Mental Health legislation - appeals against conditions of excessive security: guidance

Annex A

Mental Health (Care and Treatment) (Scotland) Act 2003 (as amended)

Chapter 3

Detention in conditions of excessive security

State hospitals

264 Detention in conditions of excessive security: state hospitals

(1) This section applies where a patient's detention in a state hospital is authorised by-

(a) a compulsory treatment order;

(b) a compulsion order;

(c) a hospital direction; or

(d) a transfer for treatment direction;

and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.

(2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order-

(a) declaring that the patient is being detained in conditions of excessive security; and

(b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed.

(3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital-

(a) which is not a state hospital;

(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and

(c) in which accommodation is available for the patient.

(4) Where the Tribunal makes an order under subsection (2) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital-

(a) which is not a state hospital;

(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in appropriate conditions; and

(c) in which accommodation is available for the patient.

(5) Where the Tribunal makes an order under subsection (2) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (3) or, as the case may be, (4) above, give notice to the managers of the state hospital of the name of the hospital so identified.

(6) The persons referred to in subsection (2) above are-

(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 Commission.

(7) An application may not be made under subsection (2) above-

(a) if the compulsory treatment order that authorises the patient's detention in hospital has not been extended;

(b) during the period of 6 months beginning with the making of the compulsion order that authorises the patient's detention in hospital; or

(c) before the expiry of the period of 6 months beginning with the making of-

(i) the hospital direction; or
(ii) the transfer for treatment direction,

that authorises the patient's detention in hospital.

(7A) An application may not be made under subsection (2) above unless it is accompanied by a report prepared by an approved medical practitioner which-

(a) states that in the practitioner's opinion the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, and

(b) sets out the practitioner's reasons for being of that opinion.

(8) No more than one application may be made under subsection (2) above in respect of the same patient-

(a) during the period of 12 months beginning with the day on which the order, or direction, authorising the patient's detention in hospital is made;

(b) during any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period mentioned in paragraph (a) above.

(9) Before determining an application under subsection (2) above, the Tribunal shall-

(a) afford the persons mentioned in subsection (10) below the opportunity-

(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing, evidence; and

(b) whether or not any such representations are made, hold a hearing.

(10) Those persons are-

(a) the patient;

(b) the patient's named person;

(c) the relevant Health Board;

(d) the patient's responsible medical officer;

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

(f) the mental health officer;

(g) any guardian of the patient;

(h) any welfare attorney of the patient;

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

(j) the Commission;

(k) in the case of a relevant patient, the Scottish Ministers; and

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

265 Order under section 264: further provision

(1) This section applies where-

(a) an order is made under section 264(2) of this Act in respect of a patient; and

(b) the order is not recalled under section 267 of this Act;

and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.

(2) If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the patient has been transferred to another hospital, there shall be a hearing before the Tribunal.

(3) Where such a hearing is held, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order-

(a) declaring that the patient is being detained in conditions of excessive security; and

(b) specifying-

(i) a period of 28 days; or
(ii) such longer period not exceeding 3 months as the Tribunal thinks fit,

beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed.

(4) Where the Tribunal makes an order under subsection (3) above in respect of a relevant patient, the relevant Health Board shall identify a hospital-

(a) which is not a state hospital;

(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and

(c) in which accommodation is available for the patient.

(5) Where the Tribunal makes an order under subsection (3) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital-

(a) which is not a state hospital;

(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in appropriate conditions; and

(c) in which accommodation is available for the patient.

(6) Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4) or, as the case may be, (5) above, give notice to the managers of the state hospital of the name of the hospital so identified.

(7) Before making an order under subsection (3) above, the Tribunal shall afford the persons mentioned in section 264(10) of this Act the opportunity-

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

(b) of leading, or producing, evidence.

266 Order under section 265: further provision - repealed

267 Order under sections 264 or 265: recall

(1) This section applies where an order is made under section 264(2) or 265(3) of this Act in respect of a patient.

(2) On the application of any of the persons mentioned in subsection (4) below, the Tribunal-

(a) shall, if satisfied that the patient requires to be detained under conditions of special security that can be provided only in a state hospital, recall the order;

(b) may, on any other grounds, recall the order.

