Office of Public Sector Information
PART VI continued
(1)If the Secretary of State is satisfied that a restriction order in respect of a patient is no longer required for the protection of the public from serious harm, he may direct that the patient shall cease to be subject to the special restrictions set out in section 62(1) of this Act; and, where the Secretary of State so directs, the restriction order shall cease to have effect and subsection (3) of that section shall apply accordingly.
(2)At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
[F1(2A)The Scottish Ministers shall not, however, discharge a patient from hospital under subsection (2) of this section if they are satisfied that the patient is suffering from a mental disorder the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital, whether for medical treatment or not.
(2B)Nothing in section 102 (State hospitals) of the National Health Service (Scotland) Act 1978 (c.29) prevents or restricts the detention of a patient in a State hospital in pursuance of the decision of Scottish Ministers, under subsection (2A) of this section, not to discharge the patient.]
(3)The Secretary of State may, at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) of this section, and without prejudice to his further discharge as aforesaid, by warrant recall the patient to such hospital as may be specified in the warrant; and thereupon—
(a)if the hospital so specified is not the hospital from which the patient was conditionally discharged, the hospital order and the restriction order shall have effect as if the hospital specified in the warrant were substituted for the hospital specified in the hospital order;
(b)in any case, the patient shall be treated for the purposes of section 28 of this Act as if he had absented himself without leave from the hospital specified in the warrant, and if the restriction order was made for a specified period, that period shall not in any event expire until the patient returns to the hospital or is returned to the hospital under that section.
(4)If a restriction order ceases to have effect in respect of a patient after the patient has been conditionally discharged under this section, the patient shall, unless previously recalled under the last foregoing subsection, be deemed to be absolutely discharged on the date when the order ceases to have effect, and shall cease to be liable to be detained by virtue of the relevant hospital order accordingly.
(5)The Secretary of State may, if satisfied that the attendance at any place in Great Britain of a patient who is subject to a restriction order is desirable in the interests of justice or for the purposes of any public inquiry, direct him to be taken to that place; and where a patient is directed under this subsection to be taken to any place he shall, unless the Secretary of State otherwise directs, be kept in custody while being so taken, while at that place, and while being taken back to the hospital in which he is liable to be detained.
(1)The Secretary of State may by warrant direct that any person who, by virtue of any enactment to which this subsection applies, is required to be kept in custody during Her Majesty’s pleasure or until the directions of Her Majesty are known shall be detained in a State hospital or such other hospital as he may specify and, where that person is not already detained in the hospital, give directions for his removal there.
(2)The enactments to which subsection (1) of this section applies are section 16 of the M1Courts-Martial (Appeals) Act 1968, section 116 of the M2Army Act 1955, section 116 of the M3Air Force Act 1955, and section 63 of the M4Naval Discipline Act 1957.
(3)A direction under this section in respect of any person shall have the like effect as [F1a hospital order together with a restriction order].
F1Words in s. 69(3) substituted (31.3.1996) by 1995 c. 20, s. 117(1), Sch. 6 Pt. I para. 166; S.I. 1996/517, art. 3(2) (which substituting Act (1995 c. 20) was repealed (S.) (1.4.1996) by 1995 c. 40, ss. 6, 7(2), Sch. 5 (with s. 3, Sch. 3 para. 3)) and those same words in s. 69(3) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 50(5)
M11968 c. 20.
M21955 c. 18.
M31955 c. 19.
M41957 c. 53.
(1)If in the case of a person committed in custody while awaiting trial or sentence it appears to the Secretary of State that the grounds are satisfied upon which an application may be made for his admission to a hospital under Part V of this Act he may apply to the sheriff for an order that that person be removed to and detained in such hospital F1. . . as may be specified in the order; and the sheriff, if satisfied by reports from 2 medical practitioners (complying with the provisions of this section) that the grounds are satisfied as aforesaid may make an order accordingly.
(2)An order under this section (in this Act referred to as “a transfer order”) shall cease to have effect at the expiration of the period of 14 days beginning with the date on which it is made, unless within that period the person with respect to whom it was made has been received into the hospital specified therein.
(3)A transfer order with respect to any person shall have the like effect as a hospital order made in his case together with a restriction order in respect of him made without limit of time.
(4)Of the medical practitioners whose reports are taken into account under subsection (1) of this section, at least one shall be a practitioner approved for the purposes of section 20 of this Act by a Health Board as having special experience in the diagnosis or treatment of mental disorder.
(5)A transfer order shall specify the form or forms of mental disorder, being mental illness [F2(including personality disorder)] or mental handicap or both, from which the patient is found by the sheriff to be suffering; and no such order shall be made unless the patient is described by each of the practitioners whose evidence is taken into account as aforesaid as suffering from the same form of mental disorder, whether or not he is also described by either of them as suffering from the other form.
