Health and Community Care Committee, 18 Feb 2003

Meeting date: Tuesday, February 18, 2003

Official Report 251KB pdf

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Mental Health (Scotland) Bill: Stage 2

Agenda item 2 is stage 2 of the Mental Health (Scotland) Bill. This is the committee's final meeting for stage 2 of the bill. Members should not all cheer at once.

After section 99

Amendment 1010 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1011 is grouped with amendments 1012, 1016, 1017, 1022, 1023, 1024 and 1025.

This group of amendments will provide for the temporary suspension of the detention requirement—currently known as "leave of absence"—for a patient who is subject to an assessment order, a treatment order or an interim compulsion order. The arrangements are broadly similar to those for civil patients in sections 90 and 91. In addition, there is provision in some situations for oversight of suspension by the Scottish ministers, by virtue of the requirement that they should consent to any suspension and of the fact that they, as well as the responsible medical officer, have the power to revoke a suspension.

Amendments 1011 and 1016 set out the powers of the responsible medical officer to grant suspension of detention of a patient who is subject to an assessment order or a treatment order. The consent of the Scottish ministers must be obtained if the court also made a restriction order in respect of the patient. The temporary suspension may be made subject to conditions. If the patient is subject to a treatment order and the temporary suspension is to last more than 28 days, the patient's general practitioner and the Mental Welfare Commission for Scotland must also be notified of that fact. Under amendments 1012 and 1017, the responsible medical officer may revoke the suspension; when he does so, he shall notify the persons who are listed.

Amendments 1022 to 1025 relate to interim compulsion orders. Amendment 1022 sets out the powers of the responsible medical officer to grant a suspension of detention, provided that the consent of the Scottish ministers is obtained. The maximum duration is shorter than that for civil patients—three months rather than six months.

Under amendment 1023, the responsible medical officer may revoke the suspension. Under amendment 1025, ministers will also have power to revoke the suspension and to require the patient to return to hospital. Amendment 1024 will allow the Scottish ministers to require the responsible medical officer to provide them with any necessary information to enable ministers to discharge their functions in relation to the suspension of a detention requirement.

I move amendment 1011.

Amendment 1011 agreed to.

Amendments 1012 to 1020 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1021 is grouped with amendments 1059, 1060, 1061, 1136 and 1235.

This group of amendments will place a duty on mental health officers to prepare a social circumstances report when an interim compulsion order, compulsion order, compulsion order with a restriction order, hospital direction or transfer for treatment direction is made. As with civil orders, a report need not be prepared if the mental health officer considers that such a report would serve little or no practical purpose—for example, because one has recently been prepared.

I move amendment 1021.

Amendment 1021 agreed to.

Amendments 1022 to 1025 moved—[Mrs Mary Mulligan]—and agreed to.

Section 100—Application of Part

Amendment 1053 is grouped with amendments 1054, 1055, 1062, 1063 and 1130.

Amendment 1053 is a technical amendment that will remove section 100. Later amendments will make it clear which kinds of patient are covered by each section; section 100 is, therefore, unnecessary. Amendment 1054 defines "relevant compulsion order" for the purposes of this part of the bill by reference to the Criminal Procedure (Scotland) Act 1995, and amendment 1130 will extend that definition across part 9 of the bill.

Amendment 1055 is a technical amendment to section 101 and is consequential on amendment 1054. Amendment 1062 will apply section 104 to a relevant compulsion order, as defined by amendment 1054. Amendment 1063 is a consequential technical amendment.

I move amendment 1053.

Amendment 1053 agreed to.

Section 101—Appointment of patient's responsible medical officer

Amendments 1054 and 1055 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1056 is grouped with amendments 1057, 1113, 1135, 1206, 1231 and 1313.

Amendment 1056 will change section 101 and clarifies that an approved medical practitioner must be appointed in respect of a patient who is subject to a compulsion order.

Amendment 1057 clarifies that, where the patient already has an RMO, that person may continue to be the RMO, and amendment 1135 clarifies that, where a patient who is subject to a compulsion order and a restriction order already has a responsible medical officer, that person may continue to be the RMO when the orders are made. Amendment 1231 makes similar provision for patients who are subject to hospital directions.

Amendment 1113 makes provision for the replacement of the RMO where the hospital specified in a compulsion order is changed, and amendment 1206 makes provision for the appointment of a new RMO if a compulsion order with a restriction order is varied under new section 133(5A). Amendment 1313 makes similar provision for patients who are subject to hospital directions. The managers of the hospital are required to appoint an RMO when either a transfer has been made under section 156 or the patient returns to the original hospital following a successful appeal against a transfer under section 156.

I move amendment 1056.

If members wish to comment on any of the amendments, please try to catch my eye before we get to the question. It will be quicker if I do not have to ask whether there are comments every time.

Amendment 1056 agreed to.

Amendment 1057 moved—[Mrs Mary Mulligan]—and agreed to.

Section 101, as amended, agreed to.

After section 101

Amendment 1058, in the name of the minister, is in a group on its own.

Amendment 1058 makes provision for a care plan to be prepared once a compulsion order without restrictions is made. Unlike the tribunal, a criminal court does not require a care plan to be submitted before an order is made. However, the intention is that a care plan will be prepared subsequently, which will be relevant for future tribunal reviews, for example.

I move amendment 1058.

Amendment 1058 agreed to.

Section 102—Mental health officer's duty to prepare social circumstances report

Amendments 1059 to 1061 moved—[Mrs Mary Mulligan]—and agreed to.

Section 102, as amended, agreed to.

Section 103 agreed to.

Section 104—First review of compulsion order

Amendments 1062 and 1063 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1064, in the name of the minister, is grouped with amendments 1070, 1080, 1090, 1115, 1117, 1118 and 1119.

Amendment 1064 to section 104 clarifies that there is only one first review of a compulsion order.

Amendment 1070 will extend section 105 to cover both first and further reviews.

Amendment 1080 will improve the drafting of section 106 by clarifying that there is only one first review.

Amendment 1090 will extend section 107 to cover both first and further reviews.

Amendments 1115, 1117 and 1118 will make changes to section 112, which provides for the further review of a compulsion order, and will bring it into line with section 61, which provides for the further review of compulsory treatment orders. Further changes will be made as a consequence of the amendments to other sections of part 9. It will also be necessary to remove the reference in section 112(1)(a) to section 106, so we will lodge an amendment at stage 3 to do that.

Amendment 1119 will remove section 113, which applied sections 63 to 70, with modifications, to part 9. Amendment 1119 is consequential upon amendments 1076 to 1084 and amendments 1086 to 1097.

I move amendment 1064.

Amendment 1064 agreed to.

Amendment 1065, in the name of the minister, is grouped with amendments 1068 and 1116.

Amendments 1065 and 1068 will amend section 104, which deals with the first review of a compulsion order. They are both technical amendments that will improve the drafting of the section.

Amendment 1116 will improve the drafting of section 112, which deals with the further reviews of compulsion orders.

Amendments 1065 and 1116 will clarify the necessity test and amendment 1068 will make the risk test consistent with other parts of the bill.

I move amendment 1065.

Amendment 1065 agreed to.

Amendment 1066, in the name of the minister, is grouped with amendments 1067 and 1069. If amendment 1066 is agreed to, I cannot call amendment 263—in the name of Adam Ingram, and previously debated with amendment 240—because it will be pre-empted.

Amendment 1066 will remove the reference to the mental health officer specified in the patient's care plan from the consultation duty in section 104, which will bring it into line with the part 7 provisions.

Amendments 1067 and 1069 will bring the other persons who should be consulted during the first review into line with the part 7 provisions, with necessary modifications.

I move amendment 1066.

Amendment 1066 agreed to.

Amendments 1067 to 1069 moved—[Mrs Mary Mulligan]—and agreed to.

Section 104, as amended, agreed to.

Section 105—Responsible medical officer's duty to revoke order

Amendment 1070 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1071, in the name of the minister, is in a group on its own.

Amendment 1071 will limit the views to which the responsible medical officer must have regard when carrying out a review of a compulsion order. He need only have regard to views that are expressed by persons consulted for the purpose of the review being carried out.

I move amendment 1071.

Amendment 1071 agreed to.

Amendment 1072, in the name of the minister, is grouped with amendments 1073 and 1074.

These amendments will make drafting improvements to the criteria in section 105, about which the responsible medical officer, if not satisfied, is required to make a determination revoking the compulsion order. That will bring section 105 into line with amended section 64, which deals with compulsory treatment orders.

I move amendment 1072.

Amendment 1072 agreed to.

