Publication - Advice and guidance

Mental Health (care and treatment) (Scotland) Act 2003: Code of Practice Volume 1

Published: 21 September 2005
Topic: Health and social care
ISBN: 0755945689

Volume 1 of the Code of Practice for the Mental Health (Care andTreatment) (Scotland) Act 2003 deals with a range of issues relating tothe general framework within which the Act operates.

Supporting documents

Chapter 3: Mental Health Tribunal for Scotland (Part 3)

Introduction

This chapter introduces the Mental Health Tribunal for Scotland and provides information on the legislation governing its functions and duties. Information is also provided on the legislation with regard to the qualifications, training and experience required of the President and members of the Tribunal.

The chapter also identifies the types of proceedings and relevant section references for each type of case that the Tribunal will be required to consider.

The chapter provides information on the composition of a Tribunal, the Tribunal's decision making process and the form of intimating decisions of the Tribunal to each party.

The chapter also provides information on appeals to the sheriff principal or Court of Session against a decision of the Tribunal, location of Tribunal hearings, citation of a witness or production of evidence and payment of allowances and expenses.

The chapter ends with information on further secondary legislation made under Schedule 2 of the Act.

Role of the Mental Health Tribunal for Scotland

01 The Mental Health Tribunal for Scotland ("the Tribunal") is a new independent judicial body, established by Part 3 and Schedule 2 of the Act. The Tribunal will be the body that makes the decisions in a wide range of situations on the care and treatment of patients who are subject to the Act. The Rules of the Tribunal are set out in The Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005.

02 The Tribunal is headed by a President with the relevant qualifications, training and experience as prescribed by The Mental Health Tribunal for Scotland (Appointment of President) Regulations 2004 ( SSI No. 155) and consists of three panels of members: legal members with the relevant qualifications, training and experience as prescribed by The Mental Health Tribunal for Scotland (Appointment of Legal Members) Regulations 2004 ( SSI No. 286), medical members with the relevant qualifications, training and experience prescribed by The Mental Health Tribunal for Scotland (Appointment of Medical Members) Regulations 2004 ( SSI No. 374), and general members with the relevant qualifications, training and experience prescribed by The Mental Health Tribunal for Scotland (Appointment of General Members) Regulations 2004 ( SSI No. 375). The President and the members of the three panels are appointed by Scottish Ministers. There is also a shrieval panel that will consist of individuals currently holding the office of sheriff principal, sheriff or part-time sheriff.

03 The types of proceedings that the Tribunal will deal with are:

applications to the Tribunal;
references to the Tribunal;
appeals to the Tribunal;
reviews by the Tribunal; and
cases remitted to the Tribunal.

and, for ease of reference, these proceedings are listed below under the relevant type of order.

Short term detention certificate or extension certificate

Section 50	Application for revocation of short term detention certificate or extension certificate by patient or their named person
Section 255	Application by the MHO for an order appointing a named person or for an order declaring that the acting named person should not be the named person
Section 256	Application by various persons listed in sub-section (2) for an order appointing a named person or an order declaring that the acting named person should not be the named person
Section 290	Regulations made under this section (The Mental Health (Cross-Border Transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005) make provision for: a) reference by the Commission regarding proposed transfer from Scotland b) appeal by the patient against proposed transfer from Scotland

Compulsory Treatment Order

Section 63	Application by the MHO for a CTO
Section 92	Application by the RMO for an order extending and varying a CTO
Section 95	Application by the RMO for order varying a CTO
Section 96	Reference by the RMO where a recorded matter specified in an order is not being provided
Section 98	Reference by the Commission where it considers it appropriate
Section 99	Application by the patient or their named person for revocation of a determination extending an order
Section 100	Application by patient or their named person for revocation or variation of an order
Section 101	Review of a determination by RMO to extend an order under section 86
Section 120	Application by the patient or their named person for the revocation of a certificate under Section 114 or 115 authorising continued detention under CTO or ICTO
Section 125	Appeal by the patient or their named person against a proposed transfer, or transfer, to another hospital other than a state hospital
Section 126	Appeal by the patient or their named person against a proposed transfer, or transfer, to a state hospital
Section 255	Application by the MHO for an order appointing a named person or for an order declaring that the acting named person should not be the named person
Section 256	Application by various persons listed in sub-section (2) for an order appointing a named person or an order declaring that the acting named person should not be the named person
Section 264	Application by persons listed in sub-section (6) in relation to detention in excessive security
Section 267	Application for recall of an order relating to detention in excessive security by persons in sub-section (4)
Section 268	Application for an order, by persons in sub-section (6) declaring that patient is being detained in conditions of excessive security
Section 271	Application for recall of an order by Health Board, Scottish Ministers or the RMO
Section 290	Regulations made under this section (The Mental Health (Cross-Border Transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005) make provision for: a) reference by the Commission regarding proposed transfer from Scotland b) appeal by patient against proposed transfer from Scotland