F1Words in s. 70(1) repealed (1.1.1998) by 1997 c. 48, ss. 8, 62(2), Sch. 3; S.I. 1997/2323, art. 4, Sch. 2
F2Words in s. 70(5) inserted (13.9.1999) by 1999 asp 1, s. 3(1)(b)
(1)If in the case of a person to whom this section applies the Secretary of State is satisfied by the like reports as are required for the purposes of section 70 of this Act that the grounds are satisfied upon which an application may be made for his admission to a hospital under Part V of this Act the Secretary of State may make a direction (in this Act referred to as “a transfer direction”) in respect of him.
(2)This section applies to the following persons, that is to say—
(a)persons serving sentences of imprisonment;
F1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)persons detained under the M1Immigration Act 1971.
(3)Subsections (2), (4) and (5) of section 70 of this Act shall apply for the purposes of this section and of any transfer direction given by virtue of this section as they apply for the purposes of that section and of any transfer order thereunder, with the substitution for any references to the sheriff of a reference to the Secretary of State.
(4)[F2Subject to section 71A of this Act,] a transfer direction with respect to any person shall have the like effect as a hospital order made in his case.
(5)Where a transfer direction is given in respect of any person that person may, within one month of his transfer to a hospital thereunder, appeal to the sheriff to cancel the direction, and the sheriff shall cancel the direction unless he is satisfied that the grounds are satisfied upon which an application may be made for the admission of the person to a hospital under Part V of this Act; and, if a transfer direction is so cancelled, the Secretary of State shall direct that the person be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.
(6)Subsections (2), (3) and (4) of section 35 of this Act shall apply to an appeal under subsection (5) of this section in like manner as they apply to an appeal referred to in that section.
(7)References in this section to a person serving a sentence of imprisonment include references—
(a)to a person detained in pursuance of any sentence or order for detention made by a court F3. . . (other than an order under [F4section 54, 57, 118 or 190 of the Criminal Procedure (Scotland) Act 1995], or under any enactment to which section 69 of this Act applies);
(b)to a person committed by a court to a prison or other institution to which the M2Prisons (Scotland) Act 1952, applies in default of payment of any fine to be paid on his conviction.
F1s. 71(2)(b) repealed (1.10.1993) by 1993 c. 9, s. 47(3), Sch. 7 Pt. I; S.I. 1993/2050, art. 3(4)
F2Words in s. 71(4) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 9(4) (with s. 33(6)); S.I. 1997/1712 art. 3
F3Words in s. 71(7)(a) repealed (1.10.1993) by 1993 c. 9, ss. 4(2), 5, 6, 10,47(3), Sch. 7 Pt. I; S.I. 1993/2050, art. 3(4)
F4Words in s. 71(7)(a) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4, para. 50(6)
C1S. 71 extended (1.1.1998) by 1997 c. 48, s. 9(1)(d) (with s. 33(6)); S.I. 1997/2323, art. 4, Sch. 2
M11971 c. 77.
M21952 c. 61.
(1)Where the Secretary of State is satisfied, in relation to a person in respect of whom he has made a transfer direction under section 71(1) of this Act, that—
(a)either—
(i)the person is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii)it is not necessary for the health or safety of the person or for the protection of other persons that he should receive such treatment; and
(b)it is not appropriate for the person to remain liable to be recalled to hospital for further treatment,
he shall by warrant direct that the person be remitted to any prison or other institution or place in which he might have been detained had he not been removed to hospital and that he be dealt with there as if he had not been so removed.
(2)Where the Secretary of State is satisfied as to the matters mentioned in subsection (1)(a) above, but not as to the matters mentioned in subsection (1)(b) above, he may either—
(a)by warrant give such direction as is mentioned in subsection (1) above; or
(b)decide that the person shall continue to be detained in hospital.
(3)If a direction is given under subsection (1) or (2)(a) above, then on the person’s arrival in the prison or other institution or place to which he is remitted by virtue of that subsection the transfer direction shall cease to have effect.]
F1S. 71A inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 9(5); S.I. 1997/1712, art. 3, Sch.
(1)Where a transfer direction is given in respect of any person, the Secretary of State, if he thinks fit, may by warrant direct that that person shall be subject to the special restrictions set out in section 62(1) of this Act.
(2)A direction under this section (in this Act referred to as “a restriction direction”) shall have the like effect as a restriction order in respect of the patient made under [F1section 59 of the M1Criminal Procedure (Scotland) Act 1995].
F1Words in s. 72(2) substituted (S.)(1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1, para. 9(6); S.I. 1997/1712, art. 3, Sch. art. 4
M11995 c.46.
(1)Subject to the following provisions of this section any transfer order made in respect of a person under section 70(1) of this Act shall cease to have effect if the proceedings in respect of him are dropped or when his case is disposed of by the court to which he was committed, or by which he was remanded, but without prejudice to any power of that court to make a hospital order or other order under [F1section 53, 57, 58 or 59 of the Criminal Procedure (Scotland) Act 1995] in his case.