Amendment 1073 and 1074 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1075, in the name of the minister, is grouped with amendment 1079.

Amendment 1079 will introduce a new section setting out the notification requirements that apply to the responsible medical officer or the Commission, where either makes a determination to revoke a compulsion order. The proposed new section mirrors the provision in section 65, as amended, in respect of compulsory treatment orders.

Amendment 1075 is consequential on amendment 1079, and will remove section 105(4), which applies section 65 to part 9.

I move amendment 1075.

Amendment 1075 agreed to.

Section 105, as amended, agreed to.

After section 105

Amendment 1076 is grouped with amendments 1098 and 1120.

Amendment 1076 will introduce a new section after section 105. The new section parallels that which was introduced in part 7, chapter 2, under amendment 383. The new section will require the RMO to keep compulsion orders under review and to revoke orders if they are not satisfied that their grounds are still met.

Amendment 1098 will introduce a new section setting out the RMO's duty to consider, from time to time, whether a compulsion order should be varied and, if he decides that it should, to follow a procedure leading up to an application to the tribunal for such variation. That parallels provision that is made under section 71—as replaced by amendment 436—for compulsory treatment orders.

Amendment 1120 will remove section 114, which applied the compulsory treatment order review and variation provisions, with modifications, to part 9.

I move amendment 1076.

Amendment 1076 agreed to.

Amendment 1077 is in a group on its own.

Amendment 1077 will introduce a new section giving the Mental Welfare Commission for Scotland power to revoke a compulsion order, just as it has the power to revoke a compulsory treatment order, which power was introduced by amendment 384.

I move amendment 1077.

Amendment 1077 agreed to.

Amendment 1078 is grouped with amendments 1081, 1082, 1084, 1086, 1088, 1091, 1092, 1093 and 1095.

Amendment 1078 will introduce a new section mirroring section 63, as amended by amendments 393 to 400. The proposed new section sets out the steps that RMOs should take if, when they are carrying out a review, they are satisfied that the compulsion order continues to be necessary.

Amendments 1081 and 1082 will amend section 106, which concerns the duties on the RMO where extension of a compulsion order appears to be appropriate. The amendments broadly mirror the provision that is made under section 66, as amended.

Amendment 1084 will introduce a new section that places the RMO under a duty to apply for extension of a compulsion order where certain conditions are met in relation to a first review. There is one important difference between it and the provision that has been made for compulsory treatment orders: at the first six-month review of a compulsory treatment order, the RMO can extend the order without prior authorisation by the mental health tribunal for Scotland; for a compulsion order, the RMO must make an application to the tribunal for the order to be extended. That is because compulsion orders will have been granted by criminal courts and will not have been scrutinised by the tribunal, whereas compulsory treatment orders will be granted by the tribunal. We are considering whether we can simplify the process slightly at stage 3, but we wish to retain the requirement for oversight by the tribunal at the six-month stage.

Amendment 1086 will introduce a new section on further reviews, which will perform a function similar to that of section 106 for first reviews. It will place a duty on the RMO to notify the mental health officer that he proposes to make a determination extending the order, when he thinks that the compulsion order will be necessary after the day on which it would otherwise expire.

Amendment 1088 will introduce a new section that will place the RMO under a duty to extend a compulsion order where certain conditions are met in relation to a further review. That parallels provision that will be made under amendment 1084 in respect of a first review. However, the RMO need not apply to the tribunal at further reviews. He or she can extend the order, although that will require confirmation by the tribunal in the circumstances that are set out under amendment 1106.

Amendments 1091, 1092 and 1093 will make changes to section 107, which deals with the responsible medical officer's duty to apply for extension or variation of a compulsion order. Section 107, as we propose to amend it, will parallel section 68, as amended, in respect of compulsory treatment orders.

Amendment 1095 will introduce a new section concluding the process whereby the RMO is required to make an application for extension and variation of a compulsion order to the tribunal. Amendment 1095 will do for compulsion orders what amendment 424 did for compulsory treatment orders.

I move amendment 1078.

Amendment 1078 agreed to.

Amendment 1079 moved—[Mrs Mary Mulligan]—and agreed to.

Section 106—Responsible medical officer's duty to extend order

Amendments 1080 to 1082 moved—[Mrs Mary Mulligan]—and agreed to.

Section 106, as amended, agreed to.

After section 106

Amendment 1083 is grouped with amendments 1087, 1094 and 1121.

Amendment 1083 will introduce a new section relating to the mental health officer's duties where the responsible medical officer proposes to extend a compulsion order. That mirrors provision for compulsory treatment orders made under amendment 412. Unlike the provisions that were introduced under amendment 412, the new section introduced under amendment 1083 will apply only in relation to the first review, in order to reflect the fact that a first review of a compulsion order is always considered by the tribunal.

Amendment 1087 will introduce a new section, which will place certain duties on the mental health officer when it is proposed to extend a compulsion order after a further review. The provision is similar to that made by the new section that has been introduced under amendment 1083 in respect of a first review.

Amendment 1094 will introduce a new section that will impose requirements on the mental health officer after he or she has been informed that the RMO proposes to apply to the tribunal for extension and variation of a compulsion order. That mirrors the new section that has been introduced under amendment 423 with respect to CTOs.

Amendment 1121 will remove section 115, which applied section 74—now removed—to part 9. Amendments 1083, 1087 and 1094 will make the mental health officer's duties explicit in part 9.

I move amendment 1083.

Amendment 1083 agreed to.

Amendment 1084 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1085 is grouped with amendments 1097 and 1100.

Amendment 1085 will introduce a new section that will make provision for the contents of an application to the tribunal by the RMO for extension following a first review.

Amendment 1097 will modify section 108, which specifies the information and documentation that must accompany an application to the tribunal in respect of extending and varying a compulsion order. The amendment will remove the reference to withholding a notice from the patient because, assuming amendment 1096 is agreed to, there will no longer be provision for such notice to be withheld.

Amendment 1100 will insert a new section that specifies the information and documentation that must accompany an application to the tribunal for variation of a compulsion order. That provision mirrors that of section 73, which concerns variation of a compulsory treatment order.

I move amendment 1085.

Amendment 1085 agreed to.

Amendments 1086 to 1088 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1089 is grouped with amendments 1096 and 1099.

Amendment 1089 will introduce a new section requiring the RMO to make a record of a determination that extends a compulsion order following a further review and to send copies to specified persons. The provision is broadly in line with that under section 67 for providing notification of the extension of a compulsory treatment order following a first or further review.

Amendment 1096 will introduce a new section setting out the notification requirements on the RMO when an application for extension and variation of a compulsion order is made. It parallels the provisions in section 69.

Amendment 1099 will insert a new section placing a duty on the RMO to notify certain persons—the same persons who must be notified of an application for extension and variation of a compulsion order under amendment 1096—of an application to vary a compulsion order.

I move amendment 1089.

Amendment 1089 agreed to.

Section 107—Responsible medical officer's duty to apply for extension and variation of order

Amendments 1090 to 1093 moved—[Mrs Mary Mulligan]—and agreed to.

Section 107, as amended, agreed to.

After section 107

Amendments 1094 to 1096 moved—[Mrs Mary Mulligan]—and agreed to.

Section 108—Application to Tribunal

Amendment 1097 moved—[Mrs Mary Mulligan]—and agreed to.

Section 108, as amended, agreed to.

After section 108

Amendments 1098 to 1100 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1101 is in a group on its own.

Amendment 1101 will give the commission the power to refer a compulsion order to the tribunal for whatever reason it considers appropriate. It will insert a new section similar to the new section on compulsory treatment orders that was introduced by amendment 442.

I move amendment 1101.

Amendment 1101 agreed to.

Amendment 1102 is grouped with amendments 1103 and 1122.

Amendment 1102 will make provision for the patient or the patient's named person to apply to the tribunal for revocation of a determination by the RMO that extends a compulsion order. The provision is similar to that made by section 75.

Amendment 1103 will provide for the patient or the patient's named person to apply to the tribunal for revocation or variation of a compulsion order. It mirrors the provision that section 76 makes on compulsory treatment orders.

There is an omission, which we intend to correct at stage 3. We do not intend that the patient or the named person should be able to apply to the tribunal for revocation in the first six months after the criminal court has made the order. We also intend to make the same provision as for compulsory treatment orders when a tribunal has reviewed the order at the six-month stage, or at a later renewal date. The patient or named person should not be able to insist on a further tribunal hearing within the next three months.

Amendment 1122 will remove section 116, which applies sections 75 and 76—concerning applications by the patient for revocation or variation—to part 9. Amendment 1122 is consequential to amendments 1102 and 1103.

