Part 2The Mental Welfare Commission for Scotland
Particular functions
I37Duty to bring matters generally to attention of Scottish Ministers and others
The Commission shall bring to the attention of—
a
the Scottish Ministers;
b
a local authority;
c
a Health Board;
d
a Special Health Board;
e
a National Health Service trust;
F40ea
Healthcare Improvement Scotland;
F36f
Social Care and Social Work Improvement Scotland;
g
such other person, or group of persons, as it considers appropriate,
any matter of general interest or concern as respects the welfare of any persons who have a mental disorder which is a matter that the Commission considers ought to be brought to their attention.
I48Duty to bring specific matters to attention of Scottish Ministers and others etc.
1
If it appears to the Commission that a relevant person has, or may have, powers or duties, the exercise or performance of which might prevent or remedy or assist in preventing or remedying, as respects a person who has a mental disorder, any of the circumstances mentioned in subsection (2) below, the Commission shall—
a
bring the facts of the person’s case to the attention of the relevant person; and
b
if it considers it appropriate to do so, make recommendations as respects the case to the relevant person.
2
Those circumstances are—
a
the circumstances mentioned in section 11(2)(a), (d), (e) or (f) of this Act;
b
that—
i
the patient is detained in hospital and the detention is authorised by virtue of this Act or the 1995 Act; and
ii
there may be some impropriety in relation to that detention.
3
For the purposes of subsection (1) above, “relevant person” means—
a
the Scottish Ministers;
b
the Public Guardian;
c
a local authority;
d
a Health Board;
e
a Special Health Board;
f
a National Health Service trust;
g
a mental health officer;
h
a responsible medical officer;
i
the managers of a registered care service;
j
the managers of—
i
a prison; or
ii
a young offenders institution;
F41ja
Healthcare Improvement Scotland;
F37k
Social Care and Social Work Improvement Scotland;
F45la
the Police Service of Scotland;
m
such other person, or group of persons, as the Commission considers appropriate.
4
In subsection (3)(i) above, “registered care service” means a care service registered under F44Part 5 of the Public Services Reform (Scotland) Act 2010 (asp 8).
8AF1Duty to raise service concerns with certain bodies
1
The Commission shall, as it considers appropriate, raise any concerns (of a general or specific nature) about the provision of any service mentioned in subsection (2) as respects a person who has a mental disorder, with—
a
Social Care and Social Work Improvement Scotland;
b
Healthcare Improvement Scotland; or
c
such other relevant persons, or group of persons.
2
The services are—
a
any social service (within the meaning of Part 5 of the Public Services Reform (Scotland) Act 2010 (asp 8));
b
health care (within the meaning of section 10A of the National Health Service (Scotland) Act 1978 (c. 29)).
3
In subsection (1), the “provision” of any service includes the organisation or co-ordination of any such service.
I59Duty to give advice
1
The Commission shall give advice to any person mentioned in subsection (2) below on any matter arising out of this Act which has been referred to the Commission, with its agreement, by that person.
2
Those persons are—
a
the Scottish Ministers;
b
a local authority;
c
a Health Board;
d
a Special Health Board;
F42da
Healthcare Improvement Scotland;
F38e
Social Care and Social Work Improvement Scotland;
f
the Scottish Public Services Ombudsman.
9AF2Duty to give advice: further provision
The Commission shall when asked to do so provide advice, so far as is reasonable, to any person about any matters relevant to the functions of the Commission.
I610Publishing information, guidance etc.
1
Subject to subsection (2) below, the Commission may publish information or guidance about any matter relevant to its functions and, without prejudice to that generality, may publish information or guidance as respects—
a
its conclusions in relation to—
i
an investigation under section 11(1) of this Act; or
ii
an inquiry under section 12(1) of this Act;
b
its conclusions in relation to any action taken (or not taken) in relation to such conclusions; or
c
matters which it considers arise or come to light (or have arisen or come to light) in the course of—
i
such investigations or inquiries; or
ii
visits under section 13(1) or (3) of this Act.
2
The Commission may, with the agreement of a person mentioned in subsection (2) of section 9 of this Act, publish advice which it gives under subsection (1) of that section to that person.
F33
The Commission may, with the agreement of a person to whom advice is provided under section 9A, publish that advice.
I711Investigations
1
If it appears to F4a Commission Visitor that any of the circumstances mentioned in subsection (2) below apply in respect of a patient, the Commission F5Visitor may—
a
carry out such investigation as F6the Commission Visitor considers appropriate into the patient’s case; and
b
make such recommendations as F7the Commission Visitor considers appropriate as respects the case.
