Implementation of the Mental Health (Scotland) Act 2015: consultation, part 2

Chapter 2 - Cross-border transfer regulations

Background

Under the 2003 Act there are existing regulations that deal with the cross border transfer of patients. These are:

• The Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008 ('the cross border transfer 2008 regulations').
• The Mental Health (Cross border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005 ('the 2005 regulations').
• The Mental Health (Cross-border Visits) (Scotland) Regulations 2008 ('the cross border visits 2008 regulations').

The 2005 regulations are the most frequently used of these, and most of this paper is about them. They deal with cross-border transfers out of Scotland to elsewhere in the United Kingdom as well as to places outside the United Kingdom. They also deal with the cross-border transfer into Scotland of patients from England, Wales, Northern Ireland, the Channel Islands or the Isle of Man. These regulations set out the duties of Responsible Medical Officers ( RMO), Mental Health Officers ( MHO) and Scottish Ministers when a cross-border transfer is to take place. They set out information that must be provided to the patient and his or her representatives and timescales that must apply before a patient can be moved. They also set out rights of appeal to the Mental Health Tribunal for Scotland ('the Tribunal') and the Court of Session.

The 2015 Act allows for regulations to make equivalent provisions for the reception in Scotland of a person from another EU member state. It also requires that the regulations provide for a right of appeal against the decision to remove a patient from Scotland for the named person or, where there is no named person, for the guardian, welfare attorney, primary carer or nearest relative.

As well as the changes that are needed because of the 2015 Act, we are also seeking your views on whether, in light of experience since 2005, any other adjustments to the process for removal from Scotland set out in the 2005 regulations are necessary.

As a summary, the current process contains the following main steps:

Transfer of a patient from Scotland:

• Transfers will be discussed with the patient, care team and carers at Care Planning Meetings.
• After consulting the patient's MHO, the RMO must give notice to the patient, the patient's named person (or carer for voluntary patients), guardian and/or welfare attorney, and the MHO that an application is to be made to Scottish Ministers for a warrant that would allow a cross-border transfer. The patient may also make his or her wishes or preferences known to Scottish Ministers.
• There is then a 7 day period where the above parties may make their views known to the RMO and the patient may additionally make his or her wishes known to Scottish Ministers. Within this period, the patient's MHO must interview the patient about the transfer and inform them of his or her rights in relation to the transfer and to the support of independent advocacy services. The RMO must have regard to any representations made to them before deciding to make an application to Scottish Ministers for a warrant that would allow a cross-border transfer.
• Once this 7 day period has passed (or sooner if the MHO has carried out their duties and representations have been made by all parties to both the RMO and to Scottish Ministers), the RMO may submit an application for a warrant to Scottish Ministers.
• Scottish Ministers then consider a range of factors and decide whether or not to grant the warrant. Once this decision is made the patient, the named person , the RMO, the MHO, the Mental Welfare Commission for Scotland ('the Commission') and the country or territory to which it is proposed that the patient should be removed must be informed.
• A warrant that is granted will have an effective date, and the transfer must take place within 14 calendar days of that date. For transfers of patients to the rest of the UK, there must be a period of 7 calendar days between the effective date and the date of transfer. Where the transfer is urgent, or all parties consent to the transfer, this period can be shortened, but there must be a period of 3 working days between the effective date and the date of transfer. For transfers of patients to countries outside the UK, there must be a period of at least 28 calendar days between the effective date and the earliest date of transfer. Where the transfer is urgent this period can be shortened to a period of 7 calendar days. Where all parties consent to the transfer, this period can be shortened to a period of 3 working days between the effective date and the date of transfer.
• If the patient does not want the transfer to go ahead, the patient may appeal to the Tribunal against the decision of Scottish Ministers to grant a warrant before the transfer takes place.

Transfer of a patient to Scotland

• A request is made to Scottish Ministers for consent to the transfer. The request must include certain details including the name and address of the patient and of their carer or nearest relative; the type of mental disorder the patient has; details of the relevant measures to which the patient is currently subject; and the name and address of the hospital in the relevant territory in which the patient is presently detained or is liable to be detained.
• An RMO and an MHO must then be appointed for the patient.
• Upon arrival, the patient will become subject to the corresponding order, direction or certificate under the 2003 or 1995 Act and the relevant duties relating to these orders will now apply.
• The MHO must ascertain whether the patient has a named person, prepare a social circumstances report and inform them of their right to support from independent advocacy services.
• The RMO must carry out an examination of the patient within 7 days of their arrival and must consider whether the order, direction or certificate that the patient is now subject to is appropriate and if not must revoke it.
• The patient will be visited by the Commission within six months of the patient's transfer.

