The Mental Health (Care and Treatment) (Scotland) Act 2003 (Transitional and Savings Provisions) Order 2005

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"the 1984 Act" means the Mental Health (Scotland) Act 1984;[2]

"1984 Act patient" means a person liable to be detained in a hospital immediately before 5th October 2005 in pursuance of an application for admission made under Part 5 of the Mental Health (Scotland) Act 1984 or treated as so liable;

"the 1995 Act" means the Criminal Procedure (Scotland) Act 1995;[3]

"1995 Act patient" means a person liable or treated as liable to be detained in a hospital immediately before 5th October 2005 under a hospital order or an order having the effect of a hospital order made under the 1995 Act;

"the 2003 Act" means the Mental Health (Care and Treatment) (Scotland) Act 2003;

"deemed community compulsion order" means the compulsion order mentioned in article 16(1);

"deemed community compulsory treatment order" means the compulsory treatment order mentioned in article 14(1);

"deemed compulsion order" means the compulsion order mentioned in article 9(1);

"deemed compulsory treatment order" means the compulsory treatment order mentioned in article 3(1);

"existing community patient" means a patient who was subject to a community care order under the 1984 Act immediately before 5th October 2005;

"existing patient" means a patient liable to be detained in hospital immediately before 5th October 2005 under the 1984 Act or the 1995 Act;

"hospital direction patient" means a patient who immediately before 5th October 2005 was subject to a hospital direction made under section 59A of the 1995 Act;

"restricted patient" means a 1995 Act patient who immediately before 5th October 2005, was subject to the special restrictions set out in section 62(1) of the 1984 Act;

"transfer direction patient" means a patient who immediately before 5th October 2005 was subject to a transfer direction made under section 71 of the 1984 Act or treated as so subject.

    (2) Any reference to an order or direction having been made includes a reference to its being treated as having been made.

Review, revocation and variation of deemed compulsory treatment order
     4. —(1) A 1984 Act patient shall be treated, for the purposes of section 100 of the 2003 Act as if the deemed compulsory treatment order to which that patient is subject had been made on the day when the patient was admitted to hospital in pursuance of an application for admission under Part 5 the 1984 Act.

    (2) Where authority for the detention of a 1984 patient has, prior to 5th October 2005, been renewed under section 30 of the 1984 Act, that patient shall be treated–

(a) where the authority for the detention has been renewed once, as if a determination under section 86 of the 2003 Act had been made in respect of the first review.

(b) where the authority for the detention has been renewed more than once, as if such a determination had been made in respect of a subsequent further review.

    (3) Where a 1984 Act patient has within a period of detention immediately preceding 5th October 2005 made an unsuccessful appeal to the sheriff to order discharge, that patient shall be treated as if an application under section 99 of the 2003 Act for revocation of a determination had been refused in respect of the deemed compulsory treatment order in that period.

    (4) When a determination is made for the first time in respect of any 1984 Act patient under section 86 of the 2003 Act to extend a deemed compulsory treatment order, the responsible medical officer shall send a copy of the patient's care plan and the mental health officer's report mentioned in paragraph (7) to the Tribunal.

    (5) At the same time as the patient's care plan and mental health officer's report are sent to the Tribunal, the responsible medical officer shall send a copy of them–

(a) subject to paragraph (6), to the patient;

(b) to the patient's named person;

(c) to the mental health officer;

(d) to the Commission.

    (6) If the responsible medical officer considers that there would be a risk of significant harm to the patient, or to others, if a copy of either the care plan or mental health officer's report were sent to the patient, that officer need not send that copy to the patient.

    (7) When the determination mentioned in paragraph 4 is made, the patient's mental health officer shall prepare a report setting out–

(a) the views of the mental health officer on the determination and the reasons for those views;

(b) if known to the mental health officer, the views of the patient and the patient's named person on the determination and the reasons for those views;

(c) in so far as the mental health officer considers relevant for the purposes of the review, details of the personal circumstances of the patient;

(d) if known to the mental health officer, details of any advance statement that the patient has made (and not withdrawn);

(e) any other information which the mental health officer considers may assist the Tribunal in considering the determination; and

(f) the social circumstances report, if available.

