Part 1 SIntroductory

1Principles for discharging certain functionsS

(1)Subsections (2) to (4) below apply whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a patient who has attained the age of 18 years.

(2)In discharging the function the person shall, subject to subsection (9) below, have regard to the matters mentioned in subsection (3) below in so far as they are relevant to the function being discharged.

(3)The matters referred to in subsection (2) above are—

(a)the present and past wishes and feelings of the patient which are relevant to the discharge of the function;

(b)the views of—

(i)the patient’s named person;

(ii)any carer of the patient;

(iii)any guardian of the patient; and

(iv)any welfare attorney of the patient,

which are relevant to the discharge of the function;

(c)the importance of the patient participating as fully as possible in the discharge of the function;

(d)the importance of providing such information and support to the patient as is necessary to enable the patient to participate in accordance with paragraph (c) above;

(e)the range of options available in the patient’s case;

(f)the importance of providing the maximum benefit to the patient;

(g)the need to ensure that, unless it can be shown that it is justified in the circumstances, the patient is not treated in a way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation;

(h)the patient’s abilities, background and characteristics, including, without prejudice to that generality, the patient’s age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group.

(4)After having regard to—

(a)the matters mentioned in subsection (3) above;

(b)if subsections (5) and (6) below apply, the matters mentioned there; and

(c)such other matters as are relevant in the circumstances,

the person shall discharge the function in the manner that appears to the person to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances.

(5)Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act (other than the making of a decision about medical treatment) in relation to a patient, the person shall have regard, in so far as it is reasonable and practicable to do so, to—

(a)the needs and circumstances of any carer of the patient which are relevant to the discharge of the function and of which the person is aware; and

(b)the importance of providing such information to any carer of the patient as might assist the carer to care for the patient.

(6)Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a person who is, or has been, subject to—

(a)detention in hospital authorised by a certificate granted under section 36(1) of this Act (any such certificate being referred to in this Act as an “emergency detention certificate”);

(b)detention in hospital authorised by a certificate granted under section 44(1) of this Act (any such certificate being referred to in this Act as a “short-term detention certificate”);

(c)an order made under section 64(4)(a) of this Act (any such order being referred to in this Act as a “compulsory treatment order”); or

(d)an order made under [F1section 57(2)(a) or 57A(2)] of the 1995 Act (any such order being referred to in this Act as a “compulsion order”),

the person who is discharging the function shall have regard to the importance of the provision of appropriate services to the person who is, or has been, subject to the certificate or order concerned (including, without prejudice to that generality, the provision of continuing care when the person is no longer subject to the certificate or order).

(7)A person falls within this subsection if the person is discharging the function by virtue of being—

(a)the patient;

(b)the patient’s named person;

(c)the patient’s primary carer;

(d)a person providing independent advocacy services to the patient under section 259 of this Act;

(e)the patient’s legal representative;

(f)a curator ad litem appointed by the Tribunal in respect of the patient;

(g)a guardian of the patient; or

(h)a welfare attorney of the patient.

(8)In subsection (3)(a) above, the reference to wishes and feelings of the patient is a reference to those wishes and feelings in so far as they can be ascertained by any means of communication, whether human or by mechanical aid (whether of an interpretative nature or otherwise), appropriate to the patient.

(9)The person need not have regard to the views of a person mentioned in subsection (3)(b) above in so far as it is unreasonable or impracticable to do so.

(10)In subsection (3)(d) above, the reference to information is to information in the form that is mostly likely to be understood by the patient.

(11)In this section, a reference to “discharging”, in relation to a power, includes a reference to exercising the power by taking no action; and “discharge” shall be construed accordingly.

2Welfare of the childS

(1)This section applies whenever a person who does not fall within section 1(7) of this Act is discharging a function, by virtue of this Act, to which subsection (2) or (3) below applies in relation to a patient who is under the age of 18 years.

(2)This subsection applies to any duty which may be discharged in more than one manner.

(3)This subsection applies to any power.

(4)The person shall discharge the function in the manner that appears to the person to be the manner that best secures the welfare of the patient.

(5)In determining the manner of discharging the function that best secures the welfare of the patient, the person shall have regard to—

(a)the matters mentioned in section 1(3) of this Act;

(b)the matters mentioned in section 1(5) and (6) of this Act (where those subsections apply); and

(c)the importance of the function being discharged in the manner that appears to the person to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances.

(6)Subsections (8) to (10) of section 1 of this Act shall apply for the purpose of subsection (5)(a) above as they apply in relation to subsection (3) of that section.

(7)In this section, a reference to “discharging”, in relation to a power, includes a reference to exercising the power by taking no action; and “discharge” shall be construed accordingly.

3Equal opportunitiesS

(1)Subsection (2) below applies whenever a person mentioned in subsection (3) below is discharging a function by virtue of this Act.

(2)The person shall discharge the function in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements.

(3)The persons referred to in subsection (1) above are—

(a)the Scottish Ministers;

(b)the Commission;

(c)a local authority;

(d)a Health Board;

(e)a Special Health Board;

(f)a National Health Service trust;

[F2(fa)(as respects its health service functions only) Healthcare Improvement Scotland;]

(g)the managers of a hospital;

(h)a mental health officer;

(i)a patient’s responsible medical officer;

(j)a medical practitioner; and

(k)a nurse.

(4)In this section “equal opportunities” and “equal opportunity requirements” have the same meanings as in Section L2 of Part II of Schedule 5 to the Scotland Act 1998 (c. 46).

Part 2SThe Mental Welfare Commission for Scotland

Continued existence of CommissionS

4The Mental Welfare Commission for ScotlandS

(1)There shall continue to be a body corporate known as the Mental Welfare Commission for Scotland (in this Act referred to as “the Commission”).

(2)The Commission shall discharge such functions as are conferred on it by virtue of—

(a)this Act;

(b)the Adults with Incapacity (Scotland) Act 2000 (asp 4); and

(c)any other enactment.

[F3(2A)In so discharging its functions, the Commission shall act in a manner which seeks to protect the welfare of persons who have a mental disorder.]

(3)Schedule 1 to this Act (which makes provision as respects the Commission) shall have effect.

F44ZANational Confidential ForumS

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F44ZBGeneral functions of NCFS

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F44ZCCarrying out NCF functionsS

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F44ZDModifications in relation to NCFS

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[F5Commission VisitorsS

4ACommission VisitorsS

(1)Commission Visitors are to exercise the functions conferred on them by this Act or any other enactment on behalf of the Commission.

(2)Commission Visitors may, in addition to the other functions conferred in this Part, exercise the functions of the Commission mentioned in—

(a)section 8A of this Act;

(b)section 9(1)(d) of the Adults with Incapacity (Scotland) Act 2000 (asp 4).

(3)The Commission may give the Commission Visitors directions of a general or specific nature in relation to the exercise of the functions conferred on them.

(4)A Commission Visitor must—

(a)comply with any direction given under subsection (3); and

(b)act in accordance with any guidance issued by the Commission in relation to the exercise of the functions of Commission Visitors.

(5)A Commission Visitor acting in the exercise of any function must, if required, produce evidence of the Commission Visitor's authority.

(6)In this Act, “Commission Visitors” are persons appointed under paragraph 7A(1) or (2) of schedule 1 to this Act.]

General dutiesS

5Duty to monitor operation of Act and promote best practiceS

The Commission shall—

(a)monitor the [F6practical application of the observance of Part 1] of this Act; and

(b)promote best practice in relation to the [F7practical application of the observance of Part 1 of this Act].

6Reporting on operation of ActS

The Commission shall bring to the attention of the Scottish Ministers such matters concerning the operation of this Act as the Commission considers ought to be brought to their attention.

Particular functionsS

7Duty to bring matters generally to attention of Scottish Ministers and othersS

The Commission shall bring to the attention of—

(a)the Scottish Ministers;

(b)a local authority;

(c)a Health Board;

(d)a Special Health Board;

(e)a National Health Service trust;

[F8(ea)Healthcare Improvement Scotland;]

[F9(f)Social Care and Social Work Improvement Scotland;]

(g)such other person, or group of persons, as it considers appropriate,

any matter of general interest or concern as respects the welfare of any persons who have a mental disorder which is a matter that the Commission considers ought to be brought to their attention.

