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

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Part 6 SShort-term detention

Short-term detention certificateS

44Short-term detention in hospitalS

(1)Where—

(a)an approved medical practitioner carries out a medical examination of a patient;

(b)the patient does not fall within subsection (2) below; and

(c)subsection (3) below applies,

the approved medical practitioner may, before the expiry of the period of 3 days beginning with the completion of the medical examination, grant a short-term detention certificate authorising, if the condition mentioned in subsection (6) below is satisfied, the measures mentioned in subsection (5) below.

(2)The patient falls within this subsection if, immediately before the medical examination mentioned in subsection (1)(a) above is carried out, the patient is [F1subject to]

(a)a short-term detention certificate;

(b)an extension certificate;

(c)section 68 of this Act; or

[F2(ca)section 113(5) of this Act;]

(d)a certificate granted under section 114(2) or 115(2) of this Act.

(3)This subsection applies where—

F3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the approved medical practitioner considers that it is likely that the conditions mentioned in subsection (4) below are met in respect of the patient;

(c)the approved medical practitioner consults a mental health officer; and

(d)the mental health officer consents to the grant of a short-term detention certificate.

(4)The conditions referred to subsection (3)(b) above are—

(a)that the patient has a mental disorder;

(b)that, because of the mental disorder, the patient’s ability to make decisions about the provision of medical treatment is significantly impaired;

(c)that it is necessary to detain the patient in hospital for the purpose of—

(i)determining what medical treatment should be given to the patient; or

(ii)giving medical treatment to the patient;

(d)that if the patient were not detained in hospital there would be a significant risk—

(i)to the health, safety or welfare of the patient; or

(ii)to the safety of any other person; and

(e)that the granting of a short-term detention certificate is necessary.

(5)The measures referred to in subsection (1) above are—

(a)the removal, before the expiry of the period of 3 days beginning with the granting of the short-term detention certificate, of the patient to a hospital or to a different hospital;

(b)the detention of the patient in hospital for the period of 28 days beginning with—

(i)if, immediately before the certificate is granted, the patient is not in hospital, the beginning of the day on which admission under authority of the certificate of the patient to hospital first takes place;

(ii)if, immediately before the certificate is granted, the patient is in hospital, the beginning of the day on which the certificate is granted;

(c)the giving to the patient, in accordance with Part 16 of this Act, of medical treatment.

(6)The condition referred to in subsection (1) above is that the measure mentioned in subsection (5)(b)(i) above is authorised by the certificate only if, before the patient is admitted to hospital under authority of the certificate, the certificate is given to the managers of that hospital.

(7)If an approved medical practitioner grants a short-term detention certificate in respect of a patient who, immediately before the certificate is granted, is in hospital, the approved medical practitioner shall, as soon as practicable after granting the certificate, give the certificate to the managers of that hospital.

F4(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)The short-term detention certificate—

(a)shall state the approved medical practitioner’s reasons for believing the conditions mentioned in subsection (4) above to be met in respect of the patient; and

(b)shall be signed by the approved medical practitioner.

(10)Before granting the short-term detention certificate, the approved medical practitioner shall, subject to subsection (11) below, consult the patient’s named person about the proposed grant of the certificate; and the approved medical practitioner shall have regard to any views expressed by the named person.

(11)The approved medical practitioner need not consult a named person as mentioned in subsection (10) above in any case where it is impracticable to do so.

[F5(12)In this section and sections 46 to 49 of this Act, a reference to a hospital may be read as a reference to a hospital unit.

(13)For the purposes of subsection (12) above, “hospital unit” means any part of a hospital which is treated as a separate unit.]

Textual Amendments

Commencement Information

I1S. 44 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I2S. 44 in force at 5.10.2005 in so far as not already in force 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)

45Mental health officer’s duty to interview patient etc.S

(1)Subject to subsection (2) below, before deciding whether to consent for the purposes of section 44(3)(d) of this Act, a mental health officer shall—

(a)interview the patient;

(b)ascertain the name and address of the patient’s named person;

(c)inform the patient of the availability of independent advocacy services under section 259 of this Act; and

(d)take appropriate steps to ensure that the patient has the opportunity of making use of those services.

(2)If it is impracticable for the mental health officer to—

(a)interview the patient; or

(b)ascertain the name and address of the patient’s named person,

the mental health officer shall comply with the requirements in subsection (3) below.

(3)Those requirements are—

(a)recording the steps taken by the mental health officer with a view to complying with the duty concerned; and

(b)before the expiry of the period of 7 days beginning with the day on which the mental health officer is consulted by an approved medical practitioner under section 44(3)(c) of this Act, giving a copy of the record to the approved medical practitioner.

Commencement Information

I3S. 45 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)

Duties on hospital managersS

46Hospital managers' duties: notificationS

(1)This section applies where a patient is [F6subject to] a short-term detention certificate.

