- Latest available (Revised)
- Original (As enacted)
Mental Health (Care and Treatment) (Scotland) Act 2003, Section 35 is up to date with all changes known to be in force on or before 17 August 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.
Whole provisions yet to be inserted into this Act (including any effects on those provisions):
(1)If a sheriff, or a justice of the peace, is satisfied by a relevant mental health officer’s evidence on oath—
(a)that, for the purposes of inquiries under section 33 of this Act, it is necessary to enter premises; and
(b)that the mental health officer—
(i)is unable to obtain entry to those premises; or
(ii)reasonably apprehends that the mental health officer will be unable to obtain entry to those premises,
the sheriff or justice of the peace may grant a warrant under this subsection.
(2)A warrant under subsection (1) above is a warrant—
(a)authorising—
(i)the mental health officer specified in the warrant;
(ii)any other persons so specified; and
[F1(iiia)any constable of the Police Service of Scotland,]
before the expiry of the period of 8 days beginning with the day on which the warrant is granted, to enter, for the purposes of the inquiries, any premises so specified; and
(b)authorising any such constable, before the expiry of that period, for the purpose of exercising the power mentioned in paragraph (a) above, to open lockfast places on premises so specified.
(3)An application for a warrant under subsection (1) above shall—
(a)if made to the sheriff, be made to the sheriff of the sheriffdom; or
(b)if made to a justice of the peace, be made to a justice for the commission area,
in which the premises to which the application relates are situated.
(4)If a sheriff, or a justice of the peace, is satisfied by a relevant mental health officer’s evidence on oath—
(a)that, for the purposes of inquiries under section 33 of this Act, it is necessary that a medical practitioner carry out a medical examination of the person who is the subject of the inquiries; and
(b)that the mental health officer is unable to obtain the consent of that person to that matter,
the sheriff, or justice of the peace, may grant a warrant under this subsection.
(5)A warrant under subsection (4) above is a warrant authorising the detention of the person who is the subject of the inquiries for a period of 3 hours for the purposes of enabling a medical examination of the person to be carried out by the medical practitioner specified in the warrant.
(6)An application for a warrant under subsection (4) above shall—
(a)if made to the sheriff, be made to the sheriff of the sheriffdom; or
(b)if made to a justice of the peace, be made to a justice for the commission area,
in which the person who is the subject of the inquiries for the time being is.
(7)If a sheriff, or a justice of the peace, is satisfied by a relevant mental health officer’s evidence on oath—
(a)that, for the purposes of inquiries under section 33 of this Act, it is necessary that a medical practitioner have access to the person’s medical records; and
(b)that the mental health officer is unable to obtain the consent of that person to that matter,
the sheriff, or justice of the peace, may grant a warrant under this subsection.
(8)A warrant under subsection (7) above is a warrant requiring any person holding medical records of the person subject to the inquiries to produce them for inspection by the medical practitioner specified in the warrant on being required to do so by the practitioner.
(9)An application for a warrant under subsection (7) above shall—
(a)if made to the sheriff, be made to the sheriff of the sheriffdom; or
(b)if made to a justice, be made to a justice for the commission area,
in which the person who is the subject of the inquiries for the time being is.
(10)A mental health officer shall as soon as practicable after the sheriff, or justice of the peace, decides to grant or refuse an application for a warrant under subsection (1), (4) or (7) above, give notice to the Commission as to whether a warrant was granted or refused.
(11)No appeal shall be competent against a decision of a sheriff, or a justice of the peace, under this section granting, or refusing to grant, a warrant.
(12)References to a relevant mental health officer—
(a)in subsection (1) above are to a mental health officer appointed by the local authority for the area in which the premises to which the application relates are situated;
(b)in subsections (4) and (7) above are to a mental health officer appointed by the local authority which is causing inquiries to be made.
Textual Amendments
F1S. 35(2)(a)(iiia) substituted for s. 35(2)(a)(iii) (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 23(4); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)
Commencement Information
I1S. 35 in force at 5.10.2005 by S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: