Standard view

Part I Application of Act

1 Application of Act: “mental disorder”

(1) The provisions of this Act shall have effect with respect to the reception, care and treatment of persons suffering, or appearing to be suffering, from mental disorder, to the management of their property and affairs, and to other related matters.

(2) In this Act—

• “mental disorder” means mental illness [F1(including personality disorder)] or mental handicap however caused or manifested;

• “mental impairment” means a state of arrested or incomplete development of mind not amounting to severe mental impairment which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned; and cognate expressions shall be construed accordingly;

• “severe mental impairment” means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned; and cognate expressions shall be construed accordingly;

and other expressions have the meanings assigned to them in section 125 of this Act.

(3) No person shall be treated under this Act as suffering from mental disorder by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.

Part II Mental Welfare Commission

2 Mental Welfare Commission

(1) There shall continue to be a body called the Mental Welfare Commission for Scotland (in this Act referred to as “the Mental Welfare Commission”) who shall perform the functions assigned to them by or under this Act.

(2) The Mental Welfare Commission shall consist of no fewer than 10 commissioners (including at least 3 women) of whom one shall be chairman, at least 3 shall be medical practitioners (in this Act referred to as “medical commissioners”), and one shall be a person who has been for a period of at least 5 years either a member of the Faculty of Advocates or a solicitor.

(3) Five commissioners of whom at least one shall be a medical commissioner shall constitute a quorum of the Mental Welfare Commission.

(4) The commissioners shall be appointed by Her Majesty on the recommendation of the Secretary of State and shall hold and vacate office under the terms of the instrument under which they are appointed, but may resign office by notice in writing to the Secretary of State.

(5) Before making a recommendation under subsection (4) of this section the Secretary of State shall consult such bodies as appear to him to be concerned.

(6) No person who for the time being is employed in the civil service of the Crown whether in an established capacity or not, and whether for the whole or part of his time, shall be appointed to the Mental Welfare Commission.

(7) The Mental Welfare Commission may—

(a) pay to the said commissioners such remuneration; and

(b) make provision for the payment of such pensions, allowances or gratuities to or in respect of the said commissioners,

as the Secretary of State may, with the approval of the Treasury, determine; and such determination may make different provision for different cases or different classes of case.

(8) The following provisions of the M1National Health Service (Scotland) Act 1978 shall apply to the Mental Welfare Commission as they apply to a Health Board, that is to say—

(a) sections 85(1), (2A), (4) and (6) (which contain provisions as to expenditure being met by the Secretary of State);

(b) sections 85A(1) and (3) (which impose financial duties); and

(c) section 86 (which provides for the auditing and examination of accounts).

(9) The Secretary of State may provide for the Mental Welfare Commission such officers and servants and such accommodation as the Commission may require.

(10) The Mental Welfare Commission shall be a body corporate and shall have a common seal.

(11) The proceedings of the Mental Welfare Commission shall not be invalidated by any vacancy in the membership of the Commission or any defect in the appointment of any commissioner.

3 Functions and duties of the Mental Welfare Commission

(1) It shall be the duty of the Mental Welfare Commission generally to exercise protective functions in respect of persons who may, by reason of mental disorder, be incapable of adequately protecting their persons or their interests, and, where those persons are liable to be detained in hospital or subject to F1. . . [F2 a community care order] under the following provisions of this Act, their functions as aforesaid shall include, in appropriate cases, the discharge of such patients in accordance with the said provisions.

(2) In the exercise of their functions as aforesaid, it shall be the duty of the Mental Welfare Commission—

(a) to make enquiry into any case where it appears to them that there may be ill-treatment, deficiency in care or treatment, or improper detention of any person who may be suffering from mental disorder, or where the property of any such person may, by reason of his mental disorder, be exposed to loss or damage;

(b) to visit regularly and, subject to paragraph (c) of this subsection, as often as they think appropriate, patients who are liable to be detained in a hospital F3. . . [F4or a community care order] and on any such visit to afford an opportunity, on request, for private interview to any such patient or, where the patient is in a hospital, to any other patient in that hospital;

(c) in any case where—

(i) The authority for the detention of a patient—

(A) has been renewed for a period of one year under section 30 of this Act; and

(B) is renewed for a further period of one year under that section; and

(ii) the patient has not, during the period referred to in sub-paragraph (i)(A) of this paragraph—

(A) appealed to the sheriff under section 30(6) of this Act; or

(B) been visited by the Mental Welfare Commission under paragraph (b) of this sub-section,

to visit the patient before the expiry of the period of one year referred to in sub-paragraph (i)(B) of this paragraph, unless the patient has previously been discharged, and on any such visit to afford an opportunity, on request, for private interview to any such patient;

(d) to bring to the attention of the managers of any hospital or of any local authority the facts of any case in which in the opinion of the Mental Welfare Commission it is desirable for the managers or the local authority to exercise any of their functions to secure the welfare of any patient suffering from mental disorder by—

(i) preventing his ill-treatment;

(ii) remedying any deficiency in his care or treatment;

(iii) terminating his improper detention; or

(iv) preventing or redressing loss or damage to his property;

(e) to advise the Secretary of State, a Health Board [F5, a National Health Service trust established under section 12A of the National Health Service (Scotland) Act 1978] or a local authority on any matter arising out of this Act which has been referred to the Commission by the Secretary of State, the Health Board [F6, the National Health Service trust], or the local authority, as the case may be;

(f) to bring to the attention of the Secretary of State, a Health Board, a local authority or any other body any matter concerning the welfare of any persons who are suffering from mental disorder which the Commission consider ought to be brought to his or their attention.

(3) Where, in the course of carrying out any of their functions, the Mental Welfare Commission form the opinion that any patient who is—

(a) liable to be detained in a hospital; and

(b) either a restricted patient within the meaning of section 63 of this Act or a person mentioned in section 67(1) or (2) (persons treated as restricted patients) of this Act,

should be discharged, they shall recommend accordingly to the Secretary of State.

(4) On any visit by the Mental Welfare Commission in pursuance of paragraph (b) or (c) of subsection (2) of this section, the visitor shall be, or the visitors shall include, a medical commissioner or a medical officer of the Commission.

(5) For the purposes of subsection (2) of this section, the Mental Welfare Commission may interview, and a medical commissioner or a medical officer of the Commission may examine, any patient in private.

(6) A medical commissioner or a medical officer of the Mental Welfare Commission may require the production of and inspect the medical records of any patient.

(7) The Mental Welfare Commission shall in 1985 and in every year thereafter publish a report on their activities; and copies of each such report shall be submitted by the Commission to the Secretary of State who shall lay copies before Parliament.

(8) Subject to the provisions of subsection (4) of this section, the Mental Welfare Commission may appoint—

(a) any commissioner or committee of commissioners to carry out any of the functions of the Commission, other than those relating to the discharge of patients, under this Act,

(b) a person, not being a commissioner—

(i) to make by himself; or

(ii) to act as chairman of any committee of commissioners appointed under paragraph (a) of this subsection to make,

any enquiry which the Commission are obliged to make under subsection (2)(a) of this section

and where any committee is so appointed the Commission may fix a quorum for that committee and otherwise regulate its proceedings.

(9) A person appointed under subsection (9)(b) of this section shall be—

(a) an advocate; or

(b) a solicitor,

of not less than 5 years standing.

(10) Any commissioner or committee or person appointed in pursuance of subsection (9) of this section shall exercise the functions so conferred in accordance with the directions of the Mental Welfare Commission.

4 Proceedings and evidence at enquiries under section 3

(1) For the purpose of any enquiry under section 3(2)(a) of this Act, the Mental Welfare Commission may, by notice in writing, require any person to attend at the time and place set forth in the notice to give evidence, but no person shall be required in obedience to such a notice to go more than 10 miles from his place of residence unless the necessary expenses of his attendance are paid or tendered to him.

(2) A person giving evidence at such an enquiry shall not be required to answer any questions which he would be entitled, on the ground of privilege or confidentiality, to refuse to answer if the enquiry were a proceeding in a court of law.

(3) The proceedings in any such enquiry shall have the privilege of a court of law.

(4) The chairman of, or person holding, the enquiry may administer oaths to witnesses and examine witnesses on oath, and may accept, instead of evidence on oath by any person, evidence on affirmation or a statement in writing by that person.

(5) Any person who refuses or wilfully neglects to attend in obedience to a notice under subsection (1) of this section or to give evidence shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.

5 Duties of the Secretary of State and of local authorities in relation to the Mental Welfare Commission

(1) The Secretary of State shall afford the Mental Welfare Commission all facilities necessary to enable them to carry out their functions in respect of any patient in a hospital other than a private hospital.

(2) The local authority concerned F1. . ., shall afford the Mental Welfare Commission all facilities necessary to enable them to carry out their functions in respect of such a patient.

[F2(3) The local authority providing after-care services under section 8 of this Act for a patient subject to a community care order shall afford the Mental Welfare Commission all facilities necessary to carry out their functions in relation to such a patient.]

[F15A Duties in relation to private hospitals

Any person providing a private hospital shall afford to the Mental Welfare Commission all facilities necessary to enable them to carry out their functions in respect of any patient in the hospital.]

6 Appointment and payment of staff

The Mental Welfare Commission may—

(a) appoint officers and servants on such terms as to remuneration and conditions of service; and(b) make provision for the payment of—

(i) such remuneration to—

(A) any person appointed under section 3(9)(b) of this Act; and

(B) any medical practitioner or other person appointed for the purposes of the provisions mentioned in section 97(2) of this Act; and

(ii) such pensions, allowances or gratuities to or in respect of any officers, servants, persons and medical practitioners appointed under paragraph (a) or as mentioned in paragraph (b)(i) of this section,

as the Secretary of State may, with the consent of the Treasury, determine; and such determination may make different provision for different cases or different classes of case.

Part III Local Authority Services

7 Functions of local authorities

(1) In relation to persons who are or have been suffering from mental disorder a local authority may, with the approval of the Secretary of State and shall, to such extent as he may direct, make arrangements for any of the following purposes—

(a) the provision, equipment and maintenance of residential accommodation, and the care of persons for the time being resident in accommodation so provided;

(b) the exercise by the local authority of their functions F1. . . in respect of persons under guardianship (whether under the guardianship of a local authority or of any other person);

(c) the provision of any ancillary or supplementary services;

(d) the supervision of persons suffering from mental handicap who are neither liable to detention in a hospital nor subject to guardianship.

