The Mental Health (Patient Representation) (Prescribed Persons) (Scotland) Regulations 2017

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations prescribe classes of persons for the purposes of section 250(7) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”).

The 2003 Act, as amended by the Mental Health (Scotland) Act 2015 (“the 2015 Act”), makes provision for the nomination of “named persons” (section 250(1)). Any nomination must be witnessed and certified by a “prescribed person” (section 250(2)). To be valid, the person nominated must consent to the nomination and their consent must be witnessed by a “prescribed person” (section 250(2A)).

The 2003 Act, as amended, also makes provision to enable certain persons (“listed initiators”) to initiate certain applications or appeals under that Act, where the patient does not have capacity to do so (section 257A). The patient can, however, make a declaration that they do not wish a person or persons to act as listed initiator by virtue of being their primary carer or nearest relative (section 257A(7)), and that declaration must be witnessed and certified by a “prescribed person” (section 250(2), as applied by section 257A(8)).

A nomination or declaration may be revoked by the person who made it, and the revocation must also be witnessed and certified by a prescribed person (section 250(3) and (4), as read with section 257A(8)).

Section 250(7) provides that “prescribed person” means a person of a class prescribed by regulations. This applies for the purposes of sections 250 and 257A (by virtue of section 257A(8)). These Regulations prescribe classes of person for those purposes (regulation 3).

These Regulations revoke the Mental Health (Patient Representation) (Prescribed Persons) (Scotland) (No. 2) Regulations 2004 (“the 2004 regulations”). The 2004 regulations prescribed classes of person for the purposes of nominations and revocations made in accordance with section 250 of the 2003 Act, as well as for the purposes of declarations made in accordance with section 253 of the 2003 Act. Declarations under section 253 were for the purpose of allowing a person to declare that they did not wish a person or persons to be their named person; this was because the person might otherwise be their named person by virtue of section 251. Sections 251 and 253 of the 2003 Act are revoked by section 22 of the 2015 Act subject to saving provisions.

These Regulations include a saving provision to ensure that any document which was witnessed or certified by a prescribed person in accordance with section 250 or 253 of the 2003 Act before the date on which these Regulations come into force is not rendered invalid as a consequence of the revocation of the 2004 regulations.