Transfer provisions
     5. —(1) Where a 1984 Act patient has been transferred in accordance with the provisions of section 29 of the 1984 Act, and no intimation of the transfer has yet been made in accordance with section 29(2) of that Act immediately before 5th October 2005, such intimation shall be made within 7 days of the transfer.

    (2) Where a 1984 Act patient is transferred to a state hospital on or after 8th September 2005 and no appeal is lodged under section 29(4) of the 1984 Act immediately before 5th October 2005, the patient shall be treated as if section 126 of the 2003 Act applied to that patient.

    (3) Where a 1984 Act patient is transferred to a state hospital on or after 8th September 2005 and an appeal is lodged under section 29(4) of the 1984 Act but not determined immediately before 5th October 2005, section 29(4) of the 1984 Act shall continue to have effect in respect of that appeal.

Leave of absence
     6. —(1) Notwithstanding section 127(2) of the 2003 Act, where for the period immediately before 5th October 2005 a 1984 Act patient has been granted leave of absence under section 27 of the 1984 Act, whether or not that leave has been extended, that patient shall be treated as if a certificate had been granted under section 127(1) of the 2003 Act for the period of absence granted under section 27 except that the total period of absence shall be no more than 12 months from the first day of absence or 9 months from 5th October 2005, whichever expires earlier.

    (2) Any direction made or condition imposed under section 27(3) of the 1984 Act in connection with a 1984 Act patient shall be deemed to be a condition included in a certificate granted under section 127(1) of the 2003 Act.

    (3) Where immediately before 5th October 2005 the Commission has not been notified of a grant of leave of absence or an extension of leave of absence under section 27(4) of the 1984 Act, the responsible medical officer shall, before the expiry of the period of 14 days beginning with the day of the granting of leave or extension, give notice of it to the Commission.

Absconding
     7. Where immediately before 5th October 2005 a 1984 Act patient is a patient such as is referred to in section 28(1)(a), (b) or (c) of the 1984 Act–

(a) that patient shall be treated as liable to be taken into custody, under section 301 of the 2003 Act and dealt with in accordance with section 303 of that Act; and

(b) the period referred to in section 304(3) of the 2003 Act shall be calculated from the first day of the patient's absence, notwithstanding the date when the deemed compulsory treatment order takes effect.

Applications for admission under the 1984 Act
     8. —(1) Where a local authority has been required by the nearest relative, guardian or welfare attorney under section 19(3) of the 1984 Act to direct a mental health officer to take a patient's case into consideration with a view to making an application for admission, but before 5th October 2005 no application has been made, the mental health officer shall be obliged to inform the nearest relative, guardian or welfare attorney, as the case may be, of the reasons in writing, if it has been decided not to make an application.

    (2) Where before 5th October 2005 an application for admission has been submitted to the sheriff under section 21 of the 1984 Act and not yet been determined, sections 18(3), 21, 22(1), 23 and 113 of the 1984 Act shall have effect in respect of that application.

    (3) Where the sheriff approves an application referred to in paragraph (2), the person who is the subject of the application shall on admission to hospital be subject to a deemed compulsory treatment order, but the deemed compulsory treatment order shall have no effect if–

(a) the application or any medical recommendation given for the purposes of the application is found to be incorrect or defective and is not amended as provided for in section 23(1) of the 1984 Act; or

(b) notice is given under section 23(2) of the 1984 Act and the conditions referred to in paragraphs (a) and (b) of that subsection are not satisfied.

    (3) The authority conferred by section 60(1)(a) of the 1984 Act shall continue to have effect in respect of any 1995 Act patient until that patient has been conveyed to hospital.

    (4) Any directions given before 5th October 2005 under section 58(9) of the 1995 Act shall continue to have effect until the patient has been admitted to hospital.

    (5) For the purposes of section 57D(1) of the 1995 Act a compulsion order shall be deemed to have been made when the hospital order under which the patient was detained was made.

Review, revocation and variation of deemed compulsion order
     10. —(1) A 1995 Act patient shall be treated, for the purposes of section 164 of the 2003 Act as if the deemed compulsion order to which that patient is subject had been made on the same day as the hospital order under which the patient was detained.

