beta

You're viewing our new website - find out more

Publication - Consultation paper

Draft regulations transferring the Mental Health Tribunal for Scotland to the Scottish Tribunals: consultation

Consultation papers on the draft regulations transferring the Mental Health Tribunal to the Scottish Tribunals.

113 page PDF

2.1 MB

113 page PDF

2.1 MB

Contents
Draft regulations transferring the Mental Health Tribunal for Scotland to the Scottish Tribunals: consultation
Annex A

113 page PDF

2.1 MB

Annex A

Scottish Statutory Instruments

2018 No.

tribunals and inquiries

The First-tier Tribunal for Scotland (Transfer of Functions and Members of the Mental Health Tribunal for Scotland) Regulations 2018

Made - - - - 2018

Coming into force - - 12th November 2018

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 20(2), 28(2), 28(6), 79(1) and 80(1) and paragraph 1(1) of schedule 2 of the Tribunals (Scotland) Act 2014( a) and all other powers enabling them to do so.

In accordance with section 11(1)(a) and (b) of that Act, the Scottish Ministers have obtained the Lord President’s approval and have consulted such other persons as they considered appropriate.

In accordance with section 79(2)(a) and (b) and section 80(2)(a) of that Act, a draft of this instrument has been laid before, and approved by resolution of, the Scottish Parliament.

Citation and commencement

1. —(1) These Regulations may be cited as the First-tier Tribunal for Scotland (Transfer of Functions and Members of the Mental Health Tribunal for Scotland) Regulations 2018.
(2) These Regulations come into force on 12th November 2018.

Interpretation

2. In these Regulations—

"the appointed day" means 12th November 2018;
"general member of the MHTS" means a member of a panel appointed under paragraph 1(1)(c) of schedule 2 of the 2003 Act;
"proceedings before the MHTS" means any application, reference or appeal to the MHTS, any review by it, or any case remitted to it;
"the 2003 Act" means the Mental Health (Care and Treatment) (Scotland) Act 2003( b);
"the 2014 Act" means the Tribunals (Scotland) Act 2014( c);
"functions of the MHTS" mean the functions conferred on the MHTS by virtue of the 2003 Act;
"legal member of the MHTS" means a member of a panel appointed under paragraph 1(1)(a) of schedule 2 of the 2003 Act;
"medical member of the MHTS" means a member of a panel appointed under paragraph 1(1)(b) of schedule 2 of the 2003 Act;
" MHTS" means the Mental Health Tribunal for Scotland constituted in accordance with schedule 2 of the 2003 Act;
"President of the MHTS" means the individual appointed under paragraph 3(1) of schedule 2 of the 2003 Act to be President of the MHTS; and
"sheriff convener" means a member of a panel appointed under paragraph 2 of schedule 2 of the 2003 Act.

Transfer of functions to the First-tier Tribunal and abolition

3. —(1) Subject to regulations 4 and 5, on the appointed day the functions of the MHTS are transferred to the First-tier Tribunal with allocation to the First-tier Tribunal Mental Health Chamber.
(2) The MHTS is abolished on the appointed day.

Transfer of MHTS members to the First-tier Tribunal

4. —(1) Subject to paragraphs (2) and (3), members of the MHTS under the age of 70 on the appointed day are transferred to and become members of the First-tier Tribunal, with—
(a) legal members of the MHTS becoming legal members of the First-tier Tribunal;
(b) medical members of the MHTS and general members of the MHTS becoming ordinary members of the First-tier Tribunal; and
c) the President of the MHTS becoming Chamber President of the First-tier Tribunal Mental Health Chamber.
(2) Members of the MHTS transferred to the First-tier Tribunal under paragraph (1) shall (subject to the provisions of the 2014 Act) be members of the First-tier Tribunal in accordance with terms and conditions to be offered by the Scottish Ministers on transfer, which will supersede any existing terms and conditions of appointment.
(3) A member of the MHTS who is aged 70 or over on the appointed day shall transfer only if the Scottish Ministers in consultation with the President of Tribunals consider it is desirable in the public interest that the member should transfer.
(4) Paragraph (1) does not apply to any member of the MHTS if the member has already been transferred to and is a member of the First-tier Tribunal by virtue of regulations made under section 28(2) of the 2014 which were in force prior to the appointed day.
(5) Paragraph (1) does not apply to any member of the MHTS who is not eligible for appointment to the First-tier Tribunal under regulations made by Scottish Ministers under paragraph 1(2) of schedule 3 of the 2014 Act.

Transitional and savings provisions

5. Schedule 1 of these Regulations contains transitional and savings provisions.

Consequential amendments and repeals

6. —(1) The consequential amendments and repeals of primary legislation set out in Part 1 of schedule 2 of these Regulations have effect.
(2) The consequential amendments to subordinate legislation set out in Part 2 of schedule 2 of these Regulations have effect.
(3) The consequential revocations of subordinate legislation set out in Part 3 of schedule 2 of these Regulations have effect.

A member of the Scottish Government
St Andrew’s House,
Edinburgh
2018

Schedule 1
Transitional and savings provisions

Proceedings in progress before the MHTS immediately before the appointed day to transfer to the First-tier Tribunal

1. Any application to the MHTS made before the appointed day but not determined, or any proceedings of the MHTS in progress immediately before that day, shall be transferred to and be completed by the First-tier Tribunal but with so far as possible the same persons hearing and determining the matter before the First-tier Tribunal as members of that tribunal as were prior to the appointed hearing the matter as members of the MHTS.