(2) The reference in subsection (1)(a) of this section to the care of persons for the time being resident in accommodation provided by a local authority includes, in the case of persons so resident who are under the age of 16 years, the payment to those persons of such amounts as the local authority think fit in respect of their personal expenses where it appears to that authority that no such payment would otherwise be made.

8 Provision of after-care services

(1) A local authority shall provide after-care services for any persons who are or have been suffering from mental disorder. [F1and shall (without prejudice to the foregoing) provide or arrange for the provision of after-care services for any person who is subject to a community care order]

(2) In providing after-care services under subsection (1) of this section a local authority shall co-operate with such health board or boards and such voluntary organisations as appear to the local authority to be concerned.

(3) The duty imposed by this section is without prejudice to any other power or duty which a local authority may have in relation to the provision of after-care services.

9 Appointment of mental health officers

(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 this Act.

(2) Any officer appointed by a local authority to act as a mental health officer after the date of coming into force of section 64(4) of the M1Local Government (Scotland) Act 1973 (that is to say, 16th May 1975) but before 16th August 1983 shall be deemed to have been appointed under subsection (1) of this section as if that subsection and section 64(5)(bb) of the said Act of 1973 had come into force on 16th May 1975.

(3) On and after a day appointed by the Secretary of State by order, no person shall be appointed to act as a mental health officer under subsection (1) of this section unless he is approved by the local authority as having competence in dealing with persons who are suffering from mental disorder; and before appointing a person to act as a mental health officer, a local authority shall—

(a) ensure that the person has such qualifications, experience and competence in dealing with persons suffering from mental disorder; and

(b) have regard to such other matters,

as the Secretary of State may direct.

(4) No person appointed to act as a mental health officer before the appointed day shall continue so to act on or after the appointed day unless—

(a) he is approved by the local authority as having competence in dealing with persons who are suffering from mental disorder; and

(b) the local authority are satisfied that he has such qualifications, experience and competence in dealing with persons who are suffering from mental disorder as the Secretary of State may direct.

10 Welfare of certain hospital patients

(1) The provisions of this section shall apply to any patient suffering from mental disorder who is—

(a) a child or young person in respect of whom the rights and powers of a parent are vested in a local authority by virtue of—

[F1(i) section 17 of the M1Social Work (Scotland) Act 1968; or]

(ii) section 3 of the M2Child Care Act 1980 (which relates to the assumption by a local authority of parental rights and duties in relation to a child in their care); or

(iii) section 10 of the said Act of 1980 (which relates to the powers and duties of local authorities in England and Wales with respect to persons committed to their care);

[F2(aa) a child or young person in relation to whom parental rights and responsibilities have been transferred to a local authority by virtue of section 86(1) of the Children (Scotland) Act 1995;]

(b) a person who is under the guardianship of a local authority under [F3the following provisions of this Act or under] the provisions of the M3Mental Health Act 1983; or

(c) a person the functions of whose nearest relative under this Act or under the Mental Health Act 1983 are for the time being transferred to a local authority.

(2) Where [F4, in Scotland, a patient to whom this section applies is (whether for treatment for mental disorder or for any other reason) admitted to any hospital or to accommodation provided by a care home service] then, without prejudice to their duties in relation to the patient apart from the provisions of this section, the authority having rights or functions in relation to him as aforesaid shall arrange for visits to be made to him on their behalf, and shall take such other steps in relation to the patient while in the hospital or [F5accommodation] as would be expected of a parent.

11 The training and occupation of the mentally handicapped

(1) Without prejudice to the operation of[F1(a)]section 1 of the M1Education (Scotland) Act 1980 (which among other things imposes a duty on education authorities to provide educational facilities for pupils who suffer from disability of mind) [F2or

(b) section 1 of the Further and Higher Education (Scotland) Act 1992 (which imposes a duty on the Secretary of State to secure the provision of adequate and efficient further education in Scotland),]

it shall be the duty of the local authority to provide or secure the provision of suitable training and occupation for persons suffering from mental handicap who are over school age within the meaning of the Education (Scotland) Act 1980:

(2) A local authority shall make such provision as they may think necessary for securing that transport is available for the conveyance of persons for the purpose of their training and occupation under this section; and accordingly section 45 of the M2National Health Service (Scotland) Act 1978 (which relates to the provision by the Secretary of State of ambulances and other means of transport), shall not have effect in relation to the conveyance of persons as aforesaid.

(3) Where a local authority makes arrangements with any voluntary organisation for the performance by that organisation of any services in connection with the duties of the local authority under this section, the local authority may make contributions to the funds of that voluntary organisation.

F1Part IV Private Hospitals

12 Registration of private hospitals

(1) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In this Act “private hospital” means any premises used or intended to be used for the reception of, and the provision of medical treatment for, one or more patients subject to detention under this Act (whether or not other persons are received and treated), not being—

(a) a hospital vested in the Secretary of State [F2or managed by a National Health Service trust established under section 12A of the National Health Service (Scotland) Act 1978];

(b) a State hospital; or

(c) any other premises managed by a Government department or provided by a local authority.

(3) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13 Pre-requisites of registration

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14 Control of private hospitals

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15 Cancellation and continuance in certain circumstances of registration

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16 Offences against this Part of this Act and penalties

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part V Admission to and Detention in Hospital and Guardianship

Grounds for hospital admission

17 Patients liable to be detained in hospital

(1) A person may, in pursuance of an application for admission under section 18(1) of this Act, be admitted to a hospital and there detained on the grounds that—

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(i) in the case where the mental disorder from which he suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition; or

(ii) in the case where the mental disorder from which he suffers is a mental handicap, the handicap comprises mental impairment (where such treatment is likely to alleviate or prevent a deterioration of his condition) or severe mental impairment; and

(b) it is necessary for the health or safety of that person or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this Part of this Act.

(2) Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or [F1to accommodation provided by a care home service] for that treatment in pursuance of arrangements made in that behalf without any application, recommendation or order rendering him liable to be detained under this Act, or from remaining in any hospital [F2or in any such accommodation] in pursuance of such arrangements if he has ceased to be so liable to be detained.

Procedure for admission of patients: hospital

18 Admission and detention of patients: hospital

(1) A patient may be admitted to a hospital and there detained for the period allowed by this Part of this Act in pursuance of an application in the prescribed form (in this Act referred to as “an application for admission”) approved by the sheriff and made in accordance with this Part of this Act.

(2) An application for admission shall be founded on and accompanied by 2 medical recommendations which shall be in the prescribed form and each such recommendation shall include the following statements, being statements of opinion, and the grounds on which each statement is based—

(a) a statement of the form of mental disorder from which the patient is suffering, being mental illness [F1(including personality disorder)] or mental handicap or both; and

(b) a statement as to which of the grounds set out in section 17(1) of this Act apply in relation to the patient.

(3) An application for admission shall be of no effect unless the patient is described in each of the medical recommendations as suffering from the same form of mental disorder, whether or not he is described in either of those recommendations as suffering also from the other form.

19 General provisions as to applications: hospital

(1) Subject to the provisions of this section, an application for admission may be made [F1by the nearest relative of the patient, by a mental health officer, or by a guardian or welfare attorney of the patient who has powers to do so]; and every such application shall be addressed to the managers of the hospital to which admission is sought.

(2) The nearest relative [F2, guardian or welfare attorney, as the case may be,] of the patient shall not make an application for admission unless he has personally seen the patient within the period of 14 days ending with the date on which the proposed application is submitted to the sheriff for his approval.

(3) A local authority shall, if so required by the nearest relative [F3, guardian or welfare attorney, as the case may be] of a patient residing in their area, direct a mental health officer as soon as practicable to take the patient’s case into consideration with a view to making an application for admission in respect of the patient; and if in any such case that officer decides not to make an application he shall inform the nearest relative [F3, guardian or welfare attorney, as the case may be] of his reasons in writing.

(4) A mental health officer shall make an application for admission in respect of a patient within the area of the local authority by whom that officer was appointed in any case where he is satisfied that such an application ought to be made and is of the opinion, having regard to any wishes expressed by relatives of the patient [F4or by a guardian or welfare attorney of the patient] and to any other relevant circumstances, that it is necessary or proper for the application to be made by him.

(5) A mental health officer who proposes to make an application for admission shall—

(a) interview the patient within the period of 14 days ending with the date on which the proposed application is submitted to the sheriff for his approval and satisfy himself that detention in a hospital is, in all the circumstances of the case, the most appropriate way of providing the care and medical treatment which the patient needs; and

(b) take such steps as are reasonably practicable to inform the nearest relative [F5and any guardian or welfare attorney] of the patient of the proposed application, and of his right to object thereto in accordance with the provisions of section 21 of this Act.

(6) A mental health officer shall make an application for admission in respect of a patient where—

(a) he has received the 2 medical recommendations required for the purposes of such an application; and

(b) he has been requested to do so by a medical practitioner who gave one of the medical recommendations,

and the application shall include—

(i) a statement of the mental health officer’s opinion as to whether or not the application should be granted; and

(ii) a statement of the grounds on which that opinion is based.

(7) An application under this section by a mental health officer may be made outside the area of the local authority by whom he is appointed.

20 Medical recommendations: hospital

(1) The medical recommendations required for the purposes of an application for admission shall satisfy the following requirements—

(a) such recommendations shall be signed on or before the date of the application and shall be given by medical practitioners (neither being the applicant) who have personally examined the patient separately, in which case not more than 5 days must have elapsed between the days on which the separate examinations took place, or, where no objection has been made by the patient [F1, his nearest relative, guardian or welfare attorney, as the case may be], together;

(b) one of the recommendations shall be given by a practitioner approved for the purposes of this section by a Health Board as having special experience in the diagnosis or treatment of mental disorder and the other recommendation shall, if practicable, be given by the patient’s general medical practitioner or another medical practitioner who has previous acquaintance with him;

(c) neither recommendation shall be given by a practitioner on the staff of the hospital named in the application where the patient is to be accommodated under section 57 [F2of, or paragraph 14 of Schedule 7A to,] the M1National Health Service (Scotland) Act 1978 (which [F3relate] to accommodation for private patients) or in a private hospital and, subject to subsection (2) of this section, where the patient is to be accommodated otherwise one only of the recommendations may be given by such a practitioner;

(d) such recommendations shall contain a statement as to whether the person signing the recommendation is related to the patient and of any pecuniary interest that that person may have in the admission of the patient to hospital.

