The Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005

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"the 1995 Act" means the Criminal Procedure (Scotland) Act 1995[2];

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

"prosecutor" means the prosecutor who has brought the proceedings against the patient in respect of the offence with which the patient has been charged.

Circumstances in which a patient is liable to be taken into custody by specified persons
     2. —(1) A patient–

(a) who is subject to any of the orders or directions mentioned in column A in the following Table; and

(b) who absconds or fails to comply with requirements imposed on the patient by virtue of the orders or directions to which the patient is subject or otherwise by virtue of the 2003 Act or the 1995 Act,

shall be liable to be taken into custody by the persons specified in regulation 3 in any of the circumstances mentioned in the sub-paragraphs of paragraph (2) which are referred to in column B of that Table opposite the entry in column A.

(a) absconds from any place where the patient is being kept pending removal to hospital under the order or direction;

(b) absconds while being removed to hospital under the order or direction;

(c) absconds from the hospital in which, under the order or direction, the patient is being detained;

(d) absconds from the charge of a person authorised in writing in terms of sections 127(6)(a)[3], 221(6)(a) or 224(7)(a) (patient to be kept in the charge of an authorised person) of the 2003 Act;

(e) breaches a condition specified in a certificate granted under sections 127(1), 221(2) or 224(2) (certificates suspending authority to detain under certain orders and directions) of the 2003 Act that the patient reside continuously or for or at specified times at a specified place;

(f) absconds following the expiry of a specified period or after the occurrence of a specified event or on revocation of a certificate granted under sections 127(1), 128(1), 221(2) or 224(2) of the 2003 Act;

(g) breaches a requirement to reside at a specified place in terms of section 57A(8)(e) (imposition of residence requirement in compulsion order) of the 1995 Act;

(h) changes address without having obtained approval of the patient's mental health officer in breach of a requirement to obtain the approval of the mental health officer;

(i) absconds from custody;

(j) absconds following recall to hospital by warrant issued under section 202 (recall of patients from conditional discharge) of the 2003 Act;

(k) absconds while being removed to a prison, institution or other place (not being a hospital) on the direction of the Scottish Ministers under section 216(2) (effect of revocation by Scottish Ministers of a hospital direction or transfer for treatment direction) of the 2003 Act;

(l) absconds while being transferred from one hospital to another under–


(i) section 124 (2) as applied by section 178 of the 2003 Act (transfer where patient is subject to a relevant compulsion order); or

(ii) section 218(2) of that Act (transfer where patient is subject to a compulsion order and a restriction order, a hospital direction or a transfer for treatment direction); or



(m) absconds while being removed from Scotland by virtue of regulations made under section 290 of the 2003 Act.

Taking into custody by specified persons
     3. The persons specified for the purposes of regulation 2 who may take a patient into custody are–

(a) a mental health officer;

(b) a constable;

(c) a member of staff of any hospital and, where the patient liable to be taken into custody is subject to a compulsion order a condition of which requires the patient to reside in an establishment the address of which is specified in the order, a member of staff of that establishment;

(d) a person authorised in writing under sections 127(1), 221(6)(a) or 224(7)(a) (patient to be kept in charge of authorised person) of the 2003 Act, but only in respect of the patient to be kept in that person's charge;

(e) a person authorised to escort a patient who is being removed by virtue of regulations made under section 290 of the 2003 Act.

Steps which may be taken by specified persons on taking patients into custody
     4. —(1) Where a patient, who is subject to any of the orders or directions mentioned in Column A of the following Table, is taken into custody in terms of regulation 2 by a person specified in regulation 3, the steps which may be taken by that person in respect of that patient shall be the steps mentioned in the sub paragraphs of paragraph (2) which are referred to in Column B of that Table opposite the entry in Column A.

Reasonable force
     5. A person specified in regulation 3 may use reasonable force in exercising the powers conferred by regulation 2 to take a patient into custody and by regulation 4 to take the steps referred to in that regulation.

Notification requirements
     6. —(1) Where the responsible medical officer of a patient who is subject to any of the following orders–

(a) an assessment order;

(b) a treatment order;

(c) a temporary compulsion order under section 54(1)(c) of the 1995 Act; or

(d) an interim compulsion order,

becomes aware that the patient has absconded or has been taken into custody after having absconded, the responsible medical officer shall notify the parties referred to in paragraph (2).