Appeals and notifications

Appeals against a transfer outwith Scotland

The 2015 Act ensures that the regulations will provide a right of appeal against transfers under the 2005 regulations to named persons and, where there is no named person, to listed persons. A listed person is a carer, nearest relative, guardian or welfare attorney. They can make an application or appeal to the Tribunal when the patient does not have a named person and does not have capacity to make the appeal on their own behalf.

We also intend to make clearer the process for reissuing a warrant for transfer if there is an unsuccessful appeal against the transfer. In many cases, the warrant will not be valid after the appeal has concluded, as it is only authorises transfer within 14 days of the effective date and a transfer after appeal cannot take place with 21 days of the decision unless the patient gives their written consent. A warrant can be varied by Scottish Ministers and we would propose that the regulations and guidance set out clearly what the varied warrant should contain.

Question 1 - Do you agree with these proposals? Please state if you have any concerns or suggestions for changes to the proposal.

Appeals against detention for patients recently transferred to Scotland

Patients can be transferred to Scotland from other jurisdictions on a longer term order that has not been authorised by a court or tribunal process, as long as that order is considered to correspond to an equivalent Scottish measure. As shown in the summary of the cross border transfer process above, they become subject to the equivalent order. This is treated as having been made on the date that the original order in the previous jurisdiction was made. The RMO must examine the patient within 7 days to consider whether the order etc. is appropriate.

Under the 2003 Act, a patient can only apply to the Tribunal to have a Compulsory Treatment Order ( CTO) revoked or varied once three months has elapsed since the date the order was granted. This condition also applies to patients who transfer to Scotland and are made subject to a CTO as the equivalent order. As with any CTO, the Commission is able to refer such cases to the Tribunal within three months.

We would like to explore whether such patients who have transferred to Scotland and have not appealed nor had an appeal heard in the other jurisdiction should have a right of appeal to the Tribunal. This right of appeal would be within 3 months, calculated from the date of the original order and not from the date of transfer for patients' whose original order was not authorised by a court or tribunal.

We are considering whether the regulations should introduce a right to apply to the Tribunal for a CTO to be varied or revoked when all the following circumstances are met:

• That the patient has been transferred to Scotland on a cross border transfer under the 2005 regulations
• That the patient's original order or certificate lasts longer than 28 days or the equivalent order that the patient is placed on is a CTO
• That the original order or certificate was not granted by a Tribunal, court or equivalent
• That the order or certificate was granted within the last three months and therefore the patient, named person etc cannot make an application under section 100.
• That, following an examination of the patient, the RMO has determined that the order is appropriate.
• That the patient did not have an appeal heard against detention ahead of transfer.

Question 2 - Do you agree that a right to apply to the Tribunal as set out above should be introduced? Please state if you have any concerns or suggestions for changes to the proposal. Are there any related circumstances where such a right to apply to the Tribunal should be introduced?

Notifications where patient has been transferred to Scotland from another jurisdiction

A further suggestion relates to regulation 41(2) of the 2005 regulations. This regulation requires that managers at the receiving hospital provide certain information, following assessment of the patient in Scotland, to the patient, the patient's named person, the Commission, the MHO and depending on the order, either the Tribunal or Scottish Ministers. This information is:

• The name and address of the sending and receiving hospitals
• The date of the transfer
• The name and contact details of the RMO
• Whether following assessment that the RMO is content that the patient meets the criteria for continued detention for treatment
• The date until which detention is authorised unless otherwise extended
• Where relevant the date of the next mandatory review.

To make this regulation consistent with other notification requirements in the 2003 Act, and to ensure protections for patients who do not have a named person, we are proposing that the managers of the receiving hospital should also give information to any guardian or welfare attorney or equivalent in the other jurisdiction. A similar change would be made to regulation 28 of the cross border transfer 2008 regulations.

Question 3 - Do you agree with the proposal that limited information about the transfer should be provided to any guardian or welfare attorney or equivalent where there is no named person? Do you consider it appropriate for the guardian or welfare attorney to receive all of the information listed above, or should they only receive this in part? Where there is no named person, or guardian or welfare attorney, should information be provided to the primary carer?

Other changes for patients being transferred to Scotland

Currently a Designated Medical Practitioner ( DMP) opinion for 'treatments given over period of time etc' (s240 of the 2003 Act) is required two months after a cross border transfer. However the cross border patient may have been on the treatment for a much longer period of time without the safeguard of a DMP or equivalent opinion. One option would be to shorten the timescale within which the DMP visit takes place to 4 weeks. However, the course of treatment suggested by the new RMO may be different, making this visit less effective. We do not think that multiple visits from a DMP within the first two months would be practicable. Any change would apply to patients transferring under the 2005 regulations and the cross border transfer 2008 regulations (e.g. those subject to community orders as well).