8Duty to bring specific matters to attention of Scottish Ministers and others etc.S

(1)If it appears to the Commission that a relevant person has, or may have, powers or duties, the exercise or performance of which might prevent or remedy or assist in preventing or remedying, as respects a person who has a mental disorder, any of the circumstances mentioned in subsection (2) below, the Commission shall—

(a)bring the facts of the person’s case to the attention of the relevant person; and

(b)if it considers it appropriate to do so, make recommendations as respects the case to the relevant person.

(2)Those circumstances are—

(a)the circumstances mentioned in section 11(2)(a), (d), (e) or (f) of this Act;

(b)that—

(i)the patient is detained in hospital and the detention is authorised by virtue of this Act or the 1995 Act; and

(ii)there may be some impropriety in relation to that detention.

(3)For the purposes of subsection (1) above, “relevant person” means—

(a)the Scottish Ministers;

(b)the Public Guardian;

(c)a local authority;

(d)a Health Board;

(e)a Special Health Board;

(f)a National Health Service trust;

(g)a mental health officer;

(h)a responsible medical officer;

(i)the managers of a registered care service;

(j)the managers of—

(i)a prison; or

(ii)a young offenders institution;

[F10(ja)Healthcare Improvement Scotland;]

[F11(k)Social Care and Social Work Improvement Scotland;]

[F12(la)the Police Service of Scotland;]

(m)such other person, or group of persons, as the Commission considers appropriate.

(4)In subsection (3)(i) above, “registered care service” means a care service registered under [F13Part 5 of the Public Services Reform (Scotland) Act 2010] (asp 8).

[F148ADuty to raise service concerns with certain bodiesS

(1)The Commission shall, as it considers appropriate, raise any concerns (of a general or specific nature) about the provision of any service mentioned in subsection (2) as respects a person who has a mental disorder, with—

(a)Social Care and Social Work Improvement Scotland;

(b)Healthcare Improvement Scotland; or

(c)such other relevant persons, or group of persons.

(2)The services are—

(a)any social service (within the meaning of Part 5 of the Public Services Reform (Scotland) Act 2010 (asp 8));

(b)health care (within the meaning of section 10A of the National Health Service (Scotland) Act 1978 (c. 29)).

(3)In subsection (1), the “provision” of any service includes the organisation or co-ordination of any such service.]

9Duty to give adviceS

(1)The Commission shall give advice to any person mentioned in subsection (2) below on any matter arising out of this Act which has been referred to the Commission, with its agreement, by that person.

(2)Those persons are—

(a)the Scottish Ministers;

(b)a local authority;

(c)a Health Board;

(d)a Special Health Board;

[F15(da)Healthcare Improvement Scotland;]

[F16(e)Social Care and Social Work Improvement Scotland;]

(f)the Scottish Public Services Ombudsman.

[F179ADuty to give advice: further provisionS

The Commission shall when asked to do so provide advice, so far as is reasonable, to any person about any matters relevant to the functions of the Commission.]

10Publishing information, guidance etc.S

(1)Subject to subsection (2) below, the Commission may publish information or guidance about any matter relevant to its functions and, without prejudice to that generality, may publish information or guidance as respects—

(a)its conclusions in relation to—

(i)an investigation under section 11(1) of this Act; or

(ii)an inquiry under section 12(1) of this Act;

(b)its conclusions in relation to any action taken (or not taken) in relation to such conclusions; or

(c)matters which it considers arise or come to light (or have arisen or come to light) in the course of—

(i)such investigations or inquiries; or

(ii)visits under section 13(1) or (3) of this Act.

(2)The Commission may, with the agreement of a person mentioned in subsection (2) of section 9 of this Act, publish advice which it gives under subsection (1) of that section to that person.

[F18(3)The Commission may, with the agreement of a person to whom advice is provided under section 9A, publish that advice.]

11InvestigationsS

(1)If it appears to [F19a Commission Visitor] that any of the circumstances mentioned in subsection (2) below apply in respect of a patient, the Commission [F20Visitor] may—

(a)carry out such investigation as [F21the Commission Visitor] considers appropriate into the patient’s case; and

(b)make such recommendations as [F22the Commission Visitor] considers appropriate as respects the case.

[F23(1A)Where it is brought to the attention of the Commission that any of the circumstances mentioned in subsection (2) below may apply in respect of a patient, the Commission may—

(a)direct a Commission Visitor to carry out such investigation as the Commission considers appropriate into the patient's case; and

(b)having consulted the Visitor after the investigation, make such recommendations as it considers appropriate as respects the case.]

(2)Those circumstances are—

(a)that the patient may be unlawfully detained in hospital;

(b)that the patient is detained in hospital and the detention is authorised by virtue of—

(i)this Act; or

(ii)the 1995 Act;

(c)that the patient, though not detained in hospital, is subject to—

(i)a compulsory treatment order;

(ii)an interim compulsory treatment order;

(iii)an emergency detention certificate;

(iv)a short-term detention certificate;

(v)a compulsion order;

(vi)an interim compulsion order;

(vii)an assessment order;

(viii)a treatment order;

(ix)a hospital direction; or

(x)a transfer for treatment direction;

(d)that the patient may be, or may have been, subject, or exposed, to—

(i)ill-treatment;

(ii)neglect; or

(iii)some other deficiency in care or treatment;

(e)that, because of the mental disorder, the patient’s property—

(i)may be suffering, or may have suffered, loss or damage; or

(ii)may be, or may have been, at risk of suffering loss or damage;

(f)that the patient may be—

(i)living alone or without care; and

(ii)unable to look after himself or his property or financial affairs.

12Investigations: further provisionS

(1)The Commission may, if it considers it appropriate to do so, cause an inquiry to be held for the purpose of carrying out an investigation, [F24in relation to any of the circumstances mentioned in section 11(2)] of this Act, into any case.

(2)The Commission—

(a)may appoint such person (or persons) as it considers appropriate to chair or to conduct any such inquiry and to report to it on the findings of any such inquiry; and

(b)may pay to a person appointed by it under paragraph (a) above such—

(i)remuneration; and

(ii)expenses,

as it may, with the consent of the Scottish Ministers, determine.

(3)A person appointed to chair any such inquiry—

(a)may, by notice, require any person to attend and give evidence at a time and place set out in the notice; and

(b)may administer oaths and examine witnesses on oath and may accept, in place of evidence on oath by a person, evidence on affirmation or a statement in writing by the person.

(4)A person required, by virtue of notice under subsection (3)(a) above, to attend and give evidence for the purposes of an inquiry under subsection (1) above—

(a)shall not be obliged to attend and give evidence as required in the notice unless the necessary expenses of attendance are paid or tendered to the person; and

(b)shall not be obliged at the inquiry to answer a question which the person would be entitled to decline to answer, on the ground of privilege or confidentiality, if the question were asked in the course of proceedings in a court.

(5)Proceedings in an inquiry under this section shall have the privilege of proceedings in a court.

(6)The Commission shall pay to a person required by notice under subsection (3)(a) above to attend for the purposes of an inquiry under subsection (1) above such expenses as it considers appropriate.

(7)A person—

(a)who is required to attend for the purposes of an inquiry by virtue of notice under subsection (3)(a) above; and

(b)who refuses or wilfully neglects to attend or, subject to subsection (4)(b) above, to give evidence,

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

13Visits in relation to patientsS

(1)The Commission shall secure that a [F25Commission Visitor] visits, as often as the Commission [F26Visitor] considers it appropriate to do so, such patients who fall within the categories mentioned in subsection (2) below as [F27the Commission Visitor] considers appropriate.