I move amendment 1102.

Amendment 1102 agreed to.

Amendment 1103 moved—[Mrs Mary Mulligan]—and agreed to.

Section 109—Extension of compulsion order pending decision of Tribunal

Amendment 1104 is grouped with amendments 1105 to 1112, 1114, 1123 and 1124.

Amendment 1108 will give the tribunal the power to make an order to extend the compulsion order for a period of up to 28 days, to enable an application for extension and variation to be considered and determined. The tribunal has the same power in relation to compulsory treatment orders, as provided for by section 78.

Amendment 1104 will remove section 109 from the bill, because that section will be superseded by amendment 1108.

Amendment 1109 will introduce a new section that sets out the powers of the tribunal in response to certain applications by the RMO and by the patient for variation or revocation of a compulsion order.

Amendments 1105 and 1114 will remove sections 110 and 111, which amendment 1109 will make redundant.

Amendments 1106 and 1107 will provide for the tribunal to review the RMO's determination to extend a compulsion order following a further review. They will bring provision for compulsion orders into line with the provision for compulsory treatment orders that section 77, as amended, makes.

Amendment 1123 will remove section 117, which applies section 77 to part 9 of the bill. Section 77 concerns tribunal review of the responsible medical officer's determination to extend a CTO. Amendment 1123 is consequential to amendments 1106 and 1107.

Amendment 1110 sets out the powers that the tribunal will have when it receives a reference from the commission. The provision is similar to that made by amendment 482 on compulsory treatment orders.

Amendment 1111 sets out the powers that the tribunal will have when it varies a compulsion order. It does that by introducing a new section that is similar to section 80, which sets out the corresponding powers in relation to compulsory treatment orders.

Amendment 1112 will enable the Scottish ministers to make regulations allowing the tribunal to require the RMO or mental health officer to submit a report about such matters, and in such circumstances, as may be prescribed in the regulations. The proposed provision is similar to the section 81 provision on compulsory treatment orders.

Amendment 1124 will remove section 118, which applies sections 78 to 81 to part 9. It is consequential to amendments 1108 to 1112.

I move amendment 1104.

Amendment 1104 agreed to.

Section 110—Review by Tribunal of responsible medical officer's determination under section 106

Amendment 225 not moved.

Amendment 1105 moved—[Mrs Mary Mulligan]—and agreed to.

After section 110

Amendments 1106 to 1113 moved—[Mrs Mary Mulligan]—and agreed to.

Section 111—Powers of Tribunal on application under section 108

Amendment 1114 moved—[Mrs Mary Mulligan]—and agreed to.

Section 112—Further review of compulsion order

Amendments 1115 to 1117 moved—[Mrs Mary Mulligan]—and agreed to.

Section 112, as amended, agreed to.

Amendment 1118 moved—[Mrs Mary Mulligan]—and agreed to.

Section 113—Application of sections 63 to 70

Amendment 1119 moved—[Mrs Mary Mulligan]—and agreed to.

Section 114—Application of sections 62 and 71 to 73

Amendment 1120 moved—[Mrs Mary Mulligan]—and agreed to.

Section 115—Mental health officer: duties as respects patient

Amendment 1121 moved—[Mrs Mary Mulligan]—and agreed to.

Section 116—Application of sections 75 and 76

Amendment 1122 moved—[Mrs Mary Mulligan]—and agreed to.

Section 117—Application of section 77

Amendment 1123 moved—[Mrs Mary Mulligan]—and agreed to.

Section 118—Application of sections 78 to 81

Amendment 1124 moved—[Mrs Mary Mulligan]—and agreed to.

Section 119—Meaning of "modify"

Amendment 1125 is grouped with amendments 1213 and 1214.

Amendment 1125 will make changes to section 119 that are consequential to the restructuring of part 9. Section 119 defines the meaning of modifying a compulsion order. To modify such an order is to amend, to remove or to add to any of the compulsory measures that are specified in it. It is simpler than the provision on CTOs that section 82 makes, because recorded matters are not specified for compulsion orders.

Section 138 defines modification of a compulsion order when it is combined with a restriction order. Amendments 1213 and 1214 will improve the drafting of section 138 and bring it into line with section 119, which deals with modification of a compulsion order without a restriction order.

I move amendment 1125.

Amendment 1125 agreed to.

Section 119, as amended, agreed to.

Section 120—Non-compliance with compulsion order

Amendment 1126 is grouped with amendment 1127.

Amendments 1126 and 1127 deal with breaches of a compulsion order. Amendment 1126 is a technical amendment to improve the drafting of section 120, which concerns failure to attend for medical treatment and applies section 84, with modifications, to part 9. Amendment 1127 will introduce a new section applying sections 85 and 86, and the section added by amendment 539, to part 9. Those sections deal with general non-compliance with a compulsory treatment order.

I move amendment 1126.

Amendment 1126 agreed to.

Section 120, as amended, agreed to.

After section 120

Amendment 1127 moved—[Mrs Mary Mulligan]—and agreed to.

Section 121—Transfer of patients subject to compulsion order

Amendment 1128 is in a group on its own.

Amendment 1128 is a technical amendment to improve the drafting of section 121, which will apply the transfer provisions—sections 87 to 89—and the section added by amendment 539 to compulsion orders.

I move amendment 1128.

Amendment 1128 agreed to.

Section 121, as amended, agreed to.

After section 121

Amendment 1129 is in a group on its own.

Amendment 1129 will introduce a new section applying the provisions on suspension of detention requirements, in section 90, the suspension of any other compulsory measure, introduced by amendment 612, and the revocation of any such suspension, in section 91, to compulsion orders.

I move amendment 1129.

Amendment 1129 agreed to.

Amendment 1130 moved—[Mrs Mary Mulligan]—and agreed to.

Section 122—Application of Part

Amendment 1131 is grouped with amendments 1132 to 1134, 1137 to 1141, 1143, 1146, 1154, 1173, 1180, 1182, 1185, 1187, 1188, 1190, 1199, 1207, 1208, 1215, 1217, 1218 and 1340.

Amendment 1131 will delete section 122, as it is no longer required, due to other amendments. Amendments 1132, 1140 and 1182 are drafting amendments to make it clear that the sections covered will apply once a compulsion order and a restriction order are made in respect of the patient. Amendment 1133 is a drafting amendment to improve the drafting of section 123. Amendments 1134, 1139, 1141, 1143, 1146, 1154, 1173, 1180, 1185, 1187, 1188, 1190, 1199, 1207, 1208, 1215, 1217, 1218 and 1340 are minor drafting amendments to remove the term "restricted", as it is not now required. Amendments 1137 and 1138 will improve the drafting of section 124.

I move amendment 1131.

Amendment 1131 agreed to.

Section 123—Appointment of restricted patient's responsible medical officer

Amendments 1132, 1133, 95, 96, 1134 and 1135 moved—[Mrs Mary Mulligan]—and agreed to.

Section 123, as amended, agreed to.

After section 123

Amendment 1136 moved—[Mrs Mary Mulligan]—and agreed to.

Section 124—Mental health officer's duty to identify named person

Amendments 1137 to 1139 moved—[Mrs Mary Mulligan]—and agreed to.

Section 124, as amended, agreed to.

Section 125—First review of compulsion order and restriction order

Amendments 1140 and 1141 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1142 is grouped with amendments 1150, 1151, 1238, 1247, 1248, 1255 and 1258.

The first three amendments in the group deal with compulsion orders and restriction orders. Amendment 1142 is a drafting amendment, to delete the reference to "first review" in section 125, so that the section will apply to all annual reviews by the RMO. Amendment 1150 will delete section 126, as further reviews are now subsumed within section 125. Following from the amalgamation of first and further reviews in section 125, amendment 1151 will link section 127 to the annual review undertaken under section 125.

The next five amendments deal with hospital or transfer for treatment directions. Amendments 1238 and 1255 are technical drafting amendments to expand the reference to hospital directions in the sections covered to include transfer for treatment directions. Amendment 1247 will delete section 150, which is now covered in section 149, following amendment 1246. Amendment 1248 will improve the drafting of section 151(1) and provide the link between section 151 and the annual review undertaken under section 149. Amendment 1258 is a drafting amendment to remove unnecessary text. The references to the "first review" and "further review" will be superseded by amendments 1246 and 1247.

I move amendment 1142.

Amendment 1142 agreed to.

Amendment 1143 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1144 is grouped with amendments 1145, 1147, 1148, 1216, 1240, 1244 and 1245.

