New amendments to Bills lodged on 12 May 2015
Mental Health (Scotland) Bill – Stage 2
Section 1
Bob Doris
1 In section 1, page 1, line 12, leave out <under section> and insert <by virtue of section 47(4)(a) or>
Bob Doris
2 In section 1, page 1, line 21, leave out <under section> and insert <by virtue of section 47(4)(a) or>
Bob Doris
3 In section 1, page 1, line 25, leave out subsections (4) and (5)
Section 2
Jamie Hepburn
4 In section 2, page 2, line 8, leave out <101(2)> and insert <101(2)(a)>
Section 8
Jamie Hepburn
5 In section 8, page 5, line 22, at end insert—
<( ) in subsection (1), the words “not exceeding 6 months” are repealed,
( ) after subsection (1) there is inserted—
“(1A) A certificate under subsection (1) above may specify—
(a) a single period not exceeding 200 days, or
(b) a series of more than one individual period falling within a particular 6 month period.”,
( ) after subsection (3) there is inserted—
“(3A) A certificate under subsection (3) above may specify—
(a) a single period, or
(b) a series of more than one individual period.”,>
Jamie Hepburn
6 In section 8, page 5, line 27, at end insert—
<( ) after subsection (2) there is inserted—
“(2A) A certificate under subsection (2) above may specify—
(a) a single period, or
(b) a series of more than one individual period.”,>
Jamie Hepburn
7 In section 8, page 6, line 2, at end insert—
<( ) In subsection (2), the words “not exceeding 3 months” are repealed,
( ) after subsection (2) there is inserted—
“(2A) A certificate under subsection (2) above may specify—
(a) a single period not exceeding 90 days, or
(b) a series of more than one individual period falling within a particular 3 month period.”,>
Section 9
Jamie Hepburn
8 In section 9, page 6, leave out lines 17 to 26 and insert—
<( ) for subsection (2) there is substituted—
“(2) The total period that an order does not, by reason of certification under subsection (1) above, authorise the measure mentioned in section 66(1)(a) of this Act must not exceed 200 days (or a higher total by virtue of subsection (10) below)—
(a) in the 12 month period beginning with the day on which the order is made, or
(b) in each subsequent period of 12 months.”,
( ) after subsection (2) there is inserted—
“(2A) For the purpose of subsection (2) above—
(a) a day does not count towards the total period if the measure is (by reason of such certification) not authorised for a period of 8 hours or less in that day,
(b) a single period (specified in such certification) of more than 8 hours and less than 24 hours, whether in one day or spanning two days, is to count as a whole day towards the total period.”,>
Jamie Hepburn
9 In section 9, page 6, line 29, after <by> insert <an order of>
Jamie Hepburn
10 In section 9, page 6, line 30, leave out from <, but> to end of line 35
Jamie Hepburn
11 In section 9, page 6, line 38, at end insert <once determined (including any order made in connection with it under subsection (11B) below)>
Jamie Hepburn
12 In section 9, page 6, line 38, at end insert—
<(11A) Where the Tribunal receives an application under subsection (10) above, the Tribunal must inform the patient and the patient’s named person—
(a) that they may make representations (oral or written), and
(b) of the result of the application once determined (including any order made in connection with it under subsection (11B) below).>
Jamie Hepburn
13 In section 9, page 6, line 38, at end insert—
<(11B) If the Tribunal decides not to make an order approving a higher total on an application under subsection (10) above, the Tribunal may make an order varying the compulsory treatment order to which the patient is subject so that it no longer authorises the measure mentioned in section 66(1)(a) of this Act.>
Jamie Hepburn
14 In section 9, page 6, line 39, at end insert—
<( ) In section 128 (suspension of other measures), in each of subsections (1) and (2), for the words “3 months” there is substituted “90 days”.>
Jamie Hepburn
15 In section 9, page 7, leave out lines 3 to 12 and insert—
<( ) for subsection (4) there is substituted—
“(4) The total period that an order or direction does not, by reason of certification under subsection (2) above, authorise the detention of a patient in hospital must not exceed 200 days (or a higher total by virtue of subsection (11) below)—
(a) in the 12 month period beginning with the day on which the order or direction is made, or
(b) in each subsequent period of 12 months.”,
( ) after subsection (4) there is inserted—
“(4A) For the purpose of subsection (4) above—
(a) a day does not count towards the total period if the detention is (by reason of such certification) not authorised for a period of 8 hours or less in that day,
(b) a single period (specified in such certification) of more than 8 hours and less than 24 hours, whether in one day or spanning two days, is to count as a whole day towards the total period.”,>
Jamie Hepburn
16 In section 9, page 7, line 15, after <by> insert <an order of>
Jamie Hepburn
17 In section 9, page 7, line 16, leave out from <, but> to end of line 21
Jamie Hepburn
18 In section 9, page 7, line 24, at end insert <once determined (including any order made in connection with it under subsection (12B) below)>
Jamie Hepburn