    (2) Where authority for the detention of a 1995 patient has, prior to 5th October 2005, been renewed under section 30 of the 1984 Act, that patient shall be treated–

(a) where the authority for the detention has been renewed once, as if an order had been made under section 167(1)(a) of the 2003 Act;

(b) where the authority for the detention has been renewed more than once, as if a determination had been made under section 152(2) of the 2003 Act.

    (3) Where a 1995 Act patient has within a period of detention immediately preceding 5th October 2005 made an unsuccessful appeal to the sheriff to order discharge, that patient shall be treated as if an application under section 163 of the 2003 Act for revocation of a determination extending the deemed compulsion order had been refused within that period.

    (4) When a determination has been made for the first time on or after 5th October 2005 under section 152 of the 2003 Act to extend a compulsion order, section 165(2)(b) of the 2003 Act shall in respect of 1995 Act patients be modified so that for the words from "ending" to "it" there shall be substituted "starting with the first day of the period for which detention was last renewed under the 1984 Act".

    (5) When on or after 5th October 2005 an application is first made under section 149 of the 2003 Act for an order extending the compulsion order, or a determination is made for the first time under section 152 of the 2003 Act, the responsible medical officer shall send to the Tribunal a copy of the patient's Part 9 care plan and the mental health officer's report mentioned in paragraph (8).

    (6) At the same time as a copy of the patient's Part 9 care plan and mental health officer's report are sent to the Tribunal, the responsible medical officer shall send a copy of them–

(a) subject to paragraph (7), to the patient;

(b) to the patient's named person;

(c) to the mental health officer;

(d) to the Commission.

    (7) If the responsible medical officer considers that there would be a risk of significant harm to the patient, or to others, if a copy of either the Part 9 care plan or mental health officer's report were sent to the patient, that officer need not send that copy to the patient.

    (8) When a determination or an application mentioned in paragraph 5 is to be made, the patient's mental health officer shall prepare a report setting out–

(a) the views of the mental health officer on the determination or application and the reasons for those views;

(b) if known to the mental health officer, the views of the patient and the patient's named person on the determination or application and the reasons for those views;

(c) in so far as the mental health officer considers relevant for the purposes of the review, details of the personal circumstances of the patient;

(d) if known to the mental health officer, details of any advance statement that the patient has made (and not withdrawn);

(e) any other information which the mental health officer considers may assist the Tribunal in considering the determination or application; and

(f) the social circumstances report, if available.

Transfer provisions
     11. —(1) Where a 1995 Act patient has been transferred in accordance with the provisions of section 29 of the 1984 Act, and no intimation of the transfer has yet been made in accordance with section 29(2) of the 1984 Act immediately before 5th October 2005, such intimation shall be made within 7 days of the transfer.

    (2) Where a 1995 Act patient is transferred to a state hospital on or after 8th September 2005 and no appeal is lodged under section 29(4) of the 1984 Act immediately before 5th October 2005, the patient shall be treated as if section 126 of the 2003 Act applied to that patient.

    (3) Where a 1995 Act patient is transferred to a state hospital on or after 8th September 2005 and an appeal is lodged under section 29(4) of the 1984 Act but not determined immediately before 5th October 2005, section 29(4) of the 1984 Act shall continue to have effect in respect of that appeal.

Leave of absence
     12. —(1) Notwithstanding section 127(2) of the 2003 Act, where for the period immediately before 5th October 2005 a 1995 Act patient has been granted leave of absence under section 27 of the 1984 Act, whether or not that leave has been extended, that patient shall be treated as if a certificate had been granted under section 127(1) of the 2003 Act for the period of absence granted under section 27 except that the total period of absence shall be no more than 12 months from the first day of absence or 9 months from 5th October 2005, whichever expires earlier.

    (2) Any direction made or condition imposed under section 27(3) of the 1984 Act in connection with a 1995 Act patient shall be deemed to be a condition included in a certificate granted under section 127(1) of the 2003 Act.

