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

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276Advance statements: effectS

This section has no associated Explanatory Notes

(1)If the Tribunal is satisfied as to the matters set out in subsection (2) below, it shall, in making any decision in respect of a patient who is a person who has made and not withdrawn an advance statement, have regard to the wishes specified in the statement.

(2)Those matters are—

(a)that, because of mental disorder, the ability of the person who made the advance statement to make decisions about the matters referred to in paragraphs (a) and (b) of subsection (1) of section 275 of this Act is significantly impaired;

(b)that the statement complies with subsection (2) of that section;

(c)that any measures or treatment which might or will be authorised by virtue of the decision referred to in subsection (1) above or might or will, by virtue of that decision, no longer be authorised correspond to any wishes specified in the statement; and

(d)that, since the person made the statement, there has been no change of circumstances which, were the person to have been considering making the statement at the time the Tribunal is making the decision referred to in subsection (1) above, would have been likely to cause the person not to make the statement or to make a substantially different one.

(3)A person giving medical treatment authorised by virtue of this Act or the 1995 Act to a patient who is a person—

(a)who has made and not withdrawn an advance statement; and

(b)whose ability to make decisions about the matters referred to in paragraphs (a) and (b) of subsection (1) of section 275 of this Act is, because of mental disorder, significantly impaired,

shall have regard to the wishes specified in the advance statement.

(4)Before making a decision under section 236(2)(c), 239(1)(c) or 241(1)(c) of this Act in relation to a patient who is a person who has made and not withdrawn an advance statement, a designated medical practitioner shall have regard to the wishes specified in the statement.

(5)For the purposes of subsections (1) and (2) above and (in the case where medical treatment is to or might be given to a patient otherwise than by virtue of any such decision as is referred to in subsection (1) above or is to be given to the patient by virtue of such a decision which was made in ignorance of the existence or the withdrawal of an advance statement) of subsections (3) and (4) above—

(a)an advance statement shall be taken to comply with subsection (2) of section 275 of this Act; and

(b)a withdrawal of an advance statement shall be taken to comply with subsection (3) of that section,

unless the contrary appears.

(6)For the purposes of subsections (3) and (4) above in the case where the medical treatment is authorised by virtue of a decision such as is referred to in subsection (1) above—

(a)an advance statement shall be taken to comply with subsection (2) of section 275 of this Act; and

(b)a withdrawal of an advance statement shall be taken to comply with subsection (3) of that section,

if the Tribunal was satisfied when making the decision that the statement or, as the case may be, the withdrawal so complies.

(7)If, in respect of a patient who is a person who has made and not withdrawn an advance statement—

(a)the Tribunal makes such a decision as is referred to in subsection (1) above authorising measures which conflict with the wishes specified in the statement;

(b)a person having functions under this Act gives medical treatment authorised by virtue of this Act or the 1995 Act to the person and that treatment conflicts with those wishes;

(c)a designated medical practitioner makes such a decision as is referred to in subsection (4) above and it conflicts with those wishes; or

(d)such measures, treatment or decision which could have been so authorised, given or, as the case may be, made are not so authorised or is not so given or made, with the consequence that there is a conflict with those wishes,

then the Tribunal, person having those functions or, as the case may be, designated medical practitioner shall comply with the requirements set out in subsection (8) below.

(8)Those requirements are—

(a)recording in writing the circumstances in which those measures were or treatment or decision was authorised, given or made or, as the case may be, not authorised, given or made, and the reasons why;

(b)supplying—

(i)the person who made the statement;

(ii)that person’s named person;

(iii)that person’s welfare attorney;

(iv)that person’s guardian; and

(v)the Commission,

with a copy of that record; and

(c)placing a copy of that record with that person’s medical records.

Commencement Information

I1S. 276 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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