(2)Those categories are—

(a)patients who are detained in hospital and whose detention is authorised by virtue of—

(i)this Act; or

(ii)the 1995 Act;

(b)patients who, though not detained in hospital, are subject to—

(i)a compulsory treatment order;

(ii)an interim compulsory treatment order;

(iii)an emergency detention certificate;

(iv)a short-term detention certificate;

(v)a compulsion order;

(vi)an interim compulsion order;

(vii)an assessment order;

(viii)a treatment order;

(ix)a hospital direction; or

(x)a transfer for treatment direction;

(c)patients who are subject to—

(i)an intervention order of which the Commission has been notified under section 53(10)(b) of the Adults with Incapacity (Scotland) Act 2000 (asp 4); or

(ii)a guardianship order of which the Commission has been notified under section 58(7)(d) of that Act;

(d)patients in respect of whom a person is a guardian by virtue of sub-paragraph (4), (5), (6) or (7) of paragraph 1 of schedule 4 to the Adults with Incapacity (Scotland) Act 2000 (asp 4); and

(e)patients who have granted, in accordance with section 16 of that Act, a welfare power of attorney, a copy of which has been sent to the Commission under section 19(2)(c) of that Act.

(3)If it appears to the Commission that patients—

(a)may be resident, or may be receiving medical treatment, in premises mentioned in subsection (4) below; or

(b)may use facilities provided in such premises,

a [F28Commission Visitor] may visit such premises for F29... the purposes mentioned in [F30subsection (5A)] below.

(4)Those premises are—

(a)a health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978 (c. 29));

(b)premises in which—

(i)an independent health care service is provided;

(ii)a care home service is provided; or

(iii)a secure accommodation service is provided;

(c)premises provided by a local authority for the purpose of their duty under section 26 of this Act;

(d)a prison; and

(e)a young offenders institution.

[F31(5A)The purposes are—

(a)to provide an opportunity for any patient who may for the time being be present in the premises to meet a Commission Visitor and discuss with the Visitor any concerns that the patient may have; and

(b)to assess whether the requirements of such patients in relation to this Act, the Adults with Incapacity (Scotland) Act 2000 (asp 4) and other relevant legislation are being met.

(5B)A Commission Visitor may, when visiting premises under subsection (3), conduct an assessment of the suitability of the premises (and its facilities) in relation to the requirements of the patients (or any one of them).]

(6)A visit under subsection (1) or (3) above may be made with or without prior notification.

F32(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)In—

(a)subsection (4)(b)(ii) above, “care home service” has the meaning given to that expression by [F33paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8)]; and

(b)subsection (4)(b)(iii) above, “secure accommodation service” has the meaning given to that expression by [F34paragraph 6 of schedule 12 to] that Act.

14InterviewsS

(1)A [F35Commission Visitor] may, in connection with the discharge by the Commission of any of its functions under this Act or the Adults with Incapacity (Scotland) Act 2000 (asp 4)—

(a)interview—

(i)any patient; or

(ii)any other person that the [F36Commission Visitor] considers it appropriate to interview; and

(b)require any such interview to be conducted in private.

(2)Without prejudice to the generality of subsection (1) above—

(a)[F37a Commission Visitor] conducting a visit under subsection (1) of section 13 of this Act shall afford an opportunity, on request, during the visit, to—

(i)the patient who is the subject of the visit; and

(ii)other patients whose presence in the premises where the visit takes place is known to the [F38Commission Visitor],

to be interviewed in private by the [F39Commission Visitor]; and

(b)[F40a Commission Visitor] conducting a visit under subsection (3) of that section shall afford an opportunity, on request, during the visit, to patients whose presence in the premises that are being visited is known to the [F41Commission Visitor], to be so interviewed.

F42(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15Medical examinationS

(1)A [F43Commission Visitor] may, in connection with the discharge by the Commission of any of its functions under—

(a)this Act; or

(b)the Adults with Incapacity (Scotland) Act 2000 (asp 4),

carry out in private a medical examination of a patient.

[F44(1A)Only a Commission Visitor who has also been appointed as a Medical Visitor may exercise the functions under subsection (1).]

F45(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16Inspection etc. of recordsS

(1)A person authorised by the Commission (an “authorised person”) [F46or Commission Visitor] may, in connection with the discharge by the Commission of any of its functions under—

(a)this Act; or

(b)the Adults with Incapacity (Scotland) Act 2000 (asp 4),

require any person holding medical or other records of a patient to produce them for inspection by the authorised person [F47or, as the case may be, the Commission Visitor].

(2)An authorised person shall be—

F48(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)a member of the staff of the Commission.

(3)An authorised person proposing to exercise the power conferred by subsection (1) above shall, if requested to do so, produce an authenticated document showing that the authorised person is F49... a member of staff of the Commission.

17Duties of Scottish Ministers, local authorities and others as respects CommissionS

(1)The persons mentioned in subsection (2) below shall afford the Commission, [F50any Commission Visitor,] or a person authorised by the Commission, all facilities necessary to enable the Commission, or that person, to discharge the Commission's, or (as the case may be) that person's, functions under this Act.

(2)Those persons are—

(a)the Scottish Ministers;

(b)a local authority;

(c)a Health Board;

(d)a Special Health Board;

(e)a National Health Service trust;

[F51(fa)the Police Service of Scotland;]

(g)the managers of a registered care service;

(h)the managers of—

(i)a prison; or

(ii)a young offenders institution;

[F52(ha)Healthcare Improvement Scotland;]

[F53(i)Social Care and Social Work Improvement Scotland;]

(j)the Scottish Public Services Ombudsman; and

(k)such other persons as may be prescribed by regulations.

(3)In subsection (2)(g) above, “registered care service” has the meaning given by section 8(4) of this Act.

18Annual ReportS

(1)The Commission shall, as soon as practicable after the end of each financial year of the Commission, submit to the Scottish Ministers, a report on the discharge of its functions during that year.

(2)The Scottish Ministers shall lay before the Scottish Parliament a copy of each report submitted to them under subsection (1) above.

(3)The financial year of the Commission is the period of 12 months ending with 31st March.

19Statistical informationS

[F54(1)]The Commission shall F55... provide the Ministers with, and publish, statistical or other information [F56of such kind as may be prescribed in regulations] relating to the discharge of its functions.

[F57(2)Before making regulations under subsection (1) above, the Scottish Ministers shall consult such persons as they consider appropriate.]

20Protection from actions of defamationS

(1)For the purposes of the law of defamation, any statement made in pursuance of any of sections 6, 7 to 10 and 18(1) of this Act by the Commission, or any of its employees, shall be privileged unless such statement is shown to be made with malice.

(2)In this section—

• “statement” has the same meaning as in the Defamation Act 1996 (c. 31); and

• “employees” shall be construed in accordance with paragraph 7 of schedule 1 to this Act.

Part 3 SThe Mental Health Tribunal for Scotland

21The Mental Health Tribunal for ScotlandS

(1)There shall be a tribunal to be known as the Mental Health Tribunal for Scotland (in this Act referred to as “the Tribunal”).

(2)The Tribunal shall discharge such functions as are conferred on it by virtue of this Act.

(3)Regulations may make such provision in connection with the Tribunal as the Scottish Ministers consider appropriate.

(4)Schedule 2 to this Act (which makes provision as respects the Tribunal and its proceedings) shall have effect.

Part 4 SHealth Board and local authority functions

Chapter 1SHealth Board duties

Approved medical practitionersS

22Approved medical practitionersS

(1)Subject to subsection (3) below, the persons mentioned in subsection (2) below shall each compile and maintain a list of medical practitioners who—

(a)have such qualifications and experience, and have undertaken such training, as may be specified in directions given by the Scottish Ministers; and

(b)are approved for the purposes of this paragraph by the Board concerned as having special experience in the diagnosis and treatment of mental disorder.

(2)Those persons are—

(a)a Health Board; and

(b)the State Hospitals Board for Scotland.

(3)A list compiled by a Health Board under subsection (1) above shall be compiled for its area.

(4)A medical practitioner included for the time being in any list maintained under subsection (1) above is referred to in this Act as an “approved medical practitioner”.

