Office of Public Sector Information
PART V continued
(1)Where an appeal lies to the sheriff in respect of a report on a patient under any of sections 26, 30 or 34 of this Act, the managers of the hospital where the patient is liable to be detained shall, when intimating that a report has been furnished in pursuance of any of the said sections, inform any person having a right so to appeal, whether the patient [F1, his nearest relative, his guardian or his welfare attorney or all of them], of that right and of the period within which it may be exercised.
(2)An appeal under any of the said sections [F2or under section 26A of this Act] shall be made by way of summary application to a sheriff of the sheriffdom—
(a)within which the patient is resident at the time when the appeal is made; or
(b)where the patient is a resident patient in a hospital at the time when the appeal is made, within which the hospital is situated.
(3)For the purpose of advising whether any appeal to the sheriff under any of the said sections [F2or under section 26A of this Act] should be made by or in respect of a patient who is liable to be detained under this Part of this Act, or of furnishing information as to the condition of a patient for the purposes of such an appeal or of advising the nearest relative [F3or any guardian or welfare attorney] of any such patient as to the exercise of any power to order the discharge of the patient, any medical practitioner authorised by or on behalf of the patient or by the nearest relative of the patient, as the case may be, may, at any reasonable time, visit the patient and may examine him in private.
(4)Any medical practitioner authorised for the purposes of subsection (3) of this section to visit and examine a patient may require the production of and inspect any records relating to the detention or treatment of the patient in any hospital.
F1Words in s. 35(1) substituted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 17(15)(a); S.S.I. 2001/81, art. 3, Sch. 2
F2Words in s. 35(2)(3) inserted (9.3.1992) by Mental Health (Detention) (Scotland) Act 1991 (c. 47, SIF 85), s. 3(4); S.I. 1992/357, art. 2
F3Words in s. 35(3) inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 17(15)(b); S.S.I. 2001/81, art. 3, Sch. 2
(1)As respects a patient who is liable to be detained in a hospital in pursuance of an application for admission the responsible medical officer may, in accordance with section 35B of this Act, make an application (in this Act referred to as a “community care application”) to the sheriff for an order (in this Act referred to as a “community care order”) providing that the patient shall, instead of continuing to be liable to be so detained, be subject to the conditions specified in the order, being conditions imposed with a view to ensuring that he receives—
(a)medical treatment; and
(b)after-care services provided for him under section 8 of this Act.
(2)Sections 21(1), (2)(a) and (b), (3), (4) and (5) and 113 of this Act shall apply with respect to a community care application as they apply with respect to an application for admission.
(3)The sheriff shall, as respects a community care application—
(a)make a community care order in respect of the patient, subject to the conditions set out in the application or to such other conditions as the sheriff considers appropriate; or
(b)refuse the application.
(4)A community care order shall specify—
(a)the conditions to which the patient is to be subject;
(b)the name of the medical practitioner (the “special medical officer”) who is to be principally concerned with the patient’s medical treatment while the order is in force, who 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; and
(c)the name of the person (the “after-care officer”) who is to be responsible for co-ordinating the provision of the after-care services to be provided for the patient under section 8 of this Act while the order is in force, who shall be a mental health officer of the local authority which is to provide the after-care services to be so provided.
(5)The sheriff may defer the making of a community care order until such arrangements as appear to him to be necessary for the provision of medical treatment and after-care services to the patient following the making of the order have been made to the sheriff’s satisfaction.
(6)If, on the date when a patient ceases to be liable to be detained in a hospital in pursuance of an application for admission, a community care application has been made in respect of him but has not been determined, his liability to be so detained shall continue until the community care order comes into force or, as the case may be, the application is refused by the sheriff.
(7)If, on the date when a patient ceases to be liable to be detained in a hospital in pursuance of an application for admission, a community care order has been made in respect of him but has not come into force, his liability to be so detained shall continue until the order comes into force.
(8)On the coming into force of a community care order in respect of a patient, he shall cease to be liable to be detained in a hospital under this Part of this Act.
(9)The responsible medical officer shall, within 7 days of the making of a community care order, send a copy of the order to—
(a)the patient and any other person who has been consulted under subsection (3)(a) or (f) or (4) of section 35B of this Act;
(b)the Mental Welfare Commission;
(c)the patient’s special medical officer; and
(d)the patient’s after-care officer.
