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Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016

Sections55

Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016

2016 asp 14

An Act of the Scottish Parliament to make provision about tobacco, nicotine and related products, in particular to make provision about retailing, to amend the prohibition on smoking in certain areas and to control advertising and promotion; to make provision about a duty of candour following serious incidents in the course of providing care; to make provision about offences applying to ill-treatment or neglect where care is provided; and for connected purposes.

EnactedThe Bill for this Act of the Scottish Parliament was passed by the Parliament on 3rd March 2016 and received Royal Assent on 6th April 2016

PART 1  Tobacco, nicotine vapour products and smoking

CHAPTER 1 Sale and purchase of tobacco and nicotine vapour products

Nicotine vapour products

I11 Nicotine vapour products

After section 35 of the 2010 Act insert—
.

Sale and purchase of tobacco and nicotine vapour products

I2I112 Sale of nicotine vapour products to persons under 18

1 After section 4 of the 2010 Act insert—
.
2 The italic heading immediately preceding section 4 of the 2010 Act becomes “ Sale and purchase of tobacco and nicotine vapour products ”.

I123 Age verification policy

1 After section 4A of the 2010 Act (inserted by section 2) insert—
.
2 In section 40(4) of the 2010 Act (subordinate legislation subject to affirmative procedure) before “section 24” insert— “ section 4B(4) ”.

I3I134 Sale by persons under 18

After section 4B of the 2010 Act (inserted by section 3) insert—
.

I145 Defence of due diligence for certain offences

After section 4C of the 2010 Act (inserted by section 4) insert—
.

I156 Purchase of nicotine vapour products on behalf of persons under 18

After section 6 of the 2010 Act insert—
.

I197 Extension of vending machine prohibition

1 The Scottish Ministers may by regulations amend the definition of “vending machine” in section 9(3) of the 2010 Act (prohibition of vending machines) so as to include automatic machines for the sale of nicotine vapour products.
2 In subsection (1), “nicotine vapour products” has the meaning given in section 35A of the 2010 Act.

Register of tobacco and nicotine vapour product retailers

I4I168 Register of tobacco and nicotine vapour product retailers

1 In section 10(1) of the 2010 Act (duty to keep Register), after “tobacco” insert “ or nicotine vapour product ”.
2 In section 35(1) of the 2010 Act (interpretation)—
a after the definition of “fixed penalty notice” insert—
, and
b after the definition of “tobacco business” insert—
.

9 Registration and changes to the Register

I5I91 In section 11 of the 2010 Act (application for registration and addition of premises etc.)—
a in subsection (2), after “tobacco”, in both places where it occurs, insert “ or nicotine vapour product ”,
b after subsection (2) insert—
,
c in subsection (3)(b), for “retailing banning order, from carrying on a tobacco” substitute “ and nicotine vapour product banning order from carrying on a tobacco or nicotine vapour product ”,
d in subsection (4)(b), for “business” substitute
, and
e in subsection (5), for “business” substitute
.
I202 In section 12 of the 2010 Act (certificates of registration)—
a the existing text becomes subsection (1), and
b after that subsection, insert—
.
I203 In section 13(1) of the 2010 Act (duty to notify certain changes), after paragraph (b) insert—
.
I204 In section 14 of the 2010 Act (changes to and removal from Register)—
a in subsection (2), for “retailing” substitute “ and nicotine vapour product ”,
b in subsection (3)(b), after “tobacco” insert “ or nicotine vapour product ”, and
c in subsection (5)(b), after “tobacco” insert “ or nicotine vapour product ”.

