The Structure and a Summary of the Act Rules relating to disclosure Section 26 - Disclosure period: compulsion orders
109.Section 26(2) inserts a new section 5G after section 5F of the 1974 Act. This new section provides that convictions for which compulsion orders are given are to be disclosed from the date of conviction until the order ceases or ceased to have effect. However, this disclosure period will be subject to a new process which will allow an application to be made to the Mental Health Tribunal for Scotland by a patient or the patient’s named or listed person in order to ask for the disclosure of that conviction to end. (See sections 138 and 257A of the Mental Health (Care and Treatment) (Scotland) Act 2003, (“the 2003 Act”) for meanings of named and listed persons).
110.In order for this application process to take place, amendments to the 2003 Act are also necessary. New section 5G(2) states that section 5G(1), (i.e. the default disclosure period for a compulsion order as the length of the order), will be subject to new sections 164A and 167A of the 2003 Act.
111.Section 5G(3) states that if the Tribunal determines, as a result of receiving an application, that disclosure of the conviction which resulted in the compulsion order is no longer necessary then the person will be treated for the purposes of the 1974 Act as a ‘protected person’ and the conviction will be treated as spent.
112.Section 5G(4) ensures the rule in section 6(2) of the 1974 Act which enables a sentence with a longer disclosure period to extend the disclosure period of another sentence, applies to such a compulsion order, even if a determination has been made by the Tribunal.
113.Section 26 also amends the 2003 Act.
114.Section 26(4) inserts new section 164A after section 164 of the 2003 Act. It is this new section that allows a patient, the patient’s named or listed person to apply to the Mental Health Tribunal Scotland for the disclosure of the conviction which resulted in a compulsion order to come to an end. Section 164A(2) and (3) states who is able to apply to the Tribunal.
115.When a compulsion order with a restriction order is given, an application cannot be made to the Tribunal whilst the restriction order remains in force. Once the restriction order is revoked, section 198 of the 2003 Act says that Part 9 of that Act shall apply to the patient as if the compulsion order were a relevant compulsion order made on the day on which the order revoking the restriction order has effect in accordance with section 196 of the 2003 Act. This means the person will be eligible to apply to the Tribunal once a period of 12 months has passed from revocation of the restriction order.
116.Section 164A(4) of the 2003 Act sets out the time frame for when an application can be made to the Tribunal for a determination on the issue of disclosure. That is, an application cannot be made to the Tribunal until at least 12 months have passed after the date the relevant compulsion order was made.
117.Section 164A(5) sets out the time period for making a further application to the Tribunal if a previous application was not successful. That is, when an application has been refused by the Tribunal, a new application can be made after a period of 12 months has elapsed from the date the application was refused. Section 164A(6) confers a power on the Scottish Ministers to prescribe, by regulations, documents which accompany any application made. This power is subject to negative procedure.
118.Section 26(5) inserts new sections 167A and 167B after section 167 of the 2003 Act. Section 167A sets out the test the Tribunal must apply when determining whether the disclosure period for a compulsion order should be brought to an end. It also sets out who can make representations to the Tribunal during the application process. The Tribunal must consider whether, without the provision of medical treatment to the person who is subject to the compulsion order, there would be a significant risk to the safety of other persons. This applies one element of the test that the Tribunal currently requires to consider when reviewing a person’s compulsion order under section 139 of the 2003 Act.
119.New section 167B of the 2003 Act provides that the Scottish Ministers may require the Tribunal to provide information to them regarding whether a determination or a refusal has been given in respect of an identified person. This information will indicate whether the conviction continues to require to be disclosed. The reference is to the Scottish Ministers but the function will be undertaken by Disclosure Scotland, which is an executive agency of the Scottish Government, whose statutory functions relate to disclosure of criminal convictions.
120.Sharing this information is necessary only where a request is received by the Tribunal from Disclosure Scotland. Such a request will be made when an enquiry is made by Disclosure Scotland to the Tribunal as a result of receiving a basic disclosure application by the patient or their named person. The Tribunal must respond to Disclosure Scotland within 15 working days of receiving the request.