SCHEDULE 1The Mental Welfare Commission for Scotland
Part 1Membership, proceedings etc.
Status
I11
The Commission shall not be regarded as the servant or agent of the Crown, or as having any status, immunity or privilege of the Crown, nor shall its members or employees be regarded as civil servants, nor its property as property of, or held on behalf of, the Crown.
General powers
I22
The Commission may do anything which appears to it to be necessary or expedient for the purposes of, or in connection with, the exercise of its functions; and without prejudice to that generality the Commission may in particular—
a
acquire and dispose of land and other property; and
b
enter into contracts.
F4Membership
2A
1
The Commission is to consist of the following members—
a
a person appointed by the Scottish Ministers to chair the Commission; and
b
no fewer than F126 nor more than 8 other members appointed by the Scottish Ministers.
2
The Scottish Ministers may by order amend sub-paragraph (1)(b) by substituting for the minimum or maximum number of members for the time being specified there such other number as they think fit.
2B
1
In appointing members, the Scottish Ministers are to have regard to the desirability of including—
a
persons who have experience of, and have shown capacity and capability in, the provision of services to those who have a mental disorder;
b
persons who use, or have used, such services;
c
persons who are, or have been, carers of those who have a mental disorder;
d
persons who have such other skills, knowledge or experience as the Scottish Ministers consider to be relevant in relation to the exercise of the Commission's functions.
2
In appointing members under paragraph 2A(1)(b), the Scottish Ministers must appoint at least—
a
one person who falls within paragraph (b) of sub-paragraph (1) of this paragraph; F13 and
b
one person who falls within paragraph (c) of sub-paragraph (1) of this paragraph F14...
F14
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F4 Terms of appointment etc.
2C
1
Each member of the Commission is to be appointed for such period as the Scottish Ministers think fit.
2
A member—
a
holds and vacates office in accordance with the terms and conditions of appointment; but
b
may, by written notice to the Scottish Ministers, resign office as a member.
3
A person is, on ceasing to be a member, eligible for reappointment.
F4Removal of members
2D
The Scottish Ministers may, by written notice, remove a member from office if they are satisfied that—
a
the member—
i
has been adjudged bankrupt;
ii
has granted a trust deed for creditors or a composition contract;
iii
has proposed a voluntary arrangement which has been approved;
b
the member's estate has been sequestrated;
c
the member has been absent from 3 consecutive meetings of the Commission without the permission of the Commission;
d
the member is otherwise unfit or unable to discharge the functions of a member.
F4Disqualification from membership
2E
A person is disqualified from appointment, and from holding office, as a member of the Commission if that person is—
a
a member of the Scottish Parliament;
b
a member of the House of Commons;
c
a member of the European Parliament.
Membership
F13
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Terms of office etc.
F24
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Eligibility for reappointment
F35
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Remuneration, pensions, allowances etc.
I36
The Commission shall pay—
a
to its members (and to the members of its committees and sub-committees who are not members of the Commission) such remuneration and allowances—
i
on such terms; and
ii
subject to such conditions,
as the Scottish Ministers may determine;
b
to, or in respect of, persons who have been a member of it (or such members of committees and sub-committees as are mentioned in paragraph (a) above) such pensions, allowances and gratuities—
i
on such terms; and
ii
subject to such conditions,
as the Scottish Ministers may determine; or
c
to any person who ceases, other than on the expiry of a term of office, to be a member of it, such compensation as the Scottish Ministers may determine.
Appointment etc. of chief F11 executive and other staff
Word in sch. 1 para. 7 heading substituted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 6; S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.
I47
1
Subject to sub-paragraphs (2) and (3) below F5and paragraph 10A, the Commission—
a
shall appoint a chief F6executive ; and
b
may appoint such other staff as it considers appropriate,
on such terms and conditions as it may, with the approval of the Scottish Ministers, determine.
2
A member of the Commission may not be appointed as a member of its staff.
3
The Commission shall obtain the approval of the Scottish Ministers before appointing a chief F7executive.
4
The Commission may pay to the members of its staff, including its chief F8executive, (referred to in this paragraph collectively as “employees”) such remuneration and allowances as the Scottish Ministers may determine.
5
The Commission may—
a
pay, or make arrangements for the payment of;
b
make payments towards the provision of; and
c
provide and maintain schemes (whether contributory or not) for the payment of,
such pensions, allowances and gratuities to or in respect of such of its employees, or former employees, as the Scottish Ministers may determine.
6
The reference in sub-paragraph (5) above to pensions, allowances and gratuities includes a reference to pensions, allowances and gratuities by way of compensation for loss of employment or reduction in remuneration.
7
A determination under sub-paragraph (4) or (5) above may make different provision for different cases or descriptions of case.
F9Commission Visitors
Sch. 1 paras. 7A-7I and crossheadings inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 7; S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.
7A
1
The Commission must appoint such staff, employed under paragraph 7(1)(a) or (b), to exercise the functions of Commission Visitors; and when doing so those staff are to be known as Commission Visitors.
2
The Commission may arrange for such other persons as it thinks fit to be appointed as and exercise the functions of Commission Visitors; and when doing so those persons are to be known as Commission Visitors.
3
There may be no more than 10 Commission Visitors appointed by the Commission under sub-paragraph (2).
4
The Scottish Ministers may by order amend sub-paragraph (3) by substituting for the maximum number of Commission Visitors for the time being specified there such other number as they think fit.