F81A
Where it is brought to the attention of the Commission that any of the circumstances mentioned in subsection (2) below may apply in respect of a patient, the Commission may—
a
direct a Commission Visitor to carry out such investigation as the Commission considers appropriate into the patient's case; and
b
having consulted the Visitor after the investigation, make such recommendations as it considers appropriate as respects the case.
2
Those circumstances are—
a
that the patient may be unlawfully detained in hospital;
b
that the patient is detained in hospital and the detention is authorised by virtue of—
i
this Act; or
ii
the 1995 Act;
c
that the patient, though not detained in hospital, is subject to—
i
a compulsory treatment order;
ii
an interim compulsory treatment order;
iii
an emergency detention certificate;
iv
a short-term detention certificate;
v
a compulsion order;
vi
an interim compulsion order;
vii
an assessment order;
viii
a treatment order;
ix
a hospital direction; or
x
a transfer for treatment direction;
d
that the patient may be, or may have been, subject, or exposed, to—
i
ill-treatment;
ii
neglect; or
iii
some other deficiency in care or treatment;
e
that, because of the mental disorder, the patient’s property—
i
may be suffering, or may have suffered, loss or damage; or
ii
may be, or may have been, at risk of suffering loss or damage;
f
that the patient may be—
i
living alone or without care; and
ii
unable to look after himself or his property or financial affairs.
I812Investigations: further provision
1
The Commission may, if it considers it appropriate to do so, cause an inquiry to be held for the purpose of carrying out an investigation, F9in relation to any of the circumstances mentioned in section 11(2) of this Act, into any case.
2
The Commission—
a
may appoint such person (or persons) as it considers appropriate to chair or to conduct any such inquiry and to report to it on the findings of any such inquiry; and
b
may pay to a person appointed by it under paragraph (a) above such—
i
remuneration; and
ii
expenses,
as it may, with the consent of the Scottish Ministers, determine.
3
A person appointed to chair any such inquiry—
a
may, by notice, require any person to attend and give evidence at a time and place set out in the notice; and
b
may administer oaths and examine witnesses on oath and may accept, in place of evidence on oath by a person, evidence on affirmation or a statement in writing by the person.
4
A person required, by virtue of notice under subsection (3)(a) above, to attend and give evidence for the purposes of an inquiry under subsection (1) above—
a
shall not be obliged to attend and give evidence as required in the notice unless the necessary expenses of attendance are paid or tendered to the person; and
b
shall not be obliged at the inquiry to answer a question which the person would be entitled to decline to answer, on the ground of privilege or confidentiality, if the question were asked in the course of proceedings in a court.
5
Proceedings in an inquiry under this section shall have the privilege of proceedings in a court.
6
The Commission shall pay to a person required by notice under subsection (3)(a) above to attend for the purposes of an inquiry under subsection (1) above such expenses as it considers appropriate.
7
A person—
a
who is required to attend for the purposes of an inquiry by virtue of notice under subsection (3)(a) above; and
b
who refuses or wilfully neglects to attend or, subject to subsection (4)(b) above, to give evidence,
shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
I913Visits in relation to patients
1
2
Those categories are—
a
patients who are detained in hospital and whose detention is authorised by virtue of—
i
this Act; or
ii
the 1995 Act;
b
patients who, though not detained in hospital, are subject to—
i
a compulsory treatment order;
ii
an interim compulsory treatment order;
iii
an emergency detention certificate;
iv
a short-term detention certificate;
v
a compulsion order;
vi
an interim compulsion order;
vii
an assessment order;
viii
a treatment order;
ix
a hospital direction; or
x
a transfer for treatment direction;
c
patients who are subject to—
i
an intervention order of which the Commission has been notified under section 53(10)(b) of the Adults with Incapacity (Scotland) Act 2000 (asp 4); or
ii
a guardianship order of which the Commission has been notified under section 58(7)(d) of that Act;
d
patients in respect of whom a person is a guardian by virtue of sub-paragraph (4), (5), (6) or (7) of paragraph 1 of schedule 4 to the Adults with Incapacity (Scotland) Act 2000 (asp 4); and
e
patients who have granted, in accordance with section 16 of that Act, a welfare power of attorney, a copy of which has been sent to the Commission under section 19(2)(c) of that Act.
3
If it appears to the Commission that patients—
a
may be resident, or may be receiving medical treatment, in premises mentioned in subsection (4) below; or
b
may use facilities provided in such premises,
4
Those premises are—
a
a health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978 (c. 29));
b
premises in which—
i
an independent health care service is provided;
ii
a care home service is provided; or
iii
a secure accommodation service is provided;
c
premises provided by a local authority for the purpose of their duty under section 26 of this Act;
d
a prison; and
e
a young offenders institution.