Amendment 1144 will improve the drafting of section 125 by moving the requirement for the RMO to consider whether the compulsion order and restriction order continue to be necessary and whether the serious harm test applies in respect of the patient. Amendments 1145 and 1148 are consequential on amendment 1144. Amendments 1147 and 1244 relate to the risk test in sections 125 and 149 and will bring it into line with the tests used elsewhere in the bill.

Amendment 1216 is a drafting amendment to section 139, to take account of the changes made to section 125. Amendment 1240 will clarify the drafting of section 149(2). It will ensure that the responsible medical officer considers whether the hospital direction or transfer for treatment direction continues to be necessary and whether the serious harm test applies in respect of the patient. Amendment 1245 will delete text that is now unnecessary following amendment 1240.

I move amendment 1144.

Amendment 1144 agreed to.

Amendments 1145 to 1148 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1149 is grouped with amendment 1246.

Amendments 1149 and 1246 are drafting amendments that will properly ensure that the RMO carries out an annual review of a patient who is subject to a compulsion order and restriction order, a hospital direction or a transfer for treatment direction.

I move amendment 1149.

Amendment 1149 agreed to.

Section 125, as amended, agreed to.

Section 126—Further mandatory review of compulsion order and restriction order

Amendment 1150 moved—[Mrs Mary Mulligan]—and agreed to.

Section 127—Responsible medical officer's report and recommendation following review of compulsion order and restriction order

Amendment 1151 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1152 is grouped with amendments 1153, 1155 to 1161, 1249 to 1251, 1253, 1254 and 1256.

Amendments 1152 and 1249 will provide that the annual report that is to be submitted to the Scottish ministers under sections 127 and 151 must be submitted as soon as practicable after the review of the patient has been carried out. Amendments 1153 and 1251 set out the matters that will have to be included in those annual reports. Amendment 1250 paves the way for amendment 1251.

Amendment 1156 is a minor drafting amendment that will add some necessary text to section 127.

Amendment 1157 will ensure that, if the RMO is satisfied that the patient has a mental disorder but is not satisfied that the serious harm test and the forensic criteria have been met, the RMO must recommend that the compulsion order be revoked. Amendment 1155 paves the way for amendment 1157 by removing the reference to a similar test in section 127(3).

Amendment 1158 will improve the drafting of the test governing whether the responsible medical officer should recommend that a restriction order be revoked. Amendment 1159 will improve the drafting of the test governing whether the RMO should recommend conditional discharge.

Amendment 1161 will improve the drafting of section 127(7) to bring it into line with expressions used elsewhere in the bill. Amendment 1160 will add a reference to the views of the mental health officer to bring the wording of subsection (7) into line with the other subsections of section 127.

Amendment 1256 will have the same effect on directions as the effect I already described amendment 1157 will have on compulsion orders with a restriction order. Amendment 1253 paves the way for amendment 1256.

Amendment 1254 is a minor drafting amendment that will add some necessary text to section 151.

I move amendment 1152.

Amendment 1152 agreed to.

Amendments 1153 to 1161 moved—[Mrs Mary Mulligan]—and agreed to.

Section 127, as amended, agreed to.

After section 127

Amendment 1162 is grouped with amendments 1167 to 1170, 1172, 1174 to 1176, 1261, 1262, 1264 and 1266 to 1268.

Amendment 1162 is required to ensure that the RMO is under a continuing duty to review the compulsion order and restriction order to which the patient is subject. The amendment will bring part 10 into line with equivalent parts of the bill. The matters that the RMO must consider are the same as those described in section 127.

Amendment 1167 is a drafting amendment that will make it clear that section 129 applies once a compulsion order and a restriction order are made in respect of the patient.

Amendment 1169 will ensure that the duty on the Scottish ministers contained in section 129—namely, to review the patient's compulsion order and restriction order on a continuing basis—is in addition to their duty to make referrals to the tribunal if required to do so by the commission or the RMO. Amendment 1168 is a minor drafting amendment that is consequential to amendment 1169.

Amendment 1170 will improve the drafting of the provision that sets out the matters that the Scottish ministers must consider under section 129 when they review the patient's compulsion order and restriction order. Amendment 1172 will link section 129(3) to those matters that will be introduced into section 129(1) by amendment 1170.

Amendment 1176 sets out a series of tests that the Scottish ministers must consider in any review under section 129 of the compulsion order and restriction order to which a patient is subject. The tests are the same as those that the RMO must consider under section 127. Amendment 1174, which paves the way for amendment 1176, will make it clear that the Scottish ministers must apply for an order revoking a compulsion order where they are satisfied that the patient does not have a mental disorder.

Amendment 1175 is a minor amendment that will remove some unnecessary text.

Amendment 1261 is a drafting amendment that will make it clear that section 153 applies once a hospital direction or a transfer for treatment direction is made in respect of a patient.

Amendment 1262 is a drafting amendment that will clarify the matters under section 153 that the Scottish ministers must consider when they review a direction in respect of a patient. Amendment 1264 will link section 153(3) with the matters to be considered by the Scottish ministers under section 153(1).

Amendment 1266 will make it clear that, if the Scottish ministers are satisfied that a patient does not have a mental disorder, they should revoke the direction to which the patient is subject.

Amendment 1267 is a technical drafting amendment that will expand references to hospital directions in the sections covered to include transfer for treatment directions.

Amendment 1268 will provide that, if the Scottish ministers are satisfied that a patient has a mental disorder but are not satisfied that the serious harm test and the forensic criteria are met, they must revoke the direction to which the patient is subject.

I move amendment 1162.

Amendment 1162 agreed to.

Section 128—Duty of Scottish Ministers on receiving report and recommendation from responsible medical officer

Amendment 1163 is grouped with amendments 1166, 1177, 1259, 1260 and 1269.

Amendment 1163 clarifies the policy that the Scottish ministers must refer a patient's case to the tribunal should the RMO make a recommendation under section 127 or a report under the new section that will be inserted by amendment 1162.

Amendments 1166 and 1260 will insert a duty on the Scottish ministers to make a reference to the tribunal if they have been notified by the commission—under provisions that will be introduced by amendments 1165 and 1257—that such a reference should be made. Amendments 1166 and 1260 will also provide for the notification of other persons and for the information that the referral should contain.

Amendments 1177 and 1269 will insert new sections that will place a duty on the Scottish ministers to make a reference to the tribunal to review a patient's compulsory restriction order or direction every two years. The duty will apply only if no reference or application for review has been made to the tribunal in the preceding two years. The new sections will have the same effect as the equivalent sections under parts 7 and 9.

Amendment 1259 will amend section 152 by changing the emphasis from the revocation of a direction by the Scottish ministers—which will now be covered under section 153—by providing for a referral to the tribunal of a patient's case if the RMO recommends that the direction be revoked following the mandatory annual review. Amendment 1269 will also provide for the notification of various persons when such a reference is made.

I move amendment 1163.

Amendment 1163 agreed to.

Amendment 1164 is grouped with amendments 1178 and 1179.

Amendment 1164 will provide that, if a referral to the tribunal is made under section 128(1), notice of that referral should be given to those who are listed in new subsection (2). The notice should also contain the information as stated in subsection (3).

Amendment 1178 will remove the reference to section 128, which is no longer required.

Amendment 1179 is a drafting amendment to provide that the persons who are listed under new subsection (2) of section 128 must be notified of an application by the Scottish ministers by virtue of section 129.

I move amendment 1164.

Amendment 1164 agreed to.

Section 128, as amended, agreed to.

After section 128

Amendment 1165 is grouped with amendment 1257.

Amendments 1165 and 1257 will insert new sections—for compulsion orders and restriction orders and for directions respectively—that give the Mental Welfare Commission for Scotland the power to require the Scottish ministers to make a referral to the tribunal to review a patient's case if the commission believes that such a referral is appropriate.

I move amendment 1165.

Amendment 1165 agreed to.

Amendment 1166 moved—[Mrs Mary Mulligan]—and agreed to.

Section 129—Duty of Scottish Ministers to review compulsion order and restriction order from time to time

Amendments 1167 to 1170 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1171 is grouped with amendments 1263 and 1317.

Amendment 1317 will allow the Scottish ministers to require the RMO to provide them with any necessary information to enable them to discharge their functions in relation to parts 10 and 11.

Amendments 1171 and 1263 will remove text that will be unnecessary, following agreement to amendment 1317.

I move amendment 1171.

Amendment 1171 agreed to.

Amendments 1172 to 1176 moved—[Mrs Mary Mulligan]—and agreed to.

Section 129, as amended, agreed to.

After section 129

Amendment 1177 moved—[Mrs Mary Mulligan]—and agreed to.

