Search Legislation

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

 Help about what version

What Version

 Help about advanced features

Advanced Features

Changes over time for: Cross Heading: State hospitals

 Help about opening options

Changes to legislation:

Mental Health (Care and Treatment) (Scotland) Act 2003, Cross Heading: State hospitals is up to date with all changes known to be in force on or before 14 June 2021. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.

View outstanding changes

Changes and effects yet to be applied to the whole Act associated Parts and Chapters:

Whole provisions yet to be inserted into this Act (including any effects on those provisions):

State hospitalsS

264Detention in conditions of excessive security: state hospitalsS

(1)This section applies where a patient’s detention in a state hospital is authorised by—

(a)a compulsory treatment order;

(b)a compulsion order;

(c)a hospital direction; or

(d)a transfer for treatment direction;

and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.

(2)On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order—

(a)declaring that the patient is being detained in conditions of excessive security; and

(b)specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed.

(3)Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital—

(a)which is not a state hospital;

(b)which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and

(c)in which accommodation is available for the patient.

(4)Where the Tribunal makes an order under subsection (2) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital—

(a)which is not a state hospital;

(b)which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in appropriate conditions; and

(c)in which accommodation is available for the patient.

(5)Where the Tribunal makes an order under subsection (2) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (3) or, as the case may be, (4) above, give notice to the managers of the state hospital of the name of the hospital so identified.

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

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient; and

(e)the Commission.

(7)An application may not be made under subsection (2) above—

(a)if the compulsory treatment order that authorises the patient’s detention in hospital has not been extended;

(b)during the period of 6 months beginning with the making of the compulsion order that authorises the patient’s detention in hospital; or

(c)before the expiry of the period of 6 months beginning with the making of—

(i)the hospital direction; or

(ii)the transfer for treatment direction,

that authorises the patient’s detention in hospital.

[F1(7A)An application may not be made under subsection (2) above unless it is accompanied by a report prepared by [F2an approved medical] practitioner which—

(a)states that in the practitioner's opinion the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, and

(b)sets out the practitioner's reasons for being of that opinion.]

(8)No more than one application may be made under subsection (2) above in respect of the same patient—

(a)during the period of 12 months beginning with the day on which the order, or direction, authorising the patient’s detention in hospital is made;

(b)during any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period mentioned in paragraph (a) above.

(9)Before determining an application under subsection (2) above, the Tribunal shall—

(a)afford the persons mentioned in subsection (10) below the opportunity—

(i)of making representations (whether orally or in writing); and

(ii)of leading, or producing, evidence; and

(b)whether or not any such representations are made, hold a hearing.

(10)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)the relevant Health Board;

(d)the patient’s responsible medical officer;

(e)the managers of the state hospital in which the patient is detained;

(f)the mental health officer;

(g)any guardian of the patient;

(h)any welfare attorney of the patient;

(i)any curator ad litem appointed by the Tribunal in respect of the patient;

(j)the Commission;

(k)in the case of a relevant patient, the Scottish Ministers; and

(l)any other person appearing to the Tribunal to have an interest in the application.

Textual Amendments

Commencement Information

I1Part 17 Chapter 3 (ss. 264 - 273) in force 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

I2S. 264 in force at 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

265Order under section 264: further provisionS

(1)This section applies where—

(a)an order is made under section 264(2) of this Act in respect of a patient; and

(b)the order is not recalled under section 267 of this Act;

and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.

(2)If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the patient has been transferred to another hospital, there shall be a hearing before the Tribunal.

(3)Where such a hearing is held, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order—

(a)declaring that the patient is being detained in conditions of excessive security; and

(b)specifying—

(i)a period of 28 days; or

(ii)such longer period not exceeding 3 months as the Tribunal thinks fit,

beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed.

(4)Where the Tribunal makes an order under subsection (3) above in respect of a relevant patient, the relevant Health Board shall identify a hospital—

(a)which is not a state hospital;

(b)which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and

(c)in which accommodation is available for the patient.

(5)Where the Tribunal makes an order under subsection (3) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital—

(a)which is not a state hospital;

(b)which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in appropriate conditions; and

(c)in which accommodation is available for the patient.

(6)Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4) or, as the case may be, (5) above, give notice to the managers of the state hospital of the name of the hospital so identified.

(7)Before making an order under subsection (3) above, the Tribunal shall afford the persons mentioned in section 264(10) of this Act the opportunity—

(a)of making representations (whether orally or in writing); and

(b)of leading, or producing, evidence.

Commencement Information

I3Part 17 Chapter 3 (ss. 264 - 273) in force 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

I4S. 265 in force at 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

F3266Order under section 265: further provisionS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

267[F4Order under section 264 or 265: recall]S

(1)This section applies where an order is made under section 264(2) [F5or 265(3)] of this Act in respect of a patient.

(2)On the application of any of the persons mentioned in subsection (4) below, the Tribunal—

(a)shall, if satisfied that the patient requires to be detained under conditions of special security that can be provided only in a state hospital, recall the order;

(b)may, on any other grounds, recall the order.

(3)Where the order is recalled, the relevant Health Board ceases to be subject to the duties under section 264(3) to (5) [F6or 265(4) to (6)] to which it became subject by virtue of the making of the order.

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

(a)the relevant Health Board;

(b)in the case of a relevant patient, the Scottish Ministers;

(c)in the case of a patient who is not a relevant patient, the patient’s responsible medical officer.

(5)Before determining an application under subsection (2) above, the Tribunal shall—

(a)afford the persons mentioned in section 264(10) of this Act the opportunity—

(i)of making representations (whether orally or in writing); and

(ii)of leading, or producing, evidence; and

(b)whether or not any such representations are made, hold a hearing.

Textual Amendments

F4S. 267 title substituted (16.11.2015) by virtue of Mental Health (Scotland) Act 2015 (asp 9), ss. 15(4), 61(2); S.S.I. 2015/361, art. 2 (with arts. 4-6)

F5Words in s. 267(1) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 15(3)(a), 61(2); S.S.I. 2015/361, art. 2 (with arts. 4-6)

F6Words in s. 267(3) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 15(3)(b), 61(2); S.S.I. 2015/361, art. 2 (with arts. 4-6)

Commencement Information

I5Part 17 Chapter 3 (ss. 264 - 273) in force 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

I6S. 267 in force at 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open The Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act without Schedules as a PDF

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open the Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

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

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Opening Options

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

Close

Explanatory Notes

Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.

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

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

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