Services and accommodation: particular casesS

23Provision of services and accommodation for certain patients under 18S

(1)A Health Board shall provide for any child or young person who—

(a)is detained in hospital under Part 5 or 6 of this Act; or

(b)has been admitted to hospital, whether voluntarily or not, for the purposes of receiving treatment for a mental disorder,

such services and accommodation as are sufficient for the particular needs of that child or young person.

(2)In this section, “child or young person” means a person under the age of 18 years.

24[F58Services and accommodation for mothers]S

(1)A Health Board shall provide for any woman who—

(a)is the mother or adoptive mother of a child less than one year old;

(b)cares for the child;

(c)is not likely to endanger the health or welfare of the child; and

(d)has been admitted to hospital, whether voluntarily or not, for the purposes of receiving treatment [F59for—

(i)post-natal depression; or

(ii)a mental disorder (other than post-natal depression),]

such services and accommodation as are necessary to ensure that the woman is able, if she wishes, to care for the child in hospital.

[F60(1A)But a Health Board is required to provide services and accommodation under subsection (1) above only if it is satisfied that doing so would be beneficial to the wellbeing of the child.]

(2)Each Health Board shall collaborate with other Health Boards to whatever extent is necessary to fulfil its duty under subsection (1) above.

Chapter 2SLocal authority functions

Provision of servicesS

25Care and support services etc.S

(1)A local authority—

(a)shall—

(i)provide, for persons who are not in hospital and who have or have had a mental disorder, services which provide care and support; or

(ii)secure the provision of such services for such persons; and

(b)may—

(i)provide such services for persons who are in hospital and who have or have had a mental disorder; or

(ii)secure the provision of such services for such persons.

(2)Services provided by virtue of subsection (1) above shall be designed to—

(a)minimise the effect of the mental disorder on such persons; and

(b)give such persons the opportunity to lead lives which are as normal as possible.

(3)In subsection (1) above, “care and support”—

(a)includes, without prejudice to the generality of that expression—

(i)residential accommodation; and

(ii)personal care and personal support (each of those expressions having the meaning given by [F61paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010] (asp 8)); but

(b)does not include nursing care.

(4)In section 59(1) of the Social Work (Scotland) Act 1968 (c. 49) (duty of local authorities as respects provision and maintenance of residential or other establishments), for the words “or under” there shall be substituted “sections 25 and 26 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or”.

26Services designed to promote well-being and social developmentS

(1)A local authority—

(a)shall—

(i)provide, for persons who are not in hospital and who have or have had a mental disorder, services which are designed to promote the well-being and social development of those persons; or

(ii)secure the provision of such services for such persons; and

(b)may—

(i)provide such services for persons who are in hospital and who have or have had a mental disorder; or

(ii)secure the provision of such services for such persons.

(2)Services provided by virtue of subsection (1) above shall include, without prejudice to the generality of that subsection, services which provide—

(a)social, cultural and recreational activities;

(b)training for such of those persons as are over school age; and

(c)assistance for such of those persons as are over school age in obtaining and in undertaking employment.

(3)Subsection (1) above is without prejudice to the operation of—

(a)section 1 of the Education (Scotland) Act 1980 (c. 44) (duties and powers of education authorities in relation to the provision of social, cultural and recreative activities and vocational and industrial training); and

(b)section 1 of the Further and Higher Education (Scotland) Act 1992 (c. 37) (duty of Scottish Ministers in relation to the provision of further education).

(4)In subsection (2)(b) and (c) above, “school age” has the same meaning as in section 31 of the Education (Scotland) Act 1980 (c. 44).

27Assistance with travelS

A local authority—

(a)shall—

(i)provide, for persons who are not in hospital and who have or have had a mental disorder, such facilities for, or assistance in, travelling as the authority may consider necessary to enable those persons to attend or participate in any of the services mentioned in sections 25 and 26 of this Act; or

(ii)secure the provision of such facilities or assistance for such persons; and

(b)may—

(i)provide such facilities or assistance for persons who are in hospital and who have or have had a mental disorder; or

(ii)secure the provision of such facilities or assistance for such persons.

Charging for servicesS

28Services under sections 25 to 27: chargingS

(1)In section 87 of the Social Work (Scotland) Act 1968 (c. 49) (charges that may be made for certain services)—

(a)in subsection (1), for the words from “section 7” to “Act 1984” there shall be substituted “ section 25 (care and support services for persons who have or have had a mental disorder), 26 (services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”;

(b)in paragraph (a) of subsection (1A), for the words “section 7 or 8 of the said Act of 1984” there shall be substituted “ section 25, 26 or 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”; and

(c)in each of subsections (2), (3) and (4), for the words “section 7 of the said Act of 1984” there shall be substituted the words “ section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) ”.

(2)In—

(a)section 2 of the Community Care and Health (Scotland) Act 2002 (asp 5) (meaning of “accommodation” for purpose of certain enactments), for the words from “section 7” to “in relation to” there shall be substituted “ section 25 of the 2003 Act (provision of care and support services etc. for ”; and

(b)section 22(1) of that Act (interpretation)—

(i)the definition of “the 1984 Act” shall be repealed;

(ii)after the definition of “the 1995 Act”, there shall be inserted—

““the 2003 Act” means the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);”; and

(iii)for paragraph (b) of the definition of “social care” there shall be substituted—

“(b)under section 25 (care and support services for persons who have or have had a mental disorder), 26 (services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the 2003 Act”; and

(iv)in that definition, for the word “either” there shall be substituted “ any ”.

Relationship with general dutiesS

29Relationship between duties under sections 25 to 27 and duties under Social Work (Scotland) Act 1968 and Children (Scotland) Act 1995S

(1)The duties of a local authority under sections 25 to 27 of this Act are without prejudice to the duties imposed on them by the enactments mentioned in subsection (2) below as those duties apply in relation to persons who have or have had a mental disorder.

(2)Those enactments are—

(a)sections 12(1) (provision of advice, guidance and assistance on an appropriate scale), 13A (provision of residential accommodation with nursing), 13B (provision of care and after-care) and 14 (provision of domiciliary and laundry services) of the Social Work (Scotland) Act 1968 (c. 49); and

(b)section 22(1) of the Children (Scotland) Act 1995 (c. 36) (duty to provide services for children in need).

Co-operation and assistanceS

30Co-operation with Health Boards and othersS

(1)In providing services for a person under any of sections 25 to 27 of this Act, a local authority shall co-operate with any—

(a)Health Boards;

(b)Special Health Boards;

(c)National Health Service trusts; or

(d)voluntary organisations,

that appear to the authority to have an interest, power or duty mentioned in subsection (2) below.

[F62(1A)If, in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014, a local authority delegates the carrying out any of the functions conferred by sections 25 to 27 of this Act—

(a)subsection (1) applies to the person to whom the functions are delegated as it applies to a local authority; and

(b)the person to whom the functions are delegated must co-operate with the local authority if it appears to the person that the authority has an interest, power or duty mentioned in subsection (2)(b) below.]

(2)Such an interest, power or duty is—

(a)an interest in the provision of services by the local authority under any of sections 25 to 27 of this Act; or

(b)a power or duty to provide or secure the provision of services, or an interest in the provision of services,

for the person.

31Assistance from Health Boards and othersS

(1)Where it appears to a local authority that the assistance of a Health Board, a Special Health Board or a National Health Service trust—

(a)is necessary to enable the authority to perform any of their duties under section 25 or 26 of this Act; or

(b)would help the authority to perform any of those duties,

the authority may request the Health Board, Special Health Board or National Health Service trust to co-operate by providing the assistance specified in the request.

(2)A Health Board, a Special Health Board or a National Health Service trust receiving a request under subsection (1) above shall, if complying with the request—

(a)would be compatible with the discharge of its own functions (whether under any enactment or otherwise); and

(b)would not prejudice unduly the discharge by it of any of those functions,

comply with the request.

(3)This section is without prejudice to section 21 of the Children (Scotland) Act 1995 (c. 36) (which enables a local authority to require assistance from a Health Board, a National Health Service trust or others in the exercise of the authority’s functions under Part II of that Act) [F63and section 183 of the Children’s Hearings (Scotland) Act 2011 (asp 1) (which enables a local authority to obtain assistance from another local authority or a health board in the carrying out of the authority’s functions under the Act)].