I6I2110 Tobacco and nicotine vapour product banning orders

1 In section 15 of the 2010 Act (banning orders)—
a in subsection (1), after “tobacco” insert “ or nicotine vapour product ”,
b in subsection (2), after “tobacco” insert “ or nicotine vapour product ”,
c in subsection (3)—
i after “tobacco” insert “ or nicotine vapour product ”,
ii in paragraph (a), for “the person has been the subject of” substitute “ there have been ”, and
iii in paragraph (d), the word “further” is repealed,
d in subsection (4)—
i for “person is the subject of a relevant enforcement action if the person”, substitute “ relevant enforcement action occurs where a person mentioned in subsection (4A) ”,
ii the word “or” immediately following paragraph (a) is repealed,
iii after paragraph (b), insert
,
e after subsection (4), insert—
, and
f in subsection (6), for “retailing” substitute “ and nicotine vapour product ”.
2 In section 16 of the 2010 Act (ancillary orders)—
a in subsection (1), for “retailing”, in both places where it occurs, substitute “ and nicotine vapour product ”,
b in subsection (2), after “tobacco”, in each place where it occurs, insert “ or nicotine vapour product ”,
c in subsection (3)(b), for “retailing” substitute “ and nicotine vapour product ”,
d in subsection (4), for “retailing” substitute “ and nicotine vapour product ”, and
e in subsection (5), for “retailing” substitute “ and nicotine vapour product ”.
3 In section 17 of the 2010 Act (appeals), for “retailing”, in both places where it occurs, substitute “ and nicotine vapour product ”.
4 In section 18(1) of the 2010 Act (notification to Scottish Ministers), for “retailing” substitute “ and nicotine vapour product ”.
5 In section 19 of the 2010 Act (display of notices)—
a in subsection (1)(a), for “retailing” substitute “ and nicotine vapour product ”,
b in subsection (3), for “retailing”, in both places where it occurs, substitute “ and nicotine vapour product ”, and
c for subsection (4), for “or smoking related products” substitute “ , smoking related products or nicotine vapour products ”.

I2211 Offences relating to the Register

In section 20 of the 2010 Act (offences relating to the Register)—
a in subsection (1), after “tobacco” insert “ or nicotine vapour product ”,
b in subsection (2), after “Register” insert “ as premises at which the person carries on a tobacco business (or both a tobacco business and a nicotine vapour product business) ”,
c after subsection (2) insert—
,
d in subsection (4), for “retailing” substitute “ and nicotine vapour product ”, and
e in subsection (6)(a), after “(2)” insert “ , (2A) ”.

I1712 Public inspection of the Register

In section 21(1) of the 2010 Act (public inspection of the Register), for “at which tobacco businesses are carried on or proposed to be carried on” substitute
.

The 2010 Act: miscellaneous

I713 Power to exclude certain premises

In section 35(1) of the 2010 Act (interpretation), in the definition of “premises”, for “, vessel, or moveable structure” substitute “ or moveable structure (and, for this purpose, “vehicle” includes any aircraft or ship, boat or other water-going vessel, other than one of a prescribed description) ”.

I1814 Presumption as to contents of container

In section 33(1) of the 2010 Act (presumption as to contents of container), for “5 or 6” substitute “ 4A, 4B, 4C, 5, 6, 6A or 9 ”.

15 Part 1 of the 2010 Act: miscellaneous

I101 The title of Chapter 1 of Part 1 of the 2010 Act becomes “ Display, sale and purchase ”.
I102 The title of section 10 of the 2010 Act becomes “ Register of tobacco and nicotine vapour product retailers ”.
I233 The title of section 15 of the 2010 Act becomes “ Tobacco and nicotine vapour product banning orders ”.
I234 The title of section 16 of the 2010 Act becomes “ Tobacco and nicotine vapour product banning orders: ancillary orders ”.
I235 The title of section 17 of the 2010 Act becomes “ Tobacco and nicotine vapour product banning orders etc.: appeals ”.
I236 The title of section 18 of the 2010 Act becomes “ Tobacco and nicotine vapour product banning orders etc.: notification to Scottish Ministers ”.
I237 The title of section 19 of the 2010 Act becomes “ Tobacco and nicotine vapour product banning orders: display of notices ”.
I238 The italic heading immediately preceding section 15 of the 2010 Act becomes “ Tobacco and nicotine vapour product banning orders ”.
I109 The italic heading immediately preceding section 21 of the 2010 Act becomes “ Register of tobacco and nicotine vapour product retailers: miscellaneous and supplementary ”.
I1010 The title of Chapter 2 of Part 1 of the 2010 Act becomes “ Register of tobacco and nicotine vapour product retailers ”.
I1011 The title of Part 1 of the 2010 Act becomes “ Tobacco and nicotine vapour products etc. ”.

Interpretation

I816 Meaning of “the 2010 Act”

In this Part, “the 2010 Act” means the Tobacco and Primary Medical Services (Scotland) Act 2010.