(3) Where the order is recalled, the relevant Health Board ceases to be subject to the duties under section 264(3) to (5) or 265(4) to (6) to which it became subject by virtue of the making of the order.

(4) The persons referred to in subsection (2) above are-

(a) the relevant Health Board;

(b) in the case of a relevant patient, the Scottish Ministers;

(c) in the case of a patient who is not a relevant patient, the patient's responsible medical officer.

(5) Before determining an application under subsection (2) above, the Tribunal shall-

(a) afford the persons mentioned in section 264(10) of this Act the opportunity-

(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing, evidence; and

(b) whether or not any such representations are made, hold a hearing.

Other hospitals

268 Detention in conditions of excessive security: hospitals other than state hospitals

(1) This section applies where a patient's detention in a qualifying hospital is authorised by-

(a) a compulsory treatment order;

(b) a compulsion order;

(c) a hospital direction; or

(d) a transfer for treatment direction;

and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.

(2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient, make an order-

(a) declaring that the patient is being detained in conditions of excessive security; and

(b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed.

(3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital-

(a) which is not a state hospital;

(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and

(c) in which accommodation is available for the patient.

(4) Where the Tribunal makes an order under subsection (2) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital-

(a) which is not a state hospital;

(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and

(c) in which accommodation is available for the patient.

(5) Where the Tribunal makes an order under subsection (2) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (3) or, as the case may be, (4) above, give notice of the name of the hospital so identified to the managers of the hospital in which the patient is detained.

(6) The persons referred to in subsection (2) above are-

(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 Commission.

(7) An application may not be made under subsection (2) above-

(a) if the compulsory treatment order that authorises the patient's detention in hospital has not been extended;

(b) during the period of 6 months beginning with the making of the compulsion order that authorises the patient's detention in hospital; or

(c) before the expiry of the period of 6 months beginning with the making of-

(i) the hospital direction; or
(ii) the transfer for treatment direction,

that authorises the patient's detention in hospital.

(7A) An application may not be made under subsection (2) above unless it is accompanied by a report prepared by an approved medical practitioner which-

(a) states that in the practitioner's opinion the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient, and

(b) sets out the practitioner's reasons for being of that opinion.

(8) No more than one application may be made under subsection (2) above in respect of the same patient-

(a) during the period of 12 months beginning with the day on which the order, or direction, authorising the patient's detention in hospital is made;

(b) during any subsequent period of 12 months that begins with, or with an anniversary of, the expiry of the period mentioned in paragraph (a) above.

(9) Before determining an application under subsection (2) above, the Tribunal shall-

(a) afford the persons mentioned in subsection (10) below the opportunity-

(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing, evidence; and

(b) whether or not any such representations are made, hold a hearing.

(10) Those persons are-

(a) the patient;

(b) the patient's named person;

(c) the relevant Health Board;

(d) the patient's responsible medical officer;

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

(f) the mental health officer;

(g) any guardian of the patient;

(h) any welfare attorney of the patient;

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

(j) the Commission;

(k) in the case of a relevant patient, the Scottish Ministers; and

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

269 Order under section 268: further provision

(1) This section applies where-

(a) an order is made under section 268(2) of this Act in respect of a patient; and

(b) the order is not recalled under section 271 of this Act;

and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient.

(2) If the relevant Health Board fails, during the period specified in the order, to give notice to the Tribunal that the patient has been transferred to another hospital, there shall be a hearing before the Tribunal.

(3) Where such a hearing is held, the Tribunal may, if satisfied that the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient, make an order-

(a) declaring that the patient is being detained in conditions of excessive security; and

(b) specifying-

(i) a period of 28 days; or

(ii) such longer period not exceeding 3 months as the Tribunal thinks fit,

beginning with the day on which the order is made during which the duties under subsections (4) to (6) below shall be performed.

(4) Where the Tribunal makes an order under subsection (3) above in respect of a relevant patient, the relevant Health Board shall identify a hospital-

(a) which is not a state hospital;

(b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and

(c) in which accommodation is available for the patient.