5
In appointing Commission Visitors, the Commission is to have regard to the desirability of appointing—
a
persons who have experience of, and have shown capacity and capability in, the provision of services to those who have a mental disorder;
b
persons who use, or have used, such services;
c
persons who are, or have been, carers of those who have a mental disorder;
d
persons who have such other skills, knowledge or experience as the Commission considers to be relevant in relation to the exercise of the functions of Commission Visitors.
6
In appointing Commission Visitors, the Commission must appoint at least—
a
one person who falls within paragraph (b) of sub-paragraph (5); and
b
one person who falls within paragraph (c) of sub-paragraph (5).
7
In this Act (unless the context otherwise requires), any reference to a function of a Commission Visitor (or the functions of Commission Visitors) is a reference to a function conferred by this Act or any other enactment.
F9Commission Visitors: further provision
7B
1
The arrangements entered into by virtue of paragraph 7A(2) may include provision with respect to the payment of remuneration and allowances to, or amounts in respect of, such persons.
2
Persons appointed as Commission Visitors by virtue of paragraph 7A(2) are not members of staff of the Commission.
F9Medical Visitors
7C
1
In appointing Commission Visitors, the Commission must appoint one or more persons who have such qualifications, training and experience as may be prescribed by regulations for the purposes of carrying out the functions of Commission Visitors under section 15 of this Act.
2
Persons so appointed may also be known as Medical Visitors.
F9Committees
7D
1
The Commission may establish committees for any purpose relating to its functions.
2
Subject to sub-paragraph (7), the Commission is to determine the composition of its committees.
3
The Commission may appoint persons who are not members of the Commission to be members of a committee.
4
A committee of the Commission is to comply with any directions given to it by the Commission.
5
The Commission must establish at least one committee (an “advisory committee”) for the purpose of giving advice to it about matters connected to its functions.
6
In considering how to exercise its functions, the Commission must have regard to relevant advice and information given to it by any advisory committee (whether or not given at its request).
7
An advisory committee must include persons of a description as may be prescribed by regulations.
F9Procedure and meetings
7E
1
The Commission may determine its own procedure and that of its committees, including a quorum for meetings.
2
The validity of any proceedings of the Commission, or any of its committees, is not affected by a vacancy in membership nor by any defect in the appointment of a member.
3
Members of the Scottish Executive and persons authorised by the Scottish Ministers may attend and take part in meetings of the Commission or any of its committees, but are not entitled to vote at such meetings.
F9Exercise of certain functions etc.
7F
1
A member of the Commission may not—
a
exercise the functions of a Commission Visitor;
b
be appointed as a Commission Visitor.
2
The chief executive may not be a member of the Commission.
3
A member of staff of the Commission (other than a Commission Visitor) may not exercise the functions of a Commission Visitor.
4
An appointment as a Commission Visitor under paragraph 7A(1) does not affect the appointed person's—
a
status as employed under paragraph 7(1)(a) or (b); or
b
ability to perform the duties of the person as so employed.
F9Delegation of functions
7G
1
The Commission may, subject to sub-paragraphs (2), (3) and (4), authorise—
a
the chief executive;
b
any other employee;
c
any of its committees,
to exercise such of its functions, and to such extent, as it may determine.
2
The Commission may not authorise any of the following functions to be exercised by any other person—
a
the functions of the Commission under section 12 (investigations: further provision);
b
the approval of any acquisition or disposal of land or other property with a value greater than £50,000 or such other amount as the Commission may, with the consent of the Scottish Ministers, determine;
c
the approval of annual reports and accounts;
d
the approval of any budget or other financial plan.
3
Any function conferred on a Commission Visitor may not be delegated by the Commission.
4
Sub-paragraph (1) does not affect the responsibility of the Commission for the exercise of its functions.
5
The chief executive may, with the consent of the Commission, authorise—
a
any other employee;
b
any of the Commission's committees,
to exercise such of the chief executive's functions, and to such extent, as the chief executive, with such consent, may determine.
6
Sub-paragraph (5) does not affect the responsibility of the chief executive for the exercise of the chief executive's functions.
F9Mandatory delegation of functions to chief executive
7H
1
The Commission must delegate to the chief executive the functions mentioned in sub-paragraph (2).
2
The functions are—
a
the Commission's functions relating to the discharge of patients under this Act;
b
the Commission's functions under section 73 of the Adults with Incapacity (Scotland) Act 2000 (asp 4).
3
When exercising those functions so delegated, the chief executive must—
a
consult the Commission;
b
consult a Commission Visitor in every case in which it appears to the chief executive appropriate to do so;
c
have regard to any relevant guidance issued by the Commission.
4
Sub-paragraph (1) does not affect the responsibility of the Commission for the exercise of its functions.
F9Location of office
7I
The Commission's determination of the location of its office premises is subject to the approval of the Scottish Ministers.
Regulations as to proceedings and delegation of functions
F108
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Accounts
I59
The following provisions of the National Health Service (Scotland) Act 1978 (c. 29) shall continue to apply to the Commission as they apply to a Special Health Board—
a
section 85 (which makes provision for payment of funds by the Scottish Ministers towards expenditure attributable to performance of functions by the Board);
b
section 85A(1) and (3) (which imposes corresponding financial duties on the Board); and
c
section 86 (which provides for the keeping, transmission to Scottish Ministers and auditing, of accounts).
Sch. 1 para. 2A-2E and crossheadings inserted (1.8.2010 for specified purposes, 1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), sch. 18 para. 4; S.S.I. 2010/221, art. 3(2)(3), sch.; S.S.I. 2010/321, art. 3, sch.; S.S.I. 2011/122, art. 2, sch.