1 Continued detention of mentally
disordered patients on grounds of public safety
(1) In section 64 (right of appeal of patients
subject to restriction orders) of the Mental Health (Scotland) Act 1984
(c.36) ("the 1984 Act")-
(a) at the beginning there are inserted the following subsections-
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"(A1) Where an appeal to the
sheriff is made by a restricted patient who is subject to a restriction
order, the sheriff shall refuse the appeal if satisfied that the
patient is, at the time of the hearing of the appeal, suffering
from a mental disorder the effect of which is such that it is necessary,
in order to protect the public from serious harm, that the patient
continue to be detained in a hospital, whether for medical treatment
or not.
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(B1) The burden of proof of
the matters as to which the sheriff is to be satisfied for the purposes
of subsection (A1) of this section is on the Scottish Ministers.
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(C1) Nothing in section 102
(State hospitals) of the National Health Service (Scotland) Act
1978 (c.29) prevents or restricts the detention of a patient in
a State hospital in pursuance of the refusal, under subsection (A1)
of this section, of an appeal.";
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(b) in subsection (1), for the words from the beginning to "order" there
is substituted "Where the sheriff has decided, under subsection (A1)
of this section, not to refuse an appeal".
(2) In section 66 (appeal to sheriff by conditionally
discharged patient) of the 1984 Act-
(a) after subsection (1) there are inserted the following subsections-
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"(1A) The sheriff shall refuse
an appeal under subsection (1) above if satisfied that the patient
is, at the time of the hearing of the appeal, suffering from a mental
disorder the effect of which is such that it is necessary, in order
to protect the public from serious harm, that the patient continue
to be detained in a hospital, whether for medical treatment or not.
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(1B) The burden of proof of
the matters as to which the sheriff is to be satisfied for the purposes
of subsection (1A) of this section is on the Scottish Ministers.
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(1C) Nothing in section 102
(State hospitals) of the National Health Service (Scotland) Act
1978 (c.29) prevents or restricts the detention of a patient in
a State hospital in pursuance of the refusal, under subsection (1A)
of this section, of an appeal.";
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(b) in subsection (3) for the words from the beginning to "section",
where first occurring, there is substituted "Where the sheriff has decided,
under subsection (1A) of this section not to refuse an appeal under
subsection (1) and in any appeal under subsection (2) of this section,
if";
(c) after subsection (3) there is inserted the following subsection-
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"(3A) A conditional discharge
under subsection (3)(b) of this section shall have effect on the
occurrence of any of the events mentioned in subsection (4A) of
section 64 of this Act.";
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(d) in subsection (4) for "thereupon" there is substituted "on the occurrence
of any of the events mentioned in subsection (4A) of section 64 of this
Act".
(3) In section 68 (power of Scottish Ministers
to discharge patients) of the 1984 Act, after subsection (2) there are
inserted the following subsections-
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"(2A) The Scottish Ministers
shall not, however, discharge a patient from hospital under subsection
(2) of this section if they are satisfied that the patient is suffering
from a mental disorder the effect of which is such that it is necessary,
in order to protect the public from serious harm, that the patient
continue to be detained in a hospital, whether for medical treatment
or not.
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(2B) Nothing in section 102
(State hospitals) of the National Health Service (Scotland) Act
1978 (c.29) prevents or restricts the detention of a patient in
a State hospital in pursuance of the decision of Scottish Ministers,
under subsection (2A) of this section, not to discharge the patient.".
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(4) In section 74 (transfer of patients back to
prison) of the 1984 Act after subsection (1A) there are inserted the following
subsections-
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"(1B) Neither of subsections
(1) and (1A) above apply, however, where the Scottish Ministers
are satisfied, at the respective times mentioned in these subsections,
that the person is, at the relevant time, suffering from a mental
disorder the effect of which is such that it is necessary, in order
to protect the public from serious harm, that the person continue
to be detained in a hospital, whether for treatment or not.
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(1C) Nothing in section 102
(State hospitals) of the National Health Service (Scotland) Act
1978 (c.29) prevents or restricts the detention of a person in a
State hospital in consequence of subsection (1B) above.".
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(5) The amendments made by subsections (1)
and (2) above have effect in relation to appeals proceeding under section
64, 65 or 66 of the 1984 Act in which the hearing takes place on or
after 1 September 1999 and the amendments made by subsections (3) and
(4) above have effect in relation to cases considered by the Scottish
Ministers on or after that date.
2 Appeal from decisions etc. of sheriff
under sections 64, 65 and 66 of 1984 Act
(1) In section 64 of the 1984 Act-
(a) in subsection (3), for "thereupon" there is substituted ", on the
occurrence of any of the events mentioned in subsection (4A) of this
section,";
(b) in subsection (4), after "section", where first occurring, there
is inserted "the conditional discharge shall have effect on the occurrence
of any of the events mentioned in subsection (4A) of this section and,
when it does, the following provisions shall apply in relation to the
patient- ";
(c) after subsection (4) there are inserted the following subsections-
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"(4A) The events are-
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(a) the expiry of the appeal period, no appeal having been lodged
within it;
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(b) the receipt by both the Court of Session and the managers
of the hospital in which the patient is detained of notice from
the Scottish Ministers that they do not intend to move the Court
to make an order under section 66A(3) of this Act;
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(c) the refusal by the Court to make such an order;
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(d) the recall of any such order or the expiry of its effect.
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(4B) In subsection (4A) of
this section-
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"appeal" means an appeal under section 66A of this Act;
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"appeal period" means, in relation to an appeal, the period within
which, under section 66A(2) of this Act, the appeal has to be
lodged in order to be competent.".
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(2) After section 66 of the 1984 Act there is
inserted the following section-
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"66A Appeal to Court of Session against sheriff's
decisions under sections 64, 65 and 66
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(1) It shall be competent to
appeal to the Court of Session against the decision of the sheriff
under section 64 or 66 or a notification or recommendation by the
sheriff under section 65 of this Act.
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(2) An appeal under subsection
(1) of this section shall be competent only if it is lodged within
14 days of the decision, notification or recommendation appealed
against.
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(3) Where an appeal has been
lodged under subsection (1) of this section against a decision of
the sheriff to direct the discharge of a patient under section 64
or 66 or a notification or recommendation by the sheriff under section
65 of this Act, the Court of Session may, on a motion by the Scottish
Ministers, order-
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(a) that the patient who is the subject of the appeal shall continue,
in accordance with subsection (4) of this section, to be detained;
and
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(b) that the relevant order or direction shall continue to have
effect accordingly.
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(4) An order under subsection
(3) of this section has the effect of continuing the patient's detention-
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(a) where no appeal is made to the House of Lords against the
decision of the Court of Session on an appeal under this section,
until the expiry of the time allowed, without leave, to appeal
to the House of Lords against the decision; and
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(b) where such an appeal has been made, until it is abandoned
or finally determined.".
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3 Meaning of "mental disorder"
(1) In-
(a) section 1(2) (interpretation) of the 1984 Act, in the definition
of "mental disorder"; and
(b) sections 18(2)(a), 35B(8), 37(3)(a)(i), 70(5), 83 and 88(1) of the
1984 Act and sections 58(7) and 59A(3)(b) of the Criminal Procedure
(Scotland) Act 1995 (c.46),
after "illness" there is inserted "(including personality disorder)".
(2) The amendment made by subsection (1)(a)
above has effect, for the purposes of sections 64(A1), 66(1A), 68(2A)
and 74(1B) of the 1984 Act, as from 1st September 1999.
4 Short title
This Act may be cited as the Mental Health (Public Safety and Appeals)
(Scotland) Act 1999.
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