19 In section 9, page 7, line 24, at end insert—
<(12A) Where the Tribunal receives an application under subsection (11) above, the Tribunal must inform the patient and the patient’s named person—
(a) that they may make representations (oral or written), and
(b) of the result of the application once determined (including any order made in connection with it under subsection (12B) below).>
Jamie Hepburn
20 In section 9, page 7, line 24, at end insert—
<(12B) If the Tribunal decides not to make an order approving a higher total on an application under subsection (11) above, the Tribunal may make an order varying the order or direction in question so that it no longer authorises the detention of the patient in hospital.>
Jamie Hepburn
21 In section 9, page 7, line 25, at end insert—
<( ) In section 320 (appeal to sheriff principal against certain decisions of the Tribunal), in subsection (1)—
(a) after paragraph (l) there is inserted—
“(la) a decision to make an order under section 127(11B) of this Act arising by virtue of an application under section 127(10) of this Act;”,
(b) after paragraph (s) there is inserted—
“(sa) a decision to make an order under section 224(12B) of this Act arising by virtue of an application under section 224(11) of this Act;”.>
After section 9
Jamie Hepburn
22 After section 9, insert—
<Specification of hospital units
Specification for detention measures
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In section 36 (emergency detention in hospital), after subsection (12) there is inserted—
“(13) A reference in this section to a hospital may be read as a reference to a hospital unit.
(14) For the purpose of subsection (13) above, “hospital unit” means any part of a hospital which is treated as a separate unit.”.
(3) In section 44 (short-term detention in hospital), after subsection (11) there is inserted—
“(12) In this section and sections 46 to 49 of this Act, a reference to a hospital may be read as a reference to a hospital unit.
(13) For the purposes of subsection (12) above, “hospital unit” means any part of a hospital which is treated as a separate unit.”.
(4) After section 71 there is inserted—
“71A Compulsory treatment in hospital unit
(1) In sections 62 to 68 of this Act, a reference to a hospital may be read as a reference to a hospital unit.
(2) For the purposes of subsection (1) above, “hospital unit” means any part of a hospital which is treated as a separate unit.”.>
Jamie Hepburn
23 After section 9, insert—
<Transfer of prisoner to hospital unit
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In section 136 (transfer of prisoners for treatment for mental disorder), after subsection (10) there is inserted—
“(11) A reference in this section to a hospital may be read as a reference to a hospital unit.
(12) For the purpose of subsection (11) above, “hospital unit” means any part of a hospital which is treated as a separate unit.”.>
Before section 10
Jamie Hepburn
24 Before section 10, insert—
<Requirement for medical report
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In section 264 (detention in conditions of excessive security: state hospitals), after subsection (7) there is inserted—
“(7A) An application may not be made under subsection (2) above unless it is accompanied by a report prepared by a medical practitioner which—
(a) states that in the practitioner’s opinion the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, and
(b) sets out the practitioner’s reasons for being of that opinion.”.
(3) In section 268 (detention in conditions of excessive security: hospitals other than state hospitals), after subsection (7) there is inserted—
“(7A) An application may not be made under subsection (2) above unless it is accompanied by a report prepared by a medical practitioner which—
(a) states that in the practitioner’s opinion the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient, and
(b) sets out the practitioner’s reasons for being of that opinion.”.>
Section 10
Jamie Hepburn
25 In section 10, page 8, line 11, leave out subsection (9)
Section 11
Jamie Hepburn
26 In section 11, page 8, leave out line 19 and insert—
<( ) in subsection (2), for the words from “detention” to “patient’s case” there is substituted “the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient”>
Jamie Hepburn
27 In section 11, page 8, leave out lines 32 and 33 and insert—
<( ) in subsection (3), for the words from “detention” to “patient’s case” there is substituted “the test specified in regulations made under section 271A(2) of this Act is met in relation to the patient”>
Jamie Hepburn
28 In section 11, page 9, leave out lines 1 and 2 and insert—
<( ) in subsection (2)(a), for the words from “detention” to “patient’s case” there is substituted “the test specified in regulations made under section 271A(2) of this Act is not met in relation to the patient”>
Jamie Hepburn
29 In section 11, page 9, line 2, at end insert—
<( ) After section 271 there is inserted—
“Process for orders: further provision
“271A Regulation-making powers
(1) A hospital is a “qualifying hospital” for the purposes of sections 268 to 271 of this Act if—
(a) it is not a state hospital, and
(b) it is specified, or is of a description specified, in regulations.