Compulsion Order

Section 149	Application by the RMO for an order extending a compulsion order
Section 158	Application by the RMO for an order extending and varying a compulsion order
Section 161	Application by the RMO for an order varying a compulsion order
Section 162	Reference by the Commission where appropriate
Section 163	Application by the patient or their named person for revocation of determination extending a compulsion order
Section 164	Application by the patient or their named person for revocation of, or variation of a compulsion order
Section 165	Review of a determination, where appropriate, by the RMO to extend a compulsion order under section 152
Section 177	(applying section 120) Application by the patient or their named person for the revocation of a certificate
Section 178	(applying Sections 125 & 126) Appeal by the patient or their named person against a proposed transfer, or transfer
Section 185	Reference by Scottish Ministers on a compulsion order and restriction order
Section 187	Reference by Scottish Ministers on notice from the Commission in respect of a compulsion order and restriction order
Section 189	Reference by Scottish Ministers where no reference or application has been made to the Tribunal within the preceding 2 years in respect of a compulsion order and restriction order
Section 191	Application by Scottish Ministers for an order to revoke a compulsion order, revoking the restriction order, varying the compulsion order or conditionally discharging the patient
Section 192	Application by the patient and their named person for an order to conditionally discharge the patient; revoke a restriction order; revoke a restriction order and vary a compulsion order or to revoke the compulsion order
Section 201	Appeal by the patient and their named person against variation of conditions imposed on conditional discharge
Section 204	Appeal against recall from conditional discharge by the patient and their named person
Section 219	Appeal by the patient or their named person against proposed transfer, or transfer, to hospital other than a state hospital where the patient is subject to a compulsion order and a restriction order
Section 220	Appeal by the patient or their named person against a proposed transfer or transfer to a state hospital, where the patient is subject to a compulsion order and restriction order
Section 255	Application by the MHO for an order appointing a named person or for an order declaring that the acting named person should not be the named person
Section 256	Application by various persons listed in sub-section (2) for an order appointing a named person or an order declaring that the acting named person should not be the named person
Section 264	Application by persons listed in sub-section (6) in relation to detention in excessive security
Section 267	Application for recall of an order, relating to detention in excessive security by persons in sub-section (4)
Section 268	Application for declaration, by persons in sub-section (6)
Section 271	Application for recall of order by Health Board, Scottish Ministers or the RMO
Section 290	Regulations made under this section (The Mental Health (Cross-Border Transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005) make provision for: a) reference by the Commission regarding proposed transfer from Scotland b) appeal by patient against proposed transfer from Scotland

Hospital Directions and Transfer for Treatment Directions

Section 210	Reference by Scottish Ministers
Section 211	Reference by Scottish Ministers on notice from the Commission
Section 213	Reference by Scottish Ministers where no reference has been made for 2 years
Section 214	Application by the patient or their named person for revocation of a direction
Section 219	Appeal by the patient or their named person against proposed transfer, or transfer, to hospital other than a state hospital where the patient is subject to a compulsion order and restriction order
Section 220	Appeal by patient or their named person against proposed transfer or transfer to a state hospital, where patient is subject to a hospital direction or a transfer for treatment direction
Section 255	Application by MHO for an order appointing a named person or for an order declaring that the acting named person should not be the named person
Section 256	Application by various persons listed in sub-section (2) for an order appointing a named person or an order declaring that the acting named person should not be the named person
Section 264	Application by persons listed in sub-section (6) in relation to detention in excessive security
Section 267	Application for recall of an order relating to detention in excessive security by persons in sub-section (4)
Section 268	Application for declaration, by persons in sub-section (6)
Section 271	Application for recall of an order by Health Board, Scottish Ministers or the RMO
Section 290	Regulations made under this section (The Mental Health (Cross-Border Transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005) make provision for: a) reference by the Commission regarding proposed transfer from Scotland b) appeal by patient against proposed transfer from Scotland

