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

Chapter 3 - Absconding regulations

Absconding by patients from outwith Scotland

Background

If a patient is detained for treatment in Scotland and leaves hospital or fails to return from a suspension of detention, efforts are made to return them to hospital. Whilst they are in a different hospital or address the law allows for the patient to be detained and treated until their return to the original hospital.

The authority to treat the patient continues under the original order or certificate and Part 16 of the 2003 Act, which authorises medical treatment under that Act, will apply to the giving of such treatment.

Currently, the law does not provide for the treatment of patients who have absconded from other jurisdictions, although it does allow for the return of patients to other jurisdictions within the UK. Currently, if a patient needs to be detained or receive treatment before they are returned to their original hospital, a Short Term Detention Certificate ( STDC) is used. This is then revoked when the patient is returned to their original hospital.

The 2015 Act allows for the treatment of patients who have absconded to Scotland from other jurisdictions. It allows Scottish Ministers to make regulations as to how the other sections of Part 16 may be applied to patients in this situation, excluding treatments authorised under sections 234 or 237 within Part 16, which includes electro-convulsive therapy and certain surgery.

New provisions

In most cases, we expect that patients would be returned to the original hospital within a few days. If there is likely to be a longer delay, for example, whilst transport is arranged, the patient could be made subject to a STDC if needed, as is current practice. However, if the patient will only be in Scotland for a few days, the granting of an STDC may be unduly burdensome. The patient may still require treatment under the 2003 Act in this very short time, in line with the principles of the 2003 Act, including that the treatment is of most benefit to the patient.

Part 16 contains provisions which authorise treatment for those patients who are capable of consenting and consent to that treatment. We propose that the regulations apply these provisions from Part 16 to absconding patients. This would be except for those provisions that relate to the treatments authorised by sections 234 or 237, as these are expressly excluded by the 2015 Act.

Question 12 - do you agree with this proposal? Please state if you have any concerns or suggestions for changes to the proposal.

Section 243, which falls within Part 16 of the 2003 Act allows for treatment without consent to save the patient's life or, as long as the treatment is not likely to have any unfavourable, and irreversible, physical or psychological consequences, in the following circumstances:

• to prevent serious deterioration;
• to alleviate serious suffering by the patient;
• to prevent the patient from behaving violently; or
• being a danger to themselves or to others.

For the final two bullet points, the treatment must also not entail significant physical hazard to the patient.

These provisions will allow for any new urgently required medication or treatment to be given so that the patient is well enough to travel to the original hospital. They will also allow for a patient to be given continuing medication where withdrawal of this medication could lead serious deterioration in the condition or cause serious suffering by the patient. We take the view that it would be in line with the principles of the 2003 Act for the regulations to allow treatment under section 243 of the 2003 Act for patients who have absconded from another jurisdiction and who will only be in Scotland for a very short time.

Question 13 - Do you agree that these regulations should allow patients to be treated under section 243 of the 2003 Act ? Please state if you have any concerns or suggestions for changes to the proposal.

We are also seeking views as to whether there might be other circumstances where it would be of benefit to the patient to receive on-going treatment (i.e. treatment that they had been receiving in the original hospital) that might not meet the criteria under section 243 of the 2003 Act. For example, if there could be circumstances where withdrawal of medication would not be of clinical benefit, but would not lead to serious deterioration. We are also seeking views as to whether it would be appropriate to allow treatments that have a lasting effect, such as depot injections.

Question 14 - Do you consider that there might be situations where it would be of benefit for a patient to receive treatment that may not fit under the criteria of section 243? If so, please describe them and any exemptions or safeguards that you would expect to be included.

We do not propose to set out in the regulations any time limit for the provisions which relate to medical treatment but would propose under statutory guidance to set out best practice to deal with rare situations where a patient is in Scotland for more than a few days. This is to provide a suitable framework for practitioners and patients that will promote patient's rights and avoid unnecessary bureaucracy. For example there may be circumstances where, a patient was expected to be in Scotland for less than 72 hours and then the transport to return them is delayed by a day or two and guidance is a more suitable vehicle to manage such situations.

Question 15 - Do you agree that guidance should be set out for these circumstances? What timescales and other protections do you think would be most appropriate for the guidance?

The 2015 Act allows these regulations to be applied to patients who have absconded to Scotland from other EU jurisdictions who are subject to measures or requirements that correspond to measures in Scotland such as a compulsory treatment order or short term detention certificate. The orders in other EU jurisdictions may not be fully equivalent with those in Scotland, for example they may have different criteria for detention. We would not expect any patient to be detained if they did not also meet the criteria for detention under the 2003 Act and we are considering if the regulations should set out any specific safeguards.

Question 16 - Are there any circumstances where you consider that a patient who has absconded from another jurisdiction should not be returned to the original hospital or country of origin? Are there any safeguards that you consider should be part of the regulations in relation to patients who have absconded from other jurisdictions?

Absconding by other patients regulations

Background

The 2003 Act allows regulations to detail the circumstances in which certain patients, may be taken into custody, and the steps that can be taken by specified persons upon taking such patients into custody. The regulations which set this out are the Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005. The regulations do not apply to patients subject to civil orders.

The 2015 Act provides that these regulations may specify persons authorised by the patient's RMO as persons who can take such patients into custody.

New provisions

We propose that the new regulations allow the RMO to specify classes of persons, e.g. police officers, that are authorised to take the absconding patient into custody.

Question 17 - Do you agree with this proposal? Please state if you have any concerns or suggestions for changes to the proposal. Should the regulations or guidance specify anything related to the process for this authorisation?

We are also considering proposals to amend when the regulations require that the Commission is informed when a patient absconds or is returned. We are proposing that RMOs should inform the Commission in the same circumstances as they must inform Scottish Ministers (when the patient is subject to a Compulsion Order with Restriction Order ( CORO), Hospital Direction ( HD) or Transfer for Treatment Direction ( TTD)), instead of for patients on all relevant orders and for those held in medium and high secure units. These regulations do not apply to patients on civil orders, but statutory guidance could also set out that it would be best practice to inform the Commission for civil patients in medium secure units.

Question 18 - Do you agree with this proposal? Please state if you have any concerns or suggestions for changes to the proposal.