Section 7. Other Issues Relating to the 2003 Act
Transfers within Scotland
For a 'domestic transfer' (that is, within Scotland) under a CTO, Section 124 requires the managers of the hospital in which the patient is detained to:
- Gain the consent of the managers of the receiving hospital
- Notify the patient, the named person and the primary carer at least seven days prior to transfer; this can be waived if the transfer is urgent, or if the patient consents to the transfer.
Once the transfer has occurred, managers of the receiving hospital must notify (write to) the Mental Welfare Commission within seven days of the date of the transfer, providing the name and address of the receiving hospital and whether the seven-day notice was given.
Appeals against transfer under a CTO occur under Section 125, and Section 126 for the State Hospital.
There are no formal procedures for transferring a patient under an EDC, an STDC or an interim CTO; consent and prior notification are, however, advised.
Transfers outwith Scotland
Section 289 allows transfer outwith Scotland under a community CTO, but this is likely to be uncommon, as the patient would be subject to a hospital-based order on arrival in, for instance, England. The warrant for such a transfer would be issued by the patient's responsible medical officer, and not Scottish Ministers.
Section 290 allows cross-border transfer of hospital-based patients detained under the 2003 Act. Hospital managers must notify the patient, primary carer, named person, MHO, and the Mental Welfare Commission.
On receipt of a detained patient in a Scottish hospital from across the border, the responsible medical officer must notify (write to):
- The managers of their hospital
- The Mental Welfare Commission
- The Tribunal
- The local authority in which the hospital is located (enabling designation of a MHO)
- The Scottish Ministers (for a restricted patient).
The receiving responsible medical officer should prepare a care plan for the newly-arrived patient.
Section 291 focuses on appeals to the Tribunal for review of the need for voluntary patients to remain in hospital. Examples include:
- An informal patient lacking capacity to consent to admission and not objecting to treatment
- An informal patient being denied free egress (for example, being sited in a locked ward).
Section 315 states it is an offence to wilfully ill-treat or neglect a patient.
Section 301 deals with patients who abscond while subject to a CTO. This includes failing to be recalled from suspension, and failing to comply with the residence or change of address requirement.
Section 302 deals with the other sections, including STDCs, EDCs, and interim CTOs.
Both sections make the patient 'liable to be taken into custody', bearing in mind the principle of least restrictive alternative. Section 303 allows the MHO, a police officer, a member of the hospital staff, or any other person authorised by the responsible medical officer to take the patient into custody or return him or her to hospital.
Any period of unauthorised leave does not affect the expiry date of the CTO, unless it is within 14 days of the due date. In this case, another 14 days of detention is enacted, during which the responsible medical officer must carry out the mandatory review.
Patients under an STDC who return from unauthorised leave within 13 days of the certificate expiry date can face the specified measures being authorised for another 14 days.