CHAPTER 2 Advertising and promotion of nicotine vapour products

I4417 Advertising and brandsharing

1 The Scottish Ministers may by regulations make provision prohibiting or restricting an activity, in the course of a business, which relates to—
a a nicotine vapour product advert,
b nicotine vapour product brandsharing.
2 Regulations under subsection (1) may in particular—
a make provision for offences and penalties for a person who contravenes a prohibition or restriction on an activity mentioned in subsection (1),
b provide for exceptions to the offences,
c provide for defences to the offences,
d impose on a person a duty to enforce the provisions in the regulations and, in relation to such a duty, apply with modifications, or make provision equivalent to, sections 25 and 26 of Chapter 3 of the 2010 Act,
e provide powers to a person whose duty it is to enforce the provisions and, in relation to such powers, apply with modifications, or make provision equivalent to, sections 28 to 32 of Chapter 3 of the 2010 Act.
3 The maximum penalties that may be provided for in regulations under subsection (1) for a person who commits an offence under those regulations are—
a on summary conviction, imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,
b on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine or both.
4 In this section—
  • “nicotine vapour product” has the meaning given in section 35A of the 2010 Act,
  • “nicotine vapour product advert” means a published advertisement or a display whose purpose or effect is to promote a nicotine vapour product,
  • “nicotine vapour product brandsharing” means the use of any name, emblem or other feature where—
    1. the name, emblem or other feature is used in connection with—
      1. any service or product (other than a nicotine vapour product) and the name, emblem or other feature used is the same as, or similar to, a name, emblem or other feature connected with a nicotine vapour product, or
      2. any nicotine vapour product and the name, emblem or other feature used is the same as, or similar to, a name, emblem or other feature connected with any service or product other than a nicotine vapour product, and
    2. the purpose or effect of the use is to promote a nicotine vapour product,
  • “public” means the public at large, or any section of the public or individually selected members of the public,
  • “published” means published, distributed or otherwise made available to the public, in any form and by any means.

I4518 Free distribution and nominal pricing

1 The Scottish Ministers may by regulations make provision prohibiting or restricting, in the course of a business—
a giving away to the public any product or coupon (separately or with something else), where the purpose or effect is to promote a nicotine vapour product,
b making products or coupons available to the public (separately or with something else) for a nominal sum, where the purpose or effect is to promote a nicotine vapour product.
2 Regulations under subsection (1) may in particular—
a make provision for offences and penalties for a person who contravenes a prohibition or restriction mentioned in subsection (1),
b make further provision about the circumstances in which a product or coupon is to be treated as being made available for a nominal sum,
c provide for exceptions to the offences mentioned in paragraph (a),
d provide for defences to the offences,
e impose on a person a duty to enforce the provisions in the regulations and, in relation to such a duty, apply with modifications, or make provision equivalent to, sections 25 and 26 of the 2010 Act,
f provide powers to a person whose duty it is to enforce the provisions and, in relation to such powers, apply with modifications, or make provision equivalent to, sections 28 to 32 of the 2010 Act.
3 The maximum penalties that may be provided for in regulations under subsection (1) for a person who commits an offence under those regulations are—
a on summary conviction, imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,
b on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine or both.
4 In this section—
  • “coupon” means a document or other thing which, by itself or not, can be redeemed for a product or service or for cash or for any other benefit,
  • “nicotine vapour product” has the meaning given in section 35A of the 2010 Act,
  • “public” means the public at large, or any section of the public or individually selected members of the public.

I4619 Sponsorship

1 The Scottish Ministers may by regulations make provision prohibiting or restricting the entering into, in the course of a business, of a sponsorship agreement, where the purpose or effect of anything done as a result of the agreement is to promote a nicotine vapour product.
2 Regulations under subsection (1) may in particular—
a make provision for offences and penalties for a person who contravenes a prohibition or restriction mentioned in subsection (1),
b provide for exceptions to the offences,
c provide for defences to the offences,
d impose on a person a duty to enforce the provisions in the regulations and, in relation to such a duty, apply with modifications, or make provision equivalent to, sections 25 and 26 of the 2010 Act,
e provide powers to a person whose duty it is to enforce the provisions and, in relation to such powers, apply with modifications, or make provision equivalent to, sections 28 to 32 of the 2010 Act.
3 The maximum penalties that may be provided for in regulations under subsection (1) for a person who commits an offence under those regulations are—
a on summary conviction, imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,
b on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine or both.
4 In this section—
  • “nicotine vapour product” has the meaning given in section 35A of the 2010 Act,
  • “sponsorship agreement” means an agreement under which a party to it makes a contribution towards something, whether the contribution is in money or takes any other form (for example, the provision of services or of contributions in kind).