(2) Regulations may specify the test for the purposes of sections 268(2), 269(3) and 271(2)(a) of this Act.
(3) Regulations under subsection (2) above specifying the test—
(a) must include as a requirement for the test to be met in relation to a patient that the Tribunal be satisfied that detention of the patient in the hospital in which the patient is being detained involves the patient being subject to a level of security that is excessive in the patient’s case, and
(b) may include further requirements for the test to be met in relation to a patient.
(4) Regulations may make provision about when, for the purposes of—
(a) any regulations made under subsection (2) above, and
(b) sections 268 to 271 of this Act,
a patient’s detention in a hospital is to be taken to involve the patient being subject to a level of security that is excessive in the patient’s case.
(5) Regulations may modify sections 264 and 268 of this Act so as to provide that a person must meet criteria besides being a medical practitioner in order to prepare a report for the purpose of subsection (7A) in each of those sections.”.>
Jamie Hepburn
30 In section 11, page 9, line 5, leave out <is authorised in hospital> and insert <in hospital is authorised>
Jamie Hepburn
31 In section 11, page 9, line 10, at end insert—
<( ) In section 326 (orders, regulations and rules), in subsection (4)(c), for the words “268(11) to (14)” there is substituted “271A”.>
After section 11
Jamie Hepburn
32 After section 11, insert—
<Meaning of hospital in sections 268 to 273 of the 2003 Act
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In section 273 (interpretation of Chapter)—
(a) the words up to the end of the definition of “relevant patient” become subsection (1),
(b) after that subsection there is inserted—
“(2) In this Chapter, a reference to a hospital may be read as a reference to a hospital unit.
(3) For the purposes of this Chapter, “hospital unit” means any part of a hospital which is treated as a separate unit.”.>
Section 12
Jamie Hepburn
33 Leave out section 12
Section 14
Jamie Hepburn
34 In section 14, page 10, line 28, leave out <purposes mentioned in subsection (3A) below> and insert <purpose of enabling the carrying out of a medical examination of the patient by a medical practitioner>
Jamie Hepburn
35 In section 14, page 10, leave out lines 33 to 39
Section 15
Jamie Hepburn
36 Leave out section 15
Section 16
Jamie Hepburn
37 In section 16, page 11, line 8, at end insert—
<( ) In subsection (3)(c) of section 101 (Tribunal’s duty to review determination under section 86), for the words “made to” there is substituted “determined by”.>
Jamie Hepburn
38 In section 16, page 11, line 23, leave out from <paragraph> to <are> in line 24 and insert <Schedule 2 (the Mental Health Tribunal for Scotland), paragraph 13A is>
Section 18
Jamie Hepburn
39 Leave out section 18
After section 18
Jamie Hepburn
40 After section 18, insert—
<Named person not to be automatic
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) Sections 251 and 253 are repealed.
(3) In subsection (2) of section 318 (false statements), sub-paragraph (ii) of paragraph (b) is repealed.>
Section 19
Jamie Hepburn
41 In section 19, page 12, line 35, leave out subsection (3)
Section 20
Jamie Hepburn
42 In section 20, page 14, line 6, at end insert—
<( ) In section 320 (appeal to sheriff principal against certain decisions of the Tribunal), paragraph (t) of subsection (1) is repealed.>
After section 20
Jamie Hepburn
43 After section 20, insert—
<Ability to act if no named person
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) After section 257, there is inserted—
“Ability to act if no named person
257A Ability to act if no named person
(1) This section applies if—
(a) a patient does not have a named person,
(b) the patient has attained the age of 16 years, and
(c) the patient is incapable in relation to a decision as to whether to initiate an application or appeal in the patient’s case.
(2) In subsection (1)(c) above, “incapable” has the same meaning as in section 250 of this Act.
(3) Each of the persons listed in subsection (9)(a) to (d) below has authority to initiate an application or appeal that may be made by the patient under section 50(1), 99(1), 100(2), 120(2), 125(2), 126(2), 163(1), 164(2), 192(2), 201(1), 204(1), 214(2), 219(2), 220(2), 264(2), 268(2), 320(2), 321(1) or 322(2) of this Act.