    (3) Where immediately before 5th October 2005 the Commission has not been notified of a grant of leave of absence or an extension of leave of absence under section 27(4) of the 1984 Act, the responsible medical officer shall, before the expiry of the period of 14 days beginning with the day of the granting of leave or extension, give notice of it to the Commission.

Absconding
     13. Where immediately before 5th October 2005 a 1995 Act patient is a patient such as is referred to in section 28(1)(a), (b) or (c) of the 1984 Act–

(a) that patient shall be treated as liable to be taken into custody under the regulations made under section 310 of the 2003 Act and dealt with in accordance with those regulations; and

(b) the period of the patient's absence shall be calculated from the first day of the patient's absence notwithstanding the date when the deemed compulsion order takes effect.

Review, revocation and variation of deemed community compulsory treatment order
     15. —(1) This Article applies to existing community patients who prior to the community care order being made were liable to be detained under Part 5 of the 1984 Act.

    (2) An existing community patient shall be treated for the purposes of section 100 of the 2003 Act as if the deemed community compulsory treatment order to which that patient is subject had been made on the day when the community care order came into effect.

    (3) Where a community care order has prior to 5th October 2005 been renewed under section 35C of the 1984 Act, the patient who is the subject of that order shall be treated–

(a) where the community care order has been renewed once, as if a determination under section 86 of the 2003 Act had been made in respect of the first review;

(b) where the community care order has been renewed more than once, as if such a determination had been made in respect of a subsequent further review.

    (4) Where an existing community patient has within the period of renewal for which a community care order is in force immediately preceding 5th October 2005 made an unsuccessful appeal to the sheriff under section 35F of the 1984 Act for revocation of the order, that patient shall be treated as if an application under section 99 of the 2003 Act for revocation of a determination had been refused in respect of the deemed community compulsory treatment order in that period.

    (5) When a determination is made for the first time in respect of an existing community patient under section 86 of the 2003 Act to extend a deemed community compulsory treatment order, the responsible medical officer shall send a copy of the patient's care plan and the mental health officer's report mentioned in paragraph (8) to the Tribunal.

    (6) At the same time as the patient's care plan and mental health officer's report are sent to the Tribunal, the responsible medical officer shall send a copy of them–

(a) subject to paragraph (7), to the patient;

(b) to the patient's named person;

(c) to the mental health officer;

(d) to the Commission.

    (7) If the responsible medical officer considers that there would be a risk of significant harm to the patient, or to others, if a copy of either the care plan or mental health officer's report were sent to the patient, that officer need not send that copy to the patient.

    (8) When the determination mentioned in paragraph (5) is made, the patient's mental health officer shall prepare a report setting out–

(a) the views of the mental health officer on the determination and the reasons for those views;

(b) if known to the mental health officer, the views of the patient and the patient's named person on the determination and the reasons for those views;

(c) in so far as the mental health officer considers relevant for the purposes of the review, details of the personal circumstances of the patient;

(d) if known to the mental health officer, details of any advance statement that the patient has made (and not withdrawn);

(e) any other information which the mental health officer considers may assist the Tribunal in considering the determination; and

(f) the social circumstances report, if available.

Deemed community compulsion order
     16. —(1) An existing community patient who prior to the community care order being made was detained in pursuance of an order or direction by virtue of which that patient was liable to be detained under Part 6 of the 1984 Act shall be treated as if that patient was subject to a compulsion order made under section 57A(2) of the 1995 Act.

    (2) The deemed community compulsion order–

(a) authorises the imposition on the patient of the conditions specified under section 35A(4)(a) of the 1984 Act in the community care order to which the patient was subject for the remaining period of time for which the community care order to which the patient was subject would have had effect;

(b) is deemed to record as the type or types of mental disorder that the patient has the type or types of mental disorder common to the 2 medical recommendations mentioned in section 35B(7)(a) of the 1984 Act except that the form of mental disorder specified by the deemed community compulsion order is–


(i) learning disability where the form of mental disorder common to the recommendations is mental handicap; and

(ii) personality disorder where the form of mental disorder common to the recommendations is mental illness consisting of personality disorder; and



(c) is deemed to specify as the hospital the managers of which are to have responsibility for appointing the patient's responsible medical officer, the hospital of which the patient's special medical officer, as defined in section 35A of the 1984 Act, is a member of staff.

