The Mental Health (Use of Telephones) (Scotland) Regulations 2005

Explanatory Note

(This note is not part of the Regulations)

Section 284 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the Act”) provides for regulation of the use of telephones by such persons detained in a hospital as may be specified in Regulations. These Regulations specify the persons whose use of telephones may be regulated and the conditions of use.

Regulation 2 provides that 3 conditions must be met for a patient to become a specified person. The first is that either the patient is in a state hospital or the responsible medical officer has recorded an opinion, giving reasons, to the effect that telephone calls to or from the patient might cause distress to the patient or any other person not on the staff of the hospital, or a significant risk to health, safety or welfare.

The second is that the patient, the patient’s named person and the Mental Welfare Commission for Scotland (“the Commission”) must have been informed that the patient is to be a specified person and the date of the responsible medical officer’s opinion, if applicable.

The third is that the patient and patient’s named person must also have been informed that the telephone calls of a specified person may be prohibited or restricted and that there is a right to a review of the prohibition or restriction.

Regulation 3 provides for a review against being specified at the request of the patient or the patient’s named person.

Regulation 4 confers rights on specified persons to use telephones subject to the Regulations. Specified persons are liable for call charges.

Regulation 5 provides that individual calls or the use of the telephone generally may be prohibited or calls may be restricted as to number, frequency or duration, or the persons to or from whom calls may be made or received. The grounds for prohibition or restriction are that telephone calls or use of the telephone generally would cause distress or a significant risk to the health, safety or welfare of the specified person or others.

Regulation 6 contains review provisions. The specified person can request a review in any period of prohibition or restriction. If all of the patient’s calls to or from one person are prohibited in a 7 day period, the patient is entitled to request a review. At a review the responsible medical officer must reassess the situation and can discontinue or impose any prohibition or restriction that could have been imposed under regulation 5.

Regulation 7 provides that calls that have been prohibited or restricted or calls that are unlawful may be intercepted.

Under regulation 8, the hospital managers are to keep a record of the restriction and prohibition of telephone use. They must inform the persons listed in regulation 9 of these matters.

Regulation 10 provides that the Commission has power to direct the hospital managers not to restrict or prohibit a call, to reduce the time for which a restriction or prohibition applies and not to treat a person detained in hospital as a specified person. Regulation 11 requires hospital managers to comply with a direction from the Commission.

Under regulation 12, the Scottish Information Commissioner is added to the list of persons to or from whom telephone calls may not be intercepted unless the interception has been requested by a person on the list or the call is unlawful for some other reason.