(2) Notwithstanding the provisions of paragraph (c) of subsection (1) of this section, both medical recommendations may be given by practitioners on the staff of the hospital named in the application where—

(a) compliance with the said paragraph (c) would result in a delay involving serious risk to the health or safety of the patient or to the safety of other persons;

(b) one of the practitioners giving the recommendations works at the hospital for less than half the time which he is bound by contract to devote to work in the health service; and

(c) if one of the practitioners is a consultant, the other does not work (whether at the hospital or elsewhere) in a grade in which he is under that consultant’s directions.

(3) For the purposes of this section a general practitioner who is employed part-time in a hospital shall not be regarded as a practitioner on its staff.

21 Approval of applications by the sheriff: hospital

(1) An application for admission shall be submitted to a sheriff of the sheriffdom—

(a) within which the patient is resident at the time when the application is submitted; or

(b) where the patient is a resident patient in a hospital at the time when the application is submitted, within which the hospital is situated,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1 within 7 days of the last date on which the patient was examined for the purposes of any medical recommendation accompanying the application.

(2) Subject to the following provisions of this section and to section 113 of this Act, the sheriff, in considering [F2whether to approve] an application submitted to him under this section—

(a) may make such inquiries and hear such persons (including the patient) as he thinks fit; and

(b) where an application is the subject of objection by the nearest relative [F3, guardian or welfare attorney, as the case may be] of the patient, shall afford that relative [F4guardian or welfare attorney] and any witness that relative [F4guardian or welfare attorney] may call an opportunity of being heard; and

(c) shall, where a mental health officer makes an application for admission in respect of a patient under section 19(6) of this Act and such application includes a statement of the mental health officer’s opinion that the application should not be granted, afford the mental health officer an opportunity of being heard.

(3) The sheriff shall not withhold approval to an application submitted under this section without affording to the applicant and any witness the applicant may call an opportunity of being heard.

[ F5(3A) Within five days (excluding Saturdays, Sundays and court holidays) of an application for admission being submitted, the sheriff shall—

(a) approve the application; or

(b) where he decides to hold a hearing before determining the application, hold such hearing.

(3B) An application for admission in respect of a patient who is detained in hospital under section 26 or 26A of this Act shall, when submitted to the sheriff, be sufficient authority for the continued detention of the patient under that section until the expiry of a period of five days (excluding Saturdays, Sundays and court holidays) from the date when the application was submitted.

(3C) Where a hearing in relation to an application for admission in respect of a patient who is detained in hospital under section 26 or 26A of this Act is, for whatever reason, adjourned, the authority for the detention of the patient under that section by virtue of subsection (3B) of this section shall continue until the application for admission is finally determined.]

(4) Any proceedings under this section shall, where the patient or applicant so desires or the sheriff thinks fit, be conducted in private.

(5) The sheriff in the exercise of the functions conferred on him by this section shall have the like jurisdiction, and the like powers as regards the summoning and examination of witnesses, the administration of oaths, the awarding of expenses, and otherwise, as if he were acting in the exercise of his civil jurisdiction.

[ F6(6) For the purposes of this section, an application is submitted to the sheriff when it is lodged with his sheriff clerk.]

22 Effect of applications: hospital

(1) Where an application for admission has been approved by the sheriff, that application shall be sufficient authority for the removal of the patient to the hospital named in the application and, when the application has been forwarded to the managers of the hospital, for the admission of the patient to that hospital at any time within a period of 7 days from the date on which the sheriff approved the application and for his detention there in accordance with the provisions of this Act.

(2) Where a patient has been admitted to a hospital in pursuance of an application under this Part of this Act, it shall be the duty of the managers of the hospital to notify—

(a) the Mental Welfare Commission; and

(b) the local authority for the area in which the hospital is situated (except where the admission is in pursuance of an application made by a mental health officer appointed by that authority),

of that admission together with a copy of the application and recommendations relating to the patient’s admission within 7 days of its taking place.

(3) A local authority shall, on being notified under subsection (2) of this section, arrange for a mental health officer as soon as practicable and, in any event, not later than 7 days before the expiry of the period of 28 days beginning with the day on which the patient was admitted to a hospital—

(a) to interview the patient whose admission has been notified to them; and

(b) to provide the responsible medical officer and the Mental Welfare Commission with a report on the patient’s social circumstances,

unless the mental health officer has done so under section 26(5) of this Act within the previous 28 days.

(4) Where a patient has been admitted as aforesaid the responsible medical officer shall—

(a) within the period of 7 days ending on the 28th day after the patient’s admission—

(i) examine the patient or obtain from another medical practitioner a report on the condition of the patient; and

(ii) consult such other person or persons who appear to him to be principally concerned with the patient’s medical treatment; and

(b) if he is satisfied, as a result of the examination or report, that—

(i) the patient 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 patient or for the protection of other persons that he should receive such treatment,

order the discharge of the patient; or

(c) if he does not order the discharge of the patient, so inform the Mental Welfare Commission, the nearest relative [F1and any guardian or welfare attorney] of the patient, the local authority and the managers concerned.

23 Rectification of application and recommendations: hospital

(1) If within the period of 14 days beginning with the day on which a patient has been admitted to a hospital in pursuance of an application for admission, the application, or any medical recommendation given for the purposes of the application, is found to be in any respect incorrect or defective, the application or recommendation may, not later than 7 days after the expiration of the said period, with the approval of the sheriff, be amended by the person by whom it was signed; and upon such amendment being made the application or recommendation shall have effect, and shall be deemed always to have had effect, as if it had been originally made as so amended.

(2) Without prejudice to the provisions of subsection (1) of this section, if within the period first mentioned therein it appears to the managers of the hospital, that one of the 2 medical recommendations on which the application for admission is founded is insufficient to warrant the detention of the patient in pursuance of the application, they may within that period give notice in writing to that effect to the applicant and to the sheriff; and where any such notice is given in respect of a medical recommendation that recommendation shall be disregarded, but the application shall be, and shall be deemed always to have been, sufficient if—

(a) a fresh medical recommendation complying with the relevant provisions of this Part of this Act (other than the provisions relating to the time of signature and the interval between examinations) is furnished to the managers and to the sheriff; and

(b) the sheriff is satisfied that that recommendation and the other recommendation on which the application is founded together comply with those provisions.

(3) Where the medical recommendations upon which an application for admission is founded are, taken together, insufficient to warrant the detention of the patient in pursuance of the application, a notice under subsection (2) of this section may be given in respect of either of those recommendations; but this subsection shall not apply in a case where the application is of no effect by virtue of section 18(3) of this Act.

24 Emergency admission: hospital

(1) In any case of urgent necessity a recommendation (in this Act referred to as “an emergency recommendation”) may be made by a medical practitioner in respect of a patient stating that by reason of mental disorder it is urgently necessary for his health or safety or for the protection of other persons, that he should be admitted to a hospital, but that compliance with the provisions of this Part of this Act relating to an application for admission before the admission of the patient to a hospital would involve undesirable delay.

(2) An emergency recommendation shall not be made unless, where practicable, the consent of a relative [F1, of any guardian or welfare attorney who has powers to do so,] or of a mental health officer has been obtained; and the recommendation shall be accompanied by a statement that such a consent as aforesaid has been obtained or, as the case may be, by a statement of the reasons for the failure to obtain that consent.

(3) An emergency recommendation shall be sufficient authority for the removal of the patient to a hospital at any time within a period of 3 days from the date on which it was made and for his detention therein for a period not exceeding 72 hours from the time of his admission.

(4) An emergency recommendation shall be made only by a medical practitioner who has personally examined the patient on the day on which he signed the recommendation.

(5) Where a patient is admitted to a hospital in pursuance of this section, it shall, where practicable, be the duty of the managers without delay to inform the nearest relative [F2and any guardian or welfare attorney] of the patient, the Mental Welfare Commission and, except in the case of a patient referred to in section 25 of this Act, some responsible person residing with the patient.

(6) A patient who has been detained in a hospital under this section shall not be further detained under this section immediately after the expiry of the period of detention.

25 Detention of patients already in hospital

(1) An application for admission or an emergency recommendation may be made under this Part of this Act notwithstanding that the patient is already in a hospital; and where the application or recommendation is made in such a case the patient shall be treated for the purposes of this Part of this Act as if he had been admitted to the hospital on the date on which the application was forwarded to the managers of the hospital, or, as the case may be, the recommendation was made.

(2) If, in the case of a patient who is already in a hospital receiving treatment for mental disorder and who is not liable to be detained therein under this Part of this Act, it appears to a nurse of the prescribed class—

(a) that the patient is suffering from mental disorder to such a degree that it is necessary for his health or safety or for the protection of other persons for him to be immediately restrained from leaving the hospital; and

(b) that it is not practicable to secure the immediate attendance of a medical practitioner for the purpose of making an emergency recommendation,

the patient may be detained in the hospital for a period of 2 hours from the time when he was first so detained or until the earlier arrival at the place where the patient is detained of a medical practitioner having power to make an emergency recommendation.

(3) Where a patient is detained under subsection (2) of this section the nurse shall as soon as possible record in writing—

(a) the facts mentioned in paragraphs (a) and (b) of the said subsection (2);

(b) the fact that the patient has been detained; and

(c) the time at which the patient was first so detained.

(4) A record made by a nurse under subsection (3) of this section shall, as soon as possible after it is made, be delivered by the nurse, or by a person authorised by the nurse in that behalf, to the managers of the hospital; and a copy of the record shall, within 14 days of the date on which the managers received it, be sent to the Mental Welfare Commission.

(5) A patient who has been detained in a hospital under subsection (2) of this section shall not be further detained thereunder immediately after the expiry of that period of detention.

(6) In subsection (2) of this section “prescribed” means prescribed by an order made by the Secretary of State.

