Misuse of Drugs Act 1977

Power of court to remand persons convicted under section 3, 15, 16, 17 or 18 and to obtain a report and in certain cases to arrange for the medical treatment or for the care of such persons.

28

28. (1) ( a) Where a person is convicted of an offence under section 3 of this Act, other than a first or second offence in relation to which a penalty may be imposed under section 27 (1) (a) of this Act, or an offence under section 15 or 16 of this Act, or of attempting to commit any such offence, F52 [ if, having regard to the circumstances of the case, the court considers it appropriate so to do, the court may ] remand the person for such period as it considers necessary for the purposes of this section (being a period not exceeding eight days in the case of a remand in custody), and request F53 [ the Health Service Executive ], F52 [ probation and welfare ] officer or other body or person, considered by the court to be appropriate, to—

(i) cause to be furnished to the court a medical report in writing on the convicted person together with such recommendations (if any) as to medical treatment which the person making the report considers appropriate to the needs F54 [ , arising because of his being dependent on drugs, ] of the convicted person, and

(ii) furnish to the court a report in writing as to the vocational and educational circumstances and social background of the convicted person together with such recommendations (if any) as to care which the body or person making the report considers appropriate to the said needs.

( b) Where a person is convicted of a first or second offence under section 3 of this Act in relation to which a penalty may be imposed under the said section 27 (1) (a) or an offence under section 17 or 18 of this Act, or of attempting to commit any such offence, and the court, having regard to the circumstances of the case, considers it appropriate so to do, the court may remand the person F55 [ on bail or, unless a penalty falls to be imposed on the person under paragraph (a) of section 27 (1) of this Act, in custody ] for such period as it considers necessary for the purposes of this section, and request F53 [ the Health Service Executive ], F55 [ probation and welfare ] officer or other body or person, considered by the court to be appropriate, to—

(i) cause to be furnished to the court a medical report in writing on the convicted person together with such recommendations (if any) as to medical treatment which the person making the report considers appropriate to the needs F54 [ , arising because of his being dependent on drugs, ] of the convicted person, and

(ii) furnish to the court a report in writing as to the vocational and educational circumstances and social background of the convicted person together with such recommendations (if any) as to care which the body or person making the report considers appropriate to the said needs.

(2) Having considered the reports furnished pursuant to subsection (1) of this section, the court shall, if in its opinion the welfare of the convicted person warrants its so doing, instead of imposing a penalty under section 27 of this Act, but subject to subsection (8) of this section either—

( a) permit the person concerned to enter into a recognisance containing such of the following conditions as the court considers appropriate having regard to the circumstances of the case and the welfare of the person, namely—

(i) a condition that the person concerned be placed under the supervision of such body (including F53 [ the Health Service Executive ]) or person as may be named in the order and during a period specified in the order,

F56 [ (i a ) in case the person concerned is placed under such supervision, a condition requiring such person, at the place at which he normally resides or at such other place as may be specified in the order and during such period and at such intervals as shall be so specified, to receive visits from and permit visits by

(I) in case such person is placed under the supervision of a body, an officer of that body,

(II) in case such person is placed under the supervision of a person, that person, ]

(ii) a condition requiring such person to undergo medical F57 [ or other ] treatment recommended in the report,

(iii) a condition requiring such person for such treatment to attend or remain in a hospital, clinic or other place specified in the order for a period so specified,

(iv) a condition requiring the person to attend a specified course of education, instruction or training, being a course which, if undergone by such person, would, in the opinion of the court, improve his vocational opportunities or social circumstances, facilitate his social rehabilitation or reduce the likelihood of his committing a further offence under this Act, or

( b) order that the person be detained in custody in a designated custodial treatment centre for a period not exceeding the maximum period of imprisonment which the court may impose in respect of the offence to which the conviction relates, or one year, whichever is the shorter.

(3) A court may, if it thinks fit, consider otherwise than in public—

( a) a report under subsection (1) of this section,

( b) whether or not it will permit a person to enter into a recognisance mentioned in subsection (2) of this section, or

( c) whether or not it will make an order referred to in paragraph (b) of subsection (2) of this section.

(4) In any proceedings in which a report furnished under subsection (1) of this section is considered, the court may, if it believes that it is in the interests of the person concerned not to know the contents of the report, withhold from him the report, but the foregoing shall not be construed as preventing any barrister or solicitor who appears on such person's behalf in the proceedings seeing the report or, if thought fit, questioning or commenting on any of its contents in the proceedings.

(5) Where it is alleged to the court that a person has been in breach of a recognisance entered into by him under subsection (2) of this section, the court, notwithstanding the decision by it under the said subsection (2), may direct that the person be brought before the court, and, if satisfied that the person has been in breach of the recognisance, may estreat the recognisance and, subject to subsection (8) of this section, either make in respect of the person an order referred to in paragraph (b) of subsection (2) of this section or proceed to deal with the case in accordance with the provisions of section 27 of this Act as if the decision had not been made.