Decisions, directions and guidance of the MHTS to continue in force

2. Any decision, direction or guidance given or made in or in respect of any application to, or proceedings before, the MHTS which is in force immediately before the appointed day remains in force on and after that date as if it were a decision, direction or guidance of the First-tier Tribunal.

Time limits in respect of proceedings before the MHTS to carry over to the First-tier Tribunal

3. Any time limit which has started to run before the appointed day in respect of applications to, and proceedings before, the MHTS (and which has not expired) shall continue to apply where applications and proceedings are transferred to the First-tier Tribunal.

Unexercised right of appeal to sheriff principal, if exercised, is an appeal to the Upper Tribunal

4. Where in respect of a decision of the MHTS before the appointed day, there lies a right of appeal to a sheriff principal by virtue of section 320 of the 2003 Act, which has not been exercised before that date but is still exercisable, any appeal on or after the appointed day shall be to the Upper Tribunal as if the decision had been made by the First-tier Tribunal and the appeal shall be an appeal from the First-tier Tribunal for the purposes of section 46(1) of the 2014 Act.

Unexercised right of appeal to the Court of Session, if exercised, is still an appeal to the Court of Session

5. Where in respect of a decision of the MHTS before the appointed day, there lies a right of appeal to the Court of Session by virtue of section 322 of the 2003 Act which has not been exercised before that date but is still exercisable, any appeal on or after the appointed day shall not be affected by these Regulations and be to the Court of Session except that any reference in the 2003 Act to the Court of Session remitting such an appeal to it back to the MHTS shall be construed as a reference to remitting the appeal back to the First-tier Tribunal.

Exercised right of appeal to the sheriff principal shall be completed by the sheriff principal

6. Where in respect of a decision of the MHTS before the appointed day, there lies a right of appeal to the sheriff principal by virtue of section 320 of the 2003 Act which has been exercised before that date but not determined, the appeal shall not be affected by these Regulations and be completed by the sheriff principal except that—
(a) any reference in the 2003 Act to the sheriff principal remitting such an appeal back to the MHTS shall be construed as a reference to remitting the reference back to the First-tier Tribunal; and
(b) any appeal of the decision of the sheriff principal after the appointed day shall be to the Upper Tribunal, as if the decision of the sheriff principal had been made by the First-tier Tribunal and the appeal shall be an appeal from the First-tier Tribunal for the purposes of section 46(1) of the 2014 Act.

Exercised right of appeal to the Court of Session shall be completed by the Court of Session

7. Where in respect of a decision of the MHTS before the appointed day, there lies a right of appeal to the Court of Session by virtue of section 322 of the 2003 Act which has been exercised before that date but not determined, the appeal shall not be affected by these Regulations and be completed by the Court of Session except that any reference in the 2003 Act to the Court of Session remitting such an appeal to it back to the MHTS shall be construed as a reference to remitting the appeal back to the First-tier Tribunal.

Applications for Assistance by Way of Representation

8. Any application for assistance by way of representation made to the Scottish Legal Aid Board immediately before the appointed day in relation to proceedings before the Mental Health Tribunal for Scotland which has still to be determined or has been approved, shall be treated on or after the appointed day as if it had been made, or approved, in relation to proceedings before the First-tier Tribunal for Scotland Mental Health Chamber.

Schedule 2
Part 1

Consequential amendments and repeals of primary legislation

Tribunals and Inquiries Act 1992

1. —(1) The Tribunals and Inquiries Act 1992( a) is amended as follows.
(2) In Part II of Schedule 1 (tribunals under the supervision of Scottish committee), omit the entry for "Mental health" at paragraph 54A.

Scottish Public Services Ombudsman Act 2002

2. —(1) The Scottish Public Services Ombudsman Act 2002( b) is amended as follows.
(2) In schedule 3 (specified tribunals for the purposes of sections 6 and 7), omit paragraph 4A.

Criminal Justice (Scotland) Act 2003

3. —(1) The Criminal Justice (Scotland) Act 2003( c) is amended as follows.
(2) In section 16C(2)(g) (information to be given under section 16A), for "Mental Health Tribunal" substitute "First-tier Tribunal".
(3) In section 17B(5)(b) (mentally-disordered offender: victim’s right to make representations), for "Mental Health Tribunal" substitute "First-tier Tribunal"
(4) In section 17D(3)(b) (right to information after section 17B decision), for "Tribunal’s" substitute "First-tier Tribunal’s".
(5) In section 17E(1)(b) (information sharing in respect of mentally-disordered offenders), for "Mental Health Tribunal" substitute "First-tier Tribunal".
(6) In section 18A(1) (interpretation of part)—
(a) before the entry for "Mental Health Act" insert—
"First-tier Tribunal" means the First-tier Tribunal for Scotland Mental Health Chamber,; and
(b) omit the entry for "Mental Health Tribunal".

