Mental Health (Scotland) Bill – Stage 2
Section 1
Dr Richard Simpson
66 In section 1, page 1, line 25, leave out subsection (4) and insert—
<In section 68 (extension of short-term detention pending determination of application)—
(a) in the text following paragraph (b) of subsection (1), for the words “are authorised” there is substituted “may be authorised by the Tribunal providing that either of the conditions set out in subsection (1A) are met”,
(b) after subsection (1) there is inserted—
“(1A) Those conditions are—
(a) that the Tribunal determines on its own initiative that the delay in determining the application made under section 63 is unavoidable; or
(b) that an application is made to the Tribunal by a person mentioned in subsection (1B) and the Tribunal is satisfied that the delay in determining the application made under section 63 is unavoidable.
(1B) Those persons are—
(a) the patient;
(b) if the patient has a responsible medical officer, that officer, but only with the consent of—
(i) the patient; or
(ii) where the patient is incapable of consenting, a person mentioned in paragraph (c); or
(c) where the patient is incapable of making the application—
(i) the patient’s named person;
(ii) any guardian of the patient;
(iii) any legal representative of the patient;
(iv) a person who, to the knowledge of the Tribunal, is providing independent advocacy services to the patient under section 259 of this Act.”,
(c) in subsection (2)(a), for the word “5” there is substituted “10”,
(d) after subsection (2) there is inserted—
“(2A) Where the Tribunal authorises the measures mentioned in subsection (2), the Tribunal must give notice to the persons mentioned in subsection (2B)—
(a) of its authorisation;
(b) the reasons for its decision.
(2B) Those persons are—
(a) if the patient made or consented to the application, the patient;
(b) in all other cases—
(i) the patient’s named person;
(ii) any guardian of the patient;
(iii) any legal representative of the patient;
(iv) the patient’s responsible medical officer;
(v) a person who, to the knowledge of the Tribunal, is providing independent advocacy services to the patient under section 259 of this Act;
(vi) the Commission.”.>
Section 3
Dr Richard Simpson
67 In section 3, page 3, line 20, leave out <may, so far as they consider it appropriate> and insert <must, unless it is impracticable to do so>
Dr Richard Simpson
68 In section 3, page 3, line 22, at end insert—
<“(3B) Where it is impracticable for the managers of the hospital to notify any persons mentioned in subsection (4) below, they must notify any person who, to the knowledge of the managers, is providing independent advocacy services to the patient under section 259 of this Act.”,>
Dr Richard Simpson
69 In section 3, page 3, line 25, leave out <and (3A)> and insert <, 3A and 3B>
Section 9
Dr Richard Simpson
70 In section 9, page 6, line 39, leave out<300> and insert <230>
Dr Richard Simpson
71 In section 9, page 7, line 25, leave out <300> and insert <230>
Section 11
Dr Richard Simpson
72 In section 11, page 8, line 17, leave out <first> and insert <second>
Dr Richard Simpson
73 In section 11, page 8, line 19, leave out <each> and insert <the second>
Dr Richard Simpson
74 In section 11, page 8, leave out line 23
Dr Richard Simpson
75 In section 11, page 8, leave out lines 25 and 26
Dr Richard Simpson
76 In section 11, page 8, leave out line 29 and insert—
<( ) subsection (12) is repealed,
( ) in subsection (13), paragraph (b) is repealed,
( ) after subsection (14), there is inserted—
“(15) Regulations must specify the minimum period for which a patient must be detained before an application may be made under this section.
(16) Regulations may—
(a) make different provision for different purposes, including providing for different dates for the different measures of security or containment under which a patient is detained to come into force,
(b) include consequential, supplementary, incidental, transitional, transitory or saving provision.”.>
Dr Richard Simpson
77 In section 11, page 8, leave out line 31
Dr Richard Simpson
78 In section 11, page 8, line 36, at end insert—
<( ) In section 270 (orders under section 269: further provision)—
(a) in subsection (3), the word “qualifying” is repealed,
(b) in subsection (6), for the word “qualifying” there is substituted “hospital in which the patient is detained”.>
Dr Richard Simpson
79 In section 11, page 8, leave out line 38
Dr Richard Simpson
80 In section 11, page 9, line 10, at end insert—
<( ) In section 326 (orders, regulations and rules), in subsection (4)(c), for the words “to (14)” there is substituted “and (13) to (16)”.>
Section 14
Dr Richard Simpson
81 Leave out section 14
After section 20
Dr Richard Simpson
82 After section 20, insert—
<Advocacy
Advocacy
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In section 46, after paragraph (d) of subsection (2) there is inserted—
“(e) any person who, to the knowledge of the managers, is providing independent advocacy services to the patient under section 259 of this Act.”.
