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

Continued existence of CommissionS

4The Mental Welfare Commission for ScotlandS

(1)There shall continue to be a body corporate known as the Mental Welfare Commission for Scotland (in this Act referred to as “the Commission”).

(2)The Commission shall discharge such functions as are conferred on it by virtue of—

(a)this Act;

(b)the Adults with Incapacity (Scotland) Act 2000 (asp 4); and

(c)any other enactment.

[F1(2A)In so discharging its functions, the Commission shall act in a manner which seeks to protect the welfare of persons who have a mental disorder.]

(3)Schedule 1 to this Act (which makes provision as respects the Commission) shall have effect.

[F24ZANational Confidential ForumS

(1)The Commission must establish and maintain a committee to be known as the National Confidential Forum (“NCF”) for the purpose of carrying out the following functions (referred to in this Act as “NCF functions”)—

(a)the general functions mentioned in section 4ZB,

(b)the functions conferred on NCF in schedule 1A.

(2)Schedule 1A makes further provision about NCF.

4ZBGeneral functions of NCFS

The general functions of NCF are—

(a)to provide means for persons who were placed in institutional care as children to describe in confidence (such descriptions being referred to in this Act as “testimony”)—

(i)experiences of that care,

(ii)any abuse experienced during the period spent in that care,

(b)to acknowledge testimony by enabling it to be given at hearings established by NCF or by written or other means,

(c)based on testimony received—

(i)to identify any patterns and trends in the experiences of persons placed in institutional care as children (including the causes, nature, scale and circumstances of any abuse experienced), and

(ii)to make recommendations about policy and practice which NCF considers will improve institutional care (including by protecting children from, and preventing or reducing the incidence of, abuse),

(d)while preserving the anonymity of participants, establishments providing institutional care and other persons, to prepare reports of the testimony it receives and its recommendations in relation to them,

(e)to provide information about advice and assistance available to persons giving, or proposing to give, testimony.

4ZCCarrying out NCF functionsS

(1)The Commission must delegate the NCF functions to NCF.

(2)The person appointed to chair NCF (the “NCF Head”) must account to the Commission for the carrying out of the NCF functions.

(3)Subsections (1) and (2) do not affect the responsibility of the Commission for the carrying out of the NCF functions.

4ZDModifications in relation to NCFS

(1)The following modifications of this Part apply in relation to the NCF functions—

(a)sections 5, 6, 9, 9A, 10, 16 and 19 do not apply,

(b)in section 17(1), references to the Commission (except in the phrase “Commission Visitor”) are to be read as if they were references to NCF,

(c)sub-paragraph (2) of paragraph 11 of schedule 1A applies in relation to the Commission's annual report mentioned in section 18(1) as it applies in relation to a report prepared under that paragraph,

(d)section 20 is to be read as if after subsection (1) there were inserted—

“(1A)For the purposes of the law of defamation—

(a)any statement made in good faith by NCF, its members or NCF staff in carrying out any of the NCF functions is privileged,

(b)any statement made by an eligible person in accordance with arrangements made by NCF under paragraph 8(2) of schedule 1A is privileged.

(1B)A word or expression used in subsection (1A) has the same meaning as it has in schedule 1A.”.

(2)Section 1 of the Public Records (Scotland) Act 2011 is to be read as if after subsection (8) there were inserted—

“(8A)The Mental Welfare Commission for Scotland must have a separate records management plan in relation to the public records created in carrying out the NCF functions (within the meaning of section 4ZA(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003).”.]