Mental Health (Care and Treatment) (Scotland) Act 2003

4. —(1) The Mental Health (Care and Treatment) (Scotland) Act 2003( d) is amended as follows.
(2) In section 1(7)(f) (principles for discharging certain functions), for "Tribunal" substitute "First-tier Tribunal".
(3) Part 3 (the Mental Health Tribunal for Scotland) is repealed.
(4) In section 48(2)(c) (extension certificate: notification), for "Tribunal" substitute "First-tier Tribunal".
(5) In section 49(4)(a) (responsible medical officer’s duty to review continuing need for detention), for "Tribunal" substitute "First-tier Tribunal".
(6) In section 50 (patient’s right to apply for revocation of short-term detention certificate or extension certificate etc.), in subsections (1)(b), (2), (3)(h), (3)(i) and (4), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(7) In section 52(g) (revocation of short-term detention certificate or extension certificate: notification), for "Tribunal" substitute "First-tier Tribunal".
(8) In section 57(1) (mental health officer’s duty to apply for compulsory treatment order), for "Tribunal" substitute "First-tier Tribunal".
(9) In section 61(4)(h) (mental health officer’s duty to prepare report), for "Tribunal" substitute "First-tier Tribunal".
(10) In section 63(1) (application for compulsory treatment order), for "Tribunal" substitute "First-tier Tribunal".
(11) In section 64 (powers of Tribunal on application under section 63: compulsory treatment order)—
(a) in subsections (2), (3)(i), (3)(j) and (5)(f) for "Tribunal" in each place where it occurs substitute "First-tier Tribunal";
(b) in subsection (4) for "Tribunal" in each place where it occurs substitute "First-tier Tribunal"; and
(c) in subsection (7) for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(12) The title of section 64 becomes " Powers of First-tier Tribunal on application under section 63: compulsory treatment order".
(13) In section 65 (powers of tribunal on application under section 63: compulsory treatment order), in subsections (2), (3), (4) and (5)(c), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(14) The title of section 65 becomes " Powers of First-tier Tribunal on application under section 63: interim compulsory treatment order".
(15) The italic heading preceding section 69 becomes " Time Limits for First-tier Tribunal’s determination: special case".
(16) In section 69 (time limit for determining application etc. where section 68 applies), for "Tribunal" substitute "First-tier Tribunal".
(17) In section 74(3)(f) (revocation under section 72 or 73: notification), for "Tribunal" substitute "First-tier Tribunal".
(18) In section 82(3)(f) (revocation of order: notification), for "Tribunal" substitute "First-tier Tribunal".
(19) In section 87 (determination extending order: notification etc.)—
(a) in subsections (2)(b) and (2)(c) and (4), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal";
(b) in subsection (4), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(20) In section 87A (further information where order extended), in subsections (1)(b), (2)(b), (2)(c) and (3), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(21) In section 90(2) (responsible medical officer’s duty to apply for extension and variation of order), for "Tribunal" substitute "First-tier Tribunal".
(22) In section 92 (application to Tribunal), for "Tribunal" substitute "First-tier Tribunal".
(23) The title of section 92 becomes " Application to First-tier Tribunal".
(24) In section 93 (responsible medical officer’s duties: variation of order), in subsections (4A)(a) and (4E)(a) and (5), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(25) In section 95 (application to tribunal by responsible medical officer), for "Tribunal" substitute "First-tier Tribunal".
(26) The title of section 95 becomes " Application to First-tier Tribunal by responsible medical officer".
(27) The italic heading preceding section 96 becomes "Recorded matters: reference to First-tier Tribunal by responsible medical officer".
(28) In section 96(3) (recorded matters: reference to tribunal by responsible medical officer), for "Tribunal" substitute "First-tier Tribunal".
(29) The title of section 96 becomes " Recorded matters: reference to First-tier Tribunal by responsible medical officer".
(30) In section 97 (reference to tribunal under section 96(3): notification), for "Tribunal" substitute "First-tier Tribunal".
(31) The title of section 97 becomes " Reference to First-tier Tribunal under section 96(3): notification".
(32) The italic heading preceding section 98 becomes " Reference to First-tier Tribunal by Commission".
(33) The title of section 98 becomes " Reference to First-tier Tribunal by Commission".
(34) In section 99(1) (application by patient etc. for revocation of determination extending order), for "Tribunal" substitute "First-tier Tribunal".
(35) In section 100(2) (application by patient etc. for revocation or variation of order), for "Tribunal" substitute "First-tier Tribunal".
(36) The italic heading preceding section 101 becomes "Review by First-tier Tribunal of determination extending order".
(37) In section 101 (tribunal’s duty to review determination under section 86), in subsections (2), (3)(b) and (3)(c), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(38) The title of section 101 becomes "First-tier Tribunal’s duty to review determination under section 86".
(39) The italic heading preceding section 102 becomes " Powers of First-tier Tribunal".
(40) In section 102 (powers of tribunal), in subsections (1), (2), (3)(h) and (3)(i), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(41) The title of section 102 becomes " Powers of First-tier Tribunal on review under section 101".
(42) In section 103 (powers of tribunal on application under section 92, 95, 99 or 100), in subsections (1), (2), (3), (4), (5) and (6)(b), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(43) The title of section 103 becomes " Powers of First-tier Tribunal on application under section 92, 95, 99 or 100".
(44) In section 104 (powers of tribunal on reference under section 96 or 98), in subsections (1), (2) and (3)(b), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(45) The title of section 104 becomes " Powers of First-tier Tribunal on reference under section 96 or 98".