F165A
The purposes are—
a
to provide an opportunity for any patient who may for the time being be present in the premises to meet a Commission Visitor and discuss with the Visitor any concerns that the patient may have; and
b
to assess whether the requirements of such patients in relation to this Act, the Adults with Incapacity (Scotland) Act 2000 (asp 4) and other relevant legislation are being met.
5B
A Commission Visitor may, when visiting premises under subsection (3), conduct an assessment of the suitability of the premises (and its facilities) in relation to the requirements of the patients (or any one of them).
6
A visit under subsection (1) or (3) above may be made with or without prior notification.
F177
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8
In—
a
subsection (4)(b)(ii) above, “care home service” has the meaning given to that expression by F18paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8); and
b
subsection (4)(b)(iii) above, “secure accommodation service” has the meaning given to that expression by F19paragraph 6 of schedule 12 to that Act.
I1014Interviews
1
A F20Commission Visitor may, in connection with the discharge by the Commission of any of its functions under this Act or the Adults with Incapacity (Scotland) Act 2000 (asp 4)—
a
interview—
i
any patient; or
ii
any other person that the F21Commission Visitor considers it appropriate to interview; and
b
require any such interview to be conducted in private.
2
Without prejudice to the generality of subsection (1) above—
a
F22a Commission Visitor conducting a visit under subsection (1) of section 13 of this Act shall afford an opportunity, on request, during the visit, to—
i
the patient who is the subject of the visit; and
ii
other patients whose presence in the premises where the visit takes place is known to the F23Commission Visitor,
to be interviewed in private by the F24Commission Visitor; and
F273
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1I1115Medical examination
1
A F28Commission Visitor may, in connection with the discharge by the Commission of any of its functions under—
a
this Act; or
b
the Adults with Incapacity (Scotland) Act 2000 (asp 4),
carry out in private a medical examination of a patient.
F291A
Only a Commission Visitor who has also been appointed as a Medical Visitor may exercise the functions under subsection (1).
F302
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F303
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1216Inspection etc. of records
1
A person authorised by the Commission (an “authorised person”) F31or Commission Visitor may, in connection with the discharge by the Commission of any of its functions under—
a
this Act; or
b
the Adults with Incapacity (Scotland) Act 2000 (asp 4),
require any person holding medical or other records of a patient to produce them for inspection by the authorised person F32or, as the case may be, the Commission Visitor.
2
An authorised person shall be—
F33a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
a member of the staff of the Commission.
3
An authorised person proposing to exercise the power conferred by subsection (1) above shall, if requested to do so, produce an authenticated document showing that the authorised person is F34... a member of staff of the Commission.
I2I1317Duties of Scottish Ministers, local authorities and others as respects Commission
1
The persons mentioned in subsection (2) below shall afford the Commission, F35any Commission Visitor, or a person authorised by the Commission, all facilities necessary to enable the Commission, or that person, to discharge the Commission's, or (as the case may be) that person's, functions under this Act.
2
Those persons are—
a
the Scottish Ministers;
b
a local authority;
c
a Health Board;
d
a Special Health Board;
e
a National Health Service trust;
F46fa
the Police Service of Scotland;
g
the managers of a registered care service;
h
the managers of—
i
a prison; or
ii
a young offenders institution;
F43ha
Healthcare Improvement Scotland;
F39i
Social Care and Social Work Improvement Scotland;
j
the Scottish Public Services Ombudsman; and
k
such other persons as may be prescribed by regulations.
3
In subsection (2)(g) above, “registered care service” has the meaning given by section 8(4) of this Act.
I1418Annual Report
1
The Commission shall, as soon as practicable after the end of each financial year of the Commission, submit to the Scottish Ministers, a report on the discharge of its functions during that year.
2
The Scottish Ministers shall lay before the Scottish Parliament a copy of each report submitted to them under subsection (1) above.
3
The financial year of the Commission is the period of 12 months ending with 31st March.
I1519Statistical information
The Commission shall, in accordance with directions given to it by the Scottish Ministers, provide the Ministers with, and publish, statistical or other information relating to the discharge of its functions.
I1620Protection from actions of defamation
1
For the purposes of the law of defamation, any statement made in pursuance of any of sections 6, 7 to 10 and 18(1) of this Act by the Commission, or any of its employees, shall be privileged unless such statement is shown to be made with malice.
2
In this section—
“statement” has the same meaning as in the Defamation Act 1996 (c. 31); and
“employees” shall be construed in accordance with paragraph 7 of schedule 1 to this Act.