(10)The patient’s after-care officer shall, on receiving a copy of the community care order, take such steps as are practicable to explain to the patient, both orally and in writing—
(a)the purpose and effect of the order and of the conditions specified in it;
(b)the patient’s right of appeal to the sheriff under section 35F of this Act; and
(c)that the patient may make representations to the Mental Welfare Commission,
and shall send a copy of any written explanation to any other person who has been consulted under subsection (3)(a) or (4) of section 35B of this Act.
F1S. 35A inserted (1.4.1996) by 1995 c. 52, ss. 4(1), 7(2)
C1S. 35A modified (1.4.1996) by S.I. 1996/742, arts. 1, 3, Sch. para. 1
(1)A community care application may be made at any time after the expiry of the period of 28 days beginning with the day on which the patient was admitted to a hospital in pursuance of an application for admission.
(2)Before making a community care application the responsible medical officer shall—
(a)consult the persons specified in subsection (3) below; and
(b)consider the matters specified in subsection (5) below.
(3)The persons referred to in subsection (2)(a) above are—
(a)the patient [F2or any guardian of the patient] and, if practicable and the patient does not object, his nearest relative [F2and any welfare attorney of the patient];
(b)the persons who have been principally concerned with the patient’s medical treatment in hospital;
(c)the medical practitioner who is to be the patient’s special medical officer and the other persons who are to be concerned with the patient’s medical treatment after the community care order comes into force;
(d)the person who is to be the patient’s after-care officer;
(e)each other person who the responsible medical officer believes is to have a continuing professional involvement in any aspect of the after-care services which are to be provided for the patient under section 8 of this Act after the order comes into force; and
(f)any person who the responsible medical officer believes will play a substantial part in the care of the patient after the order comes into force but will not be professionally concerned with the after-care services to be so provided.
(4)If the patient has a propensity to violent or dangerous behaviour the responsible medical officer may consult the patient’s nearest relative [F3and any welfare attorney of the patient,] notwithstanding any objection by the patient to such consultation under subsection (3)(a) above.
(5)The matters referred to in subsection (2)(b) above are—
(a)the after-care services mentioned in subsection (3)(e) above; and
(b)the conditions which should be specified in the order with a view to ensuring that the patient receives medical treatment and such after-care services.
(6)A community care application shall be in the prescribed form and shall include—
(a)the conditions which the responsible medical officer considers should be specified in the community care order for the purpose mentioned in subsection (5)(b) above;
(b)the name of the medical practitioner who is to be the patient’s special medical officer after the order comes into force;
(c)the name of the person who is to be the patient’s after-care officer after the order comes into force; and
(d)subject to section 35C(1) of this Act, the period for which the responsible medical officer considers the order should have effect.
(7)A community care application shall be accompanied by—
(a)two medical recommendations, in the prescribed form and complying with subsection (8) below, one of which shall be given by a medical 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 and the other of which shall, if practicable, be given by another medical practitioner who has previous acquaintance with the patient; and
(b)a report in the prescribed form from the person who is to be the patient’s after-care officer after the order comes into force, and complying with subsection (9) below.
(8)The medical recommendations referred to in subsection (7)(a) above shall consist of statements of opinion that both the following conditions are satisfied, namely—
(a)that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment, but that the grounds set out in section 17(1) of this Act for admission to and detention in a hospital do not apply to the patient; and
(b)that the patient requires to be subject to a community care order—
(i)with a view to ensuring that he receives medical treatment and the after-care services to be provided for him under section 8 of this Act; and
(ii)in the interests of his health or safety or with a view to the protection of other persons;
and for the purposes of subsection (7)(a) above the recommendations do not comply with this subsection unless the patient is described in each of them as suffering from the same form of mental disorder (that is to say, mental illness [F4(including personality disorder)] or mental handicap), whether or not he is described in either recommendation as suffering also from the other form.
(9)The report referred to in subsection (7)(b) above shall include—
(a)information as to—
(i)the patient’s social circumstances;
(ii)the after-care services which are to be provided for the patient under section 8 of this Act after the order comes into force;
(iii)the care, other than medical treatment and the after-care services so provided, which is to be provided for the patient after the order comes into force; and
(b)a statement that in the opinion of the person making the report the patient requires to be subject to a community care order—
(i)with a view to ensuring that he receives medical treatment and the after-care services to be so provided; and
(ii)in the interests of his health or safety or with a view to the protection of other persons.