Review, revocation and variation of deemed community compulsion order
     17. —(1) This Article applies to existing community patients who prior to the community care order being made were liable to be detained under Part 6 of the 1984 Act.

    (2) An existing community patient shall be treated for the purposes of section 164 of the 2003 Act as if the deemed community compulsion order to which that patient is subject had been made on the day when the community care order came into effect.

    (3) Where a community care order has prior to 5th October 2005 been renewed under section 35C of the 1984 Act, the patient who is the subject of that order shall be treated–

(a) where the community care order has been renewed once, as if the Tribunal had made an order under section 167(1)(a) of the 2003 Act;

(b) where the community care order has been renewed more than once, as if a determination had been made under section 152(2) of the 2003 Act.

    (4) Where a community care order patient has within the period of renewal for which a community care order is in force immediately preceding 5th October 2005 made an unsuccessful appeal to the sheriff under section 35F of the 1984 Act for revocation of the order, that patient shall be treated as if an application under section 163 of the 2003 Act for revocation of a determination had been refused in respect of the deemed community compulsion order in that period.

    (5) When a determination has been made for the first time on or after 5th October 2005 under section 152 of the 2003 Act to extend a deemed community compulsion order, section 165(2)(b) of the 2003 Act shall in respect of 1995 Act patients be modified so that for the words from "ending" to "it" there shall be substituted "starting with the first day of the period for which detention was last renewed under the 1984 Act".

    (6) When on or after 5th October 2005 an application is first made under section 149 of the 2003 Act for an order extending the compulsion order, or a determination is made for the first time under section 152 of the 2003 Act, the responsible medical officer shall send to the Tribunal a copy of the patient's Part 9 care plan and the mental health officer's report mentioned in paragraph (9).

    (7) At the same time as a copy of the patient's care plan and mental health officer's report are sent to the Tribunal, the responsible medical officer shall send a copy of them–

(a) subject to paragraph (8), to the patient;

(b) to the patient's named person;

(c) to the mental health officer;

(d) to the Commission.

    (8) If the responsible medical officer considers that there would be a risk of significant harm to the patient, or to others, if a copy of either the Part 9 care plan or mental health officer's report were sent to the patient, that officer need not send that copy to the patient.

    (9) When a determination or an application mentioned in paragraph 6 is to be made, the patient's mental health officer shall prepare a report setting out–

(a) the views of the mental health officer on the determination or application and the reasons for those views;

(b) if known to the mental health officer, the views of the patient and the patient's named person on the determination or application and the reasons for those views;

(c) in so far as the mental health officer considers relevant for the purposes of the review, details of the personal circumstances of the patient;

(d) if known to the mental health officer, details of any advance statement that the patient has made (and not withdrawn);

(e) any other information which the mental health officer considers may assist the Tribunal in considering the determination or application; and

(f) the social circumstances report, if available.

Applications for a community care order under the 1984 Act
     18. —(1) Where on 5th October 2005 an application under section 35A of the 1984 Act has been made but not yet determined, sections 21(1), (2)(a) and (b), (3), (4) and (5), 35A(2), (3), (4), (5), (6), and (7) and 113 of the 1984 Act and the Mental Health (Patients in the Community) (Transfer from England and Wales to Scotland) Regulations 1996[4] shall have effect until a community care order in respect of that application has been made or that application has been refused.

    (2) Where the sheriff makes a community care order on or after 5th October 2005–

(a) if the person who is the subject of the application was immediately prior to the community care order being made a 1984 Act patient or subject to after-care supervision after having been detained under section 3 of the Mental Health Act 1983[5], that person shall immediately be subject to a deemed community compulsory treatment order;

(b) if the person who is the subject of the application was immediately prior to the community care order being made detained in pursuance of an order or direction by virtue of which that patient was liable to be detained under Part 6 of the 1984 Act or subject to after care under supervision after having been detained under sections 37, 45A, 47 or 48 of the Mental Health Act 1983 that person shall immediately be subject to a deemed community compulsion order.

