Section 193 of the

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

Russell HunterScottish Government Legal Directorate

s193 – sets out the powers of the Tribunal where application or reference is made under:

• s185(1) – reference by the SMs following recommendation by RMO

• s187(2) – reference by the SMs following notice by MWC

• s189(2) – periodic reference by the SMs• s191 – application by the SMs• s192(2) – application by patient / named

person

s193 – legal tests for Tribunal to apply to decide whether it is:

• required to make no order• required to revoke compulsion order• required to revoke restriction order (and vary

compulsion order)• able (discretion) to grant conditional discharge

s193(2) – serious harm requiring detention test

Is the Tribunal satisfied that:• mental disorder present?• mental disorder makes it necessary, in

order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment

If yes to both questions, then Tribunal cannot make any order under s193

Serious harm requiring detention [contd]

• concerned only with necessity to detain person in hospital

• “whether or not for medical treatment”• where it appears in the Act, the test must be

considered• MB sheriff court decision – “the categories of

serious harm are never closed” – not restricted to risks of lethal attacks

s193(5) – revocation of restriction order• 4 legs to the test (all 4 must be made out):• satisfied: - s182(4) conditions apply

- CO still necessary• not satisfied : risk of serious harm requiring

detention test is met • not satisfied: necessary for the RO to remain in

place

s193(5) – revocation of RO [contd]• “continues to be necessary” – so compare

entry and exit tests [why was RO originally necessary?]

• entry test (s. 59 CPSA 1995) – consider 3 factors when RO imposed…whether it is necessary for the protection of the public from serious harm… to make the patient subject to the special restrictions in Part 10 of the 2003 Act [Ministerial oversight]… without limit of time

s193(5) – revocation of RO [contd]

• need to distinguish serious harm requiring detention test from test of whether it continues to be necessary for patient to be subject to the RO

• Need to distinguish purpose of CO from purpose of RO:– CO is mechanism for compulsion– RO is mechanism for oversight by the Scottish

Ministers and the Tribunal

s193(7) – conditional discharge test• 4 legs to the test (all 4 legs must be made out):• satisfied: - s182(4) conditions apply

- CORO still necessary• not satisfied: risk of serious harm requiring

detention test met • not satisfied: necessary for detention in

hospital Only if all legs of test met, then Tribunal may

grant CD (ie discretionary order, not mandatory)

• Tribunal makes NO order:

– if section 193(2) test is met Tribunal cannot make any order under s193; and/or

– where criteria in each of other s193 tests is not made out [for revocation of CO; for revocation of RO; for CD] then Tribunal cannot make order under that subsection

in which case status quo simply maintained.