26 Short term detention

(1) Where a patient is admitted to a hospital in pursuance of section 24 of this Act, he may be detained in that hospital after the expiry of the period of 72 hours referred to in subsection (3) of that section if—

(a) a report on the condition of the patient has been furnished to the managers of the hospital; and

(b) where practicable, consent to the continued detention has been given by the nearest relative of the patient [F1, by any guardian or welfare attorney of the patient who has power so to consent,] or by a mental health officer.

(2) The report referred to in subsection (1)(a) of this section shall—

(a) be given by a medical practitioner approved for the purposes of section 20(1)(b) of this Act who has personally examined the patient and shall include a statement that in the opinion of the medical practitioner—

(i) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for at least a limited period; and

(ii) the patient ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons;

(b) include, where consent to the continued detention has not been obtained, a statement of the reasons for not obtaining such consent; and

(c) contain a statement as to whether the person signing the report is related to the patient and of any pecuniary interest that that person may have in the admission of the patient to hospital.

(3) Subject to subsection (6) of this section, where a report is duly furnished under subsection (1) of this section the authority for the detention of the patient shall be thereby renewed for a further period of 28 days from the expiry of the period of 72 hours referred to in the said subsection (1).

(4) Where a patient is detained in a hospital in pursuance of this section, the managers of the hospital shall so inform—

(a) The Mental Welfare Commission;

(b) where practicable, the nearest relative [F2and any guardian or welfare attorney] of the patient (except where the nearest relative [F2, guardian or welfare attorney, as the case may be] has consented under subsection (1)(b) of this section); and

(c) the local authority (except in a case where a mental health officer appointed by that local authority has consented under subsection (1)(b) of this section),

not later than 7 days after the patient was detained.

(5) A local authority, on being informed under subsection (4) of this section of the admission of a patient, shall arrange for a mental health officer as soon as practicable and in any event not later than 7 days before the expiry of the period of 28 days referred to in subsection (3) of this section—

(a) to interview the patient; and

(b) to provide the responsible medical officer and the Mental Welfare Commission with a report on the patient’s social circumstances.

(6) Any patient may, within the period for which the authority for his detention is renewed by virtue of a report furnished in respect of him under this section, appeal to the sheriff to order his discharge and the provisions of section 33(2) and (4) of this Act shall apply in relation to such an appeal.

(7) [F3Subject to section 21(3B) and (3C) of this Act,]a patient who has been detained in a hospital under this section shall not be further detained under this section nor detained under section 24 of this Act immediately after the expiry of the period of detention under this section.

[ F126A Interim detention

(1) This section applies where—

(a) a patient is detained in a hospital under section 26 of this Act;

(b) a change in the condition of the patient makes it necessary in the interests of his own health or safety or with a view to the protection of other persons that the patient continue to be detained after the expiry of the period of 28 days referred to in subsection (3) of that section; and

(c) no application for admission has been submitted to the sheriff in respect of the patient and it is not reasonably practicable to submit such an application before the expiry of that period.

(2) Where this section applies, a relevant medical practitioner may lodge with the sheriff clerk for a sheriff of the sheriffdom within which the hospital is situated a report on the condition of the patient complying with the following provisions of this section and such report shall, when so lodged, be sufficient authority for the continued detention of the patient in the hospital where he is until the expiry of a period of three days (excluding Saturdays, Sundays and court holidays) from the date when the report was lodged.

(3) In this section “relevant medical practitioner” means a medical practitioner who—

(a) is approved for the purposes of section 20(1)(b) of this Act; and

(b) has personally examined the patient.

(4) A report referred to in subsection (2) of this section shall not be lodged unless, where practicable, the consent of the nearest relative [F2or any guardian or welfare attorney who has powers to do so] of the patient or of a mental health officer has been obtained.

(5) A report referred to in subsection (2) of this section shall include—

(a) a statement by the relevant medical practitioner that in his opinion—

(i) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for at least a limited period; and

(ii) the patient ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons;

(b) a statement that such a consent as is mentioned in subsection (4) of this section has been obtained or, as the case may be, a statement of the reasons for the failure to obtain that consent; and

(c) a statement as to whether the relevant medical practitioner is related to the patient and of any pecuniary interest that the relevant medical practitioner may have in the continued detention of the patient in hospital.

(6) Where a patient is detained in a hospital under this section, the relevant medical practitioner shall forthwith so inform—

(a) the Mental Welfare Commission;

(b) where practicable, the nearest relative [F3and any guardian or welfare attorney] of the patient (except where the nearest relative [F3, guardian or welfare attorney, as the case may be] has consented under subsection (4) of this section); and

(c) the local authority (except where a mental health officer appointed by that authority has consented under subsection (4) of this section),

and shall inform the patient of his right of appeal under subsection (7) of this section and of the period within which it may be exercised.

(7) A patient who is detained in hospital under this section may, within the period referred to in subsection (2) of this section, appeal to the sheriff to order his discharge and the provisions of section 33(2) and (4) of this Act shall apply in relation to such an appeal.

(8) Where a patient is detained in hospital under this section the authority for his detention under section 26 of this Act shall cease.

(9) Subject to section 21(3B) and (3C) of this Act, a patient who has been detained in a hospital under this section shall not be further detained under this section nor detained under section 24 or 26 of this Act immediately after the expiry of the period of detention under this section.]

Care and treatment of patients: hospital

27 Leave of absence from hospital

(1) The responsible medical officer may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital.

(2) Leave of absence may be granted to a patient under this section either on specified occasions or for any specified period of not more than 6 months; and where leave is so granted for a specified period it may [F1, subject to subsection (2A) below,] be extended for further such periods as aforesaid.

[F2(2A) Subject to subsections (2B) and (2C) below, the total period of leave of absence for specified consecutive periods under this section shall not exceed 12 months.

(2B) If, on the date of expiry of leave of absence granted to a patient under this section, a community care application has been made in respect of him but has not been determined, the leave of absence shall continue until the community care order comes into force or, as the case may be, the application is refused by the sheriff.

(2C) If, on the date of expiry of leave of absence granted to a patient under this section, a community care order has been made in respect of him but has not come into force, the leave of absence shall continue until the order comes into force.]

(3) Where it appears to the responsible medical officer that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital, or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital.

(4) Where leave of absence is granted to a patient under this section or where a period of leave is extended by further leave and the leave or the extension is for a period of more than 28 days, it shall be the duty of the responsible medical officer to inform the Mental Welfare Commission within 14 days of the granting of leave or of the extension, as the case may be, of the address at which the patient is residing and, on the return of the patient, to notify the Commission thereof within 14 days.

(5) In any case where a patient is absent from a hospital in pursuance of leave of absence granted under this section, and it appears to the responsible medical officer that it is necessary so to do in the interests of the health or safety of the patient or for the protection of other persons, that officer may, subject to subsection (6) of this section, by notice in writing given to the patient or to the person for the time being in charge of the patient, revoke the leave of absence and recall the patient to the hospital.

(6) A patient to whom leave of absence is granted under this section shall not be recalled under subsection (5) of this section after he has ceased to be liable to be detained under this Part of this Act.

28 Return and re-admission of patients absent without leave: hospital

(1) Where a patient who is for the time being liable to be detained under this Part of this Act in a hospital—

(a) absents himself from the hospital without leave granted under section 27 of this Act; or

(b) fails to return to the hospital on any occasion on which, or at the expiration of any period for which, leave of absence was granted to him under that section, or upon being recalled thereunder; or

(c) absents himself without permission from any place where he is required to reside in accordance with conditions imposed on the grant of leave of absence under that section,

he may, subject to the provisions of this section, be taken into custody and returned to the hospital or place by any mental health officer, by any officer on the staff of the hospital, by any constable, or by any person authorised in writing by the managers of the hospital.

(2) Where the place referred to in subsection 1(c) of this section is a hospital other than the one in which the patient is for the time being liable to be detained, the references in that subsection to an officer on the staff of the hospital and to the managers of the hospital shall respectively include references to an officer on the staff of the first-mentioned hospital and to the managers of that hospital.

[F1(3) A patient shall not be taken into custody under this section after the later of—

(a) the end of the period of six months beginning with the first day of his absence without leave; and

(b) the end of the period for which (apart from section 31 of this Act) he is liable to be detained;

and, in determining for the purposes of paragraph (b) above or any other provision of this Act whether a person who is or has been absent without leave is at any time liable to be detained, a report furnished under section 30 or 31B of this Act before the first day of his absence shall not be taken to have renewed the authority for his detention unless the period of renewal began before that day.]

(4) A patient shall not be taken into custody under this section if the period for which he is liable to be detained is that specified in section [F221(3B) (subject, where applicable, to section 21(3C)), 24(3), 25(2), 26(3) or 26A(2)] of this Act and that period has expired.

29 Transfer of patients: hospital

(1) A patient who is for the time being liable to be detained in a hospital by virtue of an application for admission under this Part of this Act may be transferred by the managers of that hospital, as follows—

(a) to another hospital with the consent of the managers of that hospital; F1. . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Any transfer of a patient under the last foregoing subsection shall be intimated to his nearest relative [F2, to any guardian or welfare attorney] and to the Mental Welfare Commission by the managers of the hospital to which the patient is transferred F3. . . within 7 days of the date of transfer.

(3) Where a patient is transferred in pursuance of this section, the provisions of this Part of this Act (including this subsection) shall apply to him as follows, that is to say—

(a) where the patient, being liable to be detained in a hospital by virtue of an application for admission, is transferred to another hospital, as if the application were an application for admission to that other hospital, and as if the patient had been admitted to that other hospital at the time when he was originally admitted in pursuance of the application;

F4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where a patient is transferred to a State hospital under subsection (1)(a) of this section he or his nearest relative [F5, guardian or welfare attorney] may, within 28 days of the date of the transfer, appeal by way of summary application to a sheriff of the sheriffdom within which the hospital from which the patient was transferred is situated against the decision of the managers of that hospital to transfer the patient; and on any such appeal the sheriff shall order the return of the patient to the hospital from which he was transferred unless he is satisfied that the patient, on account of his dangerous, violent or criminal propensities, requires treatment under conditions of special security, and cannot suitably be cared for in a hospital other than a State hospital.

Duration of authority for detention and discharge of patients: hospital

30 Duration of authority: hospital

(1) Subject to the provisions of this Part of this Act, a patient admitted to a hospital in pursuance of an application for admission may be detained in a hospital for a period not exceeding 6 months beginning with the day on which he was so admitted, but shall not be so detained for any longer period unless the authority for his detention is renewed under the following provisions of this section.