(2)Where a transfer order has been made in respect of any such person as aforesaid, then, if the Secretary of State is notified by the responsible medical officer at any time before that person is brought before the court to which he was committed, or by which he was remanded, that he no longer requires treatment for mental disorder, the Secretary of State may by warrant direct that he be remitted to any place where he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed, and on his arrival at the place to which he is so remitted the transfer order shall cease to have effect.
F2(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1Words in s. 73(1) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4, para. 50(7)(a)
F2S. 73(3) repealed (1.10.1993) by 1993 c. 9, s. 47(3), Sch. 7 Pt.I; S.I. 1993/2050, art. 3(4)
(1)This subsection applies where a transfer direction and a restriction direction have been given in respect of a person—
(a)serving a sentence of imprisonment; or
(b)who is detained (other than in respect of a criminal offence) under or by virtue of the Immigration Act 1971,
if the Secretary of State is satisfied, at a time when the person would but for those directions be, by virtue of the circumstance mentioned in paragraph (a) or (b) above, in prison or being detained other than in a hospital, as to the matters mentioned in subsection (2) below.
[F2(1A)This subsection applies if the Secretary of State is satisfied as regards a person who has been conveyed to a hospital under a hospital direction as to the matters mentioned in subsection (2) below at a time when the person, by virtue of a sentence of imprisonment imposed on him at the time that direction was made, would but for that direction be in prison or being detained other than in a hospital.]
[F3(1B)Neither of subsections (1) and (1A) above apply, however, where the Scottish Ministers are satisfied, at the respective times mentioned in these subsections, that the person is, at the relevant time, suffering from a mental disorder the effect of which is such that it is necessary, in order to protect the public from serious harm, that the person continue to be detained in a hospital, whether for treatment or not.
(1C)Nothing in section 102 (State hospitals) of the National Health Service (Scotland) Act 1978 (c.29) prevents or restricts the detention of a person in a State hospital in consequence of subsection (1B) above.]
(2)The matters referred to in subsection (1) [F4and (1A)] above are—
(a)that either—
(i)the person is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii)that it is not necessary for the health or safety of the person or for the protection of other persons that he should receive such treatment; and
(b)that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment.
(3)Where subsection (1) [F5or (1A)] above applies, the Secretary of State shall by warrant direct that the person be remitted to any prison or other institution or place in which he might have been detained had he not been [F5conveyed or] removed to hospital and that he be dealt with there as if he had not been [F6so conveyed or removed].
(4)Where subsection (1) [F7or (1A)] above does not apply only because the Secretary of State is not satisfied as to the matter mentioned in subsection (2)(b) above, he may either—
(a)by warrant give such direction as is mentioned in subsection (3) above; or
(b)decide that the person shall continue to be detained in hospital.
(5)If a direction is given under subsection (3) or (4)(a) above, then on the person’s arrival in the prison or other institution or place to which remitted by virtue of that subsection the transfer direction and the restriction direction [F8or, as the case may be, the hospital direction] shall cease to have effect.
(6)This subsection applies where a transfer direction and a restriction direction have been given in respect of such person as is mentioned in subsection (1) above and he has thereafter been released under Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993 [F9or otherwise] .
(7)Where subsection (6) above applies—
(a)the transfer direction and the restriction direction shall forthwith cease to have effect; and
(b)the person shall thereupon be discharged from hospital unless a report is furnished in respect of him under subsection (9) below.
(8)A transfer direction or restriction direction given in respect of a person detained (other than in respect of a criminal offence) under or by virtue of the Immigration Act 1971 shall, if it does not first cease to have effect under subsection (5) above or under section 65(2) of this Act, cease to have effect when his liability to be so detained comes to an end.
[F10(8A)This subsection applies where a hospital direction has been made in respect of a person and he has thereafter been released under [F11Part I of the M1Prisoners and Criminal Proceedings (Scotland) Act 1993].
(8B)Where subsection (8A) above applies—
(a) the hospital direction shall forthwith cease to have effect; and
(b) the person shall thereupon be discharged from hospital unless a report is furnished in respect of him under subsection (9) below.]
(9)Not earlier than 28 days before [F12—
(a)]a restriction direction given in repect of a person ceases to have effect other than by virtue of subsection (8) above [F13; or
(b) a hospital direction ceases to have effect,] the responsible medical officer shall obtain from another medical practitioner a report on the condition of the person in the prescribed form and thereafter shall assess the need for the detention of the person to be continued; and, if it appears to the responsible medical officer that it is necessary in the interests of the health or safety of the person or for the protection of others that the person should continue to be liable to be detained in hospital, the officer shall furnish to the managers of the hospital where the person is liable to be detained and to the Mental Welfare Commission a report to that effect in the prescribed form along with the report of the other medical practitioner.
