Allied Health Professions: disclosure guidance

9 Disclosure And Different Groups

9.1 Restricted Patients

Restricted Patients are persons detained under a Compulsion Order with a Restriction Order (CORO), a Hospital Direction or a Transfer for Treatment Direction. Individuals subject to a CORO have usually committed an offence punishable by imprisonment but as a result of their mental disorder are not imprisoned but detained for hospital treatment. A Restriction Order is added to the Compulsion Order if it is necessary for the protection of the public from serious harm (sections 57A and 59 of the Criminal Procedure (Scotland) Act 1995. The mental health tribunal has responsibility for the discharge of Restricted Patients from hospital.

Restricted Patients also include patients subject to Transfer for Treatment Directions (made under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003) and patients subject to a Hospital Direction (made under section 59A of the Criminal Procedure (Scotland) Act 1995). These allow a prisoner who becomes unwell or is unwell during trial proceedings to be sent to hospital for treatment before returning to prison once well. A small proportion of these patients will, as a result of their severe and enduring mental illness, be rehabilitated through the mental health system. Whilst within the hospital system they are subject to similar restrictions, including rehabilitation planning as those on a CORO. Scottish Ministers have responsibility for the oversight and scrutiny of day-to-day management of the individuals. Individuals are often subject to specific conditions and restrictions. The Scottish Government website contains further information on Restricted Patients.

9.1.1 Memorandum of Procedure

Scottish Ministers have a statutory role in relation to Restricted Patients which is outlined in the Memorandum of Procedure (MOP) published by the Scottish Government (2010). The MOP (Scottish Government, 2010) outlines the roles of professionals in relation to Suspension of Detention (SUS) adding an extra layer of scrutiny for the protection and security of the public from those patients who are considered to pose a serious risk. For patients identified as Restricted Patients specific permission is required before patients can undertake work placements deemed suitable by the clinical team. The Memorandum of Procedure is an essential reference document for those who are involved with the management and care of Restricted Patients. These are patients who are subject to a Compulsion Order with Restriction Order, a Hospital Direction or a Transfer for Treatment Direction.

The Memorandum also sets out information in relation to certain patients subject to other types of mental health orders, such as interim Compulsion Orders, Assessment Orders and Treatment Orders, in relation to whom Scottish Ministers also have a statutory role although they are not "Restricted Patients". The procedures it describes should be closely noted and observed by all those involved in the care and management of Restricted Patients, and other patients in relation to whom the Scottish Ministers have a statutory role, both within hospitals and in the community.

Where employment or a work placement has been identified a SUS request should be completed using the appropriate paper work as soon as possible. This should include information on the exact location of the job or placement, travel arrangements, frequency and length of time. If an urgent response is required due to for example a specific start date this should be flagged up to the Restricted Patient team with a covering letter sent with the SUS request or an advance phone call. This will enable consideration of the request as a matter of urgency.

9.1.2 Acquittal on the Grounds of Mental Disorder

Individuals subject to restrictions may have been given a disposal of acquittal on the grounds of mental disorder. If the offence has been recorded as a conviction then the disclosure rules outlined in section 4 would apply. That is, the individual must disclose any offence that was unspent and spent convictions on the 'Offences Which Must Always be Disclosed' list. Any 'Offences Which are Disclosed Subject to Rules' may also be disclosed subject to the guidelines outlined in section 4 of this document and the individual is only liable to self-disclose when these are listed on a certificate issued by Disclosure Scotland.

Should the offence be recorded as a non-conviction disposal it would not be subject to the same disclosure rules. However, on an enhanced disclosure or a PVG Scheme there is a section for Other Relevant Information and legislation (Protection of Vulnerable Groups Scotland Act, 2007 and The Police Act, 1997) which states that non-conviction information held locally by the Police can be disclosed at the discretion of the Chief Officer of the Police Force concerned. This type of disclosure would depend on the position being applied for and there is no requirement for a finding of guilt before the information is disclosed. The individual is not required to self-disclose any non-conviction information to an employer.