    (3) If by 5th October 2005 a note of a proposed variation of the conditions specified in a community care order has been sent to the sheriff clerk as mentioned in section 35D of the 1984 Act, section 35D(4), (5) and (6) shall continue to have effect until the sheriff has approved or declined to approve the proposed variation.

    (4) Where such a variation of conditions is approved, the conditions as varied shall be deemed to be authorised by the deemed community compulsory treatment order or deemed community compulsion order.

Patients admitted to hospital
     19. —(1) Sections 35G and 35H of the 1984 Act shall continue to have effect in respect of a patient who is detained under section 35G until authority for the detention has expired.

    (2) References in sections 35G and 35H to a community care order shall be treated as references to the deemed community compulsory treatment order or the deemed community compulsion order as the case may be.

    (5) Where a restricted patient has made an appeal under section 66 of the 1984 Act in the 12 months ending with 4th October 2005, that patient shall be treated as if that appeal had been an application under section 192 of the 2003 Act.

    (6) When for the first time in respect of any restricted patient on or after 5th October 2005 the Scottish Ministers make a reference to the Tribunal under section sections 185(1) or 187(2) or an application under section 191 of the 2003 Act, they shall send to the Tribunal a report from the patient's mental health officer such as is mentioned in article 10(8) and a copy of the most recent care plan for the patient.

Leave of absence
     21. —(1) Notwithstanding section 224(4) of the 2003 Act, where for the period immediately before 5th October 2005 a restricted patient has been granted leave of absence under section 27 of the 1984 Act as applied by Part 2 of schedule 2 to the Act, that patient shall be treated as if a certificate had been granted under section 224(2) of the 2003 Act for the specified occasions for which the leave of absence was granted under section 27.

    (2) Any direction made or condition imposed under section 27(3) of the 1984 Act as applied by Part 2 of schedule 2 to the Act shall be deemed to be a condition included in a certificate granted under section 224(2) of the 2003 Act.

    (3) Where by 5th October 2005 the Commission has not been notified of a grant of leave of absence under section 27(4) of the 1984 Act, the responsible medical officer shall, before the expiry of the period of 14 days beginning with the day of the granting of leave, give notice of it to the Commission.

Transfer provisions
     22. —(1) Where a restricted patient has been transferred in accordance with the provisions of section 29 of the 1984 Act as applied by schedule 2 of that Act, and no intimation of the transfer has yet been made in accordance with section 29(2) of the 1984 Act at 5th October 2005, such intimation shall be made within 7 days of the transfer.

    (2) Where a restricted patient is transferred to a state hospital on or after 8th September 2005 and no appeal is lodged under section 29(4) of the 1984 Act by 5th October 2005, the patient shall be treated as if section 220 of the 2003 Act applied to that patient.

    (3) Where a restricted patient is transferred to a state hospital on or after 8th September 2005 and an appeal is lodged under section 29(4) of the 1984 Act but not determined by 5th October 2005, section 29(4) shall continue to have effect in respect of that appeal.

Absconding
     23. Where immediately before 5th October 2005 a restricted patient is a patient such as is referred to in section 28(1)(a), (b) or (c) of the 1984 Act–

(a) that patient shall be treated as liable to be taken into custody, under regulations made under section 310 of the 2003 Act and dealt with in accordance with those regulations; and

(b) the period of the patient's absence shall be calculated from and including the first day of the patient's absence notwithstanding the date when the patient became subject to the 2003 Act.

Conditional Discharge
     24. —(1) Where before 5th October 2005 a restricted patient has been conditionally discharged under sections 64(2) or 68(2) of the 1984 Act, that patient shall be treated as if–

(a) the Tribunal had made an order that the patient be conditionally discharged under section 193(7) of the 2003 Act; and

(b) the conditions imposed under sections 64(2) or 68(2) of the 1984 Act had been imposed by the Tribunal.

    (2) Where before 5th October 2005 the sheriff has deferred a direction for conditional discharge under section 64(7) of the 1984 Act,

(a) that section shall continue to have effect in respect of the patient in question until a direction for conditional discharge has been made; and

(b) once the direction for conditional discharge has been made the patient shall be treated as mentioned in paragraph (1).