Appointment of mental health officersS

32Appointment of mental health officersS

(1)A local authority shall appoint a sufficient number of persons for the purpose of discharging, in relation to their area, the functions of mental health officers under—

(a)this Act;

(b)the 1995 Act; and

(c)the Adults with Incapacity (Scotland) Act 2000 (asp 4).

(2)A local authority shall appoint under subsection (1) above only persons—

(a)who are officers of a local authority; and

(b)who satisfy such requirements as the Scottish Ministers may direct as to—

(i)registration;

(ii)education and training;

(iii)experience;

(iv)competence as respects persons who have or have had a mental disorder; and

(v)any other matters that may be specified in the direction.

(3)A person duly appointed by a local authority before the day on which this section comes into force to discharge the functions of a mental health officer shall, for the purposes of this Act, be deemed to have been appointed under subsection (1) above; and references in subsections (4) and (5) below to a person appointed under subsection (1) above shall include references to a person deemed by virtue of this subsection to have been so appointed.

(4)A local authority shall, in accordance with directions given by the Scottish Ministers, provide or secure the provision of training for persons appointed by them under subsection (1) above as respects requirements in directions under subsections (2) above and (5) below.

(5)A local authority shall terminate the appointment of a person appointed under subsection (1) above if the person—

(a)ceases to be an officer of a local authority; or

(b)does not satisfy—

(i)any requirement in a direction under subsection (2) above; or

(ii)such other requirements as to any of the matters mentioned in paragraph (b) of that subsection as the Scottish Ministers may, from time to time, by direction specify.

(6)The validity of any acts or omissions of a person appointed as a mental health officer in the discharge of the functions of such an officer prior to a termination of appointment by virtue of subsection (5) above is not affected by such termination.

(7)Directions given by the Scottish Ministers under this section shall be given to local authorities collectively.

Duty to inquire into individual casesS

33Duty to inquireS

(1)Where it appears to a local authority that—

(a)a person in their area who is aged 16 years or over has a mental disorder; and

(b)any of the circumstances mentioned in subsection (2) below apply,

the authority shall cause inquiries to be made into the person’s case.

(2)Those circumstances are—

(a)that the person may be, or may have been, subject, or exposed, at some place other than a hospital to—

(i)ill-treatment;

(ii)neglect; or

(iii)some other deficiency in care or treatment;

(b)that, because of the mental disorder, the person’s property—

(i)may be suffering, or may have suffered, loss or damage; or

(ii)may be, or may have been, at risk of suffering loss or damage;

(c)that the person may be—

(i)living alone or without care; and

(ii)unable to look after himself or his property or financial affairs;

(d)that the person is not in hospital and, because of the mental disorder, the safety of some other person may be at risk.

34Inquiries under section 33: co-operationS

(1)This section applies where a local authority are required by section 33(1) of this Act to cause inquiries to be made into a person’s case.

(2)Where it appears to the local authority that the assistance of any of the persons mentioned in subsection (3) below—

(a)is necessary for the purposes of the inquiries; or

(b)would assist the inquiries,

the authority may request that person to provide the assistance specified in the request.

(3)Those persons are—

(a)the Commission;

(b)the Public Guardian;

[F64(ba)Healthcare Improvement Scotland;]

[F65(c)Social Care and Social Work Improvement Scotland;]

(d)a Health Board; and

(e)a National Health Service trust.

(4)Where—

(a)a person receives a request under subsection (2) above; and

(b)complying with the request—

(i)would be compatible with the discharge of the person’s functions (whether under any enactment or otherwise); and

(ii)would not prejudice unduly the discharge by the person of any of those functions,

the person shall comply with the request.

35Inquiries under section 33: warrantsS

(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

[F66(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.

Part 5 SEmergency detention

Emergency detention certificateS

36Emergency detention in hospitalS

(1)Where—

(a)a medical practitioner carries out a medical examination of a patient;

(b)the patient does not fall within subsection (2) below; and

(c)subsection (3) below applies,

the medical practitioner may, before the expiry of the appropriate period, grant an emergency detention certificate authorising, if the condition mentioned in subsection (7) below is satisfied, the measures mentioned in subsection (8) below.

(2)The patient falls within this subsection if, immediately before the medical examination mentioned in subsection (1)(a) above is carried out, the patient is [F67subject to]—

(a)an emergency detention certificate;

(b)a short-term detention certificate;

(c)an extension certificate;

(d)section 68 of this Act; or

[F68(da)section 113(5) of this Act;]

(e)a certificate granted under section 114(2) or 115(2) of this Act.

(3)Subject to subsection (6) below, this subsection applies where—

F69(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the medical practitioner considers that it is likely that the conditions mentioned in subsection (4) below are met in respect of the patient;

(c)the medical practitioner is satisfied that the conditions mentioned in subsection (5) below are met in respect of the patient; and

(d)the medical practitioner has consulted a mental health officer and that mental health officer has consented to the grant of an emergency detention certificate.

(4)The conditions referred to in subsection (3)(b) above are—

(a)that the patient has a mental disorder; and

(b)that, because of the mental disorder, the patient’s ability to make decisions about the provision of medical treatment is significantly impaired.

(5)The conditions referred to in subsection (3)(c) above are—

(a)that it is necessary as a matter of urgency to detain the patient in hospital for the purpose of determining what medical treatment requires to be provided to the patient;

(b)that if the patient were not detained in hospital there would be a significant risk—

(i)to the health, safety or welfare of the patient; or

(ii)to the safety of any other person; and

(c)that making arrangements with a view to the grant of a short-term detention certificate would involve undesirable delay.

(6)If it is impracticable for the medical practitioner to consult or seek consent under paragraph (d) of subsection (3) above, that paragraph need not be satisfied for the subsection to apply.

(7)The condition referred to in subsection (1) above is that the measure mentioned in subsection (8)(b)(i) below is authorised by the certificate only if, before the patient is admitted under authority of the certificate to a hospital, the certificate is given to the managers of that hospital.

(8)The measures referred to in subsection (1) above are—

(a)the removal, before the expiry of the period of 72 hours beginning with the granting of the emergency detention certificate, of the patient to a hospital or to a different hospital; and

(b)the detention of the patient in hospital for the period of 72 hours beginning with—

(i)if, immediately before the certificate is granted, the patient is not in hospital, the first admission under authority of the certificate of the patient to hospital;

(ii)if, immediately before the certificate is granted, the patient is in hospital, the granting of the certificate.

F70(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)The emergency detention certificate—

(a)shall state the medical practitioner’s reasons for believing the conditions mentioned in subsections (4) and (5) above to be met in respect of the patient; and

(b)shall be signed by the medical practitioner.

(11)If a medical practitioner grants an emergency detention certificate in respect of a patient who, immediately before the certificate is granted, is in hospital, the medical practitioner shall, as soon as practicable after granting the certificate, give the certificate to the managers of that hospital.

(12)In subsection (1) above “appropriate period” means—

(a)in a case where the medical examination of the patient is completed at least 4 hours before the end of the day (or, if it takes place on two days, the later of the days) on which it is carried out, the period beginning with completion of the examination and ending with the end of that day;

(b)in any other case, the period of 4 hours beginning with the completion of the medical examination.

[F71(13)A reference in this section to a hospital may be read as a reference to a hospital unit.

(14)For the purpose of subsection (13) above, “hospital unit” means any part of a hospital which is treated as a separate unit.]

37Notification by medical practitionerS

(1)Subject to subsection (3) below, a medical practitioner who grants an emergency detention certificate shall, when the certificate is given to the managers of the hospital in which the patient is to be detained under authority of the certificate, give notice to them of the matters mentioned in subsection (2) below.

(2)Those matters are—

(a)the reason for granting the certificate;

(b)whether consent of a mental health officer was obtained to the granting of the certificate;

(c)if the certificate was granted without consent to its granting having been obtained from a mental health officer, the reason why it was impracticable to consult a mental health officer;

(d)the alternatives to granting the certificate that were considered by the medical practitioner; and

(e)the reason for the medical practitioner determining that any such alternative was inappropriate.