(46) In section 105(2) (interim extension etc. of order: application under section 92), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(47) In section 106 (interim variation of order: application, reference or review under chapter)—
(a) in subsection (1)(c), for "Tribunal" substitute "First-tier Tribunal"; and
(b) in subsection (2), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(48) In section 107 (limit on tribunal’s power to make interim orders), for "Tribunal" substitute "First-tier Tribunal".
(49) The title of section 107 becomes " Limit of First-tier Tribunal’s power to make interim orders".
(50) In section 108 (tribunal’s order varying compulsory treatment order), for "Tribunal" both times it occurs substitute "First-tier Tribunal".
(51) The title of section 108 becomes " First-tier Tribunal’s order varying compulsory treatment order".
(52) In section 109 (ancillary powers of tribunal)—
(a) in subsections (1)(a), (1)(b), and (1)(c), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal"; and
(b) in subsection (2), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(53) The title of section 109 becomes " Ancillary powers of First-tier Tribunal".
(54) In section 120(2) (certificates under sections 114(2) and 115(2): patient’s right to apply to tribunal), for "Tribunal" substitute "First-tier Tribunal".
(55) The title of section 120 becomes " Certificates under sections 114(2) and 115(2): patient’s right to apply to First-tier Tribunal".
(56) In section 125 (transfer to hospital other than state hospital: appeal to tribunal)-
(a) in subsections (2) and (5), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal"; and
(b) in subsection (4), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(57) The title of section 125 becomes " Transfer to hospital other than state hospital: appeal to First-tier Tribunal".
(58) In section 126 (transfer to hospital: appeal to tribunal)—
(a) in subsections (2) and (5), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal"; and
(b) in subsection (4), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(59) The title of section 126 becomes " Transfer to hospital: appeal to First-tier Tribunal".
(60) In section 144(3)(f) (revocation of compulsion order: notification), for "Tribunal" substitute "First-tier Tribunal".
(61) In section 148(3) (first review: responsible medical officer’s duty to apply for extension of compulsion order), for "Tribunal" substitute "First-tier Tribunal".
(62) In section 149 (application to tribunal for extension of order following first review), for "Tribunal" substitute "First-tier Tribunal".
(63) The title of section 149 becomes " Application to First-tier Tribunal for extension of order following first review".
(64) In section 153 (determination extending compulsion order: notification)—
(a) in subsection (2)(b) and (2)(c), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal"; and
(b) in subsection (4), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(65) In section 153A (further information on extension of compulsion order), in subsections (1)(b), (2)(b), (2)(c) and (3) for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(66) In section 154(3)(a) (responsible medical officer’s duty where extension and variation proposed), for "Tribunal" substitute "First-tier Tribunal".
(67) In section 156(2) (responsible medical officer’s duty to apply for extension and variation of compulsion order), for "Tribunal" substitute "First-tier Tribunal".
(68) In section 158 (application to tribunal for extension and variation of compulsion order), for "Tribunal" substitute "First-tier Tribunal".
(69) The title of section 158 becomes " Application to First-tier Tribunal for extension and variation of compulsion order".
(70) In section 161 (application to Tribunal by responsible medical officer), for "Tribunal" substitute "First-tier Tribunal".
(71) The title of section 161 becomes " Application to First-tier Tribunal by responsible medical officer".
(72) The italic heading preceding section 162 becomes " Reference to First-tier Tribunal by Commission".
(73) In section 162(2) (commission’s power to make reference to tribunal), for "Tribunal" substitute "First-tier Tribunal".
(74) The title of section 162 becomes " Commission’s power to make reference to First-tier Tribunal".
(75) The italic heading preceding section 163 becomes " Applications to First-tier Tribunal by patient etc".
(76) In section 163 (application to tribunal by patient etc. For revocation of determination extending compulsion order), in subsections (1) and (2) for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(77) The title of section 163 becomes " Application to First-tier Tribunal by patient etc. for revocation of determination extending compulsion order".
(78) In section 164(2) (application to tribunal by patient etc. For revocation or variation of compulsion order), for "Tribunal" substitute "First-tier Tribunal".
(79) The title of section 164 becomes " Application to First-tier Tribunal by patient etc. for revocation or variation of compulsion order".
(80) The italic heading preceding section 165 becomes " Review by First-tier Tribunal of determination extending order".
(81) In section 165(2) (tribunal’s duty to review determination under section 152), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(82) The title of section 165 becomes " First-tier Tribunal’s duty to review determination under section 152".
(83) The italic heading preceding section 166 becomes " Powers of First-tier Tribunal".
(84) In section 166 (power of tribunal on review under section 165), in subsections (1), (2), (3)(h) and (3)(i), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(85) The title of section 166 becomes " Powers of First-tier Tribunal on review under section 165".
(86) In section 167 (powers of tribunal on application under section 149, 158, 161, 163 or 164), in subsections (1), (2), (3), (4), (5), (6) and (7)(b), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(87) The title of section 167 becomes " Powers of First-tier Tribunal on application under section 149,158, 161, 163 or 164".
(88) In section 168(2) (interim extension etc. of order: application under section 149 or 158), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(89) In section 169 (interim variation of order following application, reference or review under chapter)—
(a) in subsection (1)(c), for "Tribunal" substitute "First-tier Tribunal"; and
