(1)There shall continue to be a body called the Mental Welfare Commission for Scotland (in this Act referred to as “the Mental Welfare Commission”) who shall perform the functions assigned to them by or under this Act.
(2)The Mental Welfare Commission shall consist of no fewer than 10 commissioners [F1appointed under subsection (4) of this section] (including at least 3 women) of whom one shall be chairman, at least 3 shall be medical practitioners (in this Act referred to as “medical commissioners”), and one shall be a person who has been for a period of at least 5 years either a member of the Faculty of Advocates or a solicitor.
(3)Five commissioners of whom at least one shall be a medical commissioner shall constitute a quorum of the Mental Welfare Commission.
(4)[F2Subject to subsection (5A) of this section,] the commissioners shall be appointed by Her Majesty on the recommendation of the Secretary of State and shall hold and vacate office under the terms of the instrument under which they are appointed, but may resign office by notice in writing to the Secretary of State.
(5)Before making a recommendation under subsection (4) of this section the Secretary of State shall consult such bodies as appear to him to be concerned.
[F3(5A)The person who holds the post of chief officer of the Mental Welfare Commission shall—
(a)be a member ex officio of the Commission; and
(b)cease automatically to hold office as such member on ceasing to hold that post.]
(6)No person who for the time being is employed in the civil service of the Crown whether in an established capacity or not, and whether for the whole or part of his time, shall be appointed to the Mental Welfare Commission.
(7)The Mental Welfare Commission may—
(a)pay to [F4commissioners appointed under subsection (4) of this section] such remuneration; and
(b)make provision for the payment of such pensions, allowances or gratuities to or in respect of [F4commissioners appointed under subsection (4) of this section] ,
as the Secretary of State may, with the approval of the Treasury, determine; and such determination may make different provision for different cases or different classes of case.
(8)The following provisions of the M1National Health Service (Scotland) Act 1978 shall apply to the Mental Welfare Commission as they apply to a Health Board, that is to say—
(a)sections 85(1), (2A), (4) and (6) (which contain provisions as to expenditure being met by the Secretary of State);
(b)sections 85A(1) and (3) (which impose financial duties); and
(c)section 86 (which provides for the auditing and examination of accounts).
(9)The Secretary of State may provide for the Mental Welfare Commission such officers and servants and such accommodation as the Commission may require.
(10)The Mental Welfare Commission shall be a body corporate and shall have a common seal.
(11)The proceedings of the Mental Welfare Commission shall not be invalidated by any vacancy in the membership of the Commission or any defect in the appointment of any commissioner.
Textual Amendments
F1Words in s. 2(2) inserted (1.7.2003) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), sch. 1 para. 10(2)(a); S.S.I. 2003/316, art. 2
F2Words in s. 2(4) inserted (1.7.2003) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), sch. 1 para. 10(2)(b); S.S.I. 2003/316, art. 2
F3S. 2(5A) inserted (1.7.2003) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), sch. 1 para. 10(2)(c); S.S.I. 2003/316, art. 2
F4Words in s. 2(7) substituted (1.7.2003) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), sch. 1 para. 10(2)(d); S.S.I. 2003/316, art. 2
Marginal Citations
(1)It shall be the duty of the Mental Welfare Commission generally to exercise protective functions in respect of persons who may, by reason of mental disorder, be incapable of adequately protecting their persons or their interests, and, where those persons are liable to be detained in hospital or subject to F5. . . [F6 a community care order] under the following provisions of this Act, their functions as aforesaid shall include, in appropriate cases, the discharge of such patients in accordance with the said provisions.