CHAPTER 3 Smoking outside hospitals

I42I4320 Smoking outside hospitals

1 The Smoking, Health and Social Care (Scotland) Act 2005 is modified as follows.
2 After section 4 insert—
.
3 In section 5(1) (proceedings for offences), for “or 3” substitute “ , 3, 4A, 4B or 4C(5) ”.
4 The section title of section 5 becomes “ Proceedings for offences under sections 1 to 3 and 4A to 4C ”.
5 In section 6(2) (fixed penalties), for “or 3” substitute “ , 3, 4A, 4B or 4C(5) ”.
6 In section 7 (powers to enter and require identification)—
a after subsection (1) insert—
,
b in subsection (3)(a)(i), for “or 3” substitute “ , 3, 4A, 4B or 4C(5) ”,
c in subsection (5), in the definition of “the appropriate council”—
i the words “in relation to no-smoking premises, the council of the area in which those premises are” become paragraph (a),
ii after that paragraph insert—
.
7 In section 40(3)(a) (regulations or orders), for “or 4(2) or (8)” substitute “ , 4(2) or (8) or 4D(2)(a) or (4)(a) ”.
8 In schedule 1—
a in paragraph 1(1), after “premises” insert “ or under section 4A within the no-smoking area outside a hospital ”,
b in paragraph 1(2), for “or 3” substitute “ , 3, 4A, 4B or 4C(5) ”,
c in paragraph 1(3), for “or 3” substitute “ , 3, 4A, 4B or 4C(5) ”,
d in paragraph 2, for “or 3” substitute “ , 3, 4A, 4B or 4C(5) ”,
e in paragraph 4(1), for “or 3” substitute “ , 3, 4A, 4B or 4C(5) ”,
f the title becomes “ Fixed penalty for offences under sections 1, 2, 3, 4A, 4B and 4C(5) ”.

PART 2  Duty of candour

Duty of candour procedure

I24I3821 Incident which activates duty of candour procedure

1 A responsible person must follow the duty of candour procedure set out in section 22 as soon as reasonably practicable after becoming aware that subsection (2) applies to a person who has received—
a a health service from the responsible person,
b a care service from the responsible person, or
c a social work service from the responsible person.
2 This subsection applies to a person if—
a an unintended or unexpected incident occurred in the provision of a health service, a care service or a social work service to the person, and
b in the reasonable opinion of a registered health professional—
i that incident appears to have resulted in or could result in an outcome mentioned in subsection (4), and
ii that outcome relates directly to the incident rather than to the natural course of the person's illness or underlying condition.
3 For the purposes of subsection (2)(b), a responsible person must ensure that the registered health professional who gives the opinion following an unintended or unexpected incident is not an individual who was involved in the incident.
4 The outcomes are—
a the death of the person,
b a permanent lessening of bodily, sensory, motor, physiologic or intellectual functions (including removal of the wrong limb or organ or brain damage) (“severe harm”),
c harm which is not severe harm but which results in—
i an increase in the person's treatment,
ii changes to the structure of the person's body,
iii the shortening of the life expectancy of the person,
iv an impairment of the sensory, motor or intellectual functions of the person which has lasted, or is likely to last, for a continuous period of at least 28 days,
v the person experiencing pain or psychological harm which has been, or is likely to be, experienced by the person for a continuous period of at least 28 days,
d the person requiring treatment by a registered health professional in order to prevent—
i the death of the person, or
ii any injury to the person which, if left untreated, would lead to one or more of the outcomes mentioned in paragraph (b) or (c).
5 The Scottish Ministers may by regulations modify subsection (4).

I25I3922 Duty of candour procedure

1 The “duty of candour procedure” means the actions to be taken by the responsible person in accordance with regulations made by the Scottish Ministers.
2 Regulations under subsection (1) may in particular make provision about—
a the notification to be given by the responsible person,
b the apology to be provided by the responsible person to the relevant person,
c the actions to be taken by the responsible person to offer and arrange a meeting with the relevant person, including asking the relevant person whether the relevant person wishes to receive an account of the incident as mentioned in section 21(2) or information about further steps taken,
d the actions which must be taken at, and following, such a meeting,
e an account of the incident as mentioned in section 21(2), information about further steps taken and any other information to be provided by the responsible person,
f the form and manner in which information must be provided,
g the circumstances in which the responsible person is to make available, or provide information about, support to persons affected by the incident,
h the keeping of information by the responsible person,
i steps to be taken by the responsible person—
i to review the circumstances leading to the incident, and
ii following such a review,
even if the relevant person has advised that the relevant person does not wish to receive an account of the incident as mentioned in section 21(2) or information about further steps taken,
j training to be undertaken by a responsible person,
k training, supervision and support to be provided by a responsible person to any person carrying out any part of the procedure on behalf of the responsible person.
3 In this section “relevant person” means—
a the person who has received the health service, the care service or the social work service, or
b where that person—
i has died, or
ii is, in the opinion of the responsible person, lacking in capacity or otherwise unable to make decisions about the service provided,
a person acting on behalf of that person.