(2) Authority for the detention of a patient may, unless the patient has previously been discharged, be renewed under this section—

(a) from the expiration of the period referred to in subsection (1) of this section, for a further period of 6 months;

(b) from the expiration of any period of renewal under paragraph (a) of this subsection, for a further period of one year, and so on for periods of one year at a time.

(3) The responsible medical officer shall within the period of 2 months ending on the day when a patient who is liable to be detained in a hospital under this Part of this Act would cease to be so liable under this section in default of the renewal of the authority for his detention—

(a) examine the patient or obtain from another medical practitioner a report on the condition of the patient; and

(b) consult such other person or persons who appear to him to be principally concerned with the patient’s medical treatment,

and thereafter assess the need for the detention of the patient to be continued; and if it appears to him that the grounds set out in section 17(1) of this Act apply to the patient he shall furnish to the managers of the hospital where the patient is liable to be detained and to the Mental Welfare Commission a report to that effect in the prescribed form, along with the report first mentioned if such a report has been obtained.

(4) Subject to subsection (6) of this section and section 33(2) and (4) of this Act, where a report is duly furnished to the managers of a hospital under subsection (3) of this section, the authority for the detention of the patient shall be thereby renewed for the period prescribed in that case by subsection (2) of this section.

(5) Where a report under this section is furnished to them in respect of a patient, the managers of the hospital shall, unless they discharge the patient, cause him and his nearest relative [F1and any guardian or welfare attorney of his] to be informed.

(6) Any patient may within the period for which the authority for his detention is renewed by virtue of a report furnished in respect of him under this section [F2or section 31B of this Act] appeal to the sheriff to order his discharge and the provisions of section 33(2) and (4) of this Act shall apply in relation to such an appeal.

[F131 Special provisions as to patients absent without leave: hospital

(1) Where a patient is absent without leave—

(a) on the day on which (apart from this section) he would cease to be liable to be detained under this Part of this Act; or

(b) within the period of one week ending with that day,

he shall not cease to be so liable until the relevant time.

(2) For the purposes of subsection (1) above the relevant time—

(a) where the patient is taken into custody under section 28 of this Act, is the end of the period of one week beginning with the day on which he is returned to the hospital;

(b) where the patient returns to the hospital within the period during which he can be taken into custody under section 28 of this Act, is the end of the period of one week beginning with the day on which he so returns; and

(c) otherwise, is the end of the period during which he can be taken into custody under section 28 of this Act.]

F131A Patients who are taken into custody or return within 28 days: hospital

(1) This section applies where a patient who is absent without leave is taken into custody under section 28 of this Act, or returns to the hospital, not later than the end of the period of 28 days beginning with the first day of his absence without leave.

(2) Where the period for which the patient is liable to be detained is extended by section 31 of this Act, any examination and report to be made and furnished in respect of the patient under section 30(3) of this Act may be made and furnished within the period as so extended.

(3) Where the authority for the detention of a patient is renewed by virtue of subsection (2) above after the day on which (apart from section 31 of this Act) that authority would have expired, the renewal shall take effect as from that day.

F131B Patients who are taken into custody or return after more than 28 days: hospital

(1) This section applies where a patient who is absent without leave is taken into custody under section 28 of this Act, or returns to the hospital, later than the end of the period of 28 days beginning with the first day of his absence without leave.

(2) The responsible medical officer shall, within the period of one week beginning with the day on which the patient returns, or is returned, to the hospital—

(a) examine the patient or obtain from another medical practitioner a report on the condition of the patient; and

(b) consult—

(i) such other person or persons who appear to him to be principally concerned with the patient’s medical treatment; and

(ii) a mental health officer,

and thereafter assess the need for the detention of the patient to be continued; and if it appears to him that the grounds set out in section 17(1) of this Act apply to the patient he shall furnish to the managers of the hospital where the patient is liable to be detained and to the Mental Welfare Commission a report to that effect in the prescribed form, along with the report first mentioned if such a report has been obtained.

(3) Where a report under this section is furnished to them in respect of a patient, the managers of a hospital shall, unless they discharge the patient, cause him and his nearest relative [F2, and any welfare attorney,] to be informed.

(4) Where the patient would (apart from any renewal of the authority for his detention on or after the day on which he is returned or returns to the hospital) be liable to be detained after the end of the period of one week beginning with that day, he shall cease to be so liable at the end of that period unless a report is duly furnished in respect of him under subsection (2) above.

(5) Where the patient would (apart from section 31 of this Act) have ceased to be liable to be detained on or before the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall renew the authority for his detention for the period prescribed in that case by section 30(2) of this Act.

(6) Where the authority for the detention of the patient is renewed by virtue of subsection (5) above—

(a) the renewal shall take effect as from the day on which (apart from section 31 of this Act and subsection (5) above) the authority would have expired; and

(b) if (apart from this paragraph) the renewed authority would expire on or before the day on which the report is furnished, the report shall further renew the authority, as from the day on which it would expire, for the period prescribed in that case by section 30(2) of this Act.

(7) Where the authority for the detention of the patient would expire within the period of two months beginning with the day on which a report is duly furnished in respect of him under subsection (2) above, the report shall, if it so provides, have effect also as a report duly furnished under section 30(3) of this Act; and the reference in this subsection to authority includes any authority renewed under subsection (5) above by the report.

32 Special provisions as to patients sentenced to imprisonment etc.: hospital

(1) Where a patient who is liable to be detained in a hospital under this Part of this Act is detained in custody in pursuance of any sentence or order passed or made by a court in the United Kingdom (including an order committing or remanding him in custody) and is so detained for a period exceeding 6 months, he shall, at the end of that period, cease to be so liable.

(2) Where any such patient is detained in custody as aforesaid for a period not exceeding 6 months, or for successive periods that do not in the aggregate exceed 6 months, then—

(a) if apart from this subsection the patient would have ceased to be liable to be detained as aforesaid on or before the day he is discharged from custody, he shall not cease to be so liable until the end of that day; and

(b) in any case, sections 28 [F1, 31 and 31A] of this Act shall apply in relation to the patient as if he had absented himself without leave on that day.

[F2(3) In its application by virtue of subsection (2) above section 28(3) of this Act shall have effect with the substitution of the words “end of the period of 28 days beginning with the first day of his absence without leave.” for the words from “later of” onwards.]

33 Discharge of patients: hospital

(1) Subject to the provisions of this and the next following section, a patient who is liable to be detained in a hospital under this Part of this Act shall cease to be so liable if an order in writing discharging him from detention (in this Act referred to as “an order for discharge”) is made in accordance with the following provisions of this section.

(2) An order for discharge may be made in respect of a patient by the responsible medical officer, the Mental Welfare Commission or, where an appeal has been taken under sections 26, [F126A,]30 or 34 of this Act, by the sheriff:

(3) The responsible medical officer or the Mental Welfare Commission shall make an order for discharge in respect of a patient where he is or they are satisfied that—

(a) he 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

(b) it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment.

(4) Where an appeal is made to the sheriff by a patient under sections 26, [F126A,]30 or 34 of this Act, the sheriff shall order the discharge of the patient if he is satisfied that—

(a) the patient is not at the time of the hearing of the appeal 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

(b) it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment.

(5) Subject to the provisions of this section and section 34 of this Act, an order for discharge in respect of a patient may also be made by the managers of the hospital [F2, by the nearest relative or by any guardian or welfare attorney who has powers to do so] of the patient.

(6) An order for discharge made in respect of a patient by the managers of a hospital shall, with the consent of the responsible medical officer, take effect on the expiration of a period of 7 days from the date on which the order was made, and where the responsible medical officer does not so consent he shall furnish to the managers a report certifying that in his opinion the grounds set out in section 17(1) of this Act apply in relation to the patient.

[ F3(7) Where an order for discharge is made in respect of a patient in relation to whom an application for admission has been submitted but has not been finally determined, the managers of the hospital shall notify the sheriff to whom the application has been submitted of the making of the order for discharge.]

34 Restrictions on discharge by nearest relative: hospital

(1) An order for the discharge of a patient who is liable to be detained in a hospital shall not be made by his nearest relative [F1, or guardian or welfare attorney with powers to do so] except after giving not less than 7 days’ notice in writing to the managers of the hospital; and if within that period the responsible medical officer furnishes to the managers a report certifying that, in his opinion, the grounds set out in section 17(1) of this Act apply in relation to the patient—

(a) any order for the discharge of the patient made by that relative [F1, or guardian or welfare attorney with powers to do so] in pursuance of the notice shall be of no effect; and

(b) no further order for the discharge of the patient shall be made by that relative [F1, or guardian or welfare attorney with powers to do so] during the period of 6 months beginning with the date of the report.

(2) In any case where a report under subsection (1) of this section is furnished in respect of a patient, the managers shall cause the nearest relative [F2, guardian or welfare attorney, as the case may be] of the patient to be informed and that relative [F2, guardian or welfare attorney] may, within the period of 28 days beginning with the day on which he is so informed, appeal to the sheriff to order the discharge of the patient and the provisions of section 33(2) and (4) of this Act shall apply in relation to such an appeal.

(3) An order for discharge in respect of a patient detained in a State hospital shall not be made by his nearest relative [F3or by any guardian or welfare attorney].

Appeals: hospital

35 Appeals to the sheriff: hospital

(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.

[F1 Community care orders

F135A Community care orders

(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.

F135B Community care applications

(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.

F135C Duration and renewal of community care order

(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.

F135D Variation of conditions in community care order

(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.

F135E Change of special medical officer or after-care officer

(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.

(7) On a change of special medical officer or after-care officer by virtue of this section, the community care order shall have effect in respect of the patient as if the new special medical officer or, as the case may be, the new after-care officer had been the special medical officer or after-care officer specified in the community care order by virtue of section 35A(4) of this Act.

F135F Appeal against community care order

(1) Any patient subject to a community care order may, at any time when the order is in force following renewal under section 35C(5) of this Act, appeal to the sheriff for revocation of the order.

(2) An appeal under subsection (1) above shall be by way of summary application and shall be made to the sheriff of the sheriffdom within which the patient is resident.