(3) In section 50, after subsection (3) there is inserted—
“(3A) The Tribunal may afford any person who, to the knowledge of the Tribunal, is providing independent advocacy services to the patient under section 259 of this Act the opportunity mentioned under subsection (2).”.
(4) In section 52, after paragraph (g) there is inserted—
“(h) any person who, to the knowledge of the Commission, is providing independent advocacy services to the patient under section 259 of this Act.”.
(5) In section 54, after paragraph (c) of subsection (3) there is inserted—
“(ca) any person who, to the knowledge of the responsible medical officer, is providing independent advocacy services to the patient under section 259 of this Act.”.
(6) In section 64, after subsection (3) there is inserted—
“(3A) The Tribunal may afford any person who, to the knowledge of the Tribunal, is providing independent advocacy services to the patient under section 259 of this Act the opportunity mentioned under subsection (2).”.
(7) In section 268, after paragraph (e) of subsection (6) there is inserted—
“(f) any person who, to the knowledge of the Tribunal, is providing independent advocacy services to the patient under section 259 of this Act.”.>
Dr Richard Simpson
83 After section 20, insert—
<Access to advocacy services
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In section 259, after subsection (11) there is inserted—
“(12) Regulations may make provision for the circumstances in which providers of independent advocacy services under this Act must be—
(a) notified of matters relating to a patient;
(b) afforded an opportunity to make representations on behalf of a patient;
(c) afforded an opportunity to make applications on behalf of a patient.”.>
Dr Richard Simpson
84 After section 20, insert—
<Review of access to advocacy
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) After section 259, there is inserted—
“259A Review of access to advocacy
(1) The Commission must—
(a) monitor the availability and accessibility of independent advocacy services provided under section 259,
(b) from time to time, report to the Scottish Ministers on the exercise of the functions under section 259 by the bodies mentioned in subsection (3).
(2) Each body mentioned in subsection (3) must provide the Commission with a report every 2 years, or at such other intervals as Ministers may determine, setting out—
(a) how it has exercised its functions under section 259 during the reporting period,
(b) its plans to ensure that it is in a position to secure independent advocacy services for any person requiring such services in the next reporting period.
(3) Those bodies are—
(a) a local authority,
(b) a Health Board.
(4) In this section—
“reporting period” means—
(a) in the case of the first report, the period of time from the date on which this section comes into force until the date on which the first report is provided,
(b) in the case of a subsequent report, the period of time from the date on which the previous report is provided until the date on which the subsequent report is provided.”.>
Section 21
Dr Richard Simpson
85 In section 21, page 15, line 7, at end insert—
<276D Access to advance statements
(1) The Scottish Ministers must, by regulations, set out the circumstances where a person mentioned in subsection (2) may, for the purpose of exercising functions under this Act, access an advance statement or document withdrawing an advance statement held by a Health Board.
(2) Those persons are—
(a) the patient’s named person;
(b) any person who, to the knowledge of the Health Board, is providing independent advocacy services to the patient under section 259 of this Act;
(c) a designated medical practitioner in respect of section 239(1) or 241(1) of this Act;
(d) a person employed by the Health Board;
(e) the Commission;
(f) the Tribunal.”.>
Dr Richard Simpson
86 In section 21, page 15, line 7, at end insert—
<( ) In section 326 (orders, regulations and rules), in subsection (4)(c) after the words “to (14),” there is inserted “276D(1),”.>
Bob Doris
87 In section 21, page 15, line 7, at end insert—
<Duty to promote advance statements
Each Health Board, working with each local authority in its area, must regularly publish and promote (in such manner as it considers appropriate and in accordance with guidance in the Code of Practice) information about—
(a) the existence, effect and status of provisions in this Act about advance statements,
(b) the exercise of those provisions,
(c) the arrangements for making, revising and lodging an advance statement in relation to a person who has a mental disorder,
(d) the support available in the Health Board area to assist a person who has a mental disorder in making, lodging or revising an advance statement.”.>
After section 21
Dr Richard Simpson
88 After section 21, insert—
<Effect of advance statements
(1) The Mental Health (Care and Treatment) (Scotland) Act 2003 is amended as follows.
(2) In section 276 (advance statements: effect)—
(a) in subsection (1), at beginning there is inserted “Subject to subsection (3A),”,
(b) in subsection (3), at beginning there is inserted “Subject to subsection (3A),”,
(c) after subsection (3), there is inserted—
“(3A) Where the conditions in subsection (3B) apply, the person proposing the medical treatment must make an application to the Tribunal for a decision as to whether the treatment may be given or not.