(4) Each of the persons listed in subsection (9)(a) and (b) below has authority to obtain any notice or information that is to be provided under section 54(3), 60(1), 87(2)(c), 124(4) or (6), 127(7) or (11A)(b), 128(3), 129(3) or (4), 200(3), 218(4), (6) or (10)(b), 218A(4), 224(8) or (12A)(b) or 226(3) of this Act.
(5) The reference in subsection (3) above to section 264(2), 268(2), 320(2), 321(1) or 322(2) of this Act does not apply in relation to a guardian or a welfare attorney of the patient (as that person is already entitled to make an application or appeal under that section).
(6) In the application of subsection (4) above—
(a) the reference to section 87(2)(c) relates only to notice of the determination mentioned in that section (and not also to a copy of the record mentioned in that section),
(b) the reference to section 128(3) or 129(4) relates to a responsible medical officer’s reasons only if that officer is satisfied that it is appropriate to give notice of them to a guardian or a welfare attorney of the patient (having regard to the need to ensure the patient’s wellbeing and confidentiality).
(7) Neither of the persons listed in subsection (9)(c) or (d) has authority to act in relation to a patient by virtue of this section if the patient has made a written declaration precluding the person (or all persons) from so acting.
(8) Subsections (2) to (5) and (7) of section 250 of this Act apply to a declaration mentioned in subsection (6) above as they apply to a nomination to which subsection (1) of that section relates (with that section to be read accordingly).
(9) The listed persons are—
(a) any guardian of the patient,
(b) any welfare attorney of the patient,
(c) the patient’s primary carer (if any),
(d) the patient’s nearest relative.”.>
Section 21
Jamie Hepburn
44 In section 21, page 14, leave out line 21 and insert—
<(b) inform the Commission—
(i) that a copy of the statement or document is held with the person’s medical records, and
(ii) of the premises at which the medical records are kept (and the personal and administrative details essential for identifying the records as the person’s).>
Jamie Hepburn
45 In section 21, page 14, line 23, leave out from <a> to the end of line 32 and insert <information by virtue of section 276A(2) of this Act.
(2) The Commission must enter the information in a register of advance statements maintained by it (and mark the date on which the entry is made).>
Jamie Hepburn
46 In section 21, page 14, line 36, leave out from <anything> to the end of line 38 and insert <an entry in the register to be inspected at a reasonable time—
(a) by the person whose medical records are referred to in the entry,>
Section 22
Jamie Hepburn
47 In section 22, page 15, line 27, leave out <, 57A(2)>
After section 22
Jamie Hepburn
48 After section 22, insert—
<Conflicts of interest to be avoided
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) After section 291 there is inserted—
“Conflicts of interest to be avoided
291A Conflicts of interest to be avoided
(1) There must not be a conflict of interest in relation to a medical examination to be carried out for the purpose of section 36(1), 44(1), 47(1), 57(2), 77(2), 78(2), 139(2), 140(2) or 182(2) of this Act.
(2) Regulations may—
(a) specify circumstances in which, in the application of subsection (1) above—
(i) there is to be taken to be a conflict of interest,
(ii) there is not to be taken to be a conflict of interest,
(b) specify circumstances in which subsection (1) above does not apply.”.