(3)If it is impracticable for notice to be given when the certificate is given to the managers, the medical practitioner shall give notice as soon as practicable after that time.

Duties on hospital managersS

38Duties on hospital managers: examination, notification etc.S

(1)This section applies where a patient is detained in hospital under authority of an emergency detention certificate.

(2)As soon as practicable after the period of detention authorised by the certificate begins as mentioned in section 36(8)(b) of this Act, the managers of the hospital shall make arrangements for an approved medical practitioner to carry out a medical examination of the patient.

(3)The managers of the hospital shall—

(a)before the expiry of the period of 12 hours beginning with the giving of the certificate to them, inform the persons mentioned in subsection (4) below of the granting of the certificate; and

(b)before the expiry of the period of 7 days beginning with the day on which they receive notice under section 37 of this Act—

(i)give notice to the [F72Commission of the granting of the certificate and] of the matters notified to them under that section; and

(ii)if the certificate was granted without consent to its granting having been obtained from a mental health officer, give notice of those matters to the persons mentioned in subsection (5) below.

[F73(3A)The managers of the hospital may, so far as they consider it appropriate, give notice of the matters notified to them under section 37 of this Act to the persons mentioned in subsection (4) below.]

(4)The persons referred to in [F74subsections (3)(a) and (3A)] above are—

(a)the patient’s nearest relative;

(b)if that person does not reside with the patient, any person who resides with the patient;

(c)if—

(i)the managers know who the patient’s named person is; and

(ii)that named person is not any of the persons mentioned in paragraphs (a) and (b) above,

the patient’s named person; F75...

[F76(ca)if known to the managers and not falling within paragraph (a) or (b) above—

(i)any guardian of the patient; and

(ii)any welfare attorney of the patient.]

F75(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)The persons referred to in subsection (3)(b)(ii) above are—

(a)if the managers know where the patient resides, the local authority for the area in which the patient resides; or

(b)if the managers do not know where the patient resides, the local authority for the area in which the hospital is situated.

Revocation of certificateS

39Approved medical practitioner’s duty to revoke emergency detention certificateS

[F77Where a medical examination has been carried out under section 38(2) of this Act and an approved medical practitioner] is not satisfied—

(a)that the conditions mentioned in section 36(4)(a) and (b) and (5)(b) of this Act continue to be met in respect of the patient; or

(b)that it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate,

the approved medical practitioner shall revoke the certificate.

40Revocation of emergency detention certificate: notificationS

(1)Where an approved medical practitioner revokes a certificate under section 39 of this Act, the practitioner shall, as soon as practicable after doing so, inform—

(a)the patient; and

(b)the managers of the hospital in which the patient is detained,

of the revocation.

(2)The managers of the hospital shall, as soon as practicable after being informed of the revocation, inform [F78the Commission and] the persons mentioned in section 38(4) and (5) of this Act of the revocation.

Suspension of authority to detainS

41Suspension of authority to detainS

(1)Where—

(a)a patient is subject to an emergency detention certificate; and

(b)the patient’s responsible medical officer grants a certificate specifying a period during which the emergency detention certificate shall not authorise the measure mentioned in section 36(8)(b) of this Act,

the emergency detention certificate does not authorise that measure during that period.

(2)A period specified in a certificate granted under subsection (1) above may be expressed as—

(a)the duration of—

(i)an event; or

(ii)a series of events; or

(b)the duration of—

(i)an event; or

(ii)a series of events,

and any associated travel.

(3)If the responsible medical officer considers that it is necessary—

(a)in the interests of the patient; or

(b)for the protection of any other person,

a certificate granted under subsection (1) above may include conditions such as are mentioned in subsection (4) below; and any such conditions shall have effect.

(4)Those conditions are—

(a)that, during the period specified in the certificate, the patient be kept in the charge of a person authorised in writing for the purpose by the responsible medical officer;

(b)such other conditions as may be specified by the responsible medical officer.

42Certificate under section 41: revocationS

(1)Subsection (2) below applies where a certificate is granted under section 41(1) of this Act in respect of a patient.

(2)If the patient’s responsible medical officer is satisfied that it is necessary—

(a)in the interests of the patient; or

(b)for the protection of any other person,

that the certificate be revoked, the responsible medical officer may revoke the certificate.

(3)Where a responsible medical officer revokes a certificate under subsection (2) above, the responsible medical officer shall, as soon as practicable after doing so, inform—

(a)the patient;

(b)if the certificate includes a condition such as is mentioned in section 41(4)(a) of this Act, any person authorised in accordance with that condition; and

(c)the managers of the hospital in which the patient is detained,

of the revocation.

(4)The managers of the hospital shall, as soon as practicable after being informed of the revocation, inform [F79the Commission and] the persons mentioned in section 38(4) and (5) of this Act of the revocation.

[F80Effect of emergency detention certificate on certain orders]S

43[F81Effect of emergency detention certificate on certain orders]S

(1)This section applies where—

(a)a patient is subject to a [F82relevant order]; and

(b)an emergency detention certificate is granted in respect of the patient.

(2)[F83A relevant order] shall, subject to subsection (3) below, cease to authorise the measures specified in it for the period during which the patient is subject to the emergency detention certificate.

(3)If the measure mentioned in section 66(1)(b) of this Act [F84or (as the case may be) section 57A(8)(b) of the 1995 Act] is specified in the [F85relevant order], the [F85relevant order] shall continue to authorise that measure during the period mentioned in subsection (2) above.

[F86(4)In this section, the references to a relevant order are to—

(a)a compulsion order, or

(b)a compulsory treatment order or an interim compulsory treatment order.]

Part 6 SShort-term detention

Short-term detention certificateS

44Short-term detention in hospitalS

(1)Where—

(a)an approved medical practitioner carries out a medical examination of a patient;

(b)the patient does not fall within subsection (2) below; and

(c)subsection (3) below applies,

the approved medical practitioner may, before the expiry of the period of 3 days beginning with the completion of the medical examination, grant a short-term detention certificate authorising, if the condition mentioned in subsection (6) below is satisfied, the measures mentioned in subsection (5) below.

(2)The patient falls within this subsection if, immediately before the medical examination mentioned in subsection (1)(a) above is carried out, the patient is [F87subject to]—

(a)a short-term detention certificate;

(b)an extension certificate;

(c)section 68 of this Act; or

[F88(ca)section 113(5) of this Act;]

(d)a certificate granted under section 114(2) or 115(2) of this Act.

(3)This subsection applies where—

F89(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the approved medical practitioner considers that it is likely that the conditions mentioned in subsection (4) below are met in respect of the patient;

(c)the approved medical practitioner consults a mental health officer; and

(d)the mental health officer consents to the grant of a short-term detention certificate.

(4)The conditions referred to subsection (3)(b) above are—

(a)that the patient has a mental disorder;

(b)that, because of the mental disorder, the patient’s ability to make decisions about the provision of medical treatment is significantly impaired;

(c)that it is necessary to detain the patient in hospital for the purpose of—

(i)determining what medical treatment should be given to the patient; or

(ii)giving medical treatment to the patient;

(d)that if the patient were not detained in hospital there would be a significant risk—

(i)to the health, safety or welfare of the patient; or

(ii)to the safety of any other person; and

(e)that the granting of a short-term detention certificate is necessary.

(5)The measures referred to in subsection (1) above are—

(a)the removal, before the expiry of the period of 3 days beginning with the granting of the short-term detention certificate, of the patient to a hospital or to a different hospital;

(b)the detention of the patient in hospital for the period of 28 days beginning with—

(i)if, immediately before the certificate is granted, the patient is not in hospital, the beginning of the day on which admission under authority of the certificate of the patient to hospital first takes place;

(ii)if, immediately before the certificate is granted, the patient is in hospital, the beginning of the day on which the certificate is granted;

(c)the giving to the patient, in accordance with Part 16 of this Act, of medical treatment.