(3) On an appeal under subsection (1) above—

(a) if the sheriff is satisfied that the patient—

(i) does not require to be subject to a community care order with a view to ensuring that he receives medical treatment and after-care services provided for him under section 8 of this Act; and

(ii) does not require to be subject to such an order in the interests of his health or safety or with a view to the protection of other persons,

he shall revoke the order; and

(b) in any other case, the sheriff shall refuse the appeal and affirm the order, either without amendment or subject to such variation as he considers appropriate.

(4) Where, under subsection (3)(a) above, the sheriff revokes a community care order he may order that the revocation shall have effect either immediately or from such date, not later than 28 days after the date of his decision, as he may specify.

(5) The special medical officer shall notify the patient’s after-care officer of any revocation or variation of a community care order under this section.

F135G Admission to hospital for reassessment

(1) This section applies where, as respects a patient in respect of whom a community care order is in force, the special medical officer, after consulting the persons mentioned in subsection (2) below, considers that the patient’s mental condition—

(a) has, since the making of the order or, where the order has been renewed under section 35C(5) of this Act, the most recent renewal, deteriorated; and

(b) is, or is likely to become, such as to give grounds for serious concern regarding his health or safety or the protection of other persons.

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

(a) [F2any 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.

(3) 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 (2)(a) above.

(4) Where this section applies, the special medical officer shall—

(a) examine the patient and prepare a report on his condition; and

(b) arrange for another medical practitioner to carry out such an examination and provide such a report.

(5) Where both reports conclude that—

(a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be admitted to and detained in a hospital for assessment, or for assessment followed by medical treatment, for at least a limited period; and

(b) he ought to be so admitted and detained in the interests of his own health or safety or with a view to the protection of other persons,

the special medical officer may, with the consent of the patient’s after-care officer, direct the patient to attend a hospital specified in the direction to be admitted and detained there by virtue of this section, and the direction shall be sufficient authority for the patient’s removal to the hospital so specified and for his admission to and detention in that hospital in accordance with this section.

(6) Reports under subsection (4) above and directions under subsection (5) above shall be in the prescribed form.

(7) The special medical officer shall send a copy of the reports under subsection (4) above and of the direction under subsection (5) above to—

(a) any person who has been consulted under subsection (2)(a) or (e) or (3) above;

(b) the Mental Welfare Commission;

(c) the managers of the hospital specified in the direction; and

(d) the patient’s after-care officer.

(8) Subject to section 35H(4)(b) of this Act, a patient admitted to a hospital by virtue of this section may be detained there for a period not exceeding 7 days beginning with the day on which he is admitted and shall not be further detained in a hospital by virtue of this section immediately after the expiry of the period of detention.

(9) While a patient is detained in a hospital by virtue of this section the period for which, under section 35C of this Act, the community care order has effect shall continue to run but the conditions to which he is subject under the order shall not apply in relation to him.

F135H Reassessment: further provisions

(1) Where a patient is detained in a hospital by virtue of section 35G of this Act, the responsible medical officer shall—

(a) examine the patient and prepare a report, in the prescribed form, on his condition; and

(b) arrange for another medical practitioner to carry out such an examination and provide such a report.

(2) If the responsible medical officer is not 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, the medical practitioner referred to in subsection (1)(b) above shall require to be such a practitioner.

(3) Where both reports conclude that the conditions set out in section 35B(8)(a) and (b) of this Act apply in relation to the patient, the patient shall, as soon as is practicable, be discharged from hospital and the conditions to which he is subject under the community care order shall again apply in relation to him.

(4) Where both reports conclude that the grounds set out in section 17(1)(a) and (b) of this Act apply in relation to the patient and, within the period specified in section 35G(8) of this Act, an application for admission is made in respect of the patient—

(a) the community care order in respect of the patient shall cease to have effect; and

(b) the submission to the sheriff, in accordance with section 21(1) of this Act, of the application for admission shall be sufficient authority for the detention of the patient in a hospital until the expiry of a further period of 21 days immediately following the expiry of the period specified in section 35G(8).

(5) The responsible medical officer shall send to the Mental Welfare Commission copies of the reports prepared under subsection (1) above.

(6) A patient detained in a hospital by virtue of section 35G of this Act shall cease to be liable to be so detained, and the community care order in respect of him shall cease to have effect—

(a) if the period mentioned in subsection (8) of that section expires without the patient having been discharged from hospital or an application for his admission having been submitted to the sheriff; or

(b) where an application for his admission has been submitted to the sheriff within that period, if the period of 21 days mentioned in subsection (4)(b) above expires without the sheriff having approved the application.

(7) For the purposes of this section, an application for admission is submitted to the sheriff when it is lodged with his sheriff clerk.

F135I Revocation of community care order

(1) Where the special medical officer, after consulting the persons mentioned in subsection (2) below, considers that the patient—

(a) does not require to be subject to a community care order with a view to ensuring that he receives medical treatment and after-care services provided for him under section 8 of this Act; and

(b) does not require to be subject to such an order in the interests of his health or safety or with a view to the protection of other persons,

he shall revoke the order and shall notify the patient, his nearest relative (if practicable), his after-care officer, any person falling within subsection (2)(e) below and the Mental Welfare Commission of the revocation.

(2) The persons to be consulted under 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 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.

(3) 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 (2)(a) above.

(4) Where the Mental Welfare Commission consider that the patient—

(a) does not require to be subject to a community care order with a view to ensuring that he receives medical treatment and after-care services provided for him under section 8 of this Act; and

(b) does not require to be subject to such an order in the interests of his health or safety or with a view to the protection of other persons,

they shall revoke the order and shall notify the persons mentioned in subsection (5) below of the revocation.

(5) The persons to be notified under subsection (4) above are—

(a) [F4any guardian of the patient, and] the patient and (if practicable) his nearest relative [F4and any welfare attorney of the patient];

(b) the patient’s special medical officer;

(c) the patient’s after-care officer; and

(d) any person who the Mental Welfare Commission believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services provided for the patient under section 8 of this Act.

F135J Patients in custody or admitted to hospital in pursuance of emergency recommendations

(1) This section applies where a patient who is subject to a community care order—

(a) is detained in custody in pursuance of any sentence or order passed or made by a court in the United Kingdom (including an order committing or remanding him in custody); or

(b) is detained in a hospital under section 24, 26 or 26A of this Act.

(2) For so long as the patient is detained as mentioned in subsection (1)(a) or (b) above the period for which, under section 35C of this Act, the community care order has effect shall continue to run but the conditions to which he is subject under that order shall not apply in relation to him.

(3) If the patient is detained as mentioned in paragraph (a) of subsection (1) above for a period of, or successive periods amounting in the aggregate to, 6 months or less, or is detained as mentioned in paragraph (b) of that subsection, and, apart from this subsection, the community care order—

(a) would have ceased to have effect during the period for which he is so detained; or

(b) would cease to have effect during the period of 28 days beginning with the day on which he ceases to be so detained,

the order shall be deemed not to have ceased, and shall not cease, to have effect until the end of that period of 28 days.

(4) Where the period for which the patient is subject to a community care order is extended by subsection (3) above, any examination and report to be made and furnished in respect of the patient under section 35C(3) and (5) of this Act may be made and furnished within the period as so extended.

(5) Where, by virtue of subsection (4) above, a community care order is renewed for a further period after the day on which (apart from subsection (3) above) the order would have ceased to have effect, the further period shall be deemed to have commenced with that day.

F135K Patients moving from England and Wales to Scotland

(1) A community care application may be made in respect of a patient who is subject to after-care under supervision under the M1Mental Health Act 1983 and who intends to leave England and Wales in order to reside in Scotland.

(2) Sections 35A to 35J of this Act shall apply in relation to a patient in respect of whom a community care application is or is to be made by virtue of this section subject to such modifications as may be prescribed.]

Grounds for reception into guardianship

F136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure for reception of patients: guardianship

F137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Care and treatment of patients: guardianship

F143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F146 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duration of authority for guardianship and discharge of patients

F147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F148A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F148B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeals: guardianship

F152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Functions of relatives of patients

53 Definition of relative and nearest relative

(1) For the purposes of this section, “relative” means any of the following, that is to say—

(a) spouse;

(b) child;

(c) father or mother;

(d) brother or sister;

(e) grandparent;

(f) grandchild;

(g) uncle or aunt;

(h) nephew or niece;

(2) In deducing relationships for the purposes of this section, an illegitimate person shall be treated as the legitimate child of his mother.

(3) In this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means the person first listed in subsection (1) of this section who is caring for the patient, or was so caring immediately before the admission of the patient to a hospital F1. . ., failing whom the person first so listed, brothers and sisters of the whole blood being preferred to brothers and sisters of the half-blood, and the elder or eldest of two or more relatives listed in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.

(4) Where the person who, under subsection (3) of this section, would be the nearest relative of a patient—

(a) in the case of a patient ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man, is not so resident; or

(b) being the husband or wife of the patient, is permanently separated from the patient, either by agreement or under an order of a court, or has deserted or has been deserted by the patient for a period and the spouse concerned is still in desertion; or

(c) not being the husband, wife, father, or mother of the patient, is for the time being under 18 years of age,

the nearest relative of the patient shall be ascertained without regard to that person.

(5) In this section “spouse” includes a person who is living with the patient as if he or she were the husband or wife of the patient, as the case may be (or, if the patient is for the time being an in-patient in a hospital, was so living until the patient was admitted), and has been or had been so living for a period of not less than 6 months; but a person shall not be treated by virtue of this subsection as the nearest relative of a married patient unless the husband or wife of the patient is disregarded by virtue of paragraph (b) of subsection (4) of this section.

(6) A person, other than a relative, with whom the patient ordinarily resides (or, if the patient is for the time being an in-patient in a hospital, last ordinarily resided before he was admitted), and with whom he has or had been ordinarily residing for a period of not less than five years, shall be treated for the purposes of this Part of this Act as if he were a relative but—

(a) shall be treated for the purposes of subsection (3) of this section as if mentioned last in subsection (1) of this section; and

(b) shall not be treated by virtue of this subsection as the nearest relative of a married patient unless the husband or wife of the patient is disregarded by virtue of paragraph (b) of subsection (4) of this section.