I26I4023 Apologies

1 For the purposes of this Part, an “apology” means a statement of sorrow or regret in respect of the unintended or unexpected incident.
2 An apology or other step taken in accordance with the duty of candour procedure under section 22 does not of itself amount to an admission of negligence or a breach of a statutory duty.

I4124 Reporting and monitoring

1 A responsible person who provides a health service, a care service or a social work service during a financial year must prepare an annual report on the duty of candour as soon as reasonably practicable after the end of that financial year.
2 The report must set out in relation to the financial year—
a information about the number and nature of incidents to which the duty under section 21(1) has applied in relation to a health service, a care service or a social work service provided by the responsible person,
b an assessment of the extent to which the responsible person carried out the duty under section 21(1),
c information about the responsible person's policies and procedures in relation to the duty under section 21(1), including information about—
i procedures for identifying and reporting incidents, and
ii support available to staff and to persons affected by incidents,
d information about any changes to the responsible person's policies and procedures as a result of incidents to which the duty under section 21(1) has applied, and
e such other information as the responsible person thinks fit.
3 A report must not—
a mention the name of any individual, or
b contain any information which, in the responsible person's opinion, is likely to identify any individual.
4 The responsible person must publish a report prepared under subsection (1) in such manner as the responsible person thinks appropriate.
5 On publishing a report, the responsible person must notify—
a Healthcare Improvement Scotland, in the case of a report published by a responsible person which provides an independent health care service (within the meaning of section 10F(1) of the 1978 Act),
b the Scottish Ministers, in the case of a report published by any other responsible person which provides a health service,
c Social Care and Social Work Improvement Scotland, in the case of a report published by a responsible person which provides a care service or a social work service.
6 A person mentioned in subsection (7) may, for the purpose of monitoring compliance with the provisions of this Part, serve a notice on a responsible person requiring—
a the responsible person to provide the person serving the notice with information about any matter mentioned in subsection (2) as specified in the notice, and
b that information to be provided within the time specified in the notice.
7 The persons are—
a Healthcare Improvement Scotland, in relation to a responsible person which provides an independent health care service (within the meaning of section 10F(1) of the 1978 Act),
b the Scottish Ministers, in relation to any other responsible person which provides a health service,
c Social Care and Social Work Improvement Scotland, in relation to a responsible person which provides a care service or a social work service.
8 The Scottish Ministers, Healthcare Improvement Scotland and Social Care and Social Work Improvement Scotland may publish a report on compliance with the provisions of this Part by responsible persons.

Interpretation

25 Interpretation of Part 2

I27I361 In this Part—
  • “the 1978 Act” means the National Health Service (Scotland) Act 1978,
  • “care service” has the meaning given by section 47(1) of the Public Services Reform (Scotland) Act 2010, except that it does not include a service mentioned in paragraph (k) of that section (child minding),
  • “health service” means—
    1. services under the health service continued under section 1 of the 1978 Act, and
    2. an independent health care service mentioned in section 10F(1) of the 1978 Act,
  • “provide” in relation to a health service, a care service and a social work service means to carry on or manage such a service,
  • “registered health professional” means a member of a profession to which section 60(2) of the Health Act 1999 applies,
  • “responsible person” means—
    1. a Health Board constituted under section 2(1) of the 1978 Act,
    2. a person (other than an individual) who has entered into a contract, agreement or arrangement with a Health Board to provide a health service,
    3. the Common Services Agency for the Scottish Health Service constituted under section 10(1) of the 1978 Act,
    4. a person (other than an individual) providing an independent health care service mentioned in section 10F(1) of the 1978 Act,
    5. a local authority,
    6. a person (other than an individual) who provides a care service,
    7. an individual who provides a care service and who employs, or has otherwise made arrangements with, other persons to assist with the provision of that service (unless the assistance in providing that service is merely incidental to the carrying out of other activities),
    8. a person (other than an individual) who provides a social work service,
  • “social work services” has the meaning given by section 48 of the Public Services Reform (Scotland) Act 2010.
I372 The Scottish Ministers may by regulations modify the definition of “responsible person” in subsection (1).