Informal Patients

Section 290

Regulations made under this section (The Mental Health (Cross-Border Transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005) make provision for:

a) reference by the Commission regarding proposed transfer from Scotland
b) appeal by patient against proposed transfer from Scotland

Section 291

Application relating to unlawful detention by persons listed in sub-section (4)

04 Decisions on most individual cases are taken by a tribunal consisting of one member from each of the legal, medical and general panels. Each tribunal will have a convener who will be the President or a member of the legal panel. Where the Tribunal is considering proceedings (other than proceedings relating solely to an application under sections 255 and 256 of the Act) in relation to a patient subject to a compulsion order and a restriction order, a hospital direction or a transfer for treatment direction, the convener will be the President or a member of the shrieval panel.

05 The decision of the Tribunal, where made by more than one member, must be made by majority with the convener having a second casting vote in the event of a tie. The Tribunal must produce a written document containing the decision and a full statement of established facts and reasons for the decision. The Tribunal must notify each party of its decision and, on the request of one of the parties, a copy of the written document must be sent to each party.

06 For further information on appeals against certain decisions of the Tribunal that can be made to the Sheriff principal or the Court of Session, see Part 22 of the Act and Chapter 13 of this Volume of the Code of Practice.

07 Tribunal hearings will usually be held in the hospital where the person subject to the Act is an in-patient. If the person is not an in-patient, the hearing will usually take place at a venue as near as possible to where that person resides. To assist in the provision of accommodation for Tribunal hearings, NHS Boards, the State Hospitals Board for Scotland and local authorities have a duty under the Act, to provide hearing venues on request from the President, as far as it is reasonably practicable to do so.

08 The Tribunal has the power to require by citation any person to attend to give evidence at any hearing or to produce documents held by them. The Tribunal may require a witness to give evidence on oath or to affirm. Non-compliance with a citation without reasonable excuse is an offence, subject to specified penalties.

09 The Tribunal can pay allowances or expenses to persons appearing at a Tribunal hearing. These may cover for example, travel and subsistence and loss of earnings. The Tribunal can also make payment to persons who have produced medical or other reports commissioned by the Tribunal under paragraph 10(2)(q) of Schedule 2 of the Act. In both cases the President determines the amount payable.

10 The President will submit an annual report to the Scottish Ministers on the performance of the Tribunal's functions. This report requires to be laid before the Scottish Parliament. The President will also provide to the Scottish Ministers, or other persons specified by them, such information about the Tribunal's operation as the Scottish Ministers may direct.

11 Further regulations have also been made under paragraphs 1(2)(c), 3(6) and 5(4) of Schedule 2 of the Act. The Mental Health Tribunal for Scotland (Disqualification) Regulations 2004 ( SSI No. 154) were made under paragraph 1(2)(c) of Schedule 2 and provide a list of persons who are disqualified from appointment as, and being, a member of the Mental Health Tribunal for Scotland. The Mental Health Tribunal for Scotland (Delegation of the President';s Functions) Regulations 2004 ( SSI No. 373) were made under paragraph 3(6) of Schedule 2 and provide for the delegation by the President of the Tribunal of certain of the President';s functions to any of the members of the Tribunal or its staff. The Mental Health Tribunal for Scotland (Disciplinary Committee) Regulations 2004 ( SSI No. 402) were made under paragraph 5(4) of Schedule 2 and make provision for the procedure to be followed by and before a disciplinary committee constituted to carry out an investigation at the request of the Scottish Ministers in order to ascertain whether a member of the Tribunal is unfit for office by reason of inability, neglect of duty or misbehaviour.

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