(10)Before making a community care application the responsible medical officer shall take such steps as are reasonably practicable to inform any person, other than the patient, who has been consulted under subsection (3)(a) or (4) above of his right, by virtue of section 35A(2) of this Act, to be heard by the sheriff regarding the proposed community care order.
F1S. 35B inserted (1.4.1996) by 1995 c. 52, ss. 4(1), 7(2)
F2Words in s. 35B(3)(a) inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 17(16)(a); S.S.I. 2001/81, art. 3, Sch. 2
F3Words in s. 35B(4) inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 17(16)(b); S.S.I. 2001/81, art. 3, Sch. 2
F4Words in s. 35B(8) inserted (13.9.1999) by 1999 asp 1, s. 3(1)(b)
C1S. 35B modified (1.4.1996) by S.I. 1996/742, arts. 1, 3, Sch. para. 2
(1)Subject to section 35J of this Act and the following provisions of this section, a community care order shall have effect for such period, not exceeding 6 months, as may be specified in the order.
(2)A community care order may be renewed under this section—
(a)from the expiry of the period referred to in subsection (1) above, for a further period not exceeding 6 months;
(b)from the expiry of any period of renewal under paragraph (a) above, for a further period not exceeding one year, and so on for periods not exceeding one year at a time.
(3)The special medical officer shall, within the period of two months ending with the day on which the community care order, if not renewed, would expire—
(a)examine the patient; and
(b)consult—
(i)the patient [F2or any guardian of the patient] and, if practicable and the patient does not object, his nearest relative [F2and any welfare attorney of the patient];
(ii)the patient’s after-care officer;
(iii)the other persons concerned with the patient’s medical treatment or professionally concerned with any aspect of the after-care services provided for him under section 8 of this Act; and
(iv)any person who the special medical officer believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services so provided.
(4)If the patient has a propensity to violent or dangerous behaviour the responsible medical officer may consult the patient’s nearest relative [F3and any welfare attorney of the patient,] notwithstanding any objection by the patient to such consultation under subsection (3)(b)(i) above.
(5)If, after the examination and consultation required by subsection (3) above and any consultation under subsection (4) above, the special medical officer considers that the conditions set out in section 35B(8)(a) and (b) of this Act continue to apply to the patient, he shall send to the Mental Welfare Commission a report to that effect in the prescribed form, and the community care order shall thereby be renewed for such period as is, subject to subsection (2) above, specified in the report.
(6)The special medical officer shall notify—
(a)the patient and any other person who has been consulted under subsection (3)(b)(i) or (iv) or (4) above; and
(b)the patient’s after-care officer,
of any renewal of the community care order and of the period of such renewal.
(7)Subsection (10) of section 35A of this Act shall apply in relation to a renewal of a community care order under this section as it applies in relation to a community care order made under that section, but with the substitution of references to subsections (3)(b)(i) and (4) of this section for the references to subsections (3)(a) and (4) of section 35B.
F1S. 35C inserted (1.4.1996) by 1995 c. 52, ss. 4(1), 7(2)
F2Words in s. 35C(3)(b)(i) inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 17(17)(a); S.S.I. 2001/81, art. 3, Sch. 2
F3Words in s. 35C(4) inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 17(17)(b); S.S.I. 2001/81, art. 3, Sch. 2
C1S. 35C modified (1.4.1996) by S.I. 1996/742, arts. 1, 3, Sch. para. 3
(1)This section applies where the special medical officer, after consulting—
(a)the patient [F2or any guardian of the patient] and, if practicable and the patient does not object, his nearest relative [F2and any welfare attorney of the patient];
(b)the other persons concerned with the patient’s medical treatment;
(c)the patient’s after-care officer;
(d)the other persons professionally concerned with any aspect of the after-care services provided for the patient under section 8 of this Act; and
(e)any person who the special medical officer believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services so provided,
considers that the conditions specified in the order should be varied (whether by adding further conditions or deleting or amending existing conditions).
(2)If the patient has a propensity to violent or dangerous behaviour the special medical officer may consult the patient’s nearest relative [F3and any welfare attorney of the patient,] notwithstanding any objection by the patient to such consultation under subsection (1)(a) above.
(3)Where this section applies the special medical officer shall prepare a note, in the prescribed form, of the proposed variation of the conditions and shall send a copy of the note to—
(a)the patient and any other person who has been consulted under subsection (1)(a) or (2) above;
(b)the patient’s after-care officer; and
(c)the sheriff clerk for the sheriff of the sheriffdom within which the patient is resident.
