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

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Mental Health (Care and Treatment) (Scotland) Act 2003, Section 268 is up to date with all changes known to be in force on or before 16 May 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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268Detention in conditions of excessive security: hospitals other than state hospitalsS
This section has no associated Explanatory Notes

(1)This section applies where a F1... patient’s detention in a qualifying 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 [F2the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient], 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 conditions that would not involve the patient being subject to a level of security that is excessive in the patient’s case; 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 conditions that would not involve the patient being subject to a level of security that is excessive in the patient’s case; 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 [F3of the name of the hospital so identified to the managers of the hospital in which the patient is detained].

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

(a)the F4... patient;

(b)the F4... patient’s named person;

(c)any guardian of the F4... patient;

(d)any welfare attorney of the F4... 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.

[F5(7A)An application may not be made under subsection (2) above unless it is accompanied by a report prepared by [F6an approved medical] practitioner which—

(a)states that in the practitioner's opinion the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient, 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 F7... patient;

(b)the F7... patient’s named person;

(c)the relevant Health Board;

(d)the F7... patient’s responsible medical officer;

(e)the managers of the [F8hospital in which the patient is detained];

(f)the mental health officer;

(g)any guardian of the F9... patient;

(h)any welfare attorney of the F9... patient;

(i)any curator ad litem appointed by the Tribunal in respect of the F9... 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.

F10(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10(14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2Words in s. 268(2) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(b), 61(2); S.S.I. 2015/361, art. 2

F3Words in s. 268(5) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(c), 61(2); S.S.I. 2015/361, art. 2

F7Word in s. 268(10)(a)-(d) repealed (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(e)(i), 61(2); S.S.I. 2015/361, art. 2

F8Words in s. 268(10)(e) substituted (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(e)(ii), 61(2); S.S.I. 2015/361, art. 2

F9Word in s. 268(10)(f)-(l) repealed (16.11.2015) by Mental Health (Scotland) Act 2015 (asp 9), ss. 16(2)(e)(i), 61(2); S.S.I. 2015/361, art. 2

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. 268 in force at 6.1.2006 for specified purposes by S.S.I. 2005/161, art. 4, Sch. 2

I3S. 268 in force at 1.5.2006 or such earlier day as the Scottish Ministers may by order appoint, see s. 333(2)

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