The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005
| Jurisdiction | UK Non-devolved |
2005 No. 2078 (S.9 )
CONSTITUTIONAL LAW
DEVOLUTION, SCOTLAND
MENTAL HEALTH
The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005
Made 21th July 2005
Coming into force in accordance with article 1(1) and (2)
Whereas a draft of this Order has been laid before and approved by a resolution of each House of Parliament in accordance with section 115 of, and paragraphs 1, 2 and 3 of Schedule 7 to, the Scotland Act 19981;
Now, therefore, the Secretary of State, in exercise of the powers conferred upon him by sections 104, 112(1) and 113 of that Act, and of all other powers enabling him in that behalf, hereby makes the following Order:
Citation, commencement, interpretation and extent
1.—(1) This Order may be cited as the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 and, subject to paragraph (2), shall come into force on 5th October 2005.
(2) The entry in Schedule 3 to this Order in respect of the Mental Health (Scotland) Act 19842shall come into force immediately after the coming into force of the entry in Schedule 5 to the 2003 Act in respect of the Mental Health (Scotland) Act 1984.
(3) In this Order, unless the context otherwise requires–
“the 1995 Act” means the Criminal Procedure (Scotland) Act 19953;
“the 2003 Act” means the Mental Health (Care and Treatment) (Scotland) Act 20034;
“hospital”, except as provided in articles 2(7) and 4(8), has the meaning given in section 329(1) of the 2003 Act;
“hospital direction” means a direction made under section 59A5of the 1995 Act;
“patient” has the meaning given in section 329(1) of the 2003 Act;
“restriction order” means an order made under section 596of the 1995 Act; and
“transfer for treatment direction” has the meaning given by section 136 of the 2003 Act.
(4) A reference in this Order to “a patient whose detention in hospital was authorised by virtue of the 2003 Act or the 1995 Act” shall be read as including references to a patient in respect of whom a certificate under one of the provisions listed in section 290(7)(a) of the 2003 Act is in operation.
(5) Articles 2 and 3 extend to England and Wales only7.
(6) Articles 4, 5, 6, 7 and 9 extend to Northern Ireland only8.
(7) Articles 8, 10, 11 and 12(2) extend to England and Wales and Northern Ireland only9.
(8) Articles 12(1), 13 and 14 extend to Scotland only10.
(9) Subject to paragraph (10), the modifications in Schedules 1 and 2 and the repeals in Schedule 3 have the same extent as the provisions being modified or repealed.
(10) Those modifications and repeals do not extend to Scotland other than the modifications in paragraphs 1(4)(b), 5 and 6 of Schedule 1 and paragraph 20 of Schedule 2 and the repeal in Schedule 3 of the Mental Health (Scotland) Act 198411.
Removal to England and Wales of hospital patients from Scotland
2.—(1) This article applies to a patient whose detention in hospital was authorised by virtue of the 2003 Act or the 1995 Act immediately before the removal of the patient to England and Wales under regulations made under section 290 of the 2003 Act.
(2) Where a patient to whom this article applies is admitted to a hospital in England and Wales, he shall be treated–
(a)
(a) as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the enactment in force in England and Wales which most closely corresponds to the enactment to which he was subject immediately before his removal; and
(b)
(b) where he is subject to a measure under any enactment in force in Scotland restricting his discharge, as if he were subject to an order or direction under the enactment in force in England and Wales which most closely corresponds to the enactment restricting his discharge to which he was subject immediately before his removal.
(3) Where a patient to whom this article applies was immediately before his removal liable to be detained under the 2003 Act by virtue of a transfer for treatment direction, given while he was serving a sentence of imprisonment (within the meaning of section 136(9) of the 2003 Act) imposed by a court in Scotland, he shall be treated as if the sentence had been imposed by a court in England and Wales.
(4) Where a patient to whom this article applies was immediately before his removal subject to a hospital direction or transfer for treatment direction, the restriction direction or limitation direction under the Mental Health Act 1983 to which he is subject by virtue of paragraph (2) shall expire on the date on which either of the two first-mentioned directions would have expired if he had not been so removed.
