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Mental Health (Scotland) Act 1984
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Changes over time for: Section 38
Version Superseded: 01/04/2002
Alternative versions:
- 01/02/1991- Amendment
- 01/01/1998
Point in time - 01/04/2002- Amendment
- 05/10/2005- Amendment
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Mental Health (Scotland) Act 1984, Section 38 is up to date with all changes known to be in force on or before 29 November 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.
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38 General provisions as to applications: guardianship.S
(1)Subject to the provisions of this section, a guardianship application may be made either by the nearest relative of the patient or by a mental health officer; and every such application shall be addressed to the local authority for the area in which the patient resides.
(2)The nearest relative of the patient shall not make a guardianship application unless he has personally seen the patient within the period of 14 days ending with the date on which the proposed application is submitted to the sheriff for his approval.
(3)A local authority shall, if so required by the nearest relative of a patient residing in their area, direct a mental health officer as soon as practicable to take the patient’s case into consideration with a view to making a guardianship application in respect of the patient; and if in any such case that officer decides not to make an application he shall inform the nearest relative of his reasons in writing.
(4)A mental health officer shall make a guardianship application in respect of a patient within the area of the local authority by whom that officer was appointed in any case where he is satisfied that such an application ought to be made and is of the opinion, having regard to any wishes expressed by relatives of the patient and to any other relevant circumstances, that it is necessary or proper for the application to be made by him.
(5)A mental health officer who proposes to make a guardianship application shall—
(a)interview the patient within the period of 14 days ending with the date on which the proposed application is submitted to the sheriff for his approval; and
(b)take such steps as are reasonably practicable to inform the nearest relative of the patient of the proposed application, and of his right to object thereto in accordance with the provisions of section 40 of this Act.
(6)An application under this section by a mental health officer may be made outside the area of the local authority by whom he is appointed.
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