(10)Where a report has been furnished under subsection (9) above the person shall, after the restriction direction [F14or, as the case may be, hospital direction] ceases to have effect, be treated as if he had, on the date on which the restriction direction [F14or, as the case may be, hospital direction] ceased to have effect, been admitted to the hospital in pursuance of an application for admission; but the provisions of sections 30(5) and (6) and 35 of this Act shall apply to the person and that report as they apply to a patient the authority for whose detention in hospital has been renewed in pursuance of subsection (4) of, and to a report under subsection (3) of, the said section 30.
(11)For the purposes of section 40(2) of the Prisons (Scotland) Act 1989 (discounting from sentence periods while unlawfully at large) a person who, having been transferred to hospital in pursuance of a transfer direction [F15or, as the case may be, hospital direction] from a prison or young offenders institution, is at large in circumstances in which he is liable to be taken into custody under any provision of this Act, shall be treated as unlawfully at large and absent from the prison or young offenders institution.
(12)In this section “prescribed” means prescribed by regulations made by the Secretary of State.]
F1S. 74 substituted (1.10.1993) for ss. 74 and 75 by 1993 c. 9, ss. 4(3), 5, 6, 10; S.I. 1993/2050, art. 3(4)
F2S. 74(1A) inserted (1.1.1998) by 1997 c. 48, s. 7(4)(a); S.I. 1997/2323, art. 4
F3S. 74(1B)(1C) inserted (13.9.1999) by 1999 asp 1, s. 1(4)(5)
F4Words in s. 74(2) inserted (S.) (1.1.1998) by 1997 c. 48, s. 7(4)(b); S.I. 1997/2323, art. 4
F5Words in s. 74(3) inserted (S.) (1.1.1998) by 1997 c. 48, s. 7(4)(c)(ii); S.I. 1997/2323, art. 4
F6Words in s. 74(3) substituted (S.)(1.1.1998) by 1997 c. 48, s. 7(4)(c)(iii); S.I. 1997/2323, art. 4
F7Words in s. 74(4) inserted (S.) (1.1.1998) by 1997 c. 48, s. 7(4)(d); S.I. 1997/2323, art. 4
F8Words in s. 74(5) inserted (S.) (1.1.1998) by 1997 c. 48, s. 7(4)(e); S.I. 1997/2323, art. 4
F9Words in s. 74(6) inserted (17.12.2001) by 2001 asp 13, s. 25 (with s. 29); S.S.I. 2001/456, art. 2
F10S.74(8A)(8B) inserted (S.) (1.1.1998) by 1997 c. 48, s. 7(4)(f); S.I. 1997/2323, art. 4
F11Words in s. 74(8A) substituted (retrospectively to1.1.1998) by 1998 c. 37, ss. 119, 121(2), Sch. 8, para. 55(1)(2)
F12Words in s. 74(9) inserted (S.) (1.1.1998) by 1997 c. 48, s. 7(4)(g)(i); S.I. 1997/2323, art. 4
F13S. 74(9): paragraph (b) and word “or” preceding it inserted (S.) (1.1.1998) by 1997 c. 48, s. 7(4)(g)(ii); S.I. 1997/2323, art. 4
F14Words in s. 74(10) inserted (S.) (1.1.1998) by 1997 c. 48, s. 7(4)(h); S.I. 1997/2323, art. 4
F15Words in s. 74(11) inserted (S.) (1.1.1998) by 1997 c. 48, s. 7(4)(i); S.I. 1997/2323, art. 4
M11993 c.9.
(1)In the following provisions of this Part of this Act, that is to say—
(a)section 60(2) and (3);
F1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)section 62(1); and
(d)section 68
and in [F2section 59(3) of the Criminal Procedure (Scotland) Act 1995] any reference to a hospital order F3. . . or a restriction order in respect of a patient subject to a hospital order shall be construed as including a reference to any order or direction under this Part of this Act having the like effect as the first-mentioned order; and the exceptions and modifications set out in the Second Schedule to this Act in respect of the provisions of Part V of this Act described in that Schedule accordingly include those which are consequential on the provisions of this subsection.
(2)References in this Part of this Act to persons serving a sentence of imprisonment shall be construed in accordance with section 71(7) of this Act.
F1S. 76(1)(b) repealed (1.4.2002) by 2000 asp 4, s. 88(3), Sch. 6; S.S.I. 2001/81, art. 3, Sch. 2
F2Words in s. 76 substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4, para. 50(8)
F3Words in s. 76(1) repealed (1.4.2002) by 2000 asp 4, s. 88(3), Sch. 6; S.S.I. 2001/81, art. 3, Sch. 2
Mental Health (Scotland) Act 1984