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

Treatment order: sections 52K – 52S

206.Section 52K provides that, where it appears to the prosecutor that a person, who has been charged but in relation to whom no disposal has been made, may have a mental disorder, an application may be made to the court for a treatment order in respect of that person. Section 52L provides the Scottish Ministers with similar power where the person charged is in custody but has not been sentenced. Section 52N provides that a court may also make a treatment order on its own initiative without an application being made 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 52M.

207.Section 52M sets out the matters as to which the court must be satisfied before it can make a treatment order and the measures that such an order authorises. Subsections (2), (3) and (4) provide that the court may make a treatment order only if it is satisfied on the evidence of two medical practitioners that the conditions set out in section 52D(7) are met and that there is a suitable hospital available for the admission of the person within 7 days of the order being made. 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. By virtue of section 61(1) of the 1995 Act (as amended by paragraph 8(10) of schedule 4 to the 2003 Act), one of the medical practitioners, on whose evidence the court makes the order, must be an approved medical practitioner.

208.A treatment order may be made only in respect of a person who has not been sentenced (see section 52M(5)).

209.Subsection (6) sets out the measures authorised by a treatment 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 in that hospital; and

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

210.Subsection (7) specifies when the court can make a treatment order in the absence of the person in respect of whom the order is being made.

211.Subsection (8) gives the court power to include directions in the treatment 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.

212.Subsection (9) provides for the notification of the making of the treatment order.

213.Section 52P(1) provides that if it is not practicable by reason of emergency or special circumstances to admit the person to the hospital specified in the order within 7 days, the court or the Scottish Ministers (for persons in custody and those persons who were subject to an assessment order immediately before the treatment order was made and who were in custody prior to that assessment order being made) may direct that the person be admitted to another hospital. Notice should be given as soon as reasonably practicable after the direction has been made to those persons listed in subsection (4).

214.Subsection (5) provides that, where a direction has been made, the hospital specified in it shall replace the hospital originally specified in the treatment order.

215.Section 52Q(1) places the responsible medical officer under a duty to submit a report in writing to the court if the officer is satisfied that any of the criteria set out in section 52D(7) are no longer met or there has been a change of circumstances since the order was made which makes detention of the person in hospital no longer appropriate.

216.Subsection (2) provides that if the court, on receiving the report of the responsible medical officer, is not satisfied that the person needs to be subject to the order, it must revoke the treatment order and commit the person to prison or other institution or otherwise deal with them as it considers appropriate. If the court is not satisfied that the person need not be subject to the treatment order it must confirm or vary the order or it can still decide to revoke the order.

217.Section 52R provides that, unless revoked earlier by the court, a treatment order remains in effect until-

  • 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 subsection 52B(4) ;

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

    • the deferral of sentence;

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

      • the imposition of any sentence.

218.The orders listed in subsection (3) are the same orders as are listed in section 52H(3).

219.Section 52S sets out the powers of the court where a treatment order ceases to have effect otherwise than under section 52Q(2) or 52R(2). The court can commit the person who was subject to the order to prison or another institution or deal with the person as it considers appropriate.

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