(3) These provisions are repealed—
(a) in section 36 (emergency detention in hospital)—
(i) paragraph (a) of subsection (3),
(ii) subsection (9),
(b) in section 44 (short-term detention in hospital)—
(i) paragraph (a) of subsection (3),
(ii) subsection (8),
(c) in section 47 (extension of detention pending application for compulsory treatment order)—
(i) paragraph (a) of subsection (2),
(ii) subsection (5),
(d) in section 58 (medical examination: requirements), subsection (5).>
Jamie Hepburn
49 After section 22, insert—
<Safeguarding the patient’s interest
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In section 245 (certificates under sections 235, 236, 239 and 241), in subsection (3)—
(a) the word “and” immediately preceding sub-paragraph (ii) of paragraph (a) is repealed,
(b) after sub-paragraph (ii) of paragraph (a) there is inserted—
“(iii) any guardian of the patient; and
(iv) any welfare attorney of the patient;”.>
Section 23
Jamie Hepburn
50 In section 23, page 16, line 8, leave out <, for the words “for post-natal depression,” in subsection (1)(d)> and insert—
<( ) in paragraph (d) of subsection (1), for the words “for post-natal depression,”>
Jamie Hepburn
51 In section 23, page 16, line 11, at end insert—
<( ) after subsection (1) there is inserted—
“(1A) But a Health Board is required to provide services and accommodation under subsection (1) only if it is satisfied that doing so would be beneficial to the wellbeing of the child.”.>
Section 25
Bob Doris
52 In section 25, page 17, line 14, leave out <some or all of> and insert <specific provisions in>
Bob Doris
53 In section 25, page 17, line 21, at end insert <, or
( ) authorise treatment of the types mentioned in section 234(2) or 237(3) of this Act.”.>
Section 26
Jamie Hepburn
54 In section 26, page 17, line 30, leave out from <subsection> to the end of line 33 and insert <paragraph (a) of subsection (3) there is inserted—
“(aa) that—
(i) a mental health officer has agreed to the making of the direction, or
(ii) it has been impracticable to obtain the agreement of a mental health officer;”.>
After section 27
Dr Richard Simpson
55 After section 27, insert—
<Meaning of “mental disorder”
Meaning of “mental disorder”
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In section 328 (meaning of “mental disorder”)—
(a) paragraph (c) of subsection (1) is repealed together with the word “or” immediately preceding it,
(b) before paragraph (a) in subsection (2) there is inserted—
<“(za) learning disability;
(zb) autism spectrum disorder;”>
Jackie Baillie
56 After section 27, insert—
<Review of the meaning of “mental disorder”
Review of the meaning of “mental disorder”
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) After section 328 there is inserted—
“328A Review of meaning of “mental disorder”
(1) The Scottish Ministers must carry out a review of the definition of mental disorder no later than one year after the Mental Health (Scotland) Act 2015 receives Royal Assent.
(2) The purpose of the review under subsection (1) is to consider whether “learning disability” should continue to be within the meaning of “mental disorder”.
(3) In carrying out a review under subsection (1) the Scottish Ministers must consult such persons as they consider appropriate.
(4) The Scottish Ministers must—
(a) publish a report—
(i) setting out the findings of the report under subsection (1),
(ii) making a recommendation as to whether “learning disability” should continue to be within the meaning of “mental disorder”,
(b) lay a copy of that report before the Parliament.
(5) The Scottish Ministers must make provision by regulations for the removal of “learning disability” from the meaning of “mental disorder” where a report under subsection (4) recommends that “learning disability” should not continue to be within the meaning of “mental disorder”.”.
(3) In section 326 (orders, regulations and rules), in subsection (4)(c) for the words “or 310” there is substituted “310 or 328A”.>
After section 28
Jamie Hepburn
57 After section 28, insert—
<Detention under compulsion orders
(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.
(2) In section 57 (disposal of case where accused found not criminally responsible or unfit for trial), in subsection (2)—
(a) in paragraph (a), for the words “authorising the detention of the person in a hospital” there is substituted “(whether or not authorising the detention of the person in a hospital)”,
(b) for paragraph (b) there is substituted—
“(b) subject to subsection (4A) below, make a restriction order in respect of the person (that is, in addition to a compulsion order authorising the detention of the person in a hospital);”.>
Section 35
Jamie Hepburn
58 In section 35, page 22, line 25, at end insert <, or
( ) a temporary compulsion order (see section 54(1)(c) of this Act).>
Jamie Hepburn
59 In section 35, page 22, line 26, leave out from beginning to <question,> in line 27
Before section 36
Jamie Hepburn
60 Before section 36, insert—
<Specification of unit
(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.
(2) After section 61 there is inserted—
“61B Specification of hospital unit
(1) A reference in this Part to a hospital may be read as a reference to a hospital unit.
(2) For the purposes of subsection (1) above, “hospital unit” means any part of a hospital which is treated as a separate unit.”.>
Section 36
Jamie Hepburn
61 Leave out section 36
Section 37
Jamie Hepburn
62 Leave out section 37
Section 38
Jamie Hepburn
63 Leave out section 38
Section 41
Jamie Hepburn
64 In section 41, page 25, line 12, leave out <165(2)> and insert <165(2)(a)>
After section 42
Jamie Hepburn
65 After section 42, insert—
<Effect of revocation of restriction order
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In subsection (2) of section 198 (effect of revocation of restriction order), for the words “Tribunal revoked the restriction order” there is substituted “order revoking the restriction order has effect in accordance with section 196 of this Act”.>
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