(6)The condition referred to in subsection (1) above is that the measure mentioned in subsection (5)(b)(i) above is authorised by the certificate only if, before the patient is admitted to hospital under authority of the certificate, the certificate is given to the managers of that hospital.

(7)If an approved medical practitioner grants a short-term detention certificate in respect of a patient who, immediately before the certificate is granted, is in hospital, the approved medical practitioner shall, as soon as practicable after granting the certificate, give the certificate to the managers of that hospital.

F90(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)The short-term detention certificate—

(a)shall state the approved medical practitioner’s reasons for believing the conditions mentioned in subsection (4) above to be met in respect of the patient; and

(b)shall be signed by the approved medical practitioner.

(10)Before granting the short-term detention certificate, the approved medical practitioner shall, subject to subsection (11) below, consult the patient’s named person about the proposed grant of the certificate; and the approved medical practitioner shall have regard to any views expressed by the named person.

(11)The approved medical practitioner need not consult a named person as mentioned in subsection (10) above in any case where it is impracticable to do so.

[F91(12)In this section and sections 46 to 49 of this Act, a reference to a hospital may be read as a reference to a hospital unit.

(13)For the purposes of subsection (12) above, “hospital unit” means any part of a hospital which is treated as a separate unit.]

45Mental health officer’s duty to interview patient etc.S

(1)Subject to subsection (2) below, before deciding whether to consent for the purposes of section 44(3)(d) of this Act, a mental health officer shall—

(a)interview the patient;

(b)ascertain the name and address of the patient’s named person;

(c)inform the patient of the availability of independent advocacy services under section 259 of this Act; and

(d)take appropriate steps to ensure that the patient has the opportunity of making use of those services.

(2)If it is impracticable for the mental health officer to—

(a)interview the patient; or

(b)ascertain the name and address of the patient’s named person,

the mental health officer shall comply with the requirements in subsection (3) below.

(3)Those requirements are—

(a)recording the steps taken by the mental health officer with a view to complying with the duty concerned; and

(b)before the expiry of the period of 7 days beginning with the day on which the mental health officer is consulted by an approved medical practitioner under section 44(3)(c) of this Act, giving a copy of the record to the approved medical practitioner.

Duties on hospital managersS

46Hospital managers' duties: notificationS

(1)This section applies where a patient is [F92subject to] a short-term detention certificate.

(2)The managers of the hospital shall as soon as practicable after the production to them of the short-term detention certificate, give notice of its granting to—

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient; and

(d)any welfare attorney of the patient.

(3)The managers of the hospital shall, before the expiry of the period of 7 days beginning with the day on which the certificate is granted, give notice of its granting F93... to—

(a)the Tribunal; and

(b)the Commission.

[F94(4)When giving notice under subsection (2) or (3) above, the managers of the hospital are to send a copy of the certificate to each recipient of the notice.]

Extension certificateS

47Extension of detention pending application for compulsory treatment orderS

(1)Where—

(a)a patient is [F95subject to] a short-term detention certificate;

(b)an approved medical practitioner carries out a medical examination of the patient; and

(c)subsections (2) and (3) below apply,

the approved medical practitioner may, before the expiry of the period of 24 hours beginning with the completion of that medical examination, grant a certificate (any such certificate being referred to in this Act as an “extension certificate”) authorising the measures mentioned in subsection (4) below.

(2)This subsection applies where—

F96(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the approved medical practitioner considers—

(i)that the conditions mentioned in paragraphs (a) to (d) of section 44(4) of this Act are met in respect of the patient; and

(ii)that because of a change in the mental health of the patient, an application should be made under section 63 of this Act for a compulsory treatment order.

(3)This subsection applies where—

(a)no application has been made under section 63 of this Act;

(b)it would not be reasonably practicable to make an application under that section before the expiry of the period of detention authorised by the short-term detention certificate; and

(c)subject to subsection (6) below—

(i)the approved medical practitioner consults a mental health officer about the proposed grant of an extension certificate; and

(ii)the mental health officer consents to the granting of the extension certificate.

(4)The measures referred to in subsection (1) above are—

(a)the detention in hospital of the patient for the period of 3 days beginning with the expiry of the period for which the short-term detention certificate authorises the detention of the patient in hospital; and

(b)the giving to the patient, in accordance with Part 16 of this Act, of medical treatment.

F97(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)An approved medical practitioner need not consult or seek consent under subsection (3)(c) above in any case where it is impracticable to do so.

(7)In reckoning the period of days mentioned in subsection (4)(a) above, there shall be left out of account any day which is not a working day.

(8)In this section “working day” means a day which is not—

(a)Saturday;

(b)Sunday; or

(c)a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in Scotland.

48Extension certificate: notificationS

(1)An approved medical practitioner who grants an extension certificate shall, before the expiry of the period of 24 hours beginning with the granting of the certificate, give the certificate to the managers of the hospital in which the patient is detained and give notice to the persons mentioned in subsection (2) below—

(a)of the granting of the extension certificate;

(b)of the approved medical practitioner’s reasons for believing the conditions mentioned in paragraphs (a) to (d) of section 44(4) of this Act to be met in respect of the patient;

(c)as to whether consent of a mental health officer was obtained to the granting of the certificate; and

(d)if the certificate was granted without consent to its granting having been obtained from a mental health officer, the reason why it was impracticable to consult a mental health officer.

(2)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)the Tribunal;

(d)the Commission;

(e)any guardian of the patient;

(f)any welfare attorney of the patient; and

(g)the mental health officer.

Revocation of certificatesS

49Responsible medical officer’s duty to review continuing need for detentionS

(1)Where a patient is [F98subject to] a short-term detention certificate or an extension certificate, the patient’s responsible medical officer shall, from time to time, consider—

(a)whether the conditions mentioned in paragraphs (a), (b) and (d) of section 44(4) of this Act continue to be met in respect of the patient; and

(b)whether it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate.

(2)If, having complied with subsection (1) above, the responsible medical officer is not satisfied—

(a)that the conditions referred to in paragraph (a) of that subsection continue to be met in respect of the patient; or

(b)that it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate,

the responsible medical officer shall revoke the certificate.

(3)The responsible medical officer shall, as soon as practicable after revoking a certificate under subsection (2) above, give notice of its revocation to—

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient; and

(e)the mental health officer who was consulted under section 44(3)(c) of this Act.

(4)The responsible medical officer shall, before the expiry of the period of 7 days beginning with the day on which the certificate is revoked, give notice of its revocation to—

(a)the Tribunal; and

(b)the Commission.

50Patient’s right to apply for revocation of short-term detention certificate or extension certificate etc.S

(1)Where a patient is [F99subject to] a short-term detention certificate or an extension certificate—

(a)the patient; or

(b)the patient’s named person,

may apply to the Tribunal for revocation of the certificate.

(2)Before determining an application under subsection (1) above, the Tribunal shall afford the persons mentioned in subsection (3) below the opportunity—

(a)of making representations (whether orally or in writing); and

(b)of leading, or producing, evidence.

(3)Those persons are—

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

(e)the approved medical practitioner who granted the short-term detention certificate;

(f)the mental health officer who was consulted under section 44(3)(c) of this Act;

(g)if the patient has a responsible medical officer, that responsible medical officer;

(h)any curator ad litem appointed in respect of the patient by the Tribunal; and

(i)any other person appearing to the Tribunal to have an interest in the application.

(4)On an application under subsection (1) above, the Tribunal shall, if not satisfied—

(a)that the conditions mentioned in paragraphs (a), (b) and (d) of section 44(4) of this Act continue to be met in respect of the patient; or

(b)that it continues to be necessary for the detention in hospital of the patient to be authorised by the certificate,

revoke the certificate.

(5)Where, before a short-term detention certificate is revoked under subsection (4) above an extension certificate has been granted in respect of the patient, the revocation of the short-term detention certificate shall have the effect of revoking the extension certificate, notwithstanding that there has been no application under subsection (1) above in relation to the extension certificate.

