The Mental Health (National Secure Adolescent Inpatient Service: Miscellaneous Amendments) (Scotland) Regulations 2023: BRIA

Business

The addition of the NSAIS to the existing regulations are a consequential change as a result of the development of the new service. The views of stakeholders, and the clinical team at the NSAIS, have been sought throughout the work to develop the 2023 Regulations.

Options

Option 1: Do nothing

This would mean the Scottish Government would fail in allowing a specific group of our society, namely vulnerable children and young people, access to a right of appeal. This would have a negative impact on their ability to seek care and treatment at facility that might be better suited to their needs.

A lack of safety and security measures for the new unit could mean an increase in the risk of prohibited objects being brought into the service. This in turn would increase the potential risk of a serious incident involving patients, staff and others involved in their care. Failure to have the measures in place could also cause significant disruption to the service and the care and treatment patients receive.

We do not consider this to be a viable option given the significant human rights impact this would have on children and young people detained in the service and the potential implications it could have on their safe care.

Option 2: Amend both sets of regulations to include the NSAIS

There was agreement from stakeholders that patients detained in the new service should be provided the right to appeal against being held in conditions of excessive security. Some comments did focus on the potential care pathway a successful appeal would bring, such as a cross border transfer to another jurisdiction, but respondents felt that this should not impede their right to appeal.

As has been highlighted above, the views of stakeholders were mixed regarding the addition of the NSAIS to the 2005 Regulations, concerning safety and security. However, ensuring patients detained in the new service are subject to certain security measures will allow for the safe and secure management of those at risk of violence or causing harm to others and themselves.

The safety and security measures will only be applied if there is a significant risk posed to the health, safety or welfare of the patient or others in the hospital, or a significant risk to the security or good order of the hospital. Prior to the application of a particular measure, consent will be sought from the patient, and if the patient refuses, the clinical team will discuss the associated risks and confirm if the measure is necessary. The manner in which any such measure is applied will be undertaken with care and respect for the dignity of the child or young person. In addition, the measures will be applied in such a way they are individualised and specific to the care needs of the patient. Incidents involving the application of the measures will be reviewed and recorded appropriately, as required by the 2005 Regulations.

We have carefully considered the comments of stakeholders and the existing provisions within the 2003 Act, and in the 2005 and 2015 Regulations. In our view, there is no reasonable justification as to why patients in the NSAIS should not be provided the right to appeal against being held in conditions of excessive security. In keeping with section 2 principles of the 2003 Act, children and young people should be afforded the same right as others detained in the same security setting. Ensuring the service is able to implement the safety and security measures to all in the NSAIS helps facilitate a secure and effective care environment that is necessary for the risk level of those detained in the service. The measures contained in the 2005 Regulations are subject to conditions and safeguards, will be applied when necessary and properly justifiable, and they must be applied in a manner which is proportionate to the potential risk. Section 2 principles also require those discharging all of these functions to have regard to doing so in a manner involving the minimum restriction on the freedom of the patient necessary in the circumstances. And functions must be discharged in a manner that best secures the welfare of the patient.

Sectors and groups affected

Both options will affect patients detained in the NSAIS.

Option 1 would mean that such patients would not be able to challenge their detention in conditions of excessive security. This would have significant child rights and human rights implications. Furthermore, the safety of the new unit, patients and those involved in their care would be negatively impacted if the service did not have the necessary legal framework to apply procedural security measures.

Option 2. Once regulations come into force, it will grant patients detained in the NSAIS the right to make an application to the Tribunal for an order declaring that they are being detained in conditions of excessive security. Procedural security measures, where necessary, proportionate and justifiable, would be available to help facilitate a secure and effective care environment.

Those affected will include:

• Patients detained in the NSAIS who would have a right of appeal against the level of security to which they are subject. The health board would also be affected as they have a duty to identify a hospital in which the patient could be detained in appropriate conditions if such an appeal is successful.
• The Tribunal will be affected in terms of organising and overseeing the appeals process. There may be additional costs associated with an increased workload.
• Staff at the NSAIS who will be involved in applying the procedural security measures.

Benefits

We have given careful consideration to the two options presented. The only option being considered is option 2. The benefits of option 2 include: a positive impact on the rights of patients and ensuring consistency with the guiding principles of the 2003 Act; reassurance that individuals can challenge decisions that impact on them; and protection of the safety and security of patients, and others at the NSAIS.

Costs

The predicted costs arising from this proposal relate to the right of NSAIS patients to contest the level of security they are being held under. This policy will mainly impact on the NHS, the Tribunal and the Scottish Legal Aid Board. The ongoing costs are estimated to be £9,941 per appeal, with those costs spread across health boards, the Tribunal and the Scottish Legal Aid Board. This is based on costs for existing appeals and breaks down, per appeal, as follows:

• £1,941 Mental Health Tribunal cost of panel hearing for excessive security appeals
• £1,500 NHS National Services Scotland Central Legal Office costs per hearing for solicitors representing the health board (preparation and appearance at hearings)
• £1,500 Scottish Legal Aid Board average costs
• £5,000 health board costs associated with assessment of the patient’s suitability for low secure services

The NSAIS is to initially open with 4 beds available for patients. Plans are in place to increase this to 12 in the future. The appeal right only applies once the order for compulsory care or treatment has been in place for 6 months. Therefore, at any point there will be a certain number of patients who would be ineligible to make an application.

According to the Scottish Government’s Inpatient Census, 2022, the average (median) length of stay for a patient currently held under orders for compulsory care or treatment was just under 8 months.

Furthermore, not all patients will wish to exercise the right of appeal. Not all patients will get the supportive report from an approved medical practitioner which must accompany their application and without which they will be unable to apply. It is difficult to estimate the percentage of patients who will not get a supportive report but between a third and two thirds of patients in the State Hospital who appealed under section 264 (detention in conditions of excessive security: state hospitals) of the 2003 Act for each year were unsuccessful or withdrew the appeal. It is reasonable to assume that a high proportion of patients eligible to appeal would not be able to obtain a supportive report from an approved medical practitioner and therefore would not be able to make an application to the Tribunal. On the basis of 4 beds at the NSAIS, a reasonable estimate of appeals would be 2 appeal cases per year.

For those patients who sought to obtain an independent report in order to make an application but the report was not supportive, estimated costs would be limited to approximately £1,500 per case (in legal aid costs).

This analysis would indicate total costs (spread across the public bodies set out above) of around £19,882 per annum (£9,941 x 2).

If the NSAIS has 12 beds, all occupied, that cost could rise to an estimated total of £59,646 per annum (based on an estimate of 6 appeal cases per year, spread across the public bodies set out above).

These costs are subject to a significant margin of uncertainty given that we cannot, with any certainty, predict the number of patients who will wish to obtain an independent report in order to make an application or the number of those who will obtain a supportive report in order for the appeal to proceed.

Costs will vary depending on the complexity of the case. If the health board does not identify more appropriate accommodation for patients who successfully win their appeal and then move the patient within the timeframe set by the Tribunal, then there will be additional costs for second hearings.