PART 3  Ill-treatment and wilful neglect

Offences by care workers and care providers

I2826 Care worker offence

1 An individual commits an offence if the individual—
a has the care of another individual by virtue of being a care worker, and
b ill-treats or wilfully neglects that individual.
2 An individual who commits an offence under subsection (1) is liable—
a on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both),
b on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).

I2927 Care provider offence

1 A care provider commits an offence if—
a an individual who has the care of another individual by virtue of being part of the care provider's arrangements ill-treats or wilfully neglects that individual,
b the care provider's activities are managed or organised in a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected, and
c in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur.
2 An individual is “part of a care provider's arrangements” where the individual—
a is not the care provider, but
b provides adult health care or adult social care as part of the adult health care or adult social care provided or arranged for by the care provider,
including where the individual is not the care provider but supervises or manages individuals providing adult health care or adult social care as described in paragraph (b) or is a director or similar officer of an organisation which provides adult health care or adult social care as described there.
3 In this section—
a a “relevant duty of care” means a duty owed in connection with providing, or arranging for the provision of, adult health care or adult social care,
b a breach of a relevant duty of care is a “gross” breach if the conduct alleged to amount to the breach falls far below what can reasonably be expected of the care provider in the circumstances.
4 A care provider who commits an offence under subsection (1) is liable—
a on summary conviction, to a fine not exceeding the statutory maximum,
b on conviction on indictment, to a fine.

I3028 Meaning of “care worker” and “care provider” etc.

1 In this Part, “care worker” means—
a an employee who provides adult health care or adult social care,
b a volunteer who provides adult health care or adult social care,
c an individual who supervises or manages employees or volunteers providing adult health care or adult social care,
d a director or similar officer of an organisation whose employees or volunteers provide adult health care or adult social care.
2 For the purposes of subsection (1)—
a “employee” means an individual in paid employment, whether under a contract of service or apprenticeship or under a contract for services,
b “volunteer” means a volunteer for a body, other than a public or local authority, the activities of which are not carried on for profit.
3 In this Part, “care provider” means—
a a body corporate, a partnership or an unincorporated association which provides or arranges for the provision of—
i adult health care, or
ii adult social care, or
b an individual who provides that care and employs, or has otherwise made arrangements with, other persons to assist with the provision of that care.
4 In this section—
a references to a person providing adult health care or adult social care do not include a person whose provision of that care is merely incidental to the carrying out of other activities by the person, and
b references to a person arranging for the provision of that care do not include a person who makes arrangements under which the provision of care is merely incidental to the carrying out of other activities.
5 In this Part—
  • “adult health care” means a service for or in connection with the prevention, diagnosis or treatment of illness provided to an individual aged 18 or over—
    1. under the health service continued under section 1 of the National Health Service (Scotland) Act 1978, or
    2. by persons providing an independent health care service mentioned in section 10F(1) of that Act,
  • “adult social care” means a service—
    1. in section 47(1)(a), (b), (d) or (m) of the Public Services Reform (Scotland) Act 2010 to the extent that the service is provided to an individual aged 18 or over, or
    2. in section 47(1)(g) or (j) of that Act to the extent that the service is provided to an individual aged 16 or over.

I3129 Disclosure of conviction for offence under section 26

In schedule 8A of the Police Act 1997 (offences which must always be disclosed), after paragraph 55 insert—
.