51Commission’s power to revoke short-term detention certificate or extension certificateS

Where—

(a)[F100a patient is subject to] a short-term detention certificate or an extension certificate; and

(b)the Commission is satisfied—

(i)that not all of the conditions mentioned in paragraphs (a), (b) and (d) of section 44(4) of this Act continue to be met in respect of the patient; or

(ii)that it does not continue to be necessary for the detention in hospital of the patient to be authorised by the certificate,

the Commission may revoke the certificate.

52Revocation of short-term detention certificate or extension certificate: notificationS

Where the Commission revokes a certificate under section 51 of this Act, it shall, as soon as practicable after doing so, give notice of the revocation to—

(a)the patient;

(b)the patient’s named person;

(c)any guardian of the patient;

(d)any welfare attorney of the patient;

(e)the managers of the hospital in which the patient is detained;

(f)the mental health officer who was consulted under section 44(3)(c) of this Act; and

(g)the Tribunal.

Suspension of detentionS

53Suspension of measure authorising detentionS

(1)Where—

(a)a patient is subject to a short-term detention certificate; and

(b)the patient’s responsible medical officer grants a certificate specifying a period during which the short-term detention certificate shall not authorise the measures mentioned in section 44(5)(b) of this Act,

the short-term detention certificate does not authorise that measure during that period.

(2)A period specified in a certificate granted under subsection (1) above may be expressed as—

(a)the duration of—

(i)an event; or

(ii)a series of events; or

(b)the duration of—

(i)an event; or

(ii)a series of events,

and any associated travel.

(3)If the responsible medical officer considers that it is necessary—

(a)in the interests of the patient; or

(b)for the protection of any other person,

a certificate granted under subsection (1) above may include conditions such as are mentioned in subsection (4) below; and any such conditions shall have effect.

(4)Those conditions are—

(a)that, during the period specified in the certificate, the patient be kept in the charge of a person authorised in writing for the purpose by the responsible medical officer;

(b)such other conditions as may be specified by the responsible medical officer.

54Certificate under section 53: revocationS

(1)Subsection (2) below applies where a certificate is granted under section 53(1) of this Act in respect of a patient.

(2)If the patient’s responsible medical officer is satisfied that it is necessary—

(a)in the interests of the patient; or

(b)for the protection of any other person,

that the certificate be revoked, the responsible medical officer may revoke the certificate.

(3)Where a responsible medical officer revokes a certificate under subsection (2) above, the responsible medical officer shall, as soon as practicable after doing so, give notice of the revocation to—

(a)the patient;

(b)the patient’s named person;

(c)the mental health officer;

(d)if the certificate includes a condition such as is mentioned in section 53(4)(a) of this Act, any person authorised in accordance with that condition; and

(e)the Commission.

Effect of short-term detention certificate on emergency detention certificateS

55Effect of subsequent short-term detention certificate on emergency detention certificateS

If a short-term detention certificate is granted in respect of a patient who is [F101subject to] an emergency detention certificate, the emergency detention certificate shall, on the granting of the short-term detention certificate, be revoked.

[F102Effect of short-term detention certificate etc. on certain orders]S

56[F103Effect of short-term detention certificate etc. on certain orders]S

(1)Subsection (2) below applies where—

(a)a patient is subject to a [F104relevant order]; and

(b)a short-term detention certificate is granted in respect of the patient.

[F105(2)A relevant order shall cease to authorise the measures specified in it for the period during which the patient is subject to—

(a)the short-term detention certificate, or

(b)an extension certificate.]

[F106(3)In this section, the references to a relevant order are to—

(a)a compulsion order, or

(b)a compulsory treatment order or an interim compulsory treatment order.]

Part 7 SCompulsory treatment orders

Chapter 1SApplication for, and making of, orders

Pre-application proceduresS

57Mental health officer’s duty to apply for compulsory treatment orderS

(1)Where subsections (2) to (5) below apply in relation to a patient, a mental health officer shall apply to the Tribunal under section 63 of this Act for a compulsory treatment order in respect of that patient.

(2)This subsection applies where two medical practitioners carry out medical examinations of the patient in accordance with the requirements of section 58 of this Act.

(3)This subsection applies where each of the medical practitioners who carries out a medical examination mentioned in subsection (2) above is satisfied—

(a)that the patient has a mental disorder;

(b)that medical treatment which would be likely to—

(i)prevent the mental disorder worsening; or

(ii)alleviate any of the symptoms, or effects, of the disorder,

is available for the patient;

(c)that if the patient were not provided with such medical treatment there would be a significant risk—

(i)to the health, safety or welfare of the patient; or

(ii)to the safety of any other person;

(d)that because of the mental disorder the patient’s ability to make decisions about the provision of such medical treatment is significantly impaired; and

(e)that the making of a compulsory treatment order is necessary.

(4)This subsection applies where each of the medical practitioners who carries out a medical examination mentioned in subsection (2) above submits to the mental health officer a report (any such report being referred to in this Act as a “mental health report”)—

(a)stating that the medical practitioner submitting the report is satisfied that the conditions mentioned in paragraphs (a) to (e) of subsection (3) above are met in respect of the patient;

(b)stating, in relation to each of the conditions mentioned in paragraphs (b) to (e) of subsection (3) above, the medical practitioner’s reasons for believing the condition to be met in respect of the patient;

(c)specifying (by reference to the appropriate paragraph (or paragraphs) of the definition of “mental disorder” in section 328(1) of this Act) the type (or types) of mental disorder that the patient has;

(d)setting out a description of—

(i)the symptoms that the patient has of the mental disorder; and

(ii)the ways in which the patient is affected by the mental disorder;

(e)specifying the measures that should, in the medical practitioner’s opinion, be authorised by the compulsory treatment order;

(f)specifying the date or dates on which the medical practitioner carried out the medical examination mentioned in subsection (2) above; and

(g)setting out any other information that the medical practitioner considers to be relevant.

(5)This subsection applies where—

(a)for the purposes of subsection (4)(c) above each of the mental health reports specifies at least one type of mental disorder that is also specified in the other report;

(b)for the purposes of subsection (4)(e) above each of the mental health reports specifies the same measures; and

(c)one of the mental health reports (being a report by an approved medical practitioner) states the views of that medical practitioner as to—

(i)subject to subsection (6) below, whether notice should be given to the patient under section 60(1)(a) of this Act; and

(ii)whether the patient is capable of arranging for a person to represent the patient in connection with the application under section 63 of this Act.

(6)A medical practitioner may state the view that notice should not be given under section 60(1)(a) of this Act only if, in the opinion of that medical practitioner, the giving of notice would be likely to cause significant harm to the patient or any other person.

(7)Where a mental health officer is required by subsection (1) above to make an application for a compulsory treatment order, the mental health officer shall make the application before the expiry of the period of 14 days beginning with—

(a)in the case where each of the mental health reports specifies the same date (or dates) for the purposes of subsection (4)(f) above, that date (or the later, or latest, of those dates); or

(b)in the case where each of those reports specifies for those purposes a different date (or different dates), the later (or latest) of those dates.

58Medical examination: requirementsS

(1)The requirements referred to in section 57(2) of this Act are set out in subsections (2) to (6) below.

(2)Subject to subsection (4) below and to regulations under subsection (5) below—

(a)each medical examination of the patient shall be carried out by an approved medical practitioner; and

(b)subject to subsection (6) below, each such examination shall be carried out separately.

(3)Where the medical examinations are carried out separately, the second shall be completed no more than five days after the first.

(4)The patient’s general medical practitioner may carry out one of the medical examinations of the patient although not an approved medical practitioner.

F107(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The medical examinations need not be carried out separately if—

(a)where the patient is capable of consenting to the examinations, the patient consents to the examinations being carried out at the same time; or

(b)where the patient is incapable of consenting to the examinations—

(i)the patient’s named person;

(ii)any guardian of the patient; or

(iii)any welfare attorney of the patient,

consents to the examinations being carried out at the same time.

59Mental health officer’s duty to identify named personS

Where a mental health officer is required by 57(1) of this Act to make an application under section 63 of this Act in respect of a patient, the mental health officer shall, as soon as practicable after the duty to make the application arises, take such steps as are reasonably practicable to ascertain the name and address of the patient’s named person.