(2)The managers of the hospital shall as soon as practicable after the production to them of the short-term detention certificate, give notice of its granting to—

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient; and

(d)any welfare attorney of the patient.

(3)The managers of the hospital shall, before the expiry of the period of 7 days beginning with the day on which the certificate is granted, give notice of its granting F7... to—

(a)the Tribunal; and

(b)the Commission.

[F8(4)When giving notice under subsection (2) or (3) above, the managers of the hospital are to send a copy of the certificate to each recipient of the notice.]

Textual Amendments

Commencement Information

I4S. 46 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)

Extension certificateS

47Extension of detention pending application for compulsory treatment orderS

(1)Where—

(a)a patient is [F9subject to] a short-term detention certificate;

(b)an approved medical practitioner carries out a medical examination of the patient; and

(c)subsections (2) and (3) below apply,

the approved medical practitioner may, before the expiry of the period of 24 hours beginning with the completion of that medical examination, grant a certificate (any such certificate being referred to in this Act as an “extension certificate”) authorising the measures mentioned in subsection (4) below.

(2)This subsection applies where—

F10(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the approved medical practitioner considers—

(i)that the conditions mentioned in paragraphs (a) to (d) of section 44(4) of this Act are met in respect of the patient; and

(ii)that because of a change in the mental health of the patient, an application should be made under section 63 of this Act for a compulsory treatment order.

(3)This subsection applies where—

(a)no application has been made under section 63 of this Act;

(b)it would not be reasonably practicable to make an application under that section before the expiry of the period of detention authorised by the short-term detention certificate; and

(c)subject to subsection (6) below—

(i)the approved medical practitioner consults a mental health officer about the proposed grant of an extension certificate; and

(ii)the mental health officer consents to the granting of the extension certificate.

(4)The measures referred to in subsection (1) above are—

(a)the detention in hospital of the patient for the period of 3 days beginning with the expiry of the period for which the short-term detention certificate authorises the detention of the patient in hospital; and

(b)the giving to the patient, in accordance with Part 16 of this Act, of medical treatment.

F11(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)An approved medical practitioner need not consult or seek consent under subsection (3)(c) above in any case where it is impracticable to do so.

(7)In reckoning the period of days mentioned in subsection (4)(a) above, there shall be left out of account any day which is not a working day.

(8)In this section “working day” means a day which is not—

(a)Saturday;

(b)Sunday; or

(c)a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in Scotland.

Textual Amendments

Commencement Information

I5S. 47 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I6S. 47 in force at 5.10.2005 in so far as not already in force 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)

48Extension certificate: notificationS

(1)An approved medical practitioner who grants an extension certificate shall, before the expiry of the period of 24 hours beginning with the granting of the certificate, give the certificate to the managers of the hospital in which the patient is detained and give notice to the persons mentioned in subsection (2) below—

(a)of the granting of the extension certificate;

(b)of the approved medical practitioner’s reasons for believing the conditions mentioned in paragraphs (a) to (d) of section 44(4) of this Act to be met in respect of the patient;

(c)as to whether consent of a mental health officer was obtained to the granting of the certificate; and

(d)if the certificate was granted without consent to its granting having been obtained from a mental health officer, the reason why it was impracticable to consult a mental health officer.

(2)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)the Tribunal;

(d)the Commission;

(e)any guardian of the patient;

(f)any welfare attorney of the patient; and

(g)the mental health officer.

Commencement Information

I7S. 48 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)

Revocation of certificatesS

49Responsible medical officer’s duty to review continuing need for detentionS

(1)Where a patient is [F12subject to] a short-term detention certificate or an extension certificate, the patient’s responsible medical officer shall, from time to time, consider—

(a)whether the conditions mentioned in paragraphs (a), (b) and (d) of section 44(4) of this Act continue to be met in respect of the patient; and

(b)whether it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate.

(2)If, having complied with subsection (1) above, the responsible medical officer is not satisfied—

(a)that the conditions referred to in paragraph (a) of that subsection continue to be met in respect of the patient; or

(b)that it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate,

the responsible medical officer shall revoke the certificate.

(3)The responsible medical officer shall, as soon as practicable after revoking a certificate under subsection (2) above, give notice of its revocation to—

(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 mental health officer who was consulted under section 44(3)(c) of this Act.

(4)The responsible medical officer shall, before the expiry of the period of 7 days beginning with the day on which the certificate is revoked, give notice of its revocation to—

(a)the Tribunal; and

(b)the Commission.

Textual Amendments

Commencement Information

I8S. 49 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)

50Patient’s right to apply for revocation of short-term detention certificate or extension certificate etc.S

(1)Where a patient is [F13subject to] a short-term detention certificate or an extension certificate—

(a)the patient; or

(b)the patient’s named person,

may apply to the Tribunal for revocation of the certificate.

(2)Before determining an application under subsection (1) above, the Tribunal shall afford the persons mentioned in subsection (3) below the opportunity—

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

(b)of leading, or producing, evidence.

