Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)

Part 19 S Entry, removal and detention powers

Removal to place of safety S

293 Removal order S

(1) If, on the application of a relevant mental health officer, a sheriff is satisfied that—

(a) a person who is aged 16 years or over has a mental disorder;

(b) any of the circumstances mentioned in subsection (2) below apply in respect of that person; and

(c) that person is likely to suffer significant harm if not removed to a place of safety,

the sheriff may make an order under this section (any such order being referred to in this Act as a “removal order”) in respect of that person.

(2) The circumstances referred to in subsection (1)(b) above are—

(a) that the person is subject, or exposed, to—

(i) ill-treatment;

(ii) neglect; or

(iii) some other deficiency in care or treatment;

(b) that, because of the mental disorder, the person’s property—

(i) is suffering loss or damage; or

(ii) is at risk of suffering loss or damage; and

(c) that the person is—

(i) living alone or without care; and

(ii) unable to look after himself or his property or financial affairs.

(3) A removal order is an order—

(a) authorising—

(i) the mental health officer specified in the order;

(ii) any other persons so specified; and

[F1 (iiia) any constable of the Police Service of Scotland,]

before the expiry of the period of 72 hours beginning with the granting of the order, to enter any premises so specified;

(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; and

(c) authorising—

(i) before the expiry of that period, the removal of the person who is the subject of the removal order to a place of safety specified in the order; and

(ii) the detention of that person in that place for such period, not exceeding 7 days, as may be specified in the order.

(4) An application for a removal order shall be made to the sheriff of the sheriffdom in which the premises to which the application relates are situated.

(5) Before determining an application for a removal order, the sheriff shall, subject to subsection (7) below, afford the persons mentioned in subsection (6) below the opportunity—

(a) of making representations (whether orally or in writing); and

(b) of leading, or producing, evidence.

(6) Those persons are—

(a) the person who is the subject of the application; and

(b) such other persons as may be prescribed by regulations.

(7) If the sheriff considers that such delay as would result from compliance with the requirements of subsection (5) above would be likely to be prejudicial to the person who is the subject of the application, the sheriff may dispense with the requirements of that subsection.

(8) In this section “relevant mental health officer” means a mental health officer appointed by the local authority for the area in which the premises to which the application relates are situated.

Textual Amendments

F1 S. 293(3)(a)(iiia) substituted for s. 293(3)(a)(iii) (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 23(6); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Commencement Information

I1 S. 293 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I2 S. 293 in force at 5.10.2005 in so far as not already in force 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)

294 Removal order: urgent application to justice of the peace S

Where—

(a) the making of an application to the sheriff for a removal order is impracticable; and

(b) the circumstances are such that any delay in obtaining a removal order is likely to be prejudicial to the person who would be the subject of the application,

the application may be made instead to a justice of the peace for the commission area in which the premises to which the application relates are situated; and subsections (1) to (3) of section 293 of this Act shall apply in relation to an application made by virtue of this section as those subsections apply as respects an application to the sheriff.

Commencement Information

I3 S. 294 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)

295 Recall or variation of removal order S

(1) A person who is the subject of a removal order, or any person claiming an interest in the welfare of that person, may apply to the sheriff for an order under this section—

(a) recalling the removal order; or

(b) varying that order by—

(i) specifying a different place of safety;

(ii) authorising, before the expiry of the period mentioned in subsection (2) below, the removal of the person who is the subject of the removal order to that place of safety; and

(iii) authorising the detention of the person who is the subject of the removal order in that place of safety for the remainder of such period as may have been specified, by virtue of section 293(3)(c)(ii) of this Act, in the removal order.

(2) The period referred to in subsection (1)(b)(ii) above is the period of 72 hours beginning with the granting of the order varying the removal order.

(3) An application under section (1) above shall be made to the sheriff of the sheriffdom in which the premises to which the application for a removal order related are situated.

(4) Before determining an application under subsection (1) above, the sheriff shall afford the persons mentioned in subsection (5) below the opportunity—

(a) of making representations (whether orally or in writing); and

(b) of leading, or producing, evidence.

(5) Those persons are—

(a) the person who is the subject of the removal order to which the application relates; and

(b) such persons as may be prescribed by regulations.

(6) Where a sheriff makes an order under this section recalling a removal order, the sheriff may, in addition, make such order as the sheriff thinks fit for the person who was the subject of the removal order—

(a) to be returned to the premises from which that person was, by virtue of the removal order, removed; or

(b) to be taken to some appropriate place chosen by that person.

Commencement Information

I4 S. 295 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I5 S. 295 in force at 5.10.2005 in so far as not already in force 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)

[F2 295A Notification of decision under section 293 or 295 S

(1) Subsection (2) below applies in relation to a decision of a sheriff or a justice of the peace under section 293 of this Act making, or refusing to make, a removal order.

(2) As soon as practicable after the decision is made, the mental health officer who made the application for the removal order must notify the Commission of the decision.

(3) Subsection (4) below applies in relation to a decision of a sheriff under section 295 of this Act making, or refusing to make, an order recalling or varying a removal order.