(6) If at any time during a period of detention in a designated custodial treatment centre it appears to the court, on an application made by or on behalf either of the prosecutor or the person who is being detained, or on receipt of a message, in a form approved of by the Minister, from an authorised medical practitioner F58 [ or the person who is for the time being in charge of such centre ], that the person being detained under this Act is not then, or may not then be, in further need of the treatment or care of which the court formerly considered him to be in need, or that his continued detention in custody in the designated custodial treatment centre is not then, or may not then be, in his best interests or in the best interests of other persons in that centre, the court, notwithstanding its decision under subsection (2) of this section, may order the person to be brought before the court.

(7) Where a person is brought before the court pursuant to an order under subsection (6) of this section, the court may inquire into the case and hear such evidence as it considers relevant, and if, having considered the circumstances of the case, the court is satisfied that the person is not then in further need of the treatment or care referred to in subsection (6) of this section, or that his continued detention in custody in the designated custodial treatment centre would not be in his best interests or in the best interests of other persons in that centre, the court, notwithstanding its decision under subsection (2) of this section, may revoke the relevant order made by it under the said subsection (2) and, subject to subsection (8) of this section,

( a) permit the person to enter into a recognisance described in the said subsection (2) if the court is of the opinion that the welfare of the person warrants its so doing, or

( b) order the person to be detained for a period not exceeding the unexpired portion of the period specified in the revoked order in a custodial treatment centre other than that so specified, or

( c) decide not to impose any penalty under section 27 of this Act, or

( d) where it considers it appropriate so to do and subject to subsection (9) of this section, proceed to deal with the offence in accordance with section 27 of this Act.

(8) The court shall not under this section either,

( a) permit a person to enter into a recognisance containing a condition requiring him for F59 [ medical or other treatment ] to remain in a specified hospital, clinic or other place, or

( b) order a person to be detained in a custodial treatment centre,

unless, after consultation with, or consideration of a report of, either the F59 [ the medical practitioner or other person ] in charge of the hospital, clinic, custodial treatment centre or other place concerned or a medical practitioner nominated by F59 [ the medical practitioner or other person ] so in charge, the court is satisfied that the giving or making of the permission or order would be an appropriate course having regard to the needs of the person and would not prejudicially affect the ability of such hospital, clinic, custodial treatment centre or other place to provide for the treatment or care of persons.

(9) In case a court decides, pursuant to subsection (7) of this section, to impose a sentence of imprisonment under section 27 of this Act, the period of imprisonment which may be so imposed shall not exceed the period by which the maximum term of imprisonment which that court could otherwise have imposed under the said section 27 for the offence of which the person was convicted exceeds the period already spent by him in custody on foot of the order revoked by the court.

(10) The Minister may by order designate an institution which in his opinion is suitable for the medical treatment or the care of persons in respect of whom an order may be made under this section, or a specified part of such an institution, as a designated custodial treatment centre for the purpose of this section.

(11) In this section—

authorised medical practitioner” means a registered medical practitioner authorised for the purposes of this section by the Minister in writing or a registered medical practitioner of a class specified by the Minister as being authorised for the said purposes;

F60 [ probation and welfare officer means an officer employed in the probation and welfare service of the Department of Justice; ]

F61 [ ]

Annotations:

Amendments:

F52

Substituted (3.08.1984) by Misuse of Drugs Act 1984 (18/1984), s. 14(b) and (d), S.I. No. 205 of 1984.

F53

Substituted (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 6 pt. 7 item 1(a)-(c), S.I. No. 887 of 2004.

F54

Inserted (3.08.1984) by Misuse of Drugs Act 1984 (18/1984), s. 14(c), S.I. No. 205 of 1984.

F55

Substituted (3.08.1984) by Misuse of Drugs Act 1984 (18/1984), s. 14(e), S.I. No. 205 of 1984.

F56

Inserted (3.08.1984) by Misuse of Drugs Act 1984 (18/1984), s. 14(f), S.I. No. 205 of 1984.

F57

Inserted (3.08.1984) by Misuse of Drugs Act 1984 (18/1984), s. 14(g), S.I. No. 205 of 1984.

F58

Inserted (3.08.1984) by Misuse of Drugs Act 1984 (18/1984), s. 14(h), S.I. No. 205 of 1984.

F59

Substituted (3.08.1984) by Misuse of Drugs Act 1984 (18/1984), s. 14(i), S.I. No. 205 of 1984.

F60

Inserted (3.08.1984) by Misuse of Drugs Act 1984 (18/1984), s. 14(j), S.I. No. 205 of 1984.

F61

Deleted (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 6 pt. 7 item 1(d), S.I. No. 887 of 2004.

Modifications (not altering text):

C21

Reference to a registered medical practitioner construed (3.07.2008) by Medical Practitioners Act 2007 (25/2007), s. 108(1), S.I. No. 231 of 2008.

Construction of references to registered medical practitioner and Medical Council, etc.

108.— (1) Every reference to a registered medical practitioner contained in any enactment or any statutory instrument shall be construed as a reference to a registered medical practitioner within the meaning of section 2 .

Editorial Notes:

E153

Subss. (2)-(9) applied with modifications where a person is convicted of an offence under Misuse of Drugs Act 1984, s. 7 (3.08.1984) by Misuse of Drugs Act 1984 (18/1984), s. 8, S.I. No. 205 of 1984.

E154

Power pursuant to subs. (10) exercised (1.02.1980) by Misuse of Drugs (Custodial Treatment Centre) Order 1980 (S.I. No. 30 of 1980).