(5) Where a patient to whom this article applies was immediately before his removal liable to be detained under the 2003 Act by virtue of a hospital direction, he shall be treated as if any sentence of imprisonment passed at the time at which the hospital direction was made had been imposed by a court in England and Wales.
(6) Any directions given by the Scottish Ministers under regulations made under section 290 of the 2003 Act as to removal of the patient to a hospital in England and Wales shall have effect as if they had been given under the Mental Health Act 198312.
(7) In this article references to a hospital in England and Wales shall be construed as references to a hospital within the meaning of Part 2 of the Mental Health Act 1983.
Transfer of patients to England and Wales from Scotland: conditional discharge
3.—(1) This article applies to any patient–
(a)
(a) who is transferred under regulations made under section 290 of the 2003 Act; and
(b)
(b) who, before that transfer, was subject to–
(i) a restriction order; and
(ii) a conditional discharge under section 193(7) of the 2003 Act.
(2) Where such a patient is so transferred, the patient shall be treated–
(a)
(a) as if on the date of the transfer he had been conditionally discharged under the most closely corresponding enactment in force in England and Wales; and
(b)
(b) as if he were subject to a restriction order under the most closely corresponding enactment in force in England and Wales.
(3) A patient to whom this article applies may only be transferred from Scotland to England and Wales with the consent of the Secretary of State.
Removal to Northern Ireland of hospital patients from Scotland
4.—(1) This article applies to a patient whose detention in hospital was authorised by virtue of the 2003 Act or the 1995 Act immediately before the removal of the patient to Northern Ireland under regulations made under section 290 of the 2003 Act.
(2) Subject to the provisions of paragraph (3) of this article, where a patient to whom this article applies is admitted to a hospital in Northern Ireland, he shall be treated–
(a)
(a) as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the enactment in force in Northern Ireland which most closely corresponds to the enactment to which he was subject immediately before his removal; and
(b)
(b) where he is subject to a measure under any enactment in force in Scotland restricting his discharge, as if he were subject to a restriction order or a restriction direction under the enactment in force in Northern Ireland which most closely corresponds to the enactment restricting his discharge to which he was subject immediately before his removal.
(3) Where a patient to whom this article applies was immediately before his removal liable to be detained by virtue of a compulsory treatment order under section 64 of the 2003 Act, he shall, on his admission to a hospital in Northern Ireland, be treated as if he were detained for treatment under Part 2 of the Mental Health (Northern Ireland) Order 198613by virtue of a report under Article 12(1) of that Order made on the date of his admission.
(4) Where a patient to whom this article applies was immediately before his removal liable to be detained under the 2003 Act by virtue of a transfer for treatment direction given while he was serving a sentence of imprisonment (within the meaning of section 136(9) of the 2003 Act) imposed by a court in Scotland, he shall be treated as if the sentence had been imposed by a court in Northern Ireland.
(5) Where a patient to whom this article applies was immediately before his removal subject to a transfer for treatment direction, the restriction direction under the Mental Health (Northern Ireland) Order 1986 to which he is subject by virtue of paragraph (2) shall expire on the date on which the first-mentioned direction would have expired if he had not been so removed.
(6) Where a patient to whom this article applies was immediately before his removal liable to be detained under the 2003 Act by virtue of a hospital direction, he shall be treated as if any sentence of imprisonment passed at the time at which the hospital direction was made had been imposed by a court in Northern Ireland.
(7) Any directions given by the Scottish Ministers under regulations made under section 290 of the 2003 Act as to removal of the patient to a hospital in Northern Ireland shall have effect as if they had been given under the Mental Health (Northern Ireland) Order 1986.
(8) In this article “hospital” has the same meaning as in Article 2(2) of the Mental Health (Northern Ireland) Order 198614.
Transfer of patients to Northern Ireland from Scotland: conditional discharge
5.—(1) This article applies to any patient–
(a)
(a) who is transferred under regulations made under section 290...
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