Remedial orders and publicity orders

I3230 Power to order offence to be remedied or publicised

1 This section applies where a care provider is convicted by a court of an offence under section 27(1).
2 The court may, instead of or in addition to dealing with the care provider in any other way, make either or both of the following orders—
a a remedial order,
b a publicity order.
3 A “remedial order” is an order requiring the care provider to take specified steps to remedy one or more of the following—
a the breach mentioned in section 27(1)(b) (the “relevant breach”),
b any matter that appears to the court to have resulted from the relevant breach and to be connected with the ill-treatment or neglect,
c any deficiency in the care provider's policies, systems or practices of which the relevant breach appears to the court to be an indication.
4 A “publicity order” is an order requiring the care provider to publicise in a specified manner—
a the fact that the care provider has been convicted of the offence,
b specified particulars of the offence,
c the amount of any fine imposed,
d the terms of any remedial order made.
5 An order made under subsection (2) is to be taken to be a sentence for the purposes of an appeal.
6 The court may make an order under subsection (2)—
a at its own instance, or
b on the motion of the prosecutor.
7 An order made under subsection (2) must specify a period (the “compliance period”) within which the requirements specified in the order must be complied with.
8 On an application by the care provider in respect of whom the order under subsection (2) was made, the court may—
a extend the compliance period,
b vary the steps specified in a remedial order.
9 An application under subsection (8) must be made before the end of the compliance period.
10 A care provider who fails to comply with an order made under subsection (2) commits an offence.
11 A care provider who commits an offence under subsection (10) is liable—
a on summary conviction, to a fine not exceeding the statutory maximum,
b on conviction on indictment, to a fine.

I3331 Remedial and publicity orders: prosecutor's right of appeal

1 The Criminal Procedure (Scotland) Act 1995 is amended in accordance with this section.
2 In section 108 (Lord Advocate's right of appeal against disposal)—
a in subsection (1), after paragraph (cd) insert—
,
b in subsection (2)(b)(ii), for the words “or (cd)” substitute “ , (cd), (ce) or (cf) ”.
3 In section 175 (right of appeal from summary proceedings)—
a in subsection (4), after paragraph (cd) insert—
,
b in subsection (4A)(b)(ii), for “or (cd)” substitute “ , (cd), (ce) or (cf) ”.

Ill-treatment and wilful neglect of mentally disordered person

I3432 Penalty for ill-treatment and wilful neglect of mentally disordered person

In section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (ill-treatment and wilful neglect of mentally disordered person)—
a in subsection (3)(b), for “2” substitute “ 5 ”,
b for subsection (4), substitute—
,
c after subsection (4), insert—
.

PART 4  Provision of communication equipment

I3533 Duty to provide or secure communication equipment

After section 46 of the National Health Service (Scotland) Act 1978, insert—
.

PART 5  Final provisions

34 Regulations

1 Any power of the Scottish Ministers to make regulations under this Act includes power to make—
a different provision for different purposes,
b incidental, supplementary, consequential, transitional, transitory or saving provision.
2 Regulations—
a under section 17(1),
b under section 18(1),
c under section 19(1),
d under section 21(5),
e under section 25(2),
f under section 35(1) which contain provisions that add to, replace or omit any part of the text of an Act,
are subject to the affirmative procedure.
3 All other regulations under this Act are subject to the negative procedure.
4 This section does not apply to regulations under section 36.

35 Ancillary provision

1 The Scottish Ministers may by regulations make such incidental, supplementary, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of, or in connection with, any provision made by or under this Act.
2 Regulations under subsection (1) may modify any enactment (including this Act).

36 Commencement

1 This section and sections 34, 35 and section 37 come into force on the day after Royal Assent.
2 The other provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint.
3 Different days may be appointed for different purposes.
4 Regulations under subsection (2) may contain transitional, transitory or saving provision.

37 Short title

The short title of this Act is the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016.

