CONSTITUTIONAL LAW 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 1984 shall 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 1995 ; “the 2003 Act” means the Mental Health (Care and Treatment) (Scotland) Act 2003 ; “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 59A of the 1995 Act; “patient” has the meaning given in section 329(1) of the 2003 Act; “restriction order” means an order made under section 59 of 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 only . 6 Articles 4, 5, 6, 7 and 9 extend to Northern Ireland only . 7 Articles 8, 10, 11 and 12(2) extend to England and Wales and Northern Ireland only . 8 Articles 12(1), 13 and 14 extend to Scotland only . 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in Schedules 1 and 2 and the repeals in Schedule 3 have the same extent as the provisions being modified or repealed. 10 Those modifications and repeals do not extend to Scotland other than the modifications in paragraphs 1(4)(b), 5 and 6 of Schedule 1 and paragraph 20 of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 1984 . 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 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 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 1983 . 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 who is transferred under regulations made under section 290 of the 2003 Act; and 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 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 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 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 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 1986 by 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 1986 . Transfer of patients to Northern Ireland from Scotland: conditional discharge 5 1 This article applies to any patient– a who is transferred under regulations made under section 290 of the 2003 Act; and 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 as if on the date of the transfer he had been conditionally discharged under the most closely corresponding enactment in force in Northern Ireland; and b as if he were subject to a restriction order under the most closely corresponding enactment in force in Northern Ireland. 3 A patient to whom this article applies may only be transferred from Scotland to Northern Ireland with the consent of the Secretary of State. Removal to Scotland of hospital patients from Northern Ireland 6 1 If it appears to the responsible authority that it is in the interests of the patient who is for the time being subject to guardianship under the Mental Health (Northern Ireland) Order 1986 to remove him to Scotland, and arrangements have been made for receiving him into guardianship there, the responsible authority may authorise his removal to Scotland and may give any necessary directions for his removal to his destination. 2 If it appears to the responsible authority that it is in the interests of the patient who is for the time being liable to be detained under that Order (otherwise than by virtue of Article 42, 43 or 45 of that Order), and that arrangements have been made for admitting him to a hospital, or where he is not admitted to a hospital, for his detention in hospital to be authorised by virtue of the 2003 Act or the 1995 Act, the responsible authority may authorise his removal to Scotland and may give any necessary directions for his removal to his destination. 3 In this article– a “the responsible authority” means the Department of Health, Social Services and Public Safety for Northern Ireland or, in relation to a patient who is subject to a restriction order or restriction direction in terms of Article 47 or 55 of the Mental Health (Northern Ireland) Order 1986, the Secretary of State; and b references to a patient’s “detention in hospital to be 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. Transfer of patients to Scotland from Northern Ireland: conditional discharge 7 If it appears to the Secretary of State, in the case of a patient who– a is subject to a restriction order under Article 47(1) of the Mental Health (Northern Ireland) Order 1986; and b has been conditionally discharged under Article 48(2) or 78(2) of that Order, that a transfer under this article would be in the interests of the patient, the Secretary of State may, with the consent of the Scottish Ministers, transfer the patient to Scotland. Patients absent from hospitals in Scotland 8 1 Subject to the provisions of this article, any person who may be taken into custody in Scotland under– a sections 301 to 303 of the 2003 Act; or b regulations made under section 290 or 310 of that Act, may be taken into custody in, and returned to Scotland from, any other part of the United Kingdom. 2 For the purposes of the enactments referred to in paragraph (1), in their application by virtue of this article to England and Wales or Northern Ireland– a “constable” includes a constable in England or Wales or a constable of the Police Service of Northern Ireland, as the case may be; and b “mental health officer” includes– i in England and Wales, any approved social worker within the meaning of the Mental Health Act 1983; and ii in Northern Ireland, any approved social worker within the meaning of the Mental Health (Northern Ireland) Order 1986. Patients absent from hospitals in Northern Ireland 9 Any person who is subject to corresponding measures (within the meaning of section 290(8) of the 2003 Act) in Northern Ireland and who is taken into custody in Scotland under regulations made under section 309 or 310 of the 2003 Act, as a result of being subject to those measures, may be returned to Northern Ireland by any person authorised by or by virtue of those regulations to take him into custody. Assisting patients to absent themselves without leave etc. 10 1 Any person who in England and Wales or Northern Ireland does anything in relation to a person whose detention in hospital is authorised by the 2003 Act which, if done in Scotland, would make him guilty of an offence under section 316 of the 2003 Act shall be guilty of an offence. 2 Where a person is charged with an offence under paragraph (1) as it applies to section 316(1)(b) of the 2003 Act, it shall be a defence for such person to prove that the doing of that with which the person is charged– a did not obstruct the discharge by any person of a function conferred or imposed on that person by virtue of the 2003 Act or this Order; and b was intended to protect the interests of the patient. 3 Any person guilty of an offence under this article shall be liable– a on summary conviction, to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 5 on the standard scale; b on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both. Provisions as to custody, removal and detention 11 1 Any person required or authorised by or by virtue of the 2003 Act or by virtue of this Order to be moved to any place or to be kept in custody or detained in a place of safety shall, while being so moved, kept or detained, as the case may be, be deemed to be in legal custody. 2 A constable or any other person required or authorised by or by virtue of that Act or by virtue of this Order to take any person into custody, or to move or detain any person shall, for the purposes of taking him into custody or moving or detaining him, have all the powers, authorities, protection and privileges which a constable has– a in the case of a constable, within the area for which he acts as constable; and b in the case of any other person, in the area where he has taken any person into custody or is moving or detaining him. Protection for acts done under this Order 12 1 No person shall be liable, whether on ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this paragraph in respect of any act purporting to be done in pursuance of this Order, unless the act was done in bad faith or without reasonable care. 2 Section 139 of the Mental Health Act 1983 (which relates to protection for acts done in pursuance of that Act) shall apply in respect of any act purporting to be done in pursuance of articles 2 to 11 of this Order. Persons detained under immigration law 13 Section 136 of the 2003 Act (transfer of prisoners for treatment for mental disorder) shall apply to any person detained under the Immigration Act 1971 or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State) as that section applies to a person serving a sentence of imprisonment. Mental health services provided by local authorities 14 1 No services shall be provided under sections 25 to 27 of the 2003 Act to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely– a because he is destitute; or b because of the physical effects, or anticipated physical effects, of his being destitute. 2 Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of paragraph (1) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph of that Schedule to the Secretary of State substitute references to a local authority. Modifications 15 The modifications in Schedules 1 and 2 have effect. Repeals and saving 16 1 The repeals in Schedule 3 have effect. 2 Notwithstanding the repeal in respect of sections 1, 125, 128 and 129 of the Mental Health (Scotland) Act 1984 in Schedule 3, those sections shall continue to have effect for the purposes of sections 10 and 95 of that Act. DAVID CAIRNS Parliamentary Under Secretary of State, Scotland Office, Department for Constitutional Affairs Dover House, London 21st July 2005