The Restricted Patient team in the Scottish Government or Procurator Fiscal may be able to provide detail regarding the wording of the conviction and charge which will assist in deciding if the offence requires to be disclosed. Individuals can obtain a copy of their full criminal record information by submitting a Subject Access Request (SAR) on the Police Scotland website or via post as detailed in Section 5.

9.2 Individuals subject to Multi Agency Public Protection Arrangements (MAPPA)

MAPPA/view?objectId=5682032&exp=e1">Multi Agency Public Protection Arrangements (MAPPA) is the process through which the Police, Probation and Prison Services work together with other agencies to manage the risks posed by individuals convicted of violent or sexual offences living in the community in order to protect the public. MAPPA ensures that all information is shared between people who need to have it and effective risk management plans are agreed.

MAPPA is not a statutory body or organisation, it is a set of arrangements which the police service, local authority, prison service, health service and others are obliged to operate on a multiagency basis. It is a mechanism through which agencies can discharge their statutory responsibilities and protect the public in a co-ordinated manner. Individual agencies still retain their responsibilities and obligations.

There MAPPA/view?objectID=18828016">are 3 levels of MAPPA management that are mainly based upon the level of multi-agency co-operation required, with higher risk cases tending to be managed at the higher levels. The decision to disclose any information about an individual to a third party is discussed at MAPPA meetings and must be necessary and proportionate in order to protect victims, potential victims, staff and the community. It may be discussed at MAPPA meetings what and to whom information should be disclosed and also determine the disclosing agency and whether it would be appropriate to involve other agencies in a disclosure.

For individuals subject to MAPPA restrictions there may be requirements of disclosure for such individuals.

• The Scottish Government Website contains useful information on MAPPA:
• Multi-Agency Public Protection Arrangements (MAPPA): national guidance - gov.scot (www.gov.scot)The MAPPA Guidance May 2022 is available to download here - MAPPA/view?objectID=129513925">MAPPA Guidance May 22 - Multi-Agency Public Protection Arrangements - MAPPA (justice.gov.uk)

9.3 The Care Programme Approach (CPA)

The Care Programme Approach (CPA) is a way that services are assessed, planned, co-ordinated and reviewed for someone with mental health problems or a range of related complex needs.

MAPPA and the CPA have a common purpose of maximising public safety and the reduction of serious harm. Although the same underlying principles of gathering and sharing of relevant information in relation to risk apply, CPA focuses on the care and treatment likely to minimise the risk posed, whilst MAPPA focuses on multi agency management of risk. Within the MAPPA framework, the CPA process will remain the vehicle for planning a person's care and treatment and for risk assessment and management planning.

9.3.1 Enhanced Care Programme Approach

Extension to this working model introduced the Enhanced Care Programme Approach to manage the care of Restricted Patients in Scotland, ensuring consistency through the use of standardised processes and documentation in care planning and risk management plans.

9.4 Individuals Convicted of a Sexual Offence

Individuals who have been convicted of a sexual offence are amongst the most difficult group to place in terms of employment. This may be for a range of reasons including: the emotive nature of the offences, the potential reaction of other employees, and the possible or perceived risks to customers and other staff posed. Research indicates that unemployment is one of the biggest factors that can serve to increase the risk of re-offending from this particular group^[17]. A small number of offences will lead to automatic listing, barring the individual from regulated work with children or adults, if the person has been convicted on indictment since February 2011. These offences are set out in the Protection of Vulnerable Groups (Scotland) Act 2007) and include: murder of a child, rape, sodomy, and a number of sexual offences against children and people with mental health issues. Individuals convicted of an offence which has not been specified as one which results in automatic listing but which is a "relevant offence" in terms of section 32 of the Protection of Vulnerable Groups (Scotland) Act 2007, will be referred to the Scottish Ministers by the court for consideration for listing. These relevant offences are set out in Schedule One of the PVG (Scotland) Act (2007).

Anyone convicted of a sexual offence will be subject to MAPPA restrictions and decisions around disclosure should be agreed at these meetings.