Section 130—Application by Scottish Ministers: notification

Amendments 1178 and 1179 moved—[Mrs Mary Mulligan]—and agreed to.

Section 130, as amended, agreed to.

Section 131—Application to Tribunal

Amendment 1180 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 227 not moved.

Amendment 1181 is grouped with amendment 1204.

Amendments 1181 and 1204 are minor amendments that will improve the drafting of sections 131 and 134.

I move amendment 1181.

Amendment 1181 agreed to.

Section 131, as amended, agreed to.

Section 132—Application by restricted patient and named person for discharge

Amendment 1182 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1183 is grouped with amendments 1184, 1186, 1271 and 1280.

Amendment 1183 will improve the drafting of section 132. Amendment 1184 will make it clear that an application under that section can seek any variation of the authorised measures and is not restricted to seeking a removal of authority for detention.

Amendment 1186 will extend section 132(3) to make it clear that the patient and the named person cannot make an application to the tribunal for a review of the patient's compulsion order and restriction order in the three-month period following the making of an order by the tribunal under section 133.

Amendment 1271 is a minor amendment to improve the drafting of section 154. Amendment 1280 will remove text that is now unnecessary. The new section that will be inserted by amendment 1281 will deal with the review and revocation of directions by the tribunal.

I move amendment 1183.

Amendment 1183 agreed to.

Amendments 1184 to 1188 moved—[Mrs Mary Mulligan]—and agreed to.

Section 132, as amended, agreed to.

Section 133—Powers of Tribunal on application under section 131 or 132

Amendment 1189 is grouped with amendments 1191 to 1198, 1200 to 1203, 1205, 1209, 1212 and 1281.

Amendment 1189 is a drafting amendment that will insert references to the new procedures on referral to the tribunal following a recommendation by the RMO or the commission or a referral by the Scottish ministers under provisions to be introduced by amendment 1177.

Amendment 1191 will insert the same wording concerning the serious harm test as has been used throughout part 10.

Amendment 1192 is a drafting amendment that will clarify that, if the tribunal is satisfied that the patient has a mental disorder and that the serious harm test applies, it can make no order under section 133.

Amendment 1195 will ensure that, if the tribunal is satisfied that the patient has a mental disorder but is not satisfied that the serious harm test and the forensic criteria are met, it must revoke the compulsion order. Amendment 1193 paves the way for amendment 1195.

Amendment 1194 is a minor drafting amendment.

Amendment 1196 will provide that, if the tribunal is satisfied that the forensic criteria are met and that a compulsion order continues to be necessary in respect of the patient but it is not satisfied that the serious harm test is met and that the restriction order is necessary, the tribunal must revoke the restriction order. The tribunal can then vary the remaining compulsion order if it is satisfied that it is appropriate. Amendments 1198 and 1203 are consequential to amendment 1196.

Amendment 1197 will provide that, if the tribunal is satisfied that the forensic criteria are met and that the compulsion order and restriction order continue to be necessary but it is not satisfied that the person needs to be detained in hospital, it can conditionally discharge the patient.

Amendment 1200 will expand the list under subsection (9) of those persons to whom the tribunal must afford an opportunity to make representations or to give evidence. Amendment 1201 will remove the commission from the list of such persons.

Amendment 1202 is necessary for the avoidance of any doubt that section 102 of the National Health Service (Scotland) Act 1978 does not affect the ability of the tribunal to make an order under section 133 of the bill.

Amendment 1205 is a drafting amendment that will remove some text that is not now necessary.

Amendment 1209 is a technical amendment that will improve the drafting of section 136.

Amendment 1212 is a drafting amendment to section 137 to take account of the changes that have been made to section 133.

Amendment 1281 will insert a new section that will provide for the powers of the tribunal following a reference or an application to the tribunal in respect of a patient. The amendment sets out the matters that the tribunal must consider when reviewing a patient's case. If, after such consideration, the tribunal is satisfied that the direction to which a patient is subject must be revoked, it will direct the Scottish ministers to revoke that direction.

I move amendment 1189.

Amendment 1189 agreed to.

Amendments 1190 to 1200 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 228 not moved.

Amendments 1201 and 1202 moved—[Mrs Mary Mulligan]—and agreed to.

Section 133, as amended, agreed to.

I suggest that we take a five-minute break at this point to allow the minister, in particular, to have a break.

Thank you, convener.

Meeting suspended.

On resuming—

Section 134—Tribunal's powers when varying compulsion order

Amendments 1203 to 1205 moved—[Mrs Mary Mulligan]—and agreed to.

Section 134, as amended, agreed to.

After section 134

Amendment 1206 moved—[Mrs Mary Mulligan]—and agreed to.

Section 135—Deferral of conditional discharge

Amendment 1207 moved—[Mrs Mary Mulligan]—and agreed to.

Section 135, as amended, agreed to.

Section 136—General effect of orders under section 133

Amendments 1208 and 1209 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1210 is grouped with amendment 1211.

Amendments 1210 and 1211 are technical amendments that seek to improve the drafting of section 136.

I move amendment 1210.

Amendment 1210 agreed to.

Amendment 1211 moved—[Mrs Mary Mulligan]—and agreed to.

Section 136, as amended, agreed to.

Section 137—Effect of revocation of restriction order

Amendment 1212 moved—[Mrs Mary Mulligan]—and agreed to.

Section 137, as amended, agreed to.

Section 138—Meaning of "modify"

Amendments 1213 and 1214 moved—[Mrs Mary Mulligan]—and agreed to.

Section 138, as amended, agreed to.

Section 139—Recall of restricted patients from conditional discharge

Amendments 1215 and 1216 moved—[Mrs Mary Mulligan]—and agreed to.

Section 139, as amended, agreed to.

Section 140—Effect of recall from conditional discharge

Amendment 1217 moved—[Mrs Mary Mulligan]—and agreed to.

Section 140, as amended, agreed to.

Section 141—Appeal to Tribunal against recall from conditional discharge

Amendment 1218 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1219 is grouped with amendments 1220 to 1222.

Amendments 1219 to 1222 seek to amend section 141 to better reflect policy. The changes will mean that the patient or their named person can appeal to the tribunal within 28 days against a recall to hospital from conditional discharge.

I move amendment 1219.

Amendment 1219 agreed to.

Amendments 1220 to 1222 moved—[Mrs Mary Mulligan]—and agreed to.

Section 141, as amended, agreed to.

Section 142—Transfer of restricted patients

Amendment 229 not moved.

Amendment 1223 is grouped with amendments 1224, 1225, 1287 to 1306, 1311 and 1312.

Amendments 1223, 1224 and 1225 seek to delete the sections that relate to transfer and temporary release from detention, as those provisions are now contained within the new sections that are proposed in amendments 1311, 1312 and 1314 to 1316.

Amendment 1287 seeks to extend the coverage of section 156 to include compulsion and restriction orders and transfer for treatment directions. Amendment 1288 seeks to make it clear that the managers of the hospital—not the Scottish ministers—transfer patients between hospitals.

Amendment 1289 ensures that the managers of the receiving hospital and the Scottish ministers must first consent to the transfer before it can take place. Amendment 1290 places on the managers of the transferring hospital the notification duty contained within section 156(2). Amendments 1292, 1293 and 1294 seek to bring section 156 into line with the equivalent civil provision.

Amendment 1295 is a technical amendment that seeks to link section 156(4) with the appropriate places in the rest of section 156. Amendment 1299 seeks to insert new subsections that set out the effect of a transfer being delayed by more than three months and the notification requirements to the Mental Welfare Commission for Scotland for any transfer that is undertaken.

Amendment 1298 will remove text that will be no longer required if the other amendments are agreed to. Amendments 1291, 1296, 1297, 1300, 1302 and 1305 are minor amendments that seek to remove the term "offender", as we do not believe that it is necessary any more.

Amendment 1301 seeks to expand the effects of section 156(5) to include not only hospital directions but compulsion orders and transfer for treatment directions. Amendment 1303 seeks to clarify that the effect of section 156(5) is conditional on any appeal to the tribunal against the transfer that the patient or their named person might make. Amendment 1304 removes some unnecessary text and amendment 1306 will move section 156 to a more appropriate place.

Amendment 1311 seeks to create a new section that provides for an appeal to the tribunal by the patient or their named person against a transfer to a hospital that is not a state hospital. The appeal must be made within 28 days of the notice of the transfer being given or the transfer having taken place.

Amendment 1312 seeks to create a new section that provides for an appeal to the tribunal by the patient or their named person against a transfer to a state hospital. The appeal must be made within 12 weeks of the notice of the transfer being given or the transfer having taken place.