    (3) Where in the 28 day period ending with 5th October 2005 a 1995 Act patient has been conditionally discharged and subsequently recalled under section 68(3) of the 1984 Act and has not appealed against such recall, that patient shall be treated as if recalled under section 202 of the 2003 Act.

    (3) The authority conferred by section 62A(1) of the 1984 Act shall continue to have effect in respect of any hospital direction patient until that patient has been conveyed to hospital.

    (4) Any directions given before 5th October 2005 under section 62A(3) of the 1984 Act shall be deemed to have been made under section 59C of the 1995 Act.

Leave of absence
     26. —(1) Notwithstanding section 224(4) of the 2003 Act, where for the period immediately before 5th October 2005 a hospital direction patient has been granted leave of absence under section 27 of the 1984 Act as applied by Part 2 of schedule 2 to the Act, that patient shall be treated as if a certificate had been granted under section 224(2) of the 2003 Act for the specified occasions for which the leave of absence was granted under section 27.

    (2) Any direction made or condition imposed under section 27(3) of the 1984 Act as applied by Part 2 of schedule 2 to the Act shall be deemed to be a condition included in a certificate granted under section 224(2) of the 2003 Act.

    (3) Where by 5th October 2005 the Commission has not been notified of a grant of leave of absence or an extension of leave of absence under section 27(4) of the 1984 Act, the responsible medical officer shall, before the expiry of the period of 14 days beginning with the day of the granting of leave, give notice of it to the Commission.

Transfer provisions
     27. —(1) Where a hospital direction patient has been transferred in accordance with the provisions of section 29 of the 1984 Act as applied by schedule 2 of that Act, and no intimation of the transfer has yet been made in accordance with section 29(2) of the 1984 Act at 5th October 2005, such intimation shall be made within 7 days of the transfer.

    (2) Where a hospital direction patient is transferred to a state hospital on or after 8th September 2005 and no appeal is lodged under section 29(4) of the 1984 Act by 5th October 2005, the patient shall be treated as if section 220 of the 2003 Act applied to that patient.

    (3) Where a hospital direction patient is transferred to a state hospital on or after 8th September 2005 and an appeal is lodged under section 29(4) of the 1984 Act but not determined by 5th October 2005, section 29(4) shall continue to have effect in respect of that appeal.

Absconding
     28. Where immediately before 5th October 2005 a hospital direction patient is a patient such as is referred to in section 28(1)(a), (b) or (c) of the 1984 Act–

(a) that patient shall be treated as liable to be taken into custody, under regulations made under section 310 of the 2003 Act and dealt with in accordance with those regulations; and

(b) the period of the patient's absence shall be calculated from and including the first day of the patient's absence notwithstanding the date when the patient became subject to the 2003 Act.

    (5) The effect of section 70(2) of the 1984 Act as applied by section 71(3) of that Act shall continue in respect of any transfer direction patient until that patient has been conveyed to hospital or the direction has expired.

Leave of absence
     30. —(1) Notwithstanding section 224(4) of the 2003 Act, where for the period immediately before 5th October 2005 a transfer direction patient has been granted leave of absence under section 27 of the 1984 Act, whether as applied by Part 2 of schedule 2 to the Act or not, that patient shall be treated as if a certificate had been granted under section 224(2) of the 2003 Act for the period of absence or the specified occasions for which the leave of absence was granted under section 27 except that the total period of absence shall be no more than 12 months from the first day of absence or 9 months from 5th October 2005, whichever expires earlier.

    (2) Any direction made or condition imposed under section 27(3) of the 1984 Act whether as applied by Part 2 of schedule 2 to the Act or not, shall be deemed to be a condition included in a certificate granted under section 224(2) of the 2003 Act.

    (3) Where by 5th October 2005 the Commission has not been notified of a grant of leave of absence or an extension of leave of absence under section 27(4) of the 1984 Act, the responsible medical officer shall, before the expiry of the period of 14 days beginning with the day of the granting of leave or extension, give notice of it to the Commission.