(3B) Those conditions are—
(a) the treatment conflicts with wishes specified in the advance statement;
(b) the patient’s named person objects to the medical treatment; and
(c) it appears to the person proposing the medical treatment or to the patient’s named person that, while the patient’s ability to make decisions about the matters referred to in paragraphs (a) and (b) of subsection (1) of section 275 of this Act, is, because of mental disorder, significantly impaired, the patient is not incapable of consenting to the treatment.
(3C) For the purposes of this section, “incapable” means incapable of—
(a) acting,
(b) making decisions,
(c) communicating decisions,
(d) understanding decisions, or
(e) retaining the memory of decisions,
by reason of mental disorder or of inability to communicate because of physical disability; but a person does not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise).”.>
Section 25
Dr Richard Simpson
89 In section 25, page 17, line 14, leave out <some or all of Part 16> and insert <section 243>
Dr Richard Simpson
90 In section 25, page 17, line 18, leave out <that Part> and insert <section 243>
Dr Richard Simpson
91 In section 25, page 17, line 19, leave out <any of that Part> and insert <section 243>
After section 40
Dr Richard Simpson
92 After section 40, insert—
<Duty on Health Boards and Mental Welfare Commission to review certain criminal behaviour by mentally disordered persons
Duty on Health Boards and Mental Welfare Commission to review certain criminal behaviour by mentally disordered persons
(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.
(2) After section 63 (appeal by prosecutor in case involving insanity), there is inserted—
“Duty on Health Boards and Mental Welfare Commission to review certain criminal behaviour by mentally disordered persons
63A Duty on Health Boards and Mental Welfare Commission to review certain criminal behaviour by mentally disordered persons
(1) Subsection (2) applies where a person—
(a) is charged with a relevant offence, and
(b) has prior to being charged with that relevant offence been—
(i) in receipt of care and treatment from a health board under the Mental Health (Treatment and Care) (Scotland) Act 2003 (“the 2003 Act”), or
(ii) referred to a Health Board for care and treatment under the 2003 Act.
(2) As soon as practicable after the person is charged with a relevant offence, the procurator fiscal must, where it appears to the procurator fiscal that the person meets the conditions specified in subsection (1), notify—
(a) the Health Board—
(i) which provided care and treatment to the mentally disordered person under the 2003 Act, or
(ii) to which the mentally disordered person was referred for care and treatment under the 2003 Act, and
(b) the Mental Welfare Commission,
that the mentally disordered person has been charged with a relevant offence.
(3) A Health Board which has been notified under subsection (2) must—
(a) undertake an inquiry into the mentally disordered person’s interaction with the Health Board,
(b) prepare and publish a report setting out the findings of the inquiry, and
(c) as soon as practicable after the publication of a report under paragraph (b), prepare an action plan responding to the findings of the report.
(4) As soon as practicable after the publication of a report and action plan under subsection (3), the Health Board must provide the report and action plan to—
(a) the Mental Welfare Commission,
(b) any natural person against whom a relevant offence has been perpetrated, provided that the Health Board has ascertained that the person to be given the information wishes to receive it.
(5) The Mental Welfare Commission must, in accordance with directions given to it by the Scottish Ministers, from time to time, and not less than once in every parliamentary session, lay before the Parliament a report summarising the findings of the reports received since the laying of the last such report.
(6) Subsections (7) and (8) apply where—
(a) the Parliament is dissolved before the period of 12 months has elapsed since the commencement of the session of Parliament, and
(b) as at the date of dissolution a report under subsection (5) has not been published.
(7) The session in which the Parliament is so dissolved is not to be regarded as a session in which a report under subsection (5) is to be published.
(8) A report under subsection (5) must be published in the session of the Parliament which—
(a) next follows the session in which the Parliament is so dissolved, and
(b) is not itself a session in which the Parliament is so dissolved.
(9) Health Boards must, in exercising any function under this section, have regard to any guidance issued by the Scottish Ministers.
(10) The Scottish Ministers must publish any guidance they issue for the purposes of this section.
(11) The Scottish Ministers may revise and revoke such guidance.
(12) For the purposes of this section, “relevant offence” means the committing of the offence of—
(a) murder,
(b) culpable homicide,
(c) such other offence as the Scottish Ministers may by regulations prescribe.
(13) For the purposes of this section, “referred” means referred to a Health Board by a medical practitioner, or such other person as the Scottish Ministers may by regulations prescribe.
(14) The Scottish Ministers may by regulations amend subsections (1) to (9), so as to—
(a) incorporate within the meaning of this section persons charged with a relevant offence who have been in receipt of care and treatment under the 2003 Act from a body other than a Health Board,
(b) to require that body to be notified of the charging of that person and to be subject to the requirements of subsections (3) to (6).
(15) Regulations under subsections (12) and (14) are subject to the affirmative procedure.
(16) Regulations under subsection (13) are subject to the negative procedure.>
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