(b) in subsection (2), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(90) In section 170 (limit on power of tribunal to make interim order), for "Tribunal" substitute "First-tier Tribunal".
(91) The title of section 170 becomes " Limit on power of First-tier Tribunal to make interim order".
(92) In section 171 (powers of tribunal on reference under section 162), in subsections (1), (2) and (3)(b), for "Tribunal" in each place it occurs substitute "First-tier Tribunal".
(93) The title of section 171 becomes " Powers of First-tier Tribunal on reference under section 162".
(94) In section 172 (tribunal’s order varying compulsion order), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(95) The title of section 172 becomes "First-tier Tribunal’s order varying compulsion order".
(96) In section 173 (applications to tribunal: ancilliary powers)—
(a) in subsections (1)(a) and (1)(b), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(b) in subsection (2), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(97) The title of section 173 becomes " Applications to First-tier Tribunal: ancillary powers".
(98) The italic heading preceding section 185 becomes "Reference to First-tier Tribunal by Scottish Ministers".
(99) In section 185(1) (duty of Scottish ministers on receiving report from responsible medical officer), for "Tribunal" substitute "First-tier Tribunal".
(100) In section 186(2) (commission’s power to require Scottish ministers to make reference to tribunal), for "Tribunal" substitute "First-tier Tribunal".
(101) The title of section 186 becomes " Commission’s power to require Scottish Ministers to make reference to First-tier Tribunal".
(102) In section 187(2) (notice under section 186(2): reference to tribunal), "Tribunal" substitute "First-tier Tribunal".
(103) The title of section 187 becomes " Notice under section 186(2): reference to First-tier Tribunal".
(104) In section 188 (duty of Scottish ministers to keep compulsion order and restriction order under review), in subsections (3), (4), (5), (6) and (7), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(105) In section 189 (reference to tribunal by Scottish ministers)—
(a) in subsection (2), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal";
(b) in subsection (3), for "Tribunal" substitute "First-tier Tribunal".
(106) The title of section 189 becomes " Reference to First-tier Tribunal by Scottish Ministers".
(107) In section 191 (application to tribunal), for "Tribunal" substitute "First-tier Tribunal".
(108) The title of section 191 becomes " Application to First-tier Tribunal".
(109) In section 192 (application to tribunal by patient and named person), in subsections (2) and(4)(b)(ii), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(110) The title of section 192 becomes " Application to First-tier Tribunal by patient and named person".
(111) The italic heading preceding section 193 becomes " Proceedings before First-tier Tribunal".
(112) In section 193 (powers of tribunal on reference under section 185(1), 187(2) or 189(2) or application under section 191 or 192(2))—
(a) in subsections (2), (4), (5), (6), (8), (9)(f), (9)(j) and (10), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal";
(b) in subsection (3), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal";
(c) in subsection (7), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal"; and
(d) in subsection (9A), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(113) The title of section 193 becomes " Powers of First-tier Tribunal on reference under section 185(1), 187(2) or 189(2) or application under section 191 or 192(2)".
(114) In section 194 (tribunal’s powers etc. when varying compulsion order), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(115) The title of section 194 becomes " First-tier Tribunal’s powers etc. when varying compulsion order".
(116) In section 195 (deferral of conditional discharge), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(117) In section 196(1) (general effect of orders under section 193), for "Tribunal" substitute "First-tier Tribunal".
(118) In section 197 (effect of revocation of compulsion order), for "Tribunal" substitute "First-tier Tribunal".
(119) In section 198(1) (effect of revocation of restriction order), for "Tribunal" substitute "First-tier Tribunal".
(120) In section 200 (variation of conditions imposed on conditional discharge), in subsections (1)(a), (1)(b), (2) and (3), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(121) In section 201 (appeal to tribunal against variation of conditions imposted on conditional discharge)—
(a) in subsection (1) for "Tribunal" in both places it occurs substitute "First-tier Tribunal"; and
(b) in subsection (3) for "Tribunal" substitute "First-tier Tribunal".
(122) The title of section 201 becomes " Appeal to First-tier Tribunal against variation of conditions imposed on conditional discharge".
(123) In section 202(1) (recall of patients from conditional discharge) for "Tribunal" substitute "First-tier Tribunal".
(124) In section 204 (appeal to tribunal against recall from conditional discharge), in subsections (1) and (3) for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(125) The title of section 204 becomes " Appeal to First-tier Tribunal against recall from conditional discharge".
(126) The italic heading preceding section 209 becomes "Reference to First-tier Tribunal by Scottish Ministers".
(127) In section 209(2) (commission’s power to require Scottish ministers to make reference to tribunal), for "Tribunal" substitute "First-tier Tribunal".
(128) The title of section 209 becomes " Commission’s power to require Scottish Ministers to make reference to First-tier Tribunal".
(129) In section 210(3) (duty of Scottish ministers on receiving report from responsible medical officer), for "Tribunal" substitute "First-tier Tribunal".
(130) In section 211(2) (notice under section 209(2): reference to tribunal), for "Tribunal" substitute "First-tier Tribunal".
(131) The title of section 211 becomes " Notice under section 209(2): reference to First-tier Tribunal".
(132) In section 213 (reference to tribunal by Scottish ministers)-
(a) in subsection (2), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal"; and
(b) in subsection (3), for "Tribunal" substitute "First-tier Tribunal".
