Office of Public Sector Information
164.This section amends sections 207(5), 208(4), 210(2), 212(4) and 215(4) of the 2003 Act to add an additional test to the criteria for revocation of a patient’s transfer for treatment direction or hospital direction. The additional test is that the patient’s responsible medical officer, the Scottish Ministers or the Mental Health Tribunal for Scotland, as the case may be, is not satisfied that it continues to be necessary for the patient to be subject to the direction.
165.For as long as the patient has a mental disorder and requires to receive treatment by virtue of meeting the tests at section 206(4)(b) and (c) of the 2003 Act, the previous effect of the law was that the direction could not be revoked, meaning that the patient had to remain detained in hospital to receive treatment compulsorily there. The effect of these amendments is that where the patient has a mental disorder and still requires to receive treatment, the direction can still be revoked in circumstances where it is no longer considered necessary for the patient to receive that treatment compulsorily in hospital, thus allowing the patient to be returned to prison to be treated voluntarily there.
166.This section amends section 289 of the 2003 Act. Section 289 allows the Scottish Ministers to make regulations to make provision for, or in connection with, the removal from Scotland of a patient who is subject to a community-based compulsory treatment order or compulsion order. This amendment extends the scope of this regulation-making power through the insertion of new subsection (1)(b) of section 289, to allow for regulations to make provision for or in connection with the reception into Scotland from the rest of the UK, the Isle of Man or the Channel Islands, of patients subject to corresponding or similar community-based orders.
167.Subsection (1) amends section 289 to provide that regulations made under that provision may or shall make provision as to certain specified matters. Those matters include making exceptions as to notification requirements, allowing for powers and immunities to be conferred on those who are escorting patients who are being removed under the regulations or who are pursuing or restraining such patients in the event that they abscond, and requiring the reception of community-based patients into Scotland to take place only with the consent of hospital managers. In addition, subsection (1) amends section 289 so that regulations may also provide for amendments or modifications to be made to provisions in the 2003 Act or any other enactment.
168.Subsection (2) amends section 309 of the 2003 Act. These are consequential amendments to extend the scope of the provision allowing regulations to apply absconding provisions in the 2003 Act to patients from other jurisdictions, so that they may apply to non-detained patients as well as patients who are subject to detention.
169.Subsection (3) amends section 316(1)(c) of the 2003 Act. This is a consequential amendment to a provision in the 2003 Act regarding the scope of an offence of knowingly inducing or assisting a patient to abscond or harbouring a patient. The scope of that offence is extended so that it applies in relation to community-based patients who are being transferred under section 289 of the 2003 Act.
170.Subsection (4) amends section 326(4)(c) of the 2003 Act, to provide that regulations made under section 289 of the 2003 Act will be subject to affirmative resolution procedure in the Scottish Parliament.
171.Section 72 inserts section 309A into the 2003 Act to provide a power for the Scottish Ministers to make regulations for and in connection with the keeping in charge of a person who is subject to escorted leave of absence authorised under legislation in force in another part of the UK, or in the Isle of Man or the Channel Islands. Such regulations may make such provision by applying sections 301 to 303 of the 2003 Act, with or without modification, to such patients. This provision enables regulations to make clear the powers of persons escorting patients under authority conferred under legislation in force in other territories, so that there is clear authority under the 2003 Act for those persons to continue to escort the patient whilst in Scotland. Section 72(2) amends section 326(4)(c) to provide that regulations made under section 309A of the 2003 Act will be subject to affirmative resolution procedure in the Scottish Parliament.
172.This amends Part 3 of Schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act 2003 by inserting paragraph 13A. Part 3 makes provision for the Tribunal’s procedure. The effect of the amendment is that where a relevant application is made in the relevant period but withdrawn before being determined, the application is to be treated for the supervisory review sections of the Act (sections 101,189 and 213) as not having been made.
173.This section repeals sections 88 and 128 of the Mental Health Act 1983, insofar as they extend to Scotland, in relation to the taking into custody in Scotland of persons who have absconded from England and Wales, and the offence of inducing or assisting a patient detained in England and Wales under the Mental Health Act 1983 to abscond. These powers are now provided for by way of sections 309 and 316 of the 2003 Act.