(5) Where the Tribunal makes an order under subsection (3) above in respect of a patient who is not a relevant patient, the relevant Health Board shall identify a hospital-

(a) which is not a state hospital;

(b) which the Board considers, and its managers if they are not the Board agree, is a hospital in which the patient could be detained in conditions that would not involve the patient being subject to a level of security that is excessive in the patient's case; and

(c) in which accommodation is available for the patient.

(6) Where the Tribunal makes an order under subsection (3) above in respect of a patient, the relevant Health Board shall, as soon as practicable after identifying a hospital under subsection (4) or, as the case may be, (5) above, give notice of the name of the hospital so identified to the managers of the hospital in which the patient is detained.

(7) Before making an order under subsection (3) above, the Tribunal shall afford the persons mentioned in section 268(10) of this Act the opportunity-

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

(b) of leading, or producing, evidence.

270 Order under section 269: further provision - repealed

271 Orders under sections 268 or 269: recall

(1) This section applies where an order is made under section 268(2) or 269(3) of this Act in respect of a patient.

(2) On the application of any of the persons mentioned in subsection (4) below, the Tribunal-

(a) shall, if satisfied that the test specified in regulations made under section 271A(2) of this Act is not met in relation to the patient, recall the order;

(b) may, on any other grounds, recall the order.

(3) Where the order is recalled, the relevant Health Board ceases to be subject to the duties under section 268(3) to (5) or 269(4) to (6) to which it became subject by virtue of the making of the order.

(4) The persons referred to in subsection (2) above are-

(a) the relevant Health Board;

(b) in the case of a relevant patient, the Scottish Ministers;

(c) in the case of a patient who is not a relevant patient, the patient's responsible medical officer.

(5) Before determining an application under subsection (2) above, the Tribunal shall-

(a) afford the persons mentioned in section 268(10) of this Act the opportunity-

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

(ii) of leading, or producing, evidence; and

(b) whether or not any such representations are made, hold a hearing.

Process for orders: further provision

271A Regulation-making powers

(1) A hospital is a "qualifying hospital" for the purposes of sections 268 to 271 of this Act if-

(a) it is not a state hospital, and

(b) it is specified, or is of a description specified, in regulations.

(2) Regulations may specify the test for the purposes of sections 268(2), 269(3) and 271(2)(a) of this Act.

(3) Regulations under subsection (2) above specifying the test-

(a) must include as a requirement for the test to be met in relation to a patient that the Tribunal be satisfied that detention of the patient in the hospital in which the patient is being detained involves the patient being subject to a level of security that is excessive in the patient's case, and

(b) may include further requirements for the test to be met in relation to a patient.

(4) Regulations may make provision about when, for the purposes of-

(a) any regulations made under subsection (2) above, and

(b) sections 268 to 271 of this Act, a patient's detention in a hospital is to be taken to involve the patient being subject to a level of security that is excessive in the patient's case.

(5) Regulations may modify sections 264 and 268 of this Act so as to provide that a person must meet criteria besides being a medical practitioner in order to prepare a report for the purpose of subsection (7A) in each of those sections.

Enforcement: civil proceedings

272 Proceedings for specific performance of statutory duty

(1) The duties imposed by virtue of-

(a) an order under section 264(2) of this Act, or

(c) an order under section 268(2) of this Act,

shall not be enforceable by proceedings for specific performance of a statutory duty under section 45(b) of the Court of Session Act 1988 (c. 36).

(2) Without prejudice to the rights of any other person, the duties imposed by virtue of-

(a) an order under section 265(3) of this Act, or

(c) an order under section 269(3) of this Act,

shall be enforceable by proceedings by the Commission for specific performance of a statutory duty under section 45(b) of that Act of 1988.

Interpretation of Chapter

273 Interpretation of Chapter

In this Chapter-

(1) "relevant Health Board" means, in relation to a patient of such description as may be specified in regulations, the Health Board, or Special Health Board-

(a) of such description as may be so specified; or

(b) determined under such regulations; and

"relevant patient" means a patient whose detention in hospital is authorised by-

(a) if the patient is also subject to a restriction order, a compulsion order,

(b) a hospital direction, or

(c) a transfer for treatment direction.

(2) In this Chapter, a reference to a hospital may be read as a reference to a hospital unit.

(3) For the purposes of this Chapter, "hospital unit" means any part of a hospital which is treated as a separate unit.