EXPLANATORY NOTE
(This note is not part of the Regulations)
The Regulations make provision in connection with appeals under sections 264 and 268 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”). An appeal under one of those sections is an appeal to the Mental Health Tribunal for Scotland (“the Tribunal”) against detaining a patient in a particular hospital or hospital unit on the grounds that detaining the patient there entails subjecting the patient to an excessive level of security.
Sections 264(7A) and 268(7A) of the 2003 Act require an application initiating an excessive-security appeal to be backed by a medical report. The effect of regulation 3 is that it will only be competent for such a report to be provided by an approved medical practitioner as defined in section 22(4) of the 2003 Act.
An excessive-security appeal may be brought by, or on behalf of, a patient under section 268 of the 2003 Act only if the patient is being detained in a “qualifying hospital”. Regulation 4 defines “qualifying hospital” for the purposes of section 268 by specifying as qualifying hospitals Scotland’s three medium-secure units.
Regulation 5 sets out the test that the Tribunal is to apply when making certain decisions under the 2003 Act, namely whether: (1) to grant an excessive-security appeal under section 268, (2) to make an order under section 269 (section 269 applies where the order made by the Tribunal when it granted an appeal under section 268 has not been complied with within the time allowed), (3) to recall, under section 271, an order it made under section 268 or 269.
Regulation 6 makes provision about when detaining a patient in a given hospital or hospital unit is to be regarded as subjecting the patient to an excessive level of security. It requires that the assessment be made having regard to the need to ensure the safety of both the patient and others. Regulation 6 applies in the context of the Tribunal making one of the decisions referred to in the preceding paragraph (that is, in the context of the Tribunal applying the regulation 5 test), and also applies for the purposes of identifying a hospital or hospital unit to which the patient can appropriately be transferred in the event that the Tribunal judges a patient’s present place of detention to be excessively secure.