[ F154 Children and young persons in care of local authority

Where—

[F2(a) the parental rights and responsibilities in relation to a patient who is a child or young person have been transferred to a local authority by virtue of section 86(1) of the Children (Scotland) Act 1995;]

(b) a patient who is a child or young person is in the care of a local authority by virtue of a care order made under the Children Act 1989,

the authority shall be deemed to be the nearest relative of the patient in preference to any person except the patient’s husband or wife (if any).]

55 Nearest relative of child under guardianship etc

[F1(1) Where—

(a) a guardian has been appointed for a child who has not attained the age of eighteen years; or

(b) there is in force a residence order, or a custody order, granted by a court in the United Kingdom, or an analogous order granted by a court outwith the United Kingdom (being an order which is entitled to recognition in Scotland), identifying a person as the person with whom a child under the age of sixteen years is to live,

that guardian or person shall, to the exclusion of any other person, be deemed to be the child’s nearest relative.]

(2) Section 53(4) of this Act shall apply in relation to a person who is, or who is one of the persons, deemed to be the nearest relative of a patient by virtue of this section as it applies in relation to a person who would be the nearest relative under subsection (3) of that section.

F2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

56 Appointment by sheriff of acting nearest relative

(1) The sheriff may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions under this Act of the nearest relative of the patient shall, during the continuance in force of the order, be exercisable by the applicant, or by any other person specified in the application, being a person who, in the opinion of the sheriff, is a proper person to act as the nearest relative of the patient, and who is willing to do so.

(2) An order under this section may be made on the application of—

(a) any relative (including the nearest relative) of the patient;

(b) any other person with whom the patient is residing (or, if the patient is then an in-patient in a hospital, was last residing before he was admitted); or

(c) a mental health officer,

but in relation to an application made by such an officer subsection (1) of this section shall have effect as if for the words “the applicant” there were substituted the words “the local authority”.

(3) An application for an order under this section may be made upon any of the following grounds, that is to say—

(a) that the patient has no nearest relative within the meaning of this Act, or that it is not reasonably practicable to ascertain whether he has such a relative or who that relative is;

(b) that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness;

(c) where the application is made by the nearest relative of the patient, that he is unwilling or considers it undesirable to continue to act as such.

(4) While an order made under this section is in force, the provisions of this Part of this Act (other than this section and section 57 of this Act) shall apply in relation to the patient as if for any reference to the nearest relative of the patient there were substituted a reference to the person having the functions of that relative and (without prejudice to section 57 of this Act) shall so apply notwithstanding that the person who was the nearest relative of the patient when the order was made is no longer his nearest relative.

57 Discharge and variation of orders under s. 56

(1) An order made under section 56 of this Act in respect of a patient may be discharged by the sheriff upon application made—

(a) by the person having the functions of the nearest relative of the patient by virtue of the order;

(b) by the nearest relative of the patient.

(2) An order made under the said section 56 in respect of a patient may be varied by the sheriff, on the application of the person having the functions of the nearest relative by virtue of the order or on the application of a mental health officer, by substituting for the first-mentioned person a local authority or any other person who, in the opinion of the sheriff, is a proper person to exercise those functions, being an authority or person who is willing to do so.

(3) If the person having the functions of the nearest relative of a patient by virtue of an order under the said section 56 dies, the foregoing provisions of this section shall apply as if for any reference to that person there were substituted a reference to any relative of the patient, and until the order is discharged or varied under those provisions the functions of the nearest relative under this Part of this Act shall not be exercisable by any person.

(4) An order under the said section 56 shall, unless previously discharged under subsection (1) of this section, cease to have effect—

(a) if the patient was on the date of the order liable to be detained in pursuance of an application for admission F1. . . under this Part of this Act, or becomes so liable F1. . . within the period of 3 months beginning with that date, when he ceases to be so liable F1. . . (otherwise than on being transferred in pursuance of sections 29 or 45 of this Act);

(b) if the patient was not on the date of the order and has not within the said period become so liable F1. . ., at the expiration of that period.

(5) The discharge or variation under this section of an order made under the said section 56 shall not affect the validity of anything previously done in pursuance of the order.

Supplementary

58 Regulations for purposes of Part V

The Secretary of State may make regulations for prescribing anything which, under this Part of this Act, is required or authorised to be prescribed.

59 Interpretation of Part V

(1) In this Part of this Act the expression “responsible medical officer” means—

(a) in relation to a patient who is liable to be detained in a hospital, any medical practitioner employed on the staff of that hospital who may be authorised by the managers to act (either generally or in any particular case or class of case or for any particular purpose) as the responsible medical officer;

F1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In this Act the expression “absent without leave” means absent from any hospital or other place and liable to be taken into custody and returned under section 28 F2. . . of this Act, and kindred expressions shall be construed accordingly.

[ F3(4) In this Part of this Act, “court holidays” means any day which is a court holiday by virtue of section 10(2) of the Bail Etc (Scotland) Act 1980.]

Part VI Detention of Patients concerned in Criminal Proceedings etc. and Transfer of Patients under Sentence

Provisions for compulsory detention and guardianship of patients charged with offences etc

60 Effect of hospital orders

(1) A hospital order made under section [F1section 58 of the Criminal Procedure (Scotland) Act 1995] shall be sufficient authority—

(a) for a constable, a mental health officer [F2, an officer on the staff of the hospital specified in the order], or any other person directed to do so by the court to convey the patient to the hospital specified in the order within a period of [F37] days; and

(b) for the managers of the hospital to admit him at any time within that period, and thereafter to detain him in accordance with the provisions of this Act.

(2) A patient who is admitted to a hospital in pursuance of a hospital order shall be treated for the purposes of Part V of this Act (other than section 23) as if he had been so admitted on the date of the order in pursuance of an application for admission, except that the power to order the discharge of the patient under section 33 of this Act shall not be exercisable by his nearest relative; and accordingly the provisions of the said Part V specified in Part I of the Second Schedule to this Act shall apply in relation to him, subject to the exceptions and modifications set out in that Part and the remaining provisions of the said Part V shall not apply.

(3) Subject to the provisions of [F4section 59(3) of the said Act of 1995], where a patient is admitted to a hospital in pursuance of a hospital order any previous application or hospital order by virtue of which he was liable to be detained in a hospital shall cease to have effect:

(4) If within the period of [F57] days referred to in subsection (1) of this section it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate in lieu of the hospital so specified; and where such directions are given the Secretary of State shall cause the person having the custody of the patient to be informed, and the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order.

[F6(5) Where—

(a) a patient admitted to a hospital in pursuance of a hospital order is absent without leave;

(b) a warrant to arrest him has been issued under section 13 of the M1Criminal Procedure (Scotland) Act 1975; and

(c) he is held pursuant to the warrant in any country or territory other than the United Kingdom, any of the Channel Islands and the Isle of Man,

he shall be treated as having been taken into custody under section 28 of this Act on first being so held.]

F161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

62 Effect of restriction orders

(1) The special restrictions applicable to a patient in respect of whom a restriction order made under [F1section 59 of the Criminal Procedure (Scotland) Act 1995] is in force are as follows, that is to say—

(a) none of the provisions of Part V of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is absolutely discharged under sections 63 to 68 of this Act;

[F2(aa) none of the provisions of Part V of this Act relating to community care orders shall apply;]

(b) the following powers shall be exercisable only with the consent of the Secretary of State, that is to say—

(i) power to grant leave of absence to the patient under section 27 of this Act; and

(ii) power to transfer the patient under section 29 of this Act;

and if leave of absence is granted under the said section 27 the power to recall the patient under that section shall be vested in the Secretary of State as well as in the responsible medical officer; and

(c) the power to take the patient into custody and return him under section 28 of this Act may be exercised at any time,

and in relation to any such patient the provisions of the said Part V specified in Part II of the Second Schedule to this Act shall have effect subject to the exceptions and modifications set out in that Part and the remaining provisions of Part V shall not apply.

[F3(1A) Where the managers of a hospital specified in a restriction order propose to admit the patient to a hospital unit in that hospital, they shall, if that unit was not so specified, notify the Secretary of State and the Mental Welfare Commission of the patient’s proposed admission to and detention in that unit; and the patient shall not be so admitted unless the Secretary of State has consented to the proposed admission.]

(2) While a person is a restricted patient within the meaning of section 63 of this Act or a person to whom section 67 (persons treated as restricted patients) of this Act applies, the responsible medical officer shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.

(3) Without prejudice to the provisions of [F4section 59(3) of the said Act of 1995], where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 60 of this Act and Part I of the Second Schedule to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect.

[F162A Effect of hospital direction

(1) A hospital direction made under section 59A of the M1Criminal Procedure (Scotland) Act 1995 shall be sufficient authority—

(a) for a constable, a mental health officer, an officer on the staff of the hospital specified in the direction or other person directed to do so by the court to convey the person in respect of whom the direction has been made to the hospital specified in the direction within a period of 7 days; and

(b) for the managers of the hospital so specified to admit him at any time within that period and thereafter to detain him in accordance with the provisions of this Act.

(2) Where the managers of a hospital specified in a hospital direction propose to admit the patient to a hospital unit in that hospital, they shall, if that unit was not so specified, notify the Secretary of State and the Mental Welfare Commission of the patient’s proposed admission to and detention in that unit; and the patient shall not be so admitted unless the Secretary of State has consented to the proposed admission.

(3) If within the period of 7 days referred to in subsection (1) of this section it appears to the Secretary of State that by reason of an emergency or other special circumstance it is not practicable for the person to whom the hospital direction relates to be received into the hospital specified in the direction, he may give a direction under this subsection for the admission of that person to such other hospital as appears to be appropriate in lieu of the hospital so specified.

(4) Where a direction is given by the Secretary of State under subsection (3) of this section, he shall cause the person having custody of the person to whom the hospital direction relates to be informed, and the hospital direction shall have effect as if the hospital specified in the direction under subsection (3) of this section were substituted for the hospital specified in the hospital direction.