    (2) Subject to paragraph (3), the parties referred to in paragraph (1) are–

(a) the court which imposed the order;

(b) the Commission; and

(c) the Scottish Ministers.

    (3) Where the responsible medical officer of a patient who is subject to any of the following orders–

(a) an assessment order imposed prior to conviction;

(b) a treatment order imposed prior to conviction; or

(c) a temporary compulsion order under section 54(1)(c) of the 1995 Act,

becomes aware that the patient has absconded or been taken into custody after having absconded, the responsible medical officer shall, in addition to the parties referred to in paragraph (2), notify the prosecutor.

Notification of Commission: compulsion order
     7. Where the responsible medical officer of a patient who is subject to a compulsion order (without a restriction order) becomes aware that the patient has absconded or has failed to comply with requirements imposed on them by virtue of the order to which the patient is subject, or has been taken into custody after having absconded or failed, the responsible medical officer shall notify the Commission.

Notification of Commission and Scottish Ministers
     8. Where the responsible medical officer of a patient who is subject to–

(a) a compulsion order where the patient is also subject to a restriction order;

(b) a hospital direction; or

(c) a transfer for treatment direction

becomes aware that the patient has absconded or has failed to comply with requirements imposed on them by virtue of the order to which the patient is subject, or has been taken into custody after having absconded or failed, the responsible medical officer shall notify the Commission and the Scottish Ministers.

Effect of unauthorised absence on orders and directions
     9. —(1) In this regulation, references to a patient's unauthorised absence are references to the patient's being liable to be taken into custody in terms of regulation 2 for such absconding or failure.

    (2) This regulation makes provision as to the effect of such unauthorised absence.

    (3) Where, in the case of a patient who is subject to a compulsion order without a restriction order, the patient's unauthorised absence–

(a) continued for more than 28 consecutive days and less than 3 months, but ceased more than 14 days before the day on which the order to which the patient is subject would, apart from this paragraph, cease to authorise the measures specified in it;

(b) ceased either on the day on which the order to which the patient is subject would, apart from this paragraph, cease to authorise the measures specified in it, or within 14 days of that date; or

(c) continued for a period of less than 3 months or less but ceased after the day on which the order to which the patient is subject ceased to authorise the measures specified in it,

     the order shall continue in effect until the end of the period of 14 days beginning with the day on which the patient's unauthorised absence ceased; or

(d) continued for a period of 3 months, the order shall then cease to have effect.

    (4) Where the patient is subject to an assessment order or an interim compulsion order, the patient's unauthorised absence does not affect the continuity of such order, the duration of which shall not take account of any day falling within the period of the patient's unauthorised absence.

    (5) Where the patient is subject to a hospital direction or a transfer for treatment direction, the patient's unauthorised absence does not affect the continuity of the sentence of imprisonment to which the patient is subject, which sentence shall be treated as if suspended during the patient's unauthorised absence and shall continue in effect on the day on which the patient's unauthorised absence ceased.

Review of compulsion order (without a restriction order)
     10. —(1) Subject to paragraphs (2) to (4), in the case of a patient who is subject to a compulsion order without a restriction order whose unauthorised absence falls within the description in regulation 6(3)(a), the responsible medical officer shall, during the period of 14 days in which the order continues in effect, carry out a review of the patient's compulsion order complying with the requirements of section 139(3) of the 2003 Act.

    (2) Where any part of the period of 14 days referred to in paragraph (1) occurs within the period of 2 months mentioned in subsection (6) of section 139 or subsection (3) of section 140 of the 2003 Act, the review which would (apart from this paragraph) have been carried out during that period of 2 months under that section shall not be carried out.

    (3) Where the compulsion order to which the patient is subject has not been extended as mentioned in section 140(1)of the 2003 Act, those of the other review provisions which relate to a further review apply.

    (4) Where that order has been so extended, those of the other review provisions which relate to a further review apply.

    (5) Subject to paragraph (6), in the case of a patient who is subject to a compulsion order without a restriction order whose unauthorised absence falls within the description in regulation 6(3)(b) or (c), the responsible medical officer shall, during the period of 14 days in which the order continues in effect, carry out a review of the patient's compulsion order complying with the requirements of section 139(3) of the 2003 Act.