I move amendment 1223.

Amendment 1223 agreed to.

Section 143—Transfer of restricted patient to hospital other than state hospital: appeal to Tribunal

Amendment 1224 moved—[Mrs Mary Mulligan]—and agreed to.

Section 144—Transfer of restricted patient to state hospital: appeal to Tribunal

Amendment 1225 moved—[Mrs Mary Mulligan]—and agreed to.

Section 145—Temporary release from detention

Amendment 230 not moved.

Amendment 1226 is in a group on its own.

Amendment 1226 seeks to delete the section that sets out the provisions with regard to temporary release from detention, which are now contained in the new sections proposed in amendments 1314, 1315 and 1316.

I move amendment 1226.

Amendment 1226 agreed to.

Section 146—Application of Part

Amendment 1227 is grouped with amendments 1228 to 1230, 1232 to 1234, 1236, 1237, 1239, 1241 to 1243, 1252, 1265, 1270, 1272 to 1279, 1283 to 1286, and 1307 to 1310.

Amendment 1227 seeks to delete section 146 as it will be no longer required if other amendments are agreed to. Amendments 1228, 1232, 1236, 1270 and 1283 are drafting amendments that seek to make it clear that the sections covered apply once a hospital direction or a transfer for treatment direction is made for a patient. Amendment 1229 seeks to improve the drafting of section 147.

Amendments 1230, 1234, 1237, 1239, 1241, 1242, 1243, 1252, 1265, 1273, 1274, 1275, 1278, 1279 and 1284 are minor amendments that seek to remove the term "offender", which we believe is no longer necessary. Amendments 1233, 1272, 1276, 1277, 1285 and 1286 are technical amendments that seek to expand references to hospital directions in the sections covered in order to include transfer for treatment directions.

Amendments 1307 to 1310 seek to delete sections 157 to 160, as they will no longer be required if the committee agrees to incorporate transfer for treatment directions into part 11.

I move amendment 1227.

Amendment 1227 agreed to.

Section 147—Appointment of offender patient's responsible medical officer

Amendments 1228, 1229, 97, 98, 1230 and 1231 moved—[Mrs Mary Mulligan]—and agreed to.

Section 147, as amended, agreed to.

Section 148—Mental health officer's duty to identify named person

Amendments 1232 to 1234 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 231 not moved.

Section 148, as amended, agreed to.

After section 148

Amendment 1235 moved—[Mrs Mary Mulligan]—and agreed to.

Section 149—First review of hospital direction

Amendments 1236 to 1246 moved—[Mrs Mary Mulligan]—and agreed to.

Section 149, as amended, agreed to.

Section 150—Further review of hospital direction

Amendment 1247 moved—[Mrs Mary Mulligan]—and agreed to.

Section 151—Responsible medical officer's report and recommendation following review of hospital direction

Amendments 1248 to 1256 moved—[Mrs Mary Mulligan]—and agreed to.

Section 151, as amended, agreed to.

After section 151

Amendment 1257 moved—[Mrs Mary Mulligan]—and agreed to.

Section 152—Revocation by Scottish Ministers of hospital direction

Amendments 1258 and 1259 moved—[Mrs Mary Mulligan]—and agreed to.

Section 152, as amended, agreed to.

After section 152

Amendment 1260 moved—[Mrs Mary Mulligan]—and agreed to.

Section 153—Duty of Scottish Ministers to review hospital direction from time to time

Amendments 1261 to 1268 moved—[Mrs Mary Mulligan]—and agreed to.

Section 153, as amended, agreed to.

After section 153

Amendment 1269 moved—[Mrs Mary Mulligan]—and agreed to.

Section 154—Revocation of hospital direction on application by offender patient and named person

Amendments 1270 to 1280 moved—[Mrs Mary Mulligan]—and agreed to.

Section 154, as amended, agreed to.

After section 154

Amendment 1281 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1282 is in a group on its own.

Amendment 1282 sets out the effect of revoking a hospital direction or transfer for treatment direction. Put simply, the patient must be transferred to prison.

I move amendment 1282.

Amendment 1282 agreed to.

Section 155—Termination of hospital direction on release of offender patient

Amendments 1283 to 1286 moved—[Mrs Mary Mulligan]—and agreed to.

Section 155, as amended, agreed to.

Section 156—Transfer of offender patients between hospitals etc

Amendments 1287 to 1297 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 232 not moved.

Amendments 1298 to 1305 moved—[Mrs Mary Mulligan]—and agreed to.

Section 156, as amended, agreed to.

Amendment 1306 moved—[Mrs Mary Mulligan]—and agreed to.

Section 157—Application of Part

Amendment 1307 moved—[Mrs Mary Mulligan]—and agreed to.

Section 158—Appointment of patient's responsible medical officer

Amendments 99 and 100 not moved.

Amendment 1308 moved—[Mrs Mary Mulligan]—and agreed to.

Section 159—Mental health officer's duty to identify named person

Amendment 1309 moved—[Mrs Mary Mulligan]—and agreed to.

Section 160—Application of Parts 9 and 11 to patients subject to transfer for treatment directions

Amendment 1310 moved—[Mrs Mary Mulligan]—and agreed to.

After section 160

Amendments 1311 to 1313 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1314 is grouped with amendments 1315 and 1316.

This group of amendments provides for the temporary suspension of the detention requirement—currently known as leave of absence in the Mental Health (Scotland) Act 1984—for a patient subject to a compulsion order and restriction order, a hospital direction and a transfer for treatment direction. The arrangements are broadly similar to those for civil patients in sections 90 and 91. In addition, there is provision for supervision of suspension by the Scottish ministers by virtue of the requirement that they should consent to any suspension, and that they as well as the responsible medical officer have the power to revoke a suspension certificate.

Amendment 1314 sets out the powers of the RMO to grant a suspension of detention certificate provided that the consent of the Scottish ministers is obtained. At three months rather than six, the maximum duration is shorter than for civil patients.

Under amendment 1315, the RMO may revoke the suspension certificate. Under amendment 1316, the Scottish ministers also have power to revoke the suspension certificate and to require the patient to return to hospital.

I move amendment 1314.

Amendment 1314 agreed to.

Amendments 1315 to 1317 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1037 is in a group on its own.

Amendment 1037, which remedies an omission in the bill, will introduce a new section that places a duty on local authorities and health boards to respond to a request for assessment of needs that is made by a patient or the patient's primary carer or named person. Within 14 days of the request, the local authority or health board must inform the person who made the request whether an assessment is to be undertaken. If the intention is not to undertake the assessment, the person who made the request must be informed why that is the case.

Amendment 1037 will implement a recommendation of the Millan report. The Millan committee was particularly concerned about the position of people who have previously received treatment and who may be experiencing a relapse or deterioration of their condition. The committee wished there to be a provision that would give patients and carers a formal right to request an assessment in such cases but which would not cut across the existing statutory procedures, for example those for community care assessments.

The amendment is not restricted to patients who might require compulsory care and we hope that it will provide reassurance to service users and carers that the NHS and local authorities will respond if the service user becomes unwell.

I move amendment 1037.

Amendment 1037 agreed to.

Section 213—Non-consensual sexual acts

Amendment 1039 is grouped with amendments 1040, 1041, 1045, 1046 and 1048.

Amendments 1039 and 1040 will replace the word "patient" with "mentally disordered person". The definition of "patient" in section 228 is:

"a person who has, or appears to have, a mental disorder".

That definition is too broad for section 213. The offence should be capable of being committed in respect of someone who actually has a mental disorder.

Amendments 1045, 1046 and 1048 are consequential on amendments 1039 and 1040 and will replace references to the "patient" with references to the "person".

I move amendment 1039.

Amendment 1039 agreed to.

Amendments 1040 and 1041 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1042 is grouped with amendments 1043 and 1044.

These are minor drafting amendments that will delineate more clearly the circumstances in which the mentally disordered person will not be taken to have consented to a sexual act.

I move amendment 1042.

Amendment 1042 agreed to.

Amendments 1043 to 1046 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1047 is grouped with amendment 1049.

Amendment 1047 will restrict appropriately the availability of the defence in section 213(5). The fact that the accused was not aware of the fact that the person had a mental disorder and was incapable of consenting to the sexual act is relevant only if the basis of the charge is that the mentally disordered person was incapable of consenting. It should not apply if the person did not consent. The amendment makes that clear.

Amendment 1049 will correct the terms of section 213(5). For the defence in that subsection to operate, the accused must demonstrate that he did not know, and could not reasonably be expected to know, both of the matters set out: that the victim had a mental disorder, and that they were incapable of consenting. It would not be enough, for example, for the accused to say that he was not aware that the victim was incapable of consenting if he was aware that the victim had a mental disorder.