(133) The title of section 213 becomes " Reference to First-tier Tribunal by Scottish Ministers".
(134) In section 214(2) (application to tribunal by patient and named person), for "Tribunal" substitute "First-tier Tribunal".
(135) The title of section 214 becomes " Application to First-tier Tribunal by patient and named person".
(136) The italic heading preceding section 215 becomes " Proceedings before the First-tier Tribunal".
(137) In section 215 (powers of tribunal on reference under section 210(3), 211(2) or 213(2) or on application under section 214(2))—
(a) in subsections (2), (3), (5), (6), (7)(f), (7)(j) and (8), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal";
(b) in subsection (4), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(138) The title of section 215 becomes " Powers of First-tier Tribunal on reference under section 210(3), 211(2) or 213(2) or on application under section 214(2)".
(139) In section 219 (appeal to tribunal against transfer under section 218 to hospital other than state hospital)—
(a) in subsections (2) and (5), for "Tribunal" in both places it occurs substitute "First-tier Tribunal"; and
(b) in subsection (4), for "Tribunal" in both places it occurs substitute "First-tier Tribunal".
(140) The title of section 219 becomes " Appeal to First-tier Tribunal against transfer under section 218 to hospital other than state hospital".
(141) In section 220 (appeal to tribunal against transfer under section 218 to state hospital)—
(a) in subsections (2) and (5), for "Tribunal" in both places it occurs substitute "First-tier Tribunal"; and
(b) in subsection (4), for "Tribunal" in both places it occurs substitute "First-tier Tribunal".
(142) The title of section 220 becomes "Appeal to First-tier Tribunal against transfer under section 218 to state hospital".
(143) In section 256(1) (named person: application by patient etc.), for "Tribunal" substitute "First-tier Tribunal".
(144) In section 257 (named person: tribunal’s powers)—
(a) in subsection (2), for "Tribunal" in both places it occurs substitute "First-tier Tribunal"; and
(b) in subsections (3), (4) and (6)(a), for "Tribunal" in each place it occurs substitute "First-tier Tribunal".
(145) The title of section 257 becomes " Named person: First-tier Tribunal’s powers".
(146) In section 264 (detention in conditions of excessive security: state hospitals) in subsections (2), (3), (4), (5) and (9), for "Tribunal" in each places it occurs substitute "First-tier Tribunal".
(147) In section 265 (order under section 264: further provision)—
(a) in subsection (2), for "Tribunal" in both places it occurs substitute "First-tier Tribunal"; and
(b) in subsections (3), (4), (5), (6) and (7) for "Tribunal" in each place it occurs substitute "First-tier Tribunal".
(148) In section 267 (order under section 264 or 265: recall), in subsection (2) and (5), for "Tribunal" in both places it occurs substitute "First-tier Tribunal".
(149) In section 268 (detention in conditions of excessive security: hospitals other than state hospitals), in subsections (2), (3), (4), (5), (9), (10)(i) and (10)(l), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(150) In section 269 (order under section 268: further provision)—
(a) in subsection (2), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal";
(b) in subsection (3), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal"; and
(c) in subsections (4), (5), (6) and (7), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(151) In section 271 (orders under sections 268 or 269: recall), in subsections (2) and (5), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(152) In section 274(5)(b) (code of practice), for "Tribunal" substitute "First-tier Tribunal".
(153) In section 276 (advance statements: effect)—
(a) in subsection (6), for "Tribunal" substitute "First-tier Tribunal"; and
(b) in subsection (7), for "Tribunal" in both places it occurs substitute "First-tier Tribunal".
(154) In section 291 (application to tribunal in relation to unlawful detention), in subsections (2) and (3), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(155) The title of section 291 becomes " Application to First-tier Tribunal in relation to unlawful detention".
(156) Section 320 (appeal to sheriff principal against certain decisions of the Tribunal) is repealed.
(157) Section 321 (appeal to Court of Session against decisions of sheriff principal) is repealed.
(158) In section 322 (appeal to court of session against certain decisions of the tribunal), in subsections (1) and (2), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(159) The title of section 322 becomes " Appeal to Court of Session against certain decisions of the First-tier Tribunal".
(160) In section 323(1) (suspension of decision of tribunal pending determination of certain appeals), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(161) The title of section 323 becomes " Suspension of decision of First-tier Tribunal pending determination of certain appeals".
(162) In section 324 (appeals: general provisions)—
(a) subsection (1) omit "(a) to the sheriff principal under section 320(2) of this Act; or"
(b) in subsection (2), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal";
(c) in subsection (3)—
(i) for "Tribunal" substitute "First-tier Tribunal);
(ii) omit "320(2) or"; and
iii) omit "and in any appeal from the decision of the sheriff principal under section 321(1)";
(d) in subsection (4)—
(i) for "Tribunal" in each place where it occurs substitute "First-tier Tribunal"; and
(ii) omit "320(2), 321(1) or";
(e) in subsection (5)—
(i) omit "320(2), 321(1) or"; and
(ii) for "Tribunal" in each place where it occurs substitute "First-tier Tribunal";
(f) in subsection (6), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal";
(g) in subsection (7), omit "320(2), 321(1) or"; and
(h) in subsection (8)—
(i) omit "the sheriff principal or"; and
(ii) omit "as the case may be".
(163) In section 329 (interpretation)—
(a) in subsection (1), after the entry for "extension certificate" insert—
"the First-tier Tribunal" means the First-tier Tribunal for Scotland Mental Health Chamber;;
(b) in subsection (1), omit the entry for "the Tribunal"; and
(c) in subsection (2)—
(i) for "Tribunal" substitute "First-tier Tribunal"; and
(ii) for "tribunal concerned" substitute "First-tier Tribunal".
(164) Schedule 2 (the Mental Health Tribunal for Scotland) is repealed.

