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

Explanatory Note

(This note is not part of the Order)

This Order makes provision consequential on the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”), principally in respect of the law of England and Wales and Northern Ireland to provide for the reception of patients from Scotland and the removal of patients to Scotland.

Article 2 provides that where patients are removed from Scotland to England and Wales they will become subject to the measure in England and Wales which most closely corresponds to the measure to which the patient was subject in Scotland. Where the patient is subject to a prison sentence the sentence will be treated as if it were imposed in a court in England and Wales. Article 3 provides for the treatment of a restriction order and conditional discharge where a patient is transferred from Scotland to England and Wales. On transfer the order and conditional discharge will be treated as if they were made under the relevant enactment in force in England and Wales.

Articles 4 and 5 make provision equivalent to articles 2 and 3 in respect of patients transferred from Scotland to Northern Ireland. Article 6 empowers the responsible authority in Northern Ireland to authorise the removal of patients detained under the Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”) to Scotland. Article 7 empowers the Secretary of State to transfer patients to Scotland where the patient was subject, in Northern Ireland, to a restriction order and a conditional discharge under the 1986 Order.

Article 8 provides that any person who may be taken into custody in Scotland under the 2003 Act or regulations made under the 2003 Act may be taken into custody in any other part of the UK and returned to Scotland. Article 9 provides for the return to Northern Ireland of persons subject to corresponding measures taken into custody under regulations made under the 2003 Act. Article 10 makes it an offence in England and Wales and in Northern Ireland to do anything in relation to a person subject to the 2003 Act that would be an offence under section 316 of the 2003 Act if done in Scotland. Section 316 makes it an offence to induce or assist patients to abscond. Article 11 provides that where patients are being conveyed to any place in England, Wales or Northern Ireland by virtue of the 2003 Act or this Order they will be in legal custody while being conveyed through those territories. Paragraph (2) provides that persons taking patients into custody or conveying or detaining them by virtue of the 2003 Act or this Order will have all the powers and privileges of a constable.

Article 12 gives protection to acts done in pursuance of this Order in Scotland, and for England and Wales and Northern Ireland extends the protection afforded by section 139 of the Mental Health Act 1983 to acts done in pursuance of this Order. Article 13 applies section 136 of the 2003 Act, regarding the transfer of prisoners for treatment of mental disorder, to persons detained under immigration legislation. Article 14 makes provision that social services will not be provided to a person subject to section 115 of the Immigration and Asylum Act 1999 by reason only of the fact that the person is destitute.

Article 15 and Schedules 1 and 2 make modifications to primary and subordinate legislation and Article 16 and Schedule 3 provide for repeals.