(4)If the patient wishes to object to or make representations concerning the proposed variation of the conditions he shall, within 7 days of receiving the copy of the note under subsection (3) above, so advise the sheriff clerk; and in that event the sheriff shall not approve the variation without holding a hearing.
(5)If the patient does not indicate, in accordance with subsection (4) above, that he wishes to be heard concerning the proposed variation of the conditions the sheriff shall, if he thinks fit, approve the variation without a hearing.
(6)Where a variation of conditions is approved under this section the special medical officer shall send a copy of the variation as so approved to—
(a)the patient and any other person who has been consulted under subsection (1)(a) or (e) or (2) above;
(b)the Mental Welfare Commission; and
(c)the patient’s after-care officer.
(7)Subsection (10) of section 35A of this Act shall apply in relation to a variation of conditions approved under this section as it applies in relation to a community care order made under that section, but with the substitution of references to subsections (1)(a) and (2) of this section for the references to subsections (3)(a) and (4) of section 35B.
F1S. 35D inserted (1.4.1996) by 1995 c. 52, ss. 4(1), 7(2)
F2Words in s. 35D(1)(a) inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 17(18)(a); S.S.I. 2001/81, art. 3, Sch. 2
F3Words in s. 35D(2) inserted (1.4.2002) by 2000 asp 4, s. 88(2), Sch. 5 para. 17(18)(b); S.S.I. 2001/81, art. 3, Sch. 2
(1)This subsection applies where a patient’s special medical officer, after consulting the persons mentioned in subsection (3) below, agrees with another medical practitioner (“the new special medical officer”), who 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, that the new special medical officer should, from a date so agreed, assume principal responsibility for the patient’s medical treatment while the community care order is in force.
(2)This subsection applies where a patient’s after-care officer, after consulting the persons mentioned in subsection (4) below, agrees with another person (“the new after-care officer”), who shall be a mental health officer of the local authority which is providing (or, if different, the local authority which is to provide) the after-care services to be provided for the patient under section 8 of this Act while the community care order is in force, that the new after-care officer should, from a date so agreed, assume responsibility for co-ordinating the provision of the after-care services to be so provided.
(3)The persons referred to in subsection (1) above are—
(a)the patient [F2or any guardian of the patient] and, if practicable and the patient does not object, his nearest relative [F2and any welfare attorney of the patient];
(b)the other persons concerned or to be concerned with the patient’s medical treatment (including the new special medical officer);
(c)the patient’s after-care officer;
(d)the other persons professionally concerned or to be so concerned with any aspect of the after-care services provided or to be provided for the patient under section 8 of this Act; and
(e)any person who the special medical officer believes plays or is to play a substantial part in the care of the patient but is not, and will not be, professionally concerned with the after-care services so provided or to be so provided.
(4)The persons referred to in subsection (2) above are—
(a)the patient [F3or any guardian of the patient] and, if practicable and the patient does not object, his nearest relative [F3and any welfare attorney of the patient];
(b)the patient’s special medical officer;
(c)the other persons concerned or to be concerned with the patient’s medical treatment;
(d)the other persons professionally concerned or to be so concerned with any aspect of the after-care services provided or to be provided for the patient under section 8 of this Act (including the new after-care officer); and
(e)any person who the after-care officer believes plays or is to play a substantial part in the care of the patient but is not, and will not be, professionally concerned with the after-care services so provided or to be so provided.
(5)If the patient has a propensity to violent or dangerous behaviour the special medical officer or, as the case may be, the after-care officer may consult the patient’s nearest relative [F4and any welfare attorney of the patient,] notwithstanding any objection by the patient to such consultation under subsection (3)(a) or, as the case may be, (4)(a) above.
(6)Where subsection (1) or (2) above applies the new special medical officer or, as the case may be, the new after-care officer shall, from the agreed date, assume responsibility as mentioned in that subsection and shall within seven days of that date intimate the change, in the prescribed form, to—
(a)the patient and any other person who has been consulted under paragraph (a) or (e) of subsection (3) or, as the case may be, (4) above or subsection (5) above;
(b)the Mental Welfare Commission; and
(c)the patient’s after-care officer or, as the case may be, special medical officer.
Mental Health (Scotland) Act 1984