(2)In the exercise of their functions as aforesaid, it shall be the duty of the Mental Welfare Commission—
(a)to make enquiry into any case where it appears to them that there may be ill-treatment, deficiency in care or treatment, or improper detention of any person who may be suffering from mental disorder, or where the property of any such person may, by reason of his mental disorder, be exposed to loss or damage;
(b)to visit regularly and, subject to paragraph (c) of this subsection, as often as they think appropriate, patients who are liable to be detained in a hospital F7. . . [F8or a community care order] and on any such visit to afford an opportunity, on request, for private interview to any such patient or, where the patient is in a hospital, to any other patient in that hospital;
(c)in any case where—
(i)The authority for the detention of a patient—
(A)has been renewed for a period of one year under section 30 of this Act; and
(B)is renewed for a further period of one year under that section; and
(ii)the patient has not, during the period referred to in sub-paragraph (i)(A) of this paragraph—
(A)appealed to the sheriff under section 30(6) of this Act; or
(B)been visited by the Mental Welfare Commission under paragraph (b) of this sub-section,
to visit the patient before the expiry of the period of one year referred to in sub-paragraph (i)(B) of this paragraph, unless the patient has previously been discharged, and on any such visit to afford an opportunity, on request, for private interview to any such patient;
(d)to bring to the attention of the managers of any hospital or of any local authority the facts of any case in which in the opinion of the Mental Welfare Commission it is desirable for the managers or the local authority to exercise any of their functions to secure the welfare of any patient suffering from mental disorder by—
(i)preventing his ill-treatment;
(ii)remedying any deficiency in his care or treatment;
(iii)terminating his improper detention; or
(iv)preventing or redressing loss or damage to his property;
(e)to advise the Secretary of State, a Health Board [F9, a National Health Service trust established under section 12A of the National Health Service (Scotland) Act 1978] or a local authority on any matter arising out of this Act which has been referred to the Commission by the Secretary of State, the Health Board [F10, the National Health Service trust], or the local authority, as the case may be;
(f)to bring to the attention of the Secretary of State, a Health Board, a local authority or any other body any matter concerning the welfare of any persons who are suffering from mental disorder which the Commission consider ought to be brought to his or their attention.
(3)Where, in the course of carrying out any of their functions, the Mental Welfare Commission form the opinion that any patient who is—
(a)liable to be detained in a hospital; and
(b)either a restricted patient within the meaning of section 63 of this Act or a person mentioned in section 67(1) or (2) (persons treated as restricted patients) of this Act,
should be discharged, they shall recommend accordingly to the Secretary of State.
(4)On any visit by the Mental Welfare Commission in pursuance of paragraph (b) or (c) of subsection (2) of this section, the visitor shall be, or the visitors shall include, a medical commissioner or a medical officer of the Commission.
(5)For the purposes of subsection (2) of this section, the Mental Welfare Commission may interview, and a medical commissioner or a medical officer of the Commission may examine, any patient in private.
(6)A medical commissioner or a medical officer of the Mental Welfare Commission may require the production of and inspect the medical records of any patient.
(7)The Mental Welfare Commission shall in 1985 and in every year thereafter publish a report on their activities; and copies of each such report shall be submitted by the Commission to the Secretary of State who shall lay copies before Parliament.
(8)Subject to the provisions of subsection (4) of this section, the Mental Welfare Commission may appoint—
(a)any commissioner or committee of commissioners to carry out any of the functions of the Commission, other than those relating to the discharge of patients, under this Act,
(b)a person, not being a commissioner—
(i)to make by himself; or
(ii)to act as chairman of any committee of commissioners appointed under paragraph (a) of this subsection to make,
any enquiry which the Commission are obliged to make under subsection (2)(a) of this section
and where any committee is so appointed the Commission may fix a quorum for that committee and otherwise regulate its proceedings.
(9)A person appointed under subsection (9)(b) of this section shall be—
(a)an advocate; or
(b)a solicitor,
of not less than 5 years standing.
(10)Any commissioner or committee or person appointed in pursuance of subsection (9) of this section shall exercise the functions so conferred in accordance with the directions of the Mental Welfare Commission.
Textual Amendments
F5Words in s. 3(1) repealed (1.4.2002) by 2000 asp 4, s. 88(2)(3), Sch. 5 para. 17(1)(a), Sch. 6; S.S.I. 2001/81, art. 3, Sch. 2
F6Words in s. 3(1) inserted (1.4.1996) by 1995 c. 52, ss. 4(2), 7(2), Sch. 2 para. 1
F7Words in s. 3(2)(b) repealed (1.4.2002) by 2000 asp 4, s. 88(2)(3), Sch. 5 para. 17(1)(b), Sch. 6; S.S.I. 2001/81, art. 3, Sch. 2
F8Words in s. 3(2)(b) inserted (1.4.1996) by 1995 c. 52, ss. 4(2), 7(2), Sch. 2 para. 1
(1)For the purpose of any enquiry under section 3(2)(a) of this Act, the Mental Welfare Commission may, by notice in writing, require any person to attend at the time and place set forth in the notice to give evidence, but no person shall be required in obedience to such a notice to go more than 10 miles from his place of residence unless the necessary expenses of his attendance are paid or tendered to him.