I move amendment 1047.

Amendment 1047 agreed to.

Amendments 1048 and 1049 moved—[Mrs Mary Mulligan]—and agreed to.

Section 213, as amended, agreed to.

Section 214 agreed to.

Section 215—Persons providing care services: sexual offences

Amendment 1318 is grouped with amendments 1322 and 1324.

Amendment 1318 will extend the scope of the offence under section 215. As drafted, the offence can be committed only by persons who are providing certain care services as defined in the Regulation of Care (Scotland) Act 2001.

It was always our intention that, as is the case with section 107 of the Mental Health (Scotland) Act 1984, the offence could also be considered to have been committed by people working in or managing a hospital who have sexual relationships with hospital patients who are being treated for mental disorder. The amendment provides for that.

Amendment 1322 will make it clear that the offence may be committed by the providers of a care service and by staff working for the care service, whether under a contract of employment or another contract.

Amendment 1324 will replace the definition of "sexual act" in section 215(6) with the more straightforward definition in section 213(8).

I move amendment 1318.

Amendment 1318 agreed to.

Amendment 1319 is grouped with amendment 1320.

Amendment 1319 will delete section 215(2), which will be replaced by amendment 1320.

Amendment 1320 will add provision to deal with the situation of a pre-existing sexual relationship involving a mentally disordered person who is in hospital. The provision makes it clear that section 215(3) applies to both sexual intercourse and other sexual acts and removes repetition of the reference to mental disorder.

I move amendment 1319.

Amendment 1319 agreed to.

Amendment 1320 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1321 is grouped with amendment 1328.

Amendment 1321 will add provisions to make it clear that offences under section 215 can be charged as summary or solemn offences.

Amendment 1328 will provide that the time limits for summary criminal proceedings, raised under sections 213 or 215, will be the same as for the sexual offences at sections 1 to 3 of the Criminal Law (Consolidation) (Scotland) Act 1995. The effect is that summary proceedings may be commenced at any time within the period of six months from the date on which evidence sufficient in the opinion of the Lord Advocate to justify the proceedings comes to his knowledge.

I move amendment 1321.

Amendment 1321 agreed to.

Amendment 1322 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1323 is grouped with amendments 1325 and 1326.

Amendment 1323 will expand the definition of "care service" to include all the relevant statutory references from the Regulation of Care (Scotland) Act 2001.

Amendments 1325 and 1326 will simplify the drafting of section 217 by making the references to care services consistent with section 215.

I move amendment 1323.

Amendment 1323 agreed to.

Amendment 1324 moved—[Mrs Mary Mulligan]—and agreed to.

Section 215, as amended, agreed to.

Section 216 agreed to.

Section 217—Ill-treatment and wilful neglect of mentally disordered person

Amendments 1325 and 1326 moved—[Mrs Mary Mulligan]—and agreed to.

Section 217, as amended, agreed to.

After section 217

Amendment 1327 is in a group on its own.

Amendment 1327 will introduce a new section that makes it an offence to induce or knowingly assist a patient to abscond or to harbour a patient who has absconded. The new section will replace section 108 of the 1984 act.

The offence links to absconding as defined in part 16. Specifically, it is an offence to induce or knowingly assist a patient to act or fail to act in such a way as to cause a patient to become liable to be taken into custody under section 203 or section 204.

We have taken account of concerns that were expressed by the Millan committee about people who may shelter a mentally disordered person because they believe that that is in the person's best interests. It is not an offence to act or fail to act where that does not interfere with the duties of other persons who are carrying out duties under the bill or where the action or omission

"is calculated to protect the interests of the patient."

I move amendment 1327.

Amendment 1327 agreed to.

Section 218—Obstruction

Amendment 1050 is in a group on its own.

Amendment 1050 will amend section 218, which creates the offence of obstruction, by generalising the defence against the charge of obstruction. The amendment will remove paragraphs (a) to (d) of section 218(3), which provide specific defences for various acts of obstruction, and replace them with the general defence

"that the accused had a reasonable excuse".

I move amendment 1050.

Amendment 1050 agreed to.

Section 218, as amended, agreed to.

After section 218

Amendment 1038 is in a group on its own.

Amendment 1038 is necessary to remedy an omission in the bill as introduced. It will introduce a section to implement the policy that anyone who knowingly makes a false statement in a written document performing a function under the bill should be guilty of an offence. The amendment more or less re-enacts a provision in section 104 of the 1984 act. Documents produced by the patient in respect of nominating a named person, preventing a person from becoming a named person or making an advance statement are exempt from the provision.

I move amendment 1038.

Amendment 1038 agreed to.

Amendment 1328 moved—[Mrs Mary Mulligan]—and agreed to.

Section 219—Appeal to sheriff principal against certain decisions of the Tribunal

Amendment 1329 is grouped with amendments 1330 to 1336.

The purpose of amendments 1329 to 1336 is to provide additional appeal rights to reflect the additional powers that we have given the tribunal during stage 2. Amendment 1334 will introduce a range of appeal rights relating to decisions made under the new provisions that will be introduced by amendment 1109. It will provide an appeal structure for the review of compulsion orders similar to that for the review of compulsory treatment orders.

I move amendment 1329.

Amendment 1329 agreed to.

Amendments 1330 to 1336 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1337 is grouped with amendments 1338, 1339 and 1341.

Amendment 1337 will clarify the wording of section 219(5). Amendments 1338 and 1339 will confirm the extent of the group of patients in relation to which Scottish ministers are among the relevant parties for the purposes of appeals. The amendments will confirm that that group includes patients subject to

"a compulsion order and a restriction order";

patients subject to

"a hospital direction";

and patients subject to

"a transfer for treatment direction."

Amendment 1340 will simplify section 222. Because of the context of the section, a reference to a "patient" can relate only to a restricted patient. The word "restricted" is unnecessary.

Amendment 1341 will ensure that the appropriate definition of "relevant party" from section 219 also applies in section 220.

I move amendment 1337.

Amendment 1337 agreed to.

Amendment 264 not moved.

Amendments 1338 and 1339 moved—[Mrs Mary Mulligan]—and agreed to.

Section 219, as amended, agreed to.

Section 220—Appeal to Court of Session against decision of the sheriff principal

Amendment 1341 moved—[Mrs Mary Mulligan]—and agreed to.

Section 220, as amended, agreed to.

Section 221 agreed to.

Section 222—Appeal by Scottish Ministers under section 221: suspension of Tribunal's decision

Amendment 1340 moved—[Mrs Mary Mulligan]—and agreed to.

Section 222, as amended, agreed to.

Sections 223 and 224 agreed to.

Section 225—Orders, regulations and rules

Amendment 1342 is grouped with amendments 1343 and 1052.

Amendment 1052 will introduce a new section that provides the Scottish ministers with the power to make changes to any acts that are consequential on provision that is made in the bill. For example, the power is necessary to update references to the 1984 act in other legislation.

Amendment 1342 will make changes to section 225(3) that are consequential on amendment 1343. Amendment 1343 will modify section 225(4) to ensure that certain orders and regulations are made subject to affirmative resolution. The amendment fulfils commitments that have been made to the Subordinate Legislation Committee and the Health and Community Care Committee.

I move amendment 1342.

Amendment 1342 agreed to.

Amendment 1343 moved—[Mrs Mary Mulligan]—and agreed to.

Section 225, as amended, agreed to.

Section 226—Directions

Amendments 828 and 829 moved—[Mrs Mary Mulligan]—and agreed to.

Section 226, as amended, agreed to.

Section 228—Interpretation

Amendment 1026 is grouped with amendments 1027 and 1028.

These amendments will amend the definitions of "assessment order", "compulsion order" and "interim compulsion order" to specify more precisely the subsection in which each term is defined.

I move amendment 1026.

Amendment 1026 agreed to.

Amendment 265 not moved.

Amendment 353 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 830 is grouped with amendment 831.

Currently, section 228 contains a definition of "primary carer". Amendments 830 and 831 split the definition into a definition of "carer", provided by amendment 830, and a definition of "primary" in relation to a carer, provided by amendment 831. The sense of "primary carer" is not changed, but other carers are now formally defined.

I move amendment 830.

Amendment 830 agreed to.

Amendments 354, 1027, 146, 233, 1028 and 490 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1344 is in a group on its own.