Transfer provisions
     31. —(1) Where a transfer direction patient has been transferred in accordance with the provisions of section 29 of the 1984 Act whether as applied by schedule 2 of that Act or not, and no intimation of the transfer has yet been made in accordance with section 29(2) of the 1984 Act at 5th October 2005, such intimation shall be made within 7 days of the transfer.

    (2) Where a transfer direction patient is transferred to a state hospital on or after 8th September 2005 and no appeal is lodged under section 29(4) of the 1984 Act by 5th October 2005, the patient shall be treated as if section 220 of the 2003 Act applied to that patient.

    (3) Where a transfer direction patient is transferred to a state hospital on or after 8th September 2005 and an appeal is lodged under section 29(4) of the 1984 Act but not determined by 5th October 2005, section 29(4) shall continue to have effect in respect of that appeal.

Absconding
     32. Where immediately before 5th October 2005 a transfer direction patient is a patient such as is referred to in section 28(1)(a), (b) or (c) of the 1984 Act–

(a) that patient shall be treated as liable to be taken into custody, under regulations made under section 310 of the 2003 Act and dealt with in accordance with those regulations; and

(b) the period of the patient's absence shall be calculated from and including the first day of the patient's absence notwithstanding the date when the patient became subject to the 2003 Act.

and ensure that it is included in the patient's medical records.

    (2) Until a care plan is prepared in accordance with paragraph (1), any plan of treatment in relation to an existing patient shall be deemed to be that patient's care plan.

Mental Health Officer
     39. —(1) Relevant local authorities within the meaning of section 229 of the 2003 Act shall as soon as reasonably practicable after 5th October 2005 ensure that a mental health officer is designated as the mental health officer having responsibility for each existing patient's and each existing community patient's case.

    (2) Where on 5th October 2005 any existing patient has not yet been interviewed by a mental health officer in accordance with section 22(3) of the 1984 Act, or if a social circumstances report has not yet been provided in respect of that patient, that patient's mental health officer shall interview the patient and prepare a social circumstances report as mentioned in section 231 of the 2003 Act as soon as reasonably practicable.

Provision of information to patient
     40. For the purposes of section 260(3) of the 2003 Act, existing patients and existing community patients shall be treated as though they were first detained in hospital or otherwise subject to the 2003 Act on 5th October 2005.

Discharge
     41. —(1) Where an order for discharge has been made by the managers of the hospital under section 33(5) of the 1984 Act, section 33(6) of the 1984 Act shall continue to have effect in respect of that order for 7 days from the date when the order for discharge was made.

    (2) Section 33(7) of the 1984 Act shall continue to have effect until the sheriff has been notified in compliance with that sub section.

    (3) Where 7 days' notice in writing has been given to the managers of a hospital under section 34(1) of the 1984 Act but the 7 days have not expired by 5th October 2005, sections 33 and 34 of the 1984 Act shall continue to have effect in respect of the orders for discharge in question.

Mental Welfare Commission
     42. —(1) Commissioners appointed to the Commission under section 2(4) of the 1984 Act shall continue to hold and vacate office under the terms of the instrument under which they are appointed.

    (2) Where before 5th October 2005 an enquiry has been caused to be made under section 3(2)(a) of the 1984 Act but has not been completed, such an enquiry shall be completed in accordance with the law in force immediately before that date.

Inquiries
     43. Where before 5th October 2005 an inquiry has been caused to be held under section 123 of the 1984 Act but has not been completed, such an inquiry shall be completed in accordance with the law in force immediately before that date.

Protection for acts done in pursuance of the 1984 Act
     44. Where as a consequence of this Order the effect of any provision of the 1984 Act continues, the protection afforded by section 122(1) of the 1984 Act shall continue in respect of any act purporting to be done in pursuance of that continuing effect.

General
     45. This Order shall have effect notwithstanding the repeal or amendment of any part of the 1984 Act or the 1995 Act.


LEWIS MACDONALD
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
13th September 2005

[2] 1984 c.36.back

[3] S.I. 1995 c.46.back

[4] S.I. 1996/742.back

[5] 1983 c.20.back

[6] 1983 c.20.back