Part 21

Offences

Non-consensual sexual acts
311. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Offences under section 311: extended sentences
312. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Persons providing care services: sexual offences
313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Notification requirements for offenders under sections 311 and 313
314. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Ill-treatment and wilful neglect of mentally disordered person
315
1
This section applies to a person (a “relevant person”) who—
a
is an individual employed in, or contracted to provide services in or to, a hospital;
b
not being the Scottish Ministers, is a manager of a hospital;
c
provides care services; or
d
is an individual who, otherwise than—
i
by virtue of a contract of employment or other contract with any person; or
ii
as a volunteer for a voluntary organisation,
provides care or treatment.
2
A relevant person who—
a
whether under this Act or otherwise—
i
is providing care or treatment; or
ii
purports to provide care or treatment,
to a patient; and
b
ill-treats, or wilfully neglects, that patient,
shall be guilty of an offence.
3
A person guilty of an offence under subsection (2) above shall be liable—
a
on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both;
b
on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine or to both.
4
In subsection (1)(c) above, the reference to the provision of care services shall be construed in accordance with section 313(5) of this Act.

Inducing and assisting absconding etc.
316
1
A person who knowingly—
a
induces or assists a patient to do or fail to do anything which results in the patient’s being liable under section 301 or 302 of this Act to be taken into custody and dealt with under section 303 of this Act; or
b
harbours a patient who has, with that result, done or failed to do anything ; or
c
“induces or assists a patient to abscond or to attempt to abscond or harbours a patient who absconds while that patient is being removed or transferred under regulations made under section
289 or
290 of this Act.
shall be guilty of an offence.
2
Where a person is charged with an offence under subsection (1)(b) above, it shall be a defence for such person to prove that the doing of that with which the person is charged—
a
did not obstruct the discharge by any person of a function conferred or imposed on that person by virtue of this Act; and
b
was intended to protect the interests of the patient.
3
A person guilty of an offence under this section shall be liable—
a
on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;
b
on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or both.
4
The reference in subsection (1) above to sections 301 to 303 of this Act includes a reference to those sections as applied or as applied and modified under section 309 of this Act and to any regulations made under section 310 of this Act which make provision corresponding to sections 301 to 303 of this Act.

Obstruction
317
1
A person who—
a
refuses to allow a person authorised by virtue of this Act access to any premises;
b
refuses to allow access to a mentally disordered person by a person authorised by virtue of this Act to have such access;
c
refuses to allow the interview or examination of a mentally disordered person by a person authorised by virtue of this Act to interview or examine such person;
d
persists in being present when requested to withdraw by a person authorised by virtue of this Act to interview or examine, in private, a mentally disordered person;
e
refuses to produce any document or record to a person authorised by virtue of this Act to require the production of such document or record; or
f
otherwise obstructs a person in the exercise of any functions conferred on such person by virtue of this Act,
shall be guilty of an offence.
2
A mentally disordered person shall not be guilty of an offence under subsection (1) above if the person mentioned in that subsection—
a
who is authorised by virtue of this Act, is so authorised; or
b
who is exercising functions conferred on that person by virtue of this Act, is exercising those functions,
in relation to that mentally disordered person.
3
In any proceedings against a person for an offence under subsection (1) above it shall be a defence for the accused to show that the accused had a reasonable excuse for doing that with which the accused is charged.
4
A person guilty of an offence under subsection (1) above shall be liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 3 on the standard scale or to both.

False statements
318
1
A person who—
a
knowingly makes, in a relevant document, an entry or statement which is false in a material particular; or
b
with intent to deceive, makes use of any such entry or statement knowing it to be false,
shall be guilty of an offence.
2
For the purposes of subsection (1) above, a “relevant document”—
a
is—
i
an application under this Act;
ii
a document accompanying any such application; or
iii
any other document required or authorised to be granted, prepared, sent or given for any of the purposes of this Act; but
b
does not include—
i
a nomination of a named person in accordance with section 250(2) of this Act;
ii
a declaration made in accordance with section 253(2) of this Act; and
iii
an advance statement.
3
A person guilty of an offence under this section shall be liable—
a
on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both;
b
on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

Time limit for summary proceedings for offences under sections 311 and 313
319. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
S. 314 repealed (27.9.2005 (before coming into force)) by Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), art. 1, sch. 2
S. 316(1)(c) and word inserted (27.9.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 (S.S.I. 2005/465), art. 1, sch. 1 para. 32(22)
S. 315 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)
S. 316 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)
S. 317 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)
S. 318 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)
Words in s. 316(1)(c) inserted (30.6.2007) by Adult Support and Protection (Scotland) Act 2007 (asp 10), ss. 71(3), 79(3); S.S.I. 2007/334, art. 2(a), sch. 1
Ss. 311-313 repealed (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), s. 62(2), sch. 6; S.S.I. 2010/357, art. 2(a)
S. 319 repealed (1.12.2010) by Sexual Offences (Scotland) Act 2009 (asp 9), s. 62(2), sch. 6; S.S.I. 2010/357, art. 2(a)