Whether it is satisfied that the forcible injection of a drug to a person detained under the Mental Health (Care and Treatment) (Scotland) …

There are three ways in which a person may be deprived of their liberty or subjected to compulsory measures of treatment under the civil regime in the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act), namely (a) emergency detention, (b) short-term detention and (c) long-term detention or compulsory measures under the authority of a compulsory treatment order. In addition, mentally disordered offenders may be made subject to compulsory measures of treatment by the courts under the Criminal Procedure (Scotland) Act 1995 (the 1995 Act).
The majority of compulsory measures of treatment for mental disorder are first approved by an independent and impartial tribunal, either by the Mental Health Tribunal for Scotland under Part 7 of the 2003 Act (compulsory treatment orders) or by a court under the 1995 Act in relation to mentally disordered offenders. The two exceptions to this prior authority for treatment for mental disorder by a court or tribunal are: civil emergency detention under Part 5 of the 2003 Act and short-term detention under Part 6 of the 2003 Act.
In relation to emergency detention, the authorised period of detention is just 72 hours and the purpose of the detention is to determine what medical treatment requires to be provided to the patient. There is no general authority to give treatment for mental disorder under an emergency detention certificate, and this certificate therefore differs from other measures under the 2003 Act; urgent medical treatment only may be given under section 243 of the Act. Given the very short duration of the certificate and the emergency situation with which it is dealing, and by reference to the leading Strasburg case on lawfulness of detention (Winterwerp), the Scottish Government is satisfied that this measure is European Convention of Human Rights (ECHR) compliant.
Short-term detention is governed by Part 6 of 2003 Act. The authorised period for detention is 28 days and the purpose of the detention is to determine what medical treatment should be given to the patient and/or to give that treatment to the patient. The detention certificate is granted by an approved medical practitioner provided that certain statutory conditions are satisfied, and treatment can be given for mental disorder in accordance with the rules set out in Part 16 of the Act. Protections are built in for the patient within the Act: the patient''s views should be taken into account, including where these are expressed in an advance statement; the patient''s responsible medical officer is under a duty to consider from time-to-time whether it continues to be necessary for the patient to be detained in hospital and to revoke the certificate where he or she is no longer satisfied that this is the case; and the patient and their named person has the right to apply to the Mental Health Tribunal for release. The provision within Part 6 for an appeal by a patient to the tribunal for revocation of a short-term detention certificate ensures access to an independent and impartial tribunal established by law for the purposes of article 6 ECHR.
Any act of the Scottish Parliament requires to be within legislative competence, which includes its provisions being compatible with rights under the European Convention on Human Rights. Both the Scottish ministers and the Scottish Parliament were satisfied during its passage through the Parliament that the 2003 Act, which authorises compulsory measures of treatment for mental disorder, was ECHR compatible.