(2)A person giving evidence at such an enquiry shall not be required to answer any questions which he would be entitled, on the ground of privilege or confidentiality, to refuse to answer if the enquiry were a proceeding in a court of law.
(3)The proceedings in any such enquiry shall have the privilege of a court of law.
(4)The chairman of, or person holding, the enquiry may administer oaths to witnesses and examine witnesses on oath, and may accept, instead of evidence on oath by any person, evidence on affirmation or a statement in writing by that person.
(5)Any person who refuses or wilfully neglects to attend in obedience to a notice under subsection (1) of this section or to give evidence shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the standard scale.
(1)The Secretary of State shall afford the Mental Welfare Commission all facilities necessary to enable them to carry out their functions in respect of any patient in a hospital other than a private hospital.
(2)The local authority concerned F11..., shall afford the Mental Welfare Commission all facilities necessary to enable them to carry out their functions in respect of such a patient.
[F12(3)The local authority providing after-care services under section 8 of this Act for a patient subject to a community care order shall afford the Mental Welfare Commission all facilities necessary to carry out their functions in relation to such a patient.]
Textual Amendments
F11Words in s. 5(2) repealed (1.4.2002 for the purposes of sch. 5 para. 17(2) of the amending Act and 1.10.2003 for the purposes of sch. 6 of the amending Act) by 2000 asp 4, s. 88(2)(3), 89(2), sch. 5 para. 17(2), sch. 6; S.S.I. 2001/81, art. 3, Sch. 2; S.S.I. 2003/267, art. 2(2)(e)
F12S. 5(3) inserted (1.4.1996) by 1995 c. 52, ss. 4(2), 7(2), Sch. 2 para. 2
Any person providing a private hospital shall afford to the Mental Welfare Commission all facilities necessary to enable them to carry out their functions in respect of any patient in the hospital.]
Textual Amendments
F13S. 5A inserted (1.4.2002) by 2001 asp 8, s. 79, Sch. 3 para. 11(2); S.S.I. 2002/162, art. 2(f)(h) (subject to arts. 3-13)
[F14(1)The Mental Welfare Commission shall appoint a chief officer on such terms and conditions as the Scottish Ministers may determine.
(2)Before appointing a chief officer under subsection (1) above, the Commission shall obtain the approval of the Scottish Ministers.]
[F15(3)] The Mental Welfare Commission may—
(a)appoint [F16other] officers and servants on such terms as to remuneration and conditions of service; and
(b)make provision for the payment of—
(i)such remuneration to—
(A)any person appointed under section 3(9)(b) of this Act; and
(B)any medical practitioner or other person appointed for the purposes of the provisions mentioned in section 97(2) of this Act; and
(ii)such pensions, allowances or gratuities to or in respect of [F17its chief officer or in respect of] any officers, servants, persons and medical practitioners appointed under paragraph (a) or as mentioned in paragraph (b)(i) of this section,
as the Secretary of State may, with the consent of the Treasury, determine; and such determination may make different provision for different cases or different classes of case.
Textual Amendments
F14S. 6(1)(2) inserted (1.7.2003) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), sch. 1 para. 10(3)(a); S.S.I. 2003/316, art. 2
F15S. 6 renumbered as s. 6(3) (1.7.2003) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), sch. 1 para. 10(3)(a); S.S.I. 2003/316, art. 2
F16Word in s. 6(3)(a) inserted (1.7.2003) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), sch. 1 para. 10(3)(b)(i); S.S.I. 2003/316, art. 2
F17Words in s. 6(3)(b)(ii) inserted (1.7.2003) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), sch. 1 para. 10(3)(b)(ii); S.S.I. 2003/316, art. 2