Question 4 - Do you think there should be changes made to the timescale after which a DMP should visit a patient who has transferred to Scotland to authorise the continuation of 'treatments given over a period of time'? If so, what timescale would you suggest and should this apply in all circumstances or are there specific circumstances where it should apply? Do you agree that if the DMP has visited within the first two months, a DMP visit after two months should not be required?

Question 5 - Overall, are there any further changes that you think should be made to these regulations in relation to the reception of patients into Scotland?

Other changes for patients being transferred from Scotland

The 2005 regulations have been in operation for over 10 years and practice suggests there are some areas where they could be improved or added to.

For transfers of patients from Scotland to a country outside the UK, the regulations currently specify differing dates for the earliest date of transfer in relation to the effective date of the warrant. We think it would be sensible to rationalise these timescales to make them consistent with the approach for cross-border transfers to other UK jurisdictions.

We would suggest that a transfer for a patient to a country outside the UK could not take place until 28 days after the effective date, to allow for appeals, with the warrant specifying that the transfer must take place within the 14 days after this 28 day period has expired. In urgent cases or where all parties indicate their assent in writing, this 28 day period could be waived to 3 days.

Question 6 - Do you agree with this proposed change? Please state if you have any concerns or suggestions for changes to the proposal.

We are aware of differing views as to the circumstances in which a person who has had their detention suspended can be transferred to another jurisdiction. We think there may be circumstances in which transfer of patients whose detention is suspended would be desirable and are seeking your views on what circumstances should be covered by the regulations.

Question 7 - Are there circumstances where the regulations should allow a cross border transfer for a patient whose detention is suspended? If so, should there be any variation to the process for other cross-border transfers? Do you consider there should be any additional information required or different safeguards?

We are aware that some concerns exist with timescales where all parties agree to transfer, for example because the patient has strong ties to another area in the UK and wishes to return there. One suggestion that has been made is that in cases when all parties consent to the transfer, including the patient and named person if applicable, written consent could be provided to Scottish Ministers with the application for a warrant that would include a confirmation that the patient and named person would like to waive the mandatory period after the effective date of the warrant.

This would mean that the transfer could take place as soon as is practicable after the warrant is issued, rather than requiring three working days between the effective date and the transfer. If this suggestion is taken forward we would want to ensure that this was only with regard to applications where the patient has capacity to make the necessary decision and we would also want to ensure that the patient and named person would be able to withdraw this waiver at any point before the transfer, if he or she subsequently changed his or her mind and wanted to appeal.

We are also exploring whether the warrant should always only allow transfer to one specific ward or hospital. We are aware that there are situations where the patient has a strong desire to transfer to a specific geographic area where there are multiple appropriate wards (e.g. general adult psychiatry). Currently, if the original bed was no longer available there was an alternative bed available in a nearby hospital, the warrant would not be valid for transfer to the alternative bed. We expect that this change would be for cases like this rather than transfers for specialist treatment. In addition, such a transfer could only go ahead if information was provided to Scottish Ministers to demonstrate that the alternative bed met the patient's needs in a similar way to the original proposed bed.

Question 8 - Do you agree with these proposals? Please state if you have any concerns or suggestions for changes to the proposal. Are there any additional safeguards or alternative ways of amending the regulations that should be considered?

Question 9 - Overall, are there any further changes that you think should be made to these regulations in relation to the transfer of patients from Scotland?

Reception of patients from other EU countries

The 2015 Act allows for all three sets of regulations listed above to be revised to allow for the regulations to apply to the reception of patients from other EU states. The Scottish Government's policy is to maintain Scotland's relationship with the EU and these amended regulations will come into force before any possible change to Scotland or the UK's status within the EU.

A summary of the process and the information that must be provided to Scottish Ministers to authorise a transfer of a patient into Scotland under the 2005 regulations and the duties for MHOs and RMOs is set out above. Similar conditions apply for the 2008 cross border transfer regulations.

There may be greater variation between Scottish orders and orders from other EU countries than there is between Scottish orders and those for the rest of the UK. Additional information, such as the basis for detention or the right of appeal that the patient has had so far may be required for Scottish Ministers when considering the transfer request. A further suggestion is that the patient should have a right to apply to the Tribunal to review the 'equivalent order' decision by Scottish Ministers.

Question 10 - Do you consider that the same process should apply for reception of patients from other EU countries as does for reception of patients from elsewhere in the UK? Are there any additional safeguards that should apply? Is there any additional information that should be provided to Scottish Ministers, including in relation to possible arrangements or concerns following discharge of the patient from hospital?

Question 11 - Do you have any other comments to make about cross border transfers, either in law, guidance or in practice?