(3)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

(e)the approved medical practitioner who granted the short-term detention certificate;

(f)the mental health officer who was consulted under section 44(3)(c) of this Act;

(g)if the patient has a responsible medical officer, that responsible medical officer;

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

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

(4)On an application under subsection (1) above, the Tribunal shall, if not satisfied—

(a)that the conditions mentioned in paragraphs (a), (b) and (d) of section 44(4) of this Act continue to be met in respect of the patient; or

(b)that it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate,

revoke the certificate.

(5)Where, before a short-term detention certificate is revoked under subsection (4) above an extension certificate has been granted in respect of the patient, the revocation of the short-term detention certificate shall have the effect of revoking the extension certificate, notwithstanding that there has been no application under subsection (1) above in relation to the extension certificate.

Textual Amendments

Commencement Information

I9S. 50 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)

51Commission’s power to revoke short-term detention certificate or extension certificateS

Where—

(a)[F14a patient is subject to] a short-term detention certificate or an extension certificate; and

(b)the Commission is satisfied—

(i)that not all of the conditions mentioned in paragraphs (a), (b) and (d) of section 44(4) of this Act continue to be met in respect of the patient; or

(ii)that it does not continue to be necessary for the detention in hospital of the patient to be authorised by the certificate,

the Commission may revoke the certificate.

Textual Amendments

Commencement Information

I10S. 51 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)

52Revocation of short-term detention certificate or extension certificate: notificationS

Where the Commission revokes a certificate under section 51 of this Act, it shall, as soon as practicable after doing so, give notice of the revocation to—

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

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

(f)the mental health officer who was consulted under section 44(3)(c) of this Act; and

(g)the Tribunal.

Commencement Information

I11S. 52 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)

Suspension of detentionS

53Suspension of measure authorising detentionS

(1)Where—

(a)a patient is subject to a short-term detention certificate; and

(b)the patient’s responsible medical officer grants a certificate specifying a period during which the short-term detention certificate shall not authorise the measures mentioned in section 44(5)(b) of this Act,

the short-term detention certificate does not authorise that measure during that period.

(2)A period specified in a certificate granted under subsection (1) above may be expressed as—

(a)the duration of—

(i)an event; or

(ii)a series of events; or

(b)the duration of—

(i)an event; or

(ii)a series of events,

and any associated travel.

(3)If the responsible medical officer considers that it is necessary—

(a)in the interests of the patient; or

(b)for the protection of any other person,

a certificate granted under subsection (1) above may include conditions such as are mentioned in subsection (4) below; and any such conditions shall have effect.

(4)Those conditions are—

(a)that, during the period specified in the certificate, the patient be kept in the charge of a person authorised in writing for the purpose by the responsible medical officer;

(b)such other conditions as may be specified by the responsible medical officer.

Commencement Information

I12S. 53 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)

54Certificate under section 53: revocationS

(1)Subsection (2) below applies where a certificate is granted under section 53(1) of this Act in respect of a patient.

(2)If the patient’s responsible medical officer is satisfied that it is necessary—

(a)in the interests of the patient; or

(b)for the protection of any other person,

that the certificate be revoked, the responsible medical officer may revoke the certificate.

(3)Where a responsible medical officer revokes a certificate under subsection (2) above, the responsible medical officer shall, as soon as practicable after doing so, give notice of the revocation to—

(a)the patient;

(b)the patient’s named person;

(c)the mental health officer;

(d)if the certificate includes a condition such as is mentioned in section 53(4)(a) of this Act, any person authorised in accordance with that condition; and

(e)the Commission.

Commencement Information

I13S. 54 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)

Effect of short-term detention certificate on emergency detention certificateS

55Effect of subsequent short-term detention certificate on emergency detention certificateS

If a short-term detention certificate is granted in respect of a patient who is [F15subject to] an emergency detention certificate, the emergency detention certificate shall, on the granting of the short-term detention certificate, be revoked.

Textual Amendments

Commencement Information

I14S. 55 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)

[F16Effect of short-term detention certificate etc. on certain orders]S

56[F17Effect of short-term detention certificate etc. on certain orders]S

(1)Subsection (2) below applies where—

(a)a patient is subject to a [F18relevant order]; and

(b)a short-term detention certificate is granted in respect of the patient.

[F19(2)A relevant order shall cease to authorise the measures specified in it for the period during which the patient is subject to—

(a)the short-term detention certificate, or

(b)an extension certificate.]

[F20(3)In this section, the references to a relevant order are to—

(a)a compulsion order, or

(b)a compulsory treatment order or an interim compulsory treatment order.]

Textual Amendments

F17S. 56 title substituted (30.6.2017) by virtue of Mental Health (Scotland) Act 2015 (asp 9), ss. 8(3)(a), 61(2); S.S.I. 2017/197, art. 2, sch.

F18Words in s. 56(1)(a) substituted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 8(2)(a), 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 8)

Commencement Information

I15S. 56 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)

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