The Mental Health (Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2017

EXPLANATORY NOTE

(This note is not part of the Regulations)

The Regulations make provision about the transfer to and from Scotland of mental health patients who are not subject to a detention requirement.

In this note, “the principal Regulations” means the Mental Health (Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008.

Initiating appeals against decision to refuse transfer from Scotland

Regulation 8 amends the principal Regulations to allow certain individuals to initiate an appeal under regulation 8 of the principal Regulations if the patient lacks capacity to do so personally. An appeal under regulation 8 of the principal Regulations is an appeal to the Mental Health Tribunal for Scotland against a refusal by a patient’s responsible medical officer to authorise the patient’s transfer from Scotland.

Regulation 9 further amends the principal Regulations to ensure that the individuals enabled to appeal to the Tribunal by virtue of regulation 8 can also initiate subsequent appeals in the courts.

The persons who may be able to initiate an appeal on a patient’s behalf by virtue of regulation 8 are the patient’s guardian, welfare attorney, primary carer and nearest relative. Those terms are defined in section 329 of the Mental Health (Care and Treatment) (Scotland) Act 2003, with the exception of “nearest relative” which is defined in section 254 of that Act.

Informing primary carer of decision regarding transfer from Scotland

Regulation 7 amends the principal Regulations by adding a patient’s primary carer to the list of people who have to be notified of the patient’s responsible medical officer’s decision about whether or not to authorise the patient’s transfer from Scotland.

Transfers into Scotland from places other than England or Wales

Prior to regulations 5(2)(b), 6 and 10 coming into force, the principal Regulations only allowed patients to be transferred into Scotland from England or Wales. Regulations 5(2)(b), 6 and 10 amend the principal Regulations to allow patients to be transferred into Scotland from Northern Ireland, any of the Channel Islands, the Isle of Man or another European Union member State.

As a result of this change, the words “England and Wales” in the title of the principal Regulations give an unduly narrow impression of those Regulations’ reach. Regulation 5(1) therefore allows the principal Regulations to be officially cited by a new name which does not include those words.

The amendments made to the principal Regulations by regulations 5(2)(a), 11, 12 and 14 are made in consequence of its becoming possible for patients to be transferred into Scotland from places other than England and Wales.

Requirements for request for consent to transfer into Scotland

Regulation 10(4) amends the principal Regulations so that requests for consent to transfer a patient into Scotland have to include details of any guardian or welfare attorney appointed to the patient.

Regulation 4 stops the amendment made by regulation 10(4) applying to requests for consent made before the Regulations come into force. This means that a request will not be ignored because it does not include details of a patient’s guardian or welfare attorney if the request was made before it became a requirement for those details to be included.

Appeal against compulsory treatment order following transfer into Scotland

Regulation 13 amends the principal Regulations so that a patient who has been transferred into Scotland and is being treated as if subject to a compulsory treatment order can appeal to the Mental Health Tribunal for Scotland against the order earlier than would be the case had the patient become subject to a compulsory treatment order on the transfer date under the ordinary domestic process (as opposed to the cross-border transfer process).

Conflicts of interest

Regulations 15 and 16 amend the principal Regulations in consequence of the revocation of the Mental Health (Conflict of Interest) (Scotland) (No. 2) Regulations 2005(1) by the Mental Health (Conflict of Interest) (Scotland) Regulations 2017.

Notice following transfer into Scotland

Under regulation 28 of the principal Regulations, following a patient’s transfer into Scotland the managers of the hospital which assumes responsibility for the patient must give notice of various things (including the date on which the transfer took place) to certain persons. Regulation 17 extends the list of persons to whom that notice is to be given to include any guardian or welfare attorney of the patient and, unless the patient objects, the patient’s nearest relative and primary carer.

Mental Welfare Commission visits following transfer into Scotland

Regulation 32 of the principal Regulations placed the Mental Welfare Commission for Scotland under a duty to arrange a visit to every patient transferred into Scotland within 6 months of the transfer taking place. That duty is abolished by regulation 18.

The Commission continues to have the power under section 13 of the Mental Health (Care and Treatment) (Scotland) Act 2003 to arrange for a visit to be made to a patient transferred into Scotland at any time the Commission considers appropriate.

(1)

S.S.I. 2005/380.