative means of dealing with the person.

192.An assessment order may be made only in respect of a person who has not been sentenced (section 52D(5)).

193.If the court makes an assessment order, it may specify in it matters which it requires the responsible medical officer to include in the report to be submitted under section 52G(1) (see section 52D(2)).

194.Subsection (6) sets out the measures authorised by an assessment order, these being:

  • the removal, if necessary, of the person to the hospital specified in the order within 7 days of the making of the order by one of the persons mentioned in subsection (6)(a);

  • the detention of the person for the period of 28 days in that hospital; and

  • the giving of medical treatment to the person in accordance with Part 16 of the 2003 Act.

195.The purpose of granting an assessment order is to assess whether the conditions at subsection (7) are met. Those conditions are:

  • that the person has a mental disorder;

  • that medical treatment which is likely to prevent the disorder worsening or to alleviate the symptoms or effects of it is available; and

  • that, if the person were not provided with that treatment, there would be a significant risk to the health, safety or welfare of the person or to the safety of any other person.

196.Subsection (8) provides circumstances where the court can make an assessment order in the absence of the person in respect of whom the order is being made.

197.Subsection (9) gives the court power to include directions in the assessment order for the removal of the person to, and detention in, a place of safety pending the person’s admission to the hospital specified in the order. “Place of safety” is defined in section 307(1) of the 1995 Act.

198.Subsection (10) provides for the notification of the making of an assessment order.

199.Section 52F(1) provides that if it is not practicable by reason of emergency or other special circumstances to admit the person to the hospital specified in the order within 7 days, the court or the Scottish Ministers (where the person was in custody immediately prior to the making of the order) may direct that the person be admitted to another hospital. Subsections (2) and (3) deal with notification where a direction has been made. Subsection (4) provides that, where a direction has been made, the hospital specified in it shall replace the hospital originally specified in the assessment order.

200.Subsections (1) and (3) of section 52G provide that the responsible medical officer must provide a written report to the court within 28 days of the assessment order being made on the results of the assessment undertaken. Specifically, the responsible medical officer must report on whether the conditions mentioned in section 52D(7) are met and on any other matters specified by the court under section 52D(2). Subsection (2) provides for the sending of copies of the report to the persons with an interest listed in that subsection.

201.Subsection (4) allows the court - once only - to extend the assessment order by up to 7 days if it is satisfied that more time is required to complete the assessment. Subsection (5) provides for the circumstances in which the court can extend an assessment order in the absence of the person who is subject to it. Where the court has extended an assessment order it must notify the persons listed at subsection (6) as soon as reasonably practicable after doing so.

202.Subsection (7) provides that the court can make a treatment order after reviewing an assessment order only if it would do so under section 52M, and the relevant provisions of section 52M apply to the making of a treatment order under section 52G as they apply to the making of an order under that section. A treatment order made under section 52G(3)(a) is to be treated in the same way as an order made under section 52M (see section 52G(8)).

203.Subsection (9) places a duty on the responsible medical officer to submit a written report to the court where there has been a change of circumstances which requires a variation of the order since the order was made. The court may then (under subsection (10)) confirm, vary or revoke the order. A variation may allow the transfer of the person to another hospital. If the court revokes the order, it may take any action mentioned in subsection (3)(b) including committing the person to prison or some other institution. It shall revoke the assessment order if satisfied that the person need not be subject to it.

204.Section 52H sets out the circumstances when an assessment order ceases to have effect due to reasons other than those set out in section 52G. The circumstances are-

  • where a treatment order is made;

  • where the person has been charged but no disposal as to the offence had been made when the order was made, the making of a relevant disposal as defined in section 52B(4);

  • where the person has been convicted but not yet sentenced:

    • the deferral of sentence;

    • the making of an order listed in section 52H(3); or

      • the imposition of any sentence.

205.Section 52J sets out the powers of the court where an assessment order expires because its limited duration has ended. The court can commit a person who was subject to an assessment order to prison or other institution to which they would have been committed had the order not been made or deal with them otherwise, as it considers appropriate.

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