(5) Where a patient has been admitted to a hospital under a hospital direction—

(a) none of the provisions of Part V of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital direction until he is remitted to prison in accordance with section 65(2) or 74(3) of this Act or he is discharged in accordance with section 74(8B) of this Act;

(b) the following powers shall be exercisable only with the consent of the Secretary of State, that is to say—

(i) power to grant leave of absence to the patient under section 27 of this Act;

(ii) power to transfer the patient under section 29 of this Act;

and if leave of absence is granted under the said section 27 the power to recall shall be vested in the Secretary of State as well as in the responsible medical officer;

(c) the power to take the patient into custody and return him under section 28 of this Act may be exercised at any time,

and in relation to any such patient the provisions of the said Part V specified in Part II of the Second Schedule to this Act shall have effect subject to the exceptions and modifications set out in that Part and the remaining provisions of Part V shall not apply.]

63 Right of appeal of restricted patients etc

(1) In this section and in sections 64 to 67 of this Act—

• “restricted patient” means a patient who is subject to a restriction order [F1, to a hospital direction] or to a restriction direction;

• [F2“relevant hospital order”, “relevant hospital direction” and “relevant transfer direction”, in relation to a restricted patient, mean the hospital order, hospital direction or transfer direction by virtue of which he is liable to be detained in a hospital.]

(2) A restricted patient detained in a hospital may appeal by way of summary application to a sheriff of the sheriffdom within which the hospital in which he is liable to be detained is situated—

(a) in the period between the expiration of 6 months and the expiration of 12 months beginning with the date of the relevant hospital order [F3, hospital direction] or transfer direction; and

(b) in any subsequent period of 12 months,

to order his discharge under section 64 or 65 of this Act.

(3) The provisions of section 35(3) and (4) of this Act shall have effect in relation to an appeal under sections 63 to 67 of this Act as they have in relation to an appeal under Part V of this Act.

64 Right of appeal of patients subject to restriction orders

[F1(A1) Where an appeal to the sheriff is made by a restricted patient who is subject to a restriction order, the sheriff shall refuse the appeal if satisfied that the patient is, at the time of the hearing of the appeal, 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.

(B1) The burden of proof of the matters as to which the sheriff is to be satisfied for the purposes of subsection (A1) of this section is on the Scottish Ministers.

(C1) 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 refusal, under subsection (A1) of this section, of an appeal.]

(1) [F2Where the sheriff has decided, under subsection (A1) of this section, not to refuse an appeal], the sheriff shall direct the absolute discharge of the patient if he is satisfied-

(a) that the patient is not, at the time of the hearing of the appeal, 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

(b) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; and (in either case)

(c) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in subsection (1) of this section the sheriff is satisfied as to the matters referred to in paragraph (a) or (b) of that subsection but not as to the matters referred to in paragraph (c) of that subsection he shall direct the conditional discharge of the patient.

(3) Where a patient is absolutely discharged under subsection (1) of this section he shall [F3, on the occurrence of any of the events mentioned in subsection (4A) of this section,] cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(4) Where a patient is conditionally discharged under subsection (2) of this section [F4the conditional discharge shall have effect on the occurrence of any of the events mentioned in subsection (4A) of this section and, when it does, the following provisions shall apply in relation to the patient—]—

(a) he may be recalled by the Secretary of State under section 68(3) of this Act as if he had been conditionally discharged under subsection (2) of that section; and

(b) he shall comply with such conditions (if any) as may be imposed at the time of discharge by the sheriff or at any subsequent time by the Secretary of State.

[F5(4A) The events are—

(a) the expiry of the appeal period, no appeal having been lodged within it;

(b) the receipt by both the Court of Session and the managers of the hospital in which the patient is detained of notice from the Scottish Ministers that they do not intend to move the Court to make an order under section 66A(3) of this Act;

(c) the refusal by the Court to make such an order;

(d) the recall of any such order or the expiry of its effect.

(4B) In subsection (4A) of this section—

• “appeal” means an appeal under section 66A of this Act;

• “appeal period” means, in relation to an appeal, the period within which, under section 66A(2) of this Act, the appeal has to be lodged in order to be competent.]

(5) The Secretary of State may from time to time vary any condition imposed (whether by the sheriff or by him) under subsection (4) of this section.

(6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under subsection (2) of this section the patient shall, unless previously recalled, 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.

(7) The sheriff may defer a direction for the conditional discharge of a patient until such arrangements as appear to the sheriff to be necessary for that purpose have been made to his satisfaction; and where by virtue of any such deferment no direction has been given on an appeal before the time when the patient’s case comes before the sheriff on a subsequent appeal, the previous appeal shall be treated as one on which no direction under this section can be given.

(8) This section is without prejudice to section 68 of this Act.

65 Right of appeal of patients subject to restriction directions

(1) Where an appeal to the sheriff is made by a restricted patient who is subject [F1to a hospital direction or] to a restriction direction, the sheriff—

(a) shall notify the Secretary of State if, in his opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 64 of this Act; and

(b) if he notifies the Secretary of State that the patient would be entitled to be conditionally discharged, may recommend that [F2the patient] should continue to be detained in a hospital.

[ F3(2) If the sheriff notifies the Secretary of State—

(a) that the patient would be entitled to be absolutely discharged, the Secretary of State shall by warrant direct that the patient be remitted to any prison or other institution or place in which he might have been detained had he not been [F4conveyed under a relevant hospital direction or removed under a relevant transfer direction to a hospital specified in the direction] and that he shall be dealt with there as if he had not been [F4so conveyed or removed];

(b) that the patient would be entitled to be conditionally discharged, the Secretary of State may—

(i) by warrant give such direction as is mentioned in paragraph (a) above; or

(ii) decide that the patient should continue to be detained in a hospital,

F5. . ..]

[F6(3) Where a direction has been given under subsection (2) of this section, on the person’s arrival in the prison or other institution or place to which he has been remitted by virtue of such a direction the relevant hospital direction or, as the case may be, the relevant transfer direction together with the restriction direction given in respect of the person shall cease to have effect.]

66 Further consideration of case of conditionally discharged patient

(1) Where a restricted patient has been conditionally discharged under sections 64 or 68(2) of this Act and is subsequently recalled under section 68(3) of this Act to hospital he may, within one month of the day on which he returns or is returned to hospital, appeal against such recall to a sheriff of the sheriffdom in which the hospital in which he is liable to be detained by virtue of the warrant under the said section 68(3) is situated.

[F1(1A) The sheriff shall refuse an appeal under subsection (1) above if satisfied that the patient is, at the time of the hearing of the appeal, 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.

(1B) The burden of proof of the matters as to which the sheriff is to be satisfied for the purposes of subsection (1A) of this section is on the Scottish Ministers.

(1C) 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 refusal, under subsection (1A) of this section, of an appeal.]

(2) Where a restricted patient has been conditionally discharged as aforesaid but is not recalled to hospital he may appeal—

(a) in the period between the expiration of 12 months and the expiration of 2 years beginning with the date on which he was conditionally discharged; and

(b) in any subsequent period of 2 years,

to a sheriff of the sheriffdom in which he resides.

(3) [F2Where the sheriff has decided, under subsection (1A) of this section not to refuse an appeal under subsection (1) and in any appeal under subsection (2) of this section, if] the sheriff is satisfied as mentioned in section 64(1) or (2) of this Act, he shall uphold the appeal and—

(a) where he is satisfied as mentioned in the said section 64(1), he shall direct the absolute discharge of the patient;

(b) where he is satisfied as mentioned in the said section 64(2), he shall direct, or (as the case may be) continue, the conditional discharge of the patient; and, in either case, he may vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith.

[F3(3A) A conditional discharge under subsection (3)(b) of this section shall have effect on the occurrence of any of the events mentioned in subsection (4A) of section 64 of this Act.]

(4) Where a patient is absolutely discharged in an appeal under subsection (1) or (2) of this section he shall [F4on the occurrence of any of the events mentioned in subsection (4A) of section 64 of this Act] cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

[F166A Appeal to Court of Session against sheriff’s decisions under sections 64, 65 and 66

(1) It shall be competent to appeal to the Court of Session against the decision of the sheriff under section 64 or 66 or a notification or recommendation by the sheriff under section 65 of this Act.

(2) An appeal under subsection (1) of this section shall be competent only if it is lodged within 14 days of the decision, notification or recommendation appealed against.

(3) Where an appeal has been lodged under subsection (1) of this section against a decision of the sheriff to direct the discharge of a patient under section 64 or 66 or a notification or recommendation by the sheriff under section 65 of this Act, the Court of Session may, on a motion by the Scottish Ministers, order—

(a) that the patient who is the subject of the appeal shall continue, in accordance with subsection (4) of this section, to be detained; and

(b) that the relevant order or direction shall continue to have effect accordingly.

(4) An order under subsection (3) of this section has the effect of continuing the patient’s detention—

(a) where no appeal is made to the House of Lords against the decision of the Court of Session on an appeal under this section, until the expiry of the time allowed, without leave, to appeal to the House of Lords against the decision; and

(b) where such an appeal has been made, until it is abandoned or finally determined.]

67 Application of sections 63 to 66 to other persons treated as restricted patients

(1) Sections 63, 64 and 66 of this Act shall apply to a person who—

(a) is subject to—

(i) a direction which by virtue of section 69(3) of this Act; F1. . .

F1(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

has the like effect as a hospital order and a restriction order; or

(b) is treated as subject to a hospital order and a restriction order by virtue of section 80(2) of the M1Mental Health Act 1983 or section 81(2) of this Act,

as they apply to a restricted patient who is subject to a restriction order and references in the said sections 63, 64 and 66 to the relevant hospital order or restriction order shall be construed as references to the direction under section 69(1) of this Act F2. . ..

(2) Sections 63 and 65 of this Act shall apply to a person who is treated as subject to a transfer direction and a restriction direction by virtue of section 80(2) of the Mental Health Act 1983 or section 81(2) of this Act as they apply to a restricted patient who is subject to a restriction direction and references in the said sections 63 and 65 to the relevant transfer direction or the restriction direction shall be construed as references to the transfer direction or restriction direction to which that person is treated as subject by virtue of the said section 80(2) or 81(2).

68 Powers of Secretary of State in respect of patients subject to restriction orders

(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.

69 Persons ordered to be kept in custody during Her Majesty’s pleasure

(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].

Transfer to hospital or guardianship of prisoners etc

70 Removal to hospital of persons in prison awaiting trial etc

(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.

71 Removal to hospital of persons serving sentences of imprisonment and other prisoners

(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.