The purpose of amendment 1344 is to ensure that the definition of "medical treatment" that may be authorised under the bill includes investigations that are required to ensure that treatment can be administered safely. Amendment 1344 was suggested to me by the Mental Welfare Commission and the Law Society of Scotland. The reason for their doing that is that when treatments such as drugs or electroconvulsive therapy are used to treat mental disorder, it is sometimes necessary to carry out investigations before or during the treatment to ensure that it can be given safely. It is not permitted to give clozapine without blood tests to check the side effects on blood cells.

It would be helpful and appropriate to make it clear that authorisation of treatment for mental disorder under the bill includes authorisation of physical investigations without which the treatment could not be given safely. It has been said that that is not at all clear from the similar definition of medical treatment in the 1984 act. We seek clarification. Amendment 1344 provides an opportunity to make the issue clear in future.

I move amendment 1344.

I am grateful to Shona Robison for lodging amendment 1344, not least because it has given me a break in proceedings. We have no difficulty with the intended effect. If medical treatment for mental disorder cannot be given safely without a blood test or other investigatory procedure, that test or procedure should be seen as part of the medical treatment and, potentially, as being covered by the regime in part 13 of the bill.

However, we cannot accept amendment 1344 as it stands. In our view, it is unnecessary. We do not think that medical treatment for mental disorder can be divided up into parts, some of which are covered in the definition in the bill and some not. Any physical investigations that are necessary for treatment to be administered safely and which are done for that purpose are part and parcel of the treatment and so would be covered by the definition in the bill. Amendment 1344 seeks to put that beyond doubt, but it is technically flawed. It could cast doubt on other aspects of treatment that are not mentioned specifically but which should also be included in the definition.

We are aware that, in the past, legal views have been expressed that cast doubt on whether the definition of medical treatment in the 1984 act covers procedures such as blood tests. We appreciate the wish to avoid such doubt in relation to the bill. We wish to consider the matter further in consultation with the Mental Welfare Commission and other parties to see whether an amendment to the bill would be helpful. If it would be, we will lodge a suitable amendment at stage 3.

With that reassurance, I hope that Shona Robison will feel able not to press amendment 1344.

On the basis that there will be further consultation, I am happy to withdraw amendment 1344.

Amendment 1344, by agreement, withdrawn.

Amendments 831, 355, 356 and 147 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 1051 is in a group on its own.

Amendment 1051 modifies the definition of "welfare attorney" in section 228 so that it reflects the provisions in the Adults with Incapacity (Scotland) Act 2000 concerning when such a power becomes effective.

I move amendment 1051.

Amendment 1051 agreed to.

Amendments 101 to 104 moved—[Mrs Mary Mulligan]—and agreed to.

Section 228, as amended, agreed to.

After section 228

Amendment 1052 moved—[Mrs Mary Mulligan]—and agreed to.

Section 229—Minor and consequential amendments and repeals

Amendment 1345 is grouped with amendments 1346, 1351, 1352, 1035, 1353, 1354, 603 and 1355 to 1357.

Schedule 4 deals with repeals to existing primary legislation. Amendment 1357 introduces a new part to schedule 4 concerning revocation of existing secondary legislation. Amendments 1351, 1352, 1353 and 1356 add to the listed repeals provisions from acts not previously mentioned in schedule 4. Amendments 1035, 1354 and 1355 refine the list of provisions of the Criminal Procedure (Scotland) Act 1995 and the Adults with Incapacity (Scotland) Act 2000 that are to be repealed. Amendments 1345 and 1346 are technical amendments that are consequential on amendment 1357, which divides schedule 4 into two parts.

I move amendment 1345.

Amendment 1345 agreed to.

Amendment 1346 moved—[Mrs Mary Mulligan]—and agreed to.

Section 229, as amended, agreed to.

Schedule 3

Minor and consequential amendments

Amendment 1347 is grouped with amendments 1036, 1030, 1031, 619 and 1348 to 1350.

Schedule 3 deals with minor and consequential amendments to other acts arising from provisions made in the bill. Amendment 1036 modifies section 59 of the Criminal Procedure (Scotland) Act 1995 to clarify the conditions under which a restriction order may be made in addition to a compulsion order. Amendments 619 and 1348 introduce new consequential amendments to the Adults with Incapacity (Scotland) Act 2000. Amendment 1347 introduces consequential amendments to the Children (Scotland) Act 1995. Amendment 1350 introduces consequential amendments to the Housing (Scotland) Act 2001.

The remaining amendments in the group refine the consequential amendments to legislation already listed in schedule 3, partly to correct errors in the bill as introduced and partly to take account of changes to the bill that have been made during stage 2.

I move amendment 1347.

Amendment 1347 agreed to.

Amendments 887, 1036, 1029 to 1033, 619 and 1348 to 1350 moved—[Mrs Mary Mulligan]—and agreed to.

Schedule 3, as amended, agreed to.

Schedule 4

Repeals

Amendments 1351, 1352, 1034, 1035, 1353 and 1354 moved—[Mrs Mary Mulligan]—and agreed to.

Amendment 603 not moved.

Amendments 1355 to 1357 moved—[Mrs Mary Mulligan]—and agreed to.

Schedule 4, as amended, agreed to.

Section 230 agreed to.

Section 231—Short title and commencement

Amendment 266 is in the name of Adam Ingram.

Amendment 266 is designed to change the short title from the Mental Health (Scotland) Act to the Mental Health (Care and Treatment) (Scotland) Act.

The bill is not as comprehensive as its title suggests, as it does not cover all aspects of the mental health agenda. The bill is concerned with the care and treatment of people with mental illness and disorder and its label should describe its contents accurately.

Amendment 266 might also help in a small way to lessen the stigma that people with mental ill health suffer. That stigma would be reinforced every time the media mentioned people being detained under the Mental Health (Scotland) Act. The addition of the words "Care and Treatment" would give the bill more positive connotations.

I move amendment 266.

I support Adam Ingram. In response to information of that nature, we said in the committee's stage 1 report:

"The Committee sympathises with these points, and invites the Executive to reconsider the appropriateness of the short title."

I am reminded that the Parliament has passed the Regulation of Care (Scotland) Act 2001 and the Community Care and Health (Scotland) Act 2002. I support Adam Ingram in his proposal to insert the words "Care and Treatment" into the short title.

I, too, support Adam Ingram. Amendment 266 might seem a simple amendment, but it has significance. One of the themes that runs through the bill is the care and treatment of people who suffer from mental disorder. As it stands, the bill sends out signals that mental health is about mental disorder—the title should have a more positive spin to it. If the Executive is opposed to the proposed short title, I would like to find out what its arguments are for opposing a positive and simple amendment that has the support of many users.

I ask the minister to respond and to answer Mr McAllion's question, which I have to say is mine as well.

We have considered carefully amendment 266, which was lodged by Adam Ingram. The name of the bill was considered by the Millan committee and by the Health and Community Care Committee at stage 1. In both cases, concerns were identified about the current name, but no clear consensus was reached about an alternative title for the bill.

We asked the mental health legislation reference group for its views on amendment 266. The majority of the group did not support the change. It suggested that the proposed title would not cover the full scope of the bill, including the roles of the tribunal and the Mental Welfare Commission for Scotland, the forensic aspects and the protective measures. It was also argued that people would continue to refer to the Mental Health (Scotland) Act even if extra words were added to its formal title.

A minority of the group supported a name change and, although it was acknowledged that coming up with a suitable title was difficult, some felt that amendment 266 was a reasonable compromise.

On balance, we feel that the suggested change has not attracted sufficient consensus for us to support it. We will continue to consider suggestions that are made and will consider the views of the committee and any suggestions that it has. For the moment, I ask Adam Ingram not to press amendment 266.

I am minded to press the amendment. I am not convinced by the minister's response. If we change the short title now, we can at least have a proper debate on it at stage 3.

The question is, that amendment 266 be agreed to. Are we agreed?

No.

There will be a division.

For

McAllion, Mr John (Dundee East) (Lab)
Robison, Shona (North-East Scotland) (SNP)
Scanlon, Mary (Highlands and Islands) (Con)
Sturgeon, Nicola (Glasgow) (SNP)

Against

Butler, Bill (Glasgow Anniesland) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)

Abstentions

Smith, Mrs Margaret (Edinburgh West) (LD)

The result of the division is: For 4, Against 3, Abstentions 1.

Amendment 266 agreed to.

Section 231, as amended, agreed to.

Long title agreed to.

That ends stage 2 consideration of the bill. I thank all members of the committee, the minister, the ministerial team and the Executive team behind the bill. I acknowledge the work that our clerks have done on a very difficult piece of work. I also thank everybody who gave us oral and written evidence on a very difficult but interesting piece of work for the committee.

Meeting closed at 11:46.