Part 4

Health Board and local authority functions
Chapter 2

Local authority functions

Duty to inquire into individual cases

Inquiries under section 33: warrants
35
1
If a sheriff, or a justice of the peace, is satisfied by a relevant mental health officer’s evidence on oath—
a
that, for the purposes of inquiries under section 33 of this Act, it is necessary to enter premises; and
b
that the mental health officer—
i
is unable to obtain entry to those premises; or
ii
reasonably apprehends that the mental health officer will be unable to obtain entry to those premises,
the sheriff or justice of the peace may grant a warrant under this subsection.
2
A warrant under subsection (1) above is a warrant—
a
authorising—
i
the mental health officer specified in the warrant;
ii
any other persons so specified; and
iiia
any constable of the Police Service of Scotland,
before the expiry of the period of 8 days beginning with the day on which the warrant is granted, to enter, for the purposes of the inquiries, any premises so specified; and
b
authorising any such constable, before the expiry of that period, for the purpose of exercising the power mentioned in paragraph (a) above, to open lockfast places on premises so specified.
3
An application for a warrant under subsection (1) above shall—
a
if made to the sheriff, be made to the sheriff of the sheriffdom; or
b
if made to a justice of the peace, be made to a justice for the commission area,
in which the premises to which the application relates are situated.
4
If a sheriff, or a justice of the peace, is satisfied by a relevant mental health officer’s evidence on oath—
a
that, for the purposes of inquiries under section 33 of this Act, it is necessary that a medical practitioner carry out a medical examination of the person who is the subject of the inquiries; and
b
that the mental health officer is unable to obtain the consent of that person to that matter,
the sheriff, or justice of the peace, may grant a warrant under this subsection.
5
A warrant under subsection (4) above is a warrant authorising the detention of the person who is the subject of the inquiries for a period of 3 hours for the purposes of enabling a medical examination of the person to be carried out by the medical practitioner specified in the warrant.
6
An application for a warrant under subsection (4) above shall—
a
if made to the sheriff, be made to the sheriff of the sheriffdom; or
b
if made to a justice of the peace, be made to a justice for the commission area,
in which the person who is the subject of the inquiries for the time being is.
7
If a sheriff, or a justice of the peace, is satisfied by a relevant mental health officer’s evidence on oath—
a
that, for the purposes of inquiries under section 33 of this Act, it is necessary that a medical practitioner have access to the person’s medical records; and
b
that the mental health officer is unable to obtain the consent of that person to that matter,
the sheriff, or justice of the peace, may grant a warrant under this subsection.
8
A warrant under subsection (7) above is a warrant requiring any person holding medical records of the person subject to the inquiries to produce them for inspection by the medical practitioner specified in the warrant on being required to do so by the practitioner.
9
An application for a warrant under subsection (7) above shall—
a
if made to the sheriff, be made to the sheriff of the sheriffdom; or
b
if made to a justice, be made to a justice for the commission area,
in which the person who is the subject of the inquiries for the time being is.
10
A mental health officer shall as soon as practicable after the sheriff, or justice of the peace, decides to grant or refuse an application for a warrant under subsection (1), (4) or (7) above, give notice to the Commission as to whether a warrant was granted or refused.
11
No appeal shall be competent against a decision of a sheriff, or a justice of the peace, under this section granting, or refusing to grant, a warrant.
12
References to a relevant mental health officer—
a
in subsection (1) above are to a mental health officer appointed by the local authority for the area in which the premises to which the application relates are situated;
b
in subsections (4) and (7) above are to a mental health officer appointed by the local authority which is causing inquiries to be made.
S. 35 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)
S. 35(2)(a)(iiia) substituted for s. 35(2)(a)(iii) (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 23(4); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)