(4) As soon as practicable after the decision is made, the mental health officer specified in the removal order must notify the Commission of—

(a) the decision, and

(b) any additional order made under subsection (6) of section 295 of this Act.]

Textual Amendments

F2 S. 295A inserted (30.6.2017) by Mental Health (Scotland) Act 2015 (asp 9), ss. 19, 61(2); S.S.I. 2017/197, art. 2, sch. (with art. 10)

296 No appeal against decision under section 293 or 295 S

No appeal shall be competent against—

(a) a decision of a sheriff under—

(i) section 293(1) of this Act making, or refusing to make, a removal order; or

(ii) section 295 of this Act making, or refusing to make, an order recalling or varying a removal order; or

(b) a decision of a justice of the peace under section 293(1) of this Act making, or refusing to make, a removal order.

Commencement Information

I6 S. 296 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)

297 Removal from public place S

(1) Where—

(a) a constable reasonably suspects—

(i) that a person (referred to in this section and in section 298 of this Act as a “relevant person”) who is in a public place has a mental disorder; and

(ii) that the relevant person is in immediate need of care or treatment; and

(b) the constable considers that it would be in the interests of the relevant person, or necessary for the protection of any other person, to remove the relevant person to a place of safety,

the constable may remove the relevant person to a place of safety.

(2) A relevant person removed to a place of safety under subsection (1) above may, for the purposes of enabling—

(a) arrangements to be made for a medical practitioner to carry out a medical examination of the relevant person; and

(b) the making of such arrangements as the medical practitioner considers necessary for the relevant person’s care or treatment,

be detained there for a period ending not later than 24 hours after the time at which the relevant person is removed from the public place by the constable.

(3) If a relevant person absconds—

(a) while being removed to a place of safety under subsection (1) above; or

(b) from the place of safety,

a constable may, at any time during the period mentioned in subsection (2) above, take the person into custody and remove the person to a place of safety.

(4) In this section, “public place” means a place to which the public, or any section of the public, has, or is permitted to have, access (whether on payment or otherwise); and includes the common parts of a building containing two or more separate dwellings.

(5) If no place of safety is immediately available, a constable may, under subsection (1) or (3) above, remove a relevant person to a police station; and in any such case, any reference in this section and in section 298 of this Act to a place of safety shall be construed as being a reference to a police station.

Commencement Information

I7 S. 297 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)

298 Removal under section 297: further provision S

(1) This section applies where a constable removes a relevant person to a place of safety under section 297 of this Act.

(2) The constable shall—

(a) as soon as reasonably practicable after removing a relevant person to a place of safety, ensure—

(i) that the local authority in whose area the place of safety is situated are informed of the matters mentioned in subsection (3) below; and

(ii) subject to subsection (4) below, that the nearest relative of the relevant person is informed of those matters; and

(b) before the expiry of the period of 14 days beginning with the day on which the person is removed to the place of safety, ensure that the Commission is given notice of those matters.

(3) The matters are—

(a) the name and address of the relevant person;

(b) the date and time at which the relevant person was removed from the public place;

(c) the circumstances giving rise to the removal of the relevant person to the place of safety;

(d) the address of the place of safety;

(e) if the relevant person is removed to a police station, the reason why the relevant person was removed there; and

(f) any other matter prescribed by regulations.

(4) Where—

(a) it is impracticable to ensure that the relevant person’s nearest relative is informed of the matters mentioned in subsection (3) above; or

(b) the nearest relative is so informed but the nearest relative does not reside with the relevant person,

the constable shall, as soon as reasonably practicable after removing the relevant person to the place of safety, ensure that, where reasonably practicable, a person falling within subsection (5) below is informed of those matters.

(5) A person falls within this subsection if—

(a) the person—

(i) resides with the relevant person; or

(ii) provides a care service [F3 or, independent health care service] to the relevant person; or

(b) the person is an individual who, otherwise than—

(i) by virtue of a contract of employment, or other contract, with any person; or

(ii) as a volunteer for a voluntary organisation,

provides care for the relevant person.

(6) In this section—

• “care service” has the meaning given by [F4 section 47(1) of the Public Services Reform (Scotland) Act 2010] (asp 8);

• [F5 “independent health care service” means any of the following—

  (a)

  an independent hospital;

  (b)

  a private psychiatric hospital;

  (c)

  an independent clinic; or

  (d)

  an independent medical agency,

  as each of those terms is defined in section 10F(2) of the National Health Service (Scotland) Act 1978 (c.29);.]

• “nearest relative” has the meaning given by section 254 of this Act; and

• “public place” has the meaning given by section 297 of this Act.

Textual Amendments

F3 Words in s. 298(5)(a)(ii) inserted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, sch. 2 para. 8(4)(a)

F4 Words in s. 298(6) substituted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, sch. 1 para. 13(4)

F5 Words in s. 298(6) inserted (1.4.2011) by The Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (S.S.I. 2011/211), art. 1, sch. 2 para. 8(4)(b)

Commencement Information

I8 S. 298 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I9 S. 298 in force at 5.10.2005 in so far as not already in force 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)