Public Services Reform (Scotland) Act 2010

5. —(1) The Public Services Reform (Scotland) Act 2010( a) is amended as follows.
(2) In section 16(6) (preconditions)—
(a) for "paragraph 7(4) of schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)" substitute "regulation [ ] of the First-tier Tribunal for Scotland Mental Health Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 ( SSI 2018/ "; and
(b) for "Mental Health Tribunal for Scotland" substitute "First-tier Tribunal for Scotland Mental Health Chamber and Upper Tribunal for Scotland".
(3) In section 18(6) (preconditions)—
(a) for "paragraph 7(4) of schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)" substitute "regulation [ ] of the First-tier Tribunal for Scotland Mental Health Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 ( SSI 2018/ "; and
(b) for "Mental Health Tribunal for Scotland" substitute "First-tier Tribunal for Scotland Mental Health Chamber and Upper Tribunal for Scotland".
(4) In schedule 5 (improvement of public functions: listed bodies), in paragraph 1, omit the entry for "Mental Health Tribunal for Scotland".
(5) In schedule 8 (information on exercise of public functions: listed public bodies), omit the entry for "Mental Health Tribunal for Scotland".

Public Records (Scotland) Act 2011

6. —(1) The Public Records (Scotland) Act 2011( a) is amended as follows.
(2) In the schedule (authorities to which Part 1 applies), omit the entry for "Mental Health Tribunal for Scotland".

Part 2
Consequential amendments of subordinate legislation

Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003

7. —(1) The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003( b) are amended as follows.
(2) In regulation 1(2), omit the entry for "Mental Health Tribunal for Scotland".
(3) In regulation 3(d), for "Mental Health Tribunal for Scotland" substitute "First-tier Tribunal for Scotland Mental Health Chamber".
(4) In regulation 9(b), for "Mental Health Tribunal for Scotland" substitute "First-tier Tribunal for Scotland Mental Health Chamber".

Mental Health (Care and Treatment) (Scotland) Act 2003 (Transitional and Savings Provisions) Order 2005

8. —(1) Mental Health (Care and Treatment) (Scotland) Act 2003 (Transitional and Savings Provisions) Order 2005( c) is amended as follows.
(2) In article 4, in paragraphs (4), (5) and (7)(e), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(3) In article 10, in paragraphs (5), (6) and (8)(e), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(4) In article 15, in paragraphs (5), (6) and (8)(e), for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(5) In article 17, in paragraph (3)(a), (6), (7) and (9)(e), for "Tribunal" substitute "First-tier Tribunal".
(6) In article 20—
(a) in paragraph (4), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal"; and
(b) in paragraph (6) for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(7) In article 24(1), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(8) In article 25(2), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(9) In article 29(4), for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".

Mental Health (Compulsion orders - documents and reports to be submitted to the Tribunal) (Scotland) Regulations 2005

9. —(1) The Mental Health (Compulsion orders - documents and reports to be submitted to the Tribunal) (Scotland) Regulations 2005( d) are amended as follows.
(2) In regulation 2, for "Tribunal" substitute "First-tier Tribunal".
(3) The title of regulation 2 becomes " Documents to accompany application to First-tier Tribunal under section 149".
(4) In regulation 3, for "Tribunal" substitute "First-tier Tribunal".
(5) The title of regulation 3 becomes " Documents to accompany application to First-tier Tribunal under section 158".
(6) In regulation 4, for "Tribunal" substitute "First-tier Tribunal".
(7) The title of regulation 4 becomes " Documents to accompany application to First-tier Tribunal under section 161".
(8) In regulation 5, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(9) The title of regulation 5 becomes " Application for extension of compulsion order following first review: reports to be prepared and submitted to First-tier Tribunal under section 173".
(10) In regulation 6, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(11) The title of regulation 6 becomes " Application for extension and variation of compulsion order: reports to be prepared and submitted to First-tier Tribunal under section 173".
(12) In regulation 7, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(13) The title of regulation 7 becomes " Application for variation of compulsion order: report to be submitted to First-tier Tribunal under section 173".
(14) In regulation 8, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(15) The title of regulation 8 becomes " Application for revocation of determination extending compulsion order or revocation or variation of compulsion order: reports to be submitted to First-tier Tribunal under section 173".
(16) In regulation 9, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(17) The title of regulation 9 becomes " Review of determination extending compulsion order: reports to be submitted to First-tier Tribunal under section 173".