    (6) Where any part of the period of 14 days referred to in paragraph (5) occurs within the period of 2 months mentioned in subsection (6) of section 139 or subsection (3) of section 140 of the 2003 Act, the review which would (apart from this paragraph) have been carried out during that period of 2 months under that section shall not be carried out.

    (7) Where–

(a) the compulsion order to which a patient is subject is, under this regulation, treated as continuing in effect; and

(b) the patient's unauthorised absence–


(i) began at a time when a review of the order was being carried out under sections 139 or 140 of the 2003 Act; and;

(ii) or, if that is not appropriate or practicable,



then anything done by the patient's responsible medical officer for the purposes of that review which (apart from this paragraph) would fall to be done for the purpose of a review under this regulation need not, for those latter purposes, be done.

Review of compulsion order with a restriction order, a hospital direction or a transfer for treatment direction
     11. —(1) Subject to paragraphs (2) and (3), in the case of a patient who is subject to a compulsion order with a restriction order, the patient's responsible medical officer shall, within 14 days of the day on which the patient's unauthorised absence ceased, carry out a review in respect of both the compulsion order and restriction order complying with the requirements of section 182(3) of the 2003 Act.

    (2) Where any part of the period of 14 days referred to in paragraph (1) occurs within the period of 2 months mentioned in subsection (2) of section 182 of the 2003 Act, the review which would (apart from this paragraph) have been carried out during that period of 2 months under that section shall not be carried out.

    (3) Where the patient's unauthorised absence–

(a) began at a time when a review of the orders was being carried out under section 182 of the 2003 Act; and

(b) lasted for 28 consecutive days or any shorter period,

then anything done by the patient's responsible medical officer for the purposes of that review which (apart from this paragraph) would fall to be done for the purpose of a review under this regulation need not, for those latter purposes, be done.

    (4) Subject to paragraphs (5) to (7), in the case of a patient who is subject to a hospital direction or a transfer for treatment direction, the patient's responsible medical officer shall, within 14 days of the day on which the patient's unauthorised absence ceased, carry out a review in respect of the direction complying with the requirements of section 206(3) of the 2003 Act.

    (5) Paragraph (4) shall not apply where the patient's unauthorised absence ceased within the period of 2 months from the date when the direction to which the patient is subject ceased to have effect in terms of section 217(2).

    (6) Where any part of the period of 14 days referred to in paragraph (4) occurs within the period of 2 months mentioned in subsection (2) of section 206 of the 2003 Act, the review which would (apart from this paragraph) have been carried out during that period of 2 months under that section shall not be carried out.

    (7) Where the patient's unauthorised absence–

(a) began at a time when a review of the direction was being carried out under section 206 of the 2003 Act; and

(b) lasted for 28 consecutive days or any shorter period,

then anything done by the patient's responsible medical officer for the purposes of that review which (apart from this paragraph) would fall to be done for the purpose of a review under this regulation need not, for those latter purposes, be done.

Review of certain orders
     12. —(1) Where a patient who is subject to any of the orders referred to in regulation 6(1)(a) to (d), has absconded or has been taken into custody, the patient's responsible medical officer shall, as soon as reasonably practicable after becoming aware that the patient has absconded or been taken into custody, review the order.

    (2) Where the responsible medical officer is satisfied on review, that as a consequence of the patient's unauthorised absence, the order requires to be varied, apply to the court which made that order for an order varying the measures specified in the order.

    (3) Where an application is made under paragraph (1), the court may–

(a) confirm the order; or

(b) vary the order by specifying measures additional to or different from those specified in the order.

Revocation of certificate by responsible medical officer
     13. Where a patient in respect of whom a certificate was granted under sections 127(1), 128(1), 221(2) or 224(2) of the 2003 Act[4], has absconded or has been taken into custody after having absconded, the responsible medical officer may revoke the certificate.


LEWIS MACDONALD
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
26th September 2005

[2] 1995 c.46.back

[3] Section 127 of the Mental Health (Care and Treatment) (Scotland) Act 2003 is applied in relation to a patient subject to a relevant compulsion order by section 179 of that Act.back

[4] 2003 asp 13.back