174.This section amends the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), as amended by the 2003 Act. This amendment makes provision in the 1995 Act (by the insertion of new section 145ZA) that where an accused person is present at the first calling of a case in a summary prosecution and a court is making the accused subject to an assessment order (to assess the extent of their mental disorder), the court may adjourn the case without calling on the accused to plead to any charge against him or her. Such an adjournment may be for a period not exceeding 28 days or, in the case of a further adjournment, a period not exceeding 7 days. Previously the effect of section 144 was that in these circumstances the accused had to be called upon to plead at the first calling when he or she may have been unfit to do so.
175.Section 145 of the 1995 Act provides for a similar power, where the accused is present at the first calling, for a court to adjourn the case without calling on the accused to plead in circumstances where the accused is being remanded in custody or on bail, or ordained to appear at a fixed diet.
176.This allows the Scottish Ministers to make provision ancillary to the Act in subordinate legislation.
177.This section gives effect to the schedules to the Act which amend and repeal provisions in other Acts.
178.This sets out the procedure under which the Scottish Ministers can exercise powers which the Act gives them to make subordinate legislation.
179.All orders are to be made by statutory instrument (and will be published as such). Most will be subject to the Scottish Parliament’s negative resolution procedure. Orders under section 76 which make changes to primary legislation will be subject to the Scottish Parliament’s affirmative resolution procedure. Commencement orders will not be subject to parliamentary procedure.
180.Subordinate legislation powers which the Act adds to other Acts will be regulated by the procedures set out in the Acts into which they are inserted.
181.This section commenced sections 76, 78, 79 and 80 on the day on which the Act received Royal Assent. Sections 64, 69 and 70 came into force on the day after Royal Assent. The Scottish Ministers have the power to appoint by order the days on which other provisions are to be commenced.
182.This section gives the Act its short title.
183.This paragraph provides necessary consequential amendments to the National Assistance Act 1948 as a result of the repeal of the ‘liable relatives rule’ in section 62(1) of the Act.
184.This paragraph provides minor consequential amendments to the Disabled Persons (Services, Consultation and Representation) Act 1986 to amend references in that Act from the Mental Health (Scotland) Act 1984 to the Mental Health (Care and Treatment)(Scotland) Act 2003.
185.Subsection (a) amends the Legal Aid (Scotland) Act 1986 (“the 1986 Act”) to extend the circumstances in which the Scottish Legal Aid Board may disclose information held by it without committing an offence to include information disclosed in response to a request from a council officer under section 10(1) of the Act.
186.Subsection (b) amends the 1986 Act to permit amending regulations to be made so that free civil legal aid will be available for intervention or guardianship orders which relate to the personal welfare of the adult, in cases where the application is made by the adult him or herself.
187.Subparagraph (a) amends the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) to provide that a guardianship order cannot be made under the 1995 Act if there is an existing guardianship order made under the 2000 Act which makes the same provision as that applied for. Subparagraph (b)(i) clarifies that section 58(7) of the 1995 Act applies only to guardianship orders made under section 58. Subparagraph (b)(ii) removes the limited application of the provision to offenders. Subparagraph (c) is consequential on the repeal of section 58(1) of the 1995 Act in the Mental Health (Care and Treatment) (Scotland) Act 2003.
188.Subparagraph (a) amends section 6(2)(b)(iii) of the 2000 Act to take account of the wider range of authorities which can be granted under Part 3 of the 2000 Act as a consequence of the amendments in section 58 to that part. Subparagraphs (b) and (c) are consequential changes on the State Pensions Credit Act 2002 and exclude state pensions credit from the list of funds which can be managed under Part 4 of the 2000 Act. Subparagraph (d) is to improve the readability only of section 47(2). Subparagraph (e) clarifies the regulation making power in section 87(1) of the 2000 Act. Subparagraph (f) is consequential on Chapter 1 of Part 17 of the Mental Health (Care and Treatment) (Scotland) Act 2003. Subparagraph (g) is to correct a numbering error. Subparagraph (h) is a clarificatory amendment.
189.This paragraph amends the Mental Health (Care and Treatment) (Scotland) Act 2003 to reduce the minimum number of medical commissioners which the Commission is required to appoint to one. This change reflects the Commission’s reduced role in relation to the discharge of patients under the Act.
190.The repeals to the Solicitors (Scotland) Act 1980 provide that disqualification is no longer to be linked to guardianship and remove obsolete references to curators bonis.
191.The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which the proceedings at that Stage took place, the references to the Official Report of those proceedings, the dates on which Committee Reports and other papers relating to the Bill were published, and references to those Reports and other papers.
Adult Support and Protection (Scotland) Act 2007