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

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Mental Health (Care and Treatment) (Scotland) Act 2003, Cross Heading: Powers of Tribunal 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

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Powers of TribunalS

166Powers of Tribunal on review under section 165S

(1)On the review of a determination under section 165 of this Act, the Tribunal may make an order under this section—

(a)revoking the determination;

(b)revoking both the determination and the compulsion order;

(c)confirming the determination; or

(d)confirming the determination and varying the compulsion order by modifying the measures specified in it.

(2)Before making a decision under subsection (1) above, the Tribunal shall allow 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 mental health officer;

(f)the patient’s responsible medical officer;

(g)the patient’s primary carer;

(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 determination.

Commencement Information

I1S. 166 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)

167Powers of Tribunal on application under section 149, 158, 161, 163 or 164S

(1)Where an application is made under section 149 of this Act, the Tribunal may make an order—

(a)extending the compulsion order to which the application relates for the period mentioned in section 146(2) of this Act;

(b)refusing the application; or

(c)refusing the application and revoking the compulsion order.

(2)Where an application is made under section 158 of this Act, the Tribunal may make an order—

(a)extending the compulsion order to which the application relates for the period mentioned in section 154(4) of this Act and varying the compulsion order by modifying the measures specified in it;

(b)extending the compulsion order for that period;

(c)refusing the application; or

(d)refusing the application and revoking the compulsion order.

(3)Where an application is made under section 163 of this Act, the Tribunal may make an order—

(a)revoking the determination to which the application relates;

(b)revoking—

(i)the determination; and

(ii)the compulsion order to which the determination relates;

(c)confirming the determination; or

(d)confirming the determination and varying the compulsion order by modifying the measures specified in it.

(4)Where an application is made under section 164(2)(a) of this Act, the Tribunal may make an order—

(a)revoking the compulsion order to which the application relates;

(b)varying the compulsion order by modifying the measures specified in it; or

(c)refusing the application.

(5)Where an application is made under section 161 or 164(2)(b) of this Act, the Tribunal may make an order—

(a)varying the compulsion order to which the application relates by modifying the measures specified in it;

(b)refusing the application; or

(c)refusing the application and revoking that order.

(6)Before making a decision under any of subsections (1) to (5) above, the Tribunal shall afford the persons mentioned in subsection (7) below the opportunity—

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

(b)of leading, or producing, evidence.

(7)Those persons are—

(a)the persons mentioned in section 166(3)[F1(a) to (h)] of this Act; and

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

Textual Amendments

Commencement Information

I2S. 167 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)

[F2167ADuties of Tribunal on application under section 164AS

(1)This section applies where an application is made under section 164A in respect of a patient.

(2)If the Tribunal is satisfied that, without the provision of medical treatment of the kind mentioned in section 139(4)(b) to the patient, there would be a significant risk to the safety of other persons, it must refuse the application.

(3)If the Tribunal is not satisfied as mentioned in subsection (2), it must determine that the disclosure period applicable to the compulsion order ends with immediate effect.

(4)Before refusing an application under subsection (2) or making a determination under subsection (3), the Tribunal must afford the persons mentioned in subsection (5) the opportunity—

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

(b)of leading, or producing, evidence.

(5)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 mental health officer,

(f)the patient's responsible medical officer,

(g)the patient's primary carer,

(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.

(6)In this section and section 164A—

(a)disclosure period”, in relation to a compulsion order, is to be construed in accordance with the Rehabilitation of Offenders Act 1974,

(b)references to the disclosure period applicable to a compulsion order are to be construed in accordance with section 5G(1) of that Act.]

[F2167BDuty to notify outcome of applications under section 164AS

(1)The Scottish Ministers may require the Tribunal to provide the information mentioned in subsection (3) in respect of a person.

(2)Where a requirement is made under subsection (1), the Tribunal must, before the expiry of the period of 15 working days beginning with the day on which the requirement is made, provide the Scottish Ministers with the information.

(3)The information is whether a refusal under subsection (2) of section 167A has been given, or a determination under subsection (3) of that section has been made, in relation to the person to whom the request relates.

(4)In subsection (2), “working day” has the meaning given by section 47(8).]

168Interim extension etc. of order: application under section 149[F3or 158]S

(1)This section applies where an application is made under section 149[F4or 158] of this Act.

(2)Subject to section 170 of this Act, on the application of any person having an interest in the proceedings, or ex proprio motu, the Tribunal may, if it considers—

(a)that it will be unable to determine the application before the compulsion order to which the application relates ceases to authorise the measures specified in it; and

(b)that it is appropriate, pending its determining the application, to—

(i)extend the order; or

(ii)extend and vary the order by modifying the measures specified in it,

make an interim order extending, or extending and varying, the compulsion order for such period not exceeding 28 days as may be specified in the order of the Tribunal.

Textual Amendments

Commencement Information

I3S. 168 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)

169Interim variation of order following application, reference or review under ChapterS

(1)This section applies where—

(a)an application is made under section 149, 158, 161, 163 or 164 of this Act;

(b)a reference is made under section 162 of this Act; or

(c)the Tribunal is reviewing a determination under section 165 of this Act.

(2)Subject to section 170 of this Act, on the application of any person having an interest in the proceedings, or ex proprio motu, the Tribunal may, if it considers that it is appropriate to do so pending its—

(a)determining the application or reference; or

(b)making its decision on the review,

make an interim order varying the compulsion order by modifying the measures specified in it for such period not exceeding 28 days as may be specified in the order of the Tribunal.

Commencement Information

I4S. 169 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)

170Limit on power of Tribunal to make interim orderS

The Tribunal may not make an interim order under section 168 or 169 of this Act if the effect of making the order would be that interim orders under either, or both, of those sections would be in force for a continuous period of more than 56 days.

Commencement Information

I5S. 170 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)

171Powers of Tribunal on reference under section 162S

(1)Where a reference is made under section 162 of this Act, the Tribunal may make an order—

(a)varying the compulsion order in respect of which the reference is made by modifying the measures specified in it; or

(b)revoking the compulsion order.

(2)Before making an order under subsection (1) above, the Tribunal shall allow 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 persons mentioned in section 166(3)[F5(a) to (h)] of this Act; and

(b)any other person appearing to the Tribunal to have an interest in the reference.

Textual Amendments

Commencement Information

I6S. 171 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)

172Tribunal’s order varying compulsion orderS

F6... where the Tribunal makes an order under section 166, 167 or 171 of this Act varying a compulsion order, the Tribunal—

(a)shall specify in its order the modifications made by its order to the measures specified in the compulsion order; and

(b)may specify in its order measures other than those set out in the application to which its order relates.

Textual Amendments

Commencement Information

I7S. 172 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)

173Applications to Tribunal: ancillary powersS

(1)This section applies where—

(a)an application is made to the Tribunal under section 149, 158, 161, 163 or 164 of this Act; or

(b)the Tribunal is, under section 165 of this Act, reviewing a determination.

(2)Regulations may prescribe circumstances in which the Tribunal may require—

(a)the patient’s responsible medical officer; or

(b)the mental health officer,

to prepare and submit to the Tribunal reports on such matters as may be prescribed.

Commencement Information

I8S. 173 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I9S. 173 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)

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