Footnotes

  1. I1
    S. 1 in force at 6.2.2017 by S.S.I. 2017/12, reg. 2, sch.
  2. I2
    S. 2 in force at 6.2.2017 for specified purposes by S.S.I. 2017/12, reg. 2, sch.
  3. I3
    S. 4 in force at 6.2.2017 for specified purposes by S.S.I. 2017/12, reg. 2, sch.
  4. I4
    S. 8 in force at 6.2.2017 for specified purposes by S.S.I. 2017/12, reg. 2, sch.
  5. I5
    S. 9(1) in force at 6.2.2017 for specified purposes by S.S.I. 2017/12, reg. 2, sch.
  6. I6
    S. 10 in force at 6.2.2017 for specified purposes by S.S.I. 2017/12, reg. 2, sch.
  7. I7
    S. 13 in force at 6.2.2017 by S.S.I. 2017/12, reg. 2, sch.
  8. I8
    S. 16 in force at 6.2.2017 by S.S.I. 2017/12, reg. 2, sch.
  9. I9
    S. 9(1) in force at 1.4.2017 in so far as not already in force by S.S.I. 2017/12, reg. 2, sch.
  10. I10
    S. 15(1)(2)(9)-(11) in force at 1.4.2017 by S.S.I. 2017/12, reg. 2, sch.
  11. I11
    S. 2 in force at 1.4.2017 in so far as not already in force by S.S.I. 2017/12, reg. 2, sch.
  12. I12
    S. 3 in force at 1.4.2017 by S.S.I. 2017/12, reg. 2, sch.
  13. I13
    S. 4 in force at 1.4.2017 in so far as not already in force by S.S.I. 2017/12, reg. 2, sch.
  14. I14
    S. 5 in force at 1.4.2017 by S.S.I. 2017/12, reg. 2, sch.
  15. I15
    S. 6 in force at 1.4.2017 by S.S.I. 2017/12, reg. 2, sch.
  16. I16
    S. 8 in force at 1.4.2017 in so far as not already in force by S.S.I. 2017/12, reg. 2, sch.
  17. I17
    S. 12 in force at 1.4.2017 by S.S.I. 2017/12, reg. 2, sch.
  18. I18
    S. 14 in force at 1.4.2017 by S.S.I. 2017/12, reg. 2, sch.
  19. I19
    S. 7 in force at 1.4.2017 by S.S.I. 2017/12, reg. 2, sch.
  20. I20
    S. 9(2)-(4) in force at 1.4.2017 by S.S.I. 2017/12, reg. 2, sch.
  21. I21
    S. 10 in force at 1.10.2017 in so far as not already in force by S.S.I. 2017/12, reg. 2, sch.
  22. I22
    S. 11 in force at 1.10.2017 by S.S.I. 2017/12, reg. 2, sch.
  23. I23
    S. 15(3)-(8) in force at 1.10.2017 by S.S.I. 2017/12, reg. 2, sch.
  24. I24
    S. 21 in force at 1.10.2017 for specified purposes by S.S.I. 2017/294, reg. 2, sch.
  25. I25
    S. 22 in force at 1.10.2017 for specified purposes by S.S.I. 2017/294, reg. 2, sch.
  26. I26
    S. 23 in force at 1.10.2017 for specified purposes by S.S.I. 2017/294, reg. 2, sch.
  27. I27
    S. 25(1) in force at 1.10.2017 for specified purposes by S.S.I. 2017/294, reg. 2, sch.
  28. I28
    S. 26 in force at 1.10.2017 by S.S.I. 2017/294, reg. 2, sch.
  29. I29
    S. 27 in force at 1.10.2017 by S.S.I. 2017/294, reg. 2, sch.
  30. I30
    S. 28 in force at 1.10.2017 by S.S.I. 2017/294, reg. 2, sch.
  31. I31
    S. 29 in force at 1.10.2017 by S.S.I. 2017/294, reg. 2, sch.
  32. I32
    S. 30 in force at 1.10.2017 by S.S.I. 2017/294, reg. 2, sch.
  33. I33
    S. 31 in force at 1.10.2017 by S.S.I. 2017/294, reg. 2, sch.
  34. I34
    S. 32 in force at 1.10.2017 by S.S.I. 2017/294, reg. 2, sch.
  35. I35
    S. 33 in force at 19.3.2018 by S.S.I. 2018/26, reg. 2
  36. I36
    S. 25(1) in force at 1.4.2018 in so far as not already in force by S.S.I. 2018/56, art. 2, sch.
  37. I37
    S. 25(2) in force at 1.4.2018 by S.S.I. 2018/56, art. 2, sch.
  38. I38
    S. 21 in force at 1.4.2018 in so far as not already in force by S.S.I. 2018/56, art. 2, sch.
  39. I39
    S. 22 in force at 1.4.2018 in so far as not already in force by S.S.I. 2018/56, art. 2, sch.
  40. I40
    S. 23 in force at 1.4.2018 in so far as not already in force by S.S.I. 2018/56, art. 2, sch.
  41. I41
    S. 24 in force at 1.4.2018 by S.S.I. 2018/56, art. 2, sch.
  42. I42
    S. 20 in force at 2.3.2022 for specified purposes by S.S.I. 2022/43, reg. 2, sch.
  43. I43
    S. 20 in force at 5.9.2022 in so far as not already in force by S.S.I. 2022/43, reg. 2, sch.
  44. I44
    S. 17 in force at 31.1.2024 by S.S.I. 2024/1, reg. 2
  45. I45
    S. 18 in force at 31.1.2024 by S.S.I. 2024/1, reg. 2
  46. I46
    S. 19 in force at 31.1.2024 by S.S.I. 2024/1, reg. 2