Mental Health (Compulsory treatment orders - documents and reports to be submitted to the Tribunal) (Scotland) Regulations 2005

10. —(1) The Mental Health (Compulsory treatment orders - documents and reports to be submitted to the Tribunal) (Scotland) Regulations 2005( a) are amended as follows.
(2) In regulation 2, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(3) The title of regulation 2 becomes " Documents to accompany application to First-tier Tribunal under sections 92,95 and 96".
(4) In regulation 3, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(5) The title of regulation 3 becomes " Application for extension and variation of a compulsory treatment order: report to be prepared and submitted to First-tier Tribunal under section 109".
(6) In regulation 4, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(7) The title of regulation 4 becomes " Application for variation of a compulsory treatment order: reports to be prepared and submitted to First-tier Tribunal under section 109".
(8) In regulation 5, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(9) The title of regulation 5 becomes " Applications by the patient etc. for revocation of determination extending compulsory treatment order and revocation or variation of compulsory treatment order: reports to be prepared and submitted to First-tier Tribunal under section 109".
(10) In regulation 6, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(11) The title of regulation 6 becomes " Review of determination extending compulsory treatment order: reports to be submitted to First-tier Tribunal under section 109".
(12) In regulation 7, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(13) The title of regulation 7 becomes " Reference concerning non-provision of a recorded matter: report to be prepared and submitted to First-tier Tribunal under section 109".
(14) In regulation 8, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(15) The title of regulation 8 becomes " Reference by Mental Welfare Commission for Scotland: reports to be prepared and submitted to First-tier Tribunal under section 109".

Mental Health (Cross border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005

11. —(1) Mental Health (Cross border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005( a) are amended as follows.
(2) In regulation 13, for "Tribunal" in each place where it occur substitute "First-tier Tribunal".
(3) The title of regulation 13 becomes " Appeal to First-tier Tribunal".
(4) In regulation 13B, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(5) The title of regulation 13B becomes "First-tier Tribunal’s duties to notify Scottish Ministers".
(6) Revoke regulation 14 (appeals to the sheriff principal and Court of Session against certain decisions).
(7) In regulation 15, for "Tribunal" in both places where it occurs substitute "First-tier Tribunal".
(8) The title of regulation 15 becomes "Appeal to the Court of Session against certain decisions of the First-tier Tribunal".
(9) In regulation 17(1), for "Tribunal" substitute "First-tier Tribunal".
(10) The title of regulation 17 becomes "Reference to First-tier Tribunal by Commission".
(11) In regulation 18, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(12) The title of regulation 18 becomes "Powers of the First-tier Tribunal on reference".
(13) In regulation 41(3)(d), for "Tribunal" substitute "First-tier Tribunal".
(14) Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008.

Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008

12. —(1) The Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008( b) are amended as follows.
(2) In regulation 8, for "Tribunal" in each place where it occurs substitute "First-tier Tribunal".
(3) The title of regulation 8 becomes " Appeal to First-tier Tribunal".
(4) Revoke regulation 9 (appeal from tribunal).

Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013

13. —(1) The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013( a) is amended as follows.
(2) In schedule 1 (proceedings), in paragraph 4, for "Mental Health Tribunal for Scotland" substitute "First-tier Tribunal for Scotland Mental Health Chamber".

Scottish Parliament (Disqualification) Order 2015

14. —(1) The Scottish Parliament (Disqualification) Order 2015( b) is amended as follows.
(2) In Part 1 of schedule 1 (office-holders disqualified from being a member of the Scottish Parliament), omit the entry "President or member of the Mental Health Tribunal for Scotland".
15. —(1) The Mental Health (Scotland) Act 2015 (Commencement No 1, Transitional and Saving Provisions Order 2015( c) is amended as follows.
(2) In article 1(2)—
(a) omit the entry for "the Tribunal"; and
(b) after the entry for "the appointed day" insert—
"the First-tier Tribunal" means the First-tier Tribunal means the First-tier for Scotland Mental Health Chamber.
(3) In article 4(2), for "Tribunal" substitute "First-tier Tribunal".
(4) In article 6, for "Tribunal" substitute "First-tier Tribunal".

Part 3
Consequential revocations of subordinate legislation

Instruments revoked References
The Mental Health Tribunal for Scotland (Appointment of President) Regulations 2004 S.S.I. 2004/155
The Mental Health Tribunal for Scotland (Appointment of Legal Members) Regulations 2004 S.S.I. 2004/286
The Mental Health Tribunal for Scotland (Delegation of the President’s Functions) Regulations 2004 S.S.I. 2004/373
The Mental Health Tribunal for Scotland (Appointment of Medical Members) Regulations 2004 S.S.I. 2004/374
The Mental Health Tribunal for Scotland (Appointment of General Members) Regulations 2004 S.S.I. 2004/375
The Mental Health Tribunal for Scotland (Disciplinary Committee) Regulations 2004 S.S.I. 2004/402
The Mental Health Tribunal for Scotland (Disqualification) Regulations 2004 S.S.I. 2004/154
The Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005 S.S.I. 2005/420
The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005 S.S.I. 2005/519

Explanatory Note

(This note is not part of the Regulations)

These Regulations make provision for the transfer of the functions and members of the Mental Health Tribunal for Scotland ("the MHTS") to the Scottish Tribunals. The Scottish Tribunals comprise the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland.

The First-tier Tribunal was set up by the Tribunals (Scotland) Act 2014. It is divided into chambers, with the chambers hearing cases according to the subject-matter of the case. The First-tier Tribunal Mental Health Chamber hears cases previously dealt with by MHTS.

Transitional provisions are made to manage the transfer of on-going casework before the MHTS and appeals from decisions of the MHTS to the sheriff principal and/or Court of Session. When this instrument comes into force on 12th November 2018, all cases pending before the MHTS will transfer to the First-tier Tribunal.

These Regulations also make consequential amendments to other primary and subordinate legislation, largely substituting references to the MHTS with references to the First-tier Tribunal.


Contact