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

290 Cross-border transfer: patients subject to detention requirement or otherwise in hospital S

(1) Regulations may make provision for or in connection with—

(a) the removal, of a patient whose detention in hospital is authorised by virtue of this Act or the 1995 Act, from Scotland to a place outwith Scotland (whether or not a place in the United Kingdom);

(b) the removal, of a patient who for the purposes of being given treatment for mental disorder is in hospital otherwise than by virtue of this Act or the 1995 Act, from Scotland to a place outwith the United Kingdom;

(c) the reception in Scotland of

[F1 (i)] a person subject to corresponding measures in England, Wales, Northern Ireland, the Isle of Man or the Channel Islands and removed from there.

[F2 (ii) a person subject to corresponding measures in a member State of the European Union (apart from the United Kingdom) and removed from that State.]

(2) Where provision is made by regulations under paragraph (a) or (b) of subsection (1) above, the regulations shall—

(a) require a patient’s removal from Scotland to be authorised by warrant issued by the Scottish Ministers;

(b) require that, among the factors to which the Scottish Ministers have regard in deciding whether to authorise that removal, there are included, as well as the best interests of the patient, the following—

(i) the existence, in the place to which a patient is to go after being removed from Scotland, of arrangements which will secure for the patient [F3 , in the case of paragraph (a) of subsection (1) above,] measures, treatment, care or services corresponding or similar to those to which the patient is subject or is receiving by virtue of this Act or, as the case may be, the 1995 Act [F4 or, in the case of paragraph (b) of subsection (1) above, treatment for mental disorder corresponding or similar to that which the patient is receiving in hospital];

(ii) any wish or preference as to the patient’s removal from Scotland of which the patient has given notice to the Scottish Ministers; and

(iii) any risk to the safety of any person;

(c) require notice to be given to—

(i) the patient;

(ii) the patient’s named person;

(iii) the mental health officer; and

(iv) the Commission,

of any decision that the patient be removed from Scotland under the regulations;

(d) require any such giving of notice to be effected, in a case where removal is to a place in the United Kingdom, at least 7 days before the date proposed for the patient’s removal;

(e) require any such giving of notice to be effected, in a case where removal is to a place outwith the United Kingdom, at least 28 days before the date proposed for the patient’s removal;

[F5 (f) enable an appeal against any such decision to be made by—

(i) such a patient,

(ii) the named person of such a patient,

(iii) if such a patient has no named person—

• any guardian of such a patient,

• any welfare attorney of such a patient,

• the primary carer (if any) of such a patient,

• the nearest relative of such a patient;]

(g) provide for such a patient’s removal not to take place until proceedings on any such appeal have been concluded.

(3) Where provision is made by regulations under paragraph (a) or (b) of subsection (1) above, the regulations may make provision for exceptions to provisions included in them by virtue of subsection (2)(c), (d), (e) or (g) above.

(4) Where provision is made by regulations under paragraph (c) of subsection (1) above, the regulations shall provide for the reception of patients in Scotland to take place only with the consent of the Scottish Ministers.

(5) Regulations under subsection (1) above may in particular—

(a) make provision for things done under the law of a territory other than Scotland to be treated as things done under provisions of the law of Scotland;

(b) confer powers and immunities on persons engaged in—

(i) escorting persons being moved under the regulations;

(ii) pursuing persons who have absconded while being so moved;

(iii) restraining persons who have absconded, or attempt to abscond, while being so moved;

(c) authorise the Scottish Ministers to arrange for any of their functions under the regulations to be exercised by other persons;

(d) authorise the Scottish Ministers to give directions in connection with removals of persons under the regulations or any particular such removal or removals;

(e) make provision amending provisions of this Act (other than this section) or any other enactment, or providing for any such provision or enactment to have effect with modification.

(6) Subsections (2) to (5) above are without prejudice to the generality of the powers conferred by subsection (1) above.

(7) References in this section to a patient whose detention in hospital is authorised by virtue of this Act or the 1995 Act include references to a patient—

(a) in respect of whom a certificate under section 41(1), 53(1), 127(1) or (3) (either as enacted or as applied by section 179 of this Act), 221(2) or 224(2) of this Act is in operation; or

(b) who has been conditionally discharged under section 193(7) of this Act and not recalled under section 202 of this Act.

(8) For the purposes of paragraph (c) of subsection (1) above, a person is subject to “corresponding measures” in a territory if under the law of that territory the person—

(a) is subject to measures corresponding or similar to detention in hospital authorised by virtue of this Act or the 1995 Act; or

(b) has a status corresponding or similar to that of a patient such as is mentioned in paragraph (b) of that subsection.

Textual Amendments

F1 Words in s. 290(1)(c) renumbered as s. 290(1)(c)(i) (5.5.2017 for specified purposes, 30.6.2017 in so far as not already in force) by Mental Health (Scotland) Act 2015 (asp 9), ss. 32(3)(a)(i), 61(2); S.S.I. 2017/126, art. 2, sch.; S.S.I. 2017/197, art. 2, sch.

F2 S. 290(1)(c)(ii) inserted (5.5.2017 for specified purposes, 30.6.2017 in so far as not already in force) by Mental Health (Scotland) Act 2015 (asp 9), ss. 32(3)(a)(ii), 61(2); S.S.I. 2017/126, art. 2, sch.; S.S.I. 2017/197, art. 2, sch.

F3 Words in s. 290(2)(b)(i) inserted (2.12.2004) by Mental Health (Care and Treatment) (Scotland) Act 2003 Modification Order 2004 (S.S.I. 2004/533), arts. 1, 2(10)(a)

F4 Words in s. 290(2)(b)(i) inserted (2.12.2004) by Mental Health (Care and Treatment) (Scotland) Act 2003 Modification Order 2004 (S.S.I. 2004/533), arts. 1, 2(10)(b)

F5 S. 290(2)(f) substituted (5.5.2017 for specified purposes, 30.6.2017 in so far as not already in force) by Mental Health (Scotland) Act 2015 (asp 9), ss. 32(3)(b), 61(2); S.S.I. 2017/126, art. 2, sch.; S.S.I. 2017/197, art. 2, sch.

Commencement Information

I1 S. 290 in force at 21.3.2005 for specified purposes by S.S.I. 2005/161, art. 2, Sch. 1

I2 S. 290 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)