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

Chapter 4 - Transitional and savings provisions

Suspension of detention

Background

There are four major changes regarding suspension of detention introduced by the 2015 Act:

• what the suspension certificate specifies;
• the maximum period of a single certificate;
• maximum cumulative total in any 12 months; and
• requirements for gaining consent from Scottish Ministers is certain circumstances.

Section 9 of the 2015 Act sets out that any certificate authorising suspension of detention must:

• must record the purpose for which the certificate is granted and
• may authorise a single period of detention or a series of more than one individual period falling within a particular 6 month period.

It also sets out that consent from Scottish Ministers is no longer needed for suspension of detention for attending criminal proceedings or for medical or dental appointments, for patients subject to treatment orders, interim compulsion orders or temporary compulsion orders.

Importantly, this section also sets the limit for a single period in days rather than months:

• where the limit was previously 6 months it is now 200 days; and
• where it was 3 months it is now 90 days.

Section 10 of the 2015 Act sets out that:

• the maximum cumulative total of suspension of detention allowed in any 12 month period (i.e. in a rolling year) is 200 days;
• that periods of less than 8 hours do not count towards the total; and
• the maximum cumulative total for suspension of measures other than detention is now set at 90 days.

Transitional regulations will need to set out how we move from the current system and limits to the new one and we are trying to establish how best to do this.

Proposed transitional and savings provisions

Currently, the total maximum period of suspension of detention is 9 months in any 12 month period. All periods of suspension, however short, count towards the total.

The 2015 Act sets out that the total maximum period of suspension of detention is 200 days in any 12 month period. Only periods of suspension of 8 hours or more count towards the total. Any period over 8 hours but less than 24 hours counts as 1 day (i.e. there is no need to add hours together).

In relation to cumulative totals, we are proposing the simplest option. On the commencement date, the new limits and calculations apply. The suspension limits would not need to be calculated to fit with the new timescales where a patient's order comes to an end or is converted to a community-based order shortly after the Act comes into force (the commencement date) as a compliance period (see below) would be included. In other cases, the new timescales would apply on a rolling previous 12 month basis

This would mean that on any date after the commencement date, any previous suspension of detention in the previous 12 month period of over 8 hours would count towards the new 200 day limit. Practitioners would need to calculate how previous suspended detention would fit with the new limits.

We propose that there is a compliance period after the commencement date. This means that the current timescales could still apply for a short time; our current proposal is three months after the commencement date.

This should also assist with any situations where suspension of detention has been carried out under the previous system in the months leading up to the commencement date and is compliant with the previous limits but not the new limits.

In this compliance period, the previous limits could apply where appropriate. We would ensure that a simple tool (most likely an Excel spread sheet) would be available to make these calculations as easy as possible and we will ensure that guidance is provided to Health Boards to assist those making calculations.

We are proposing that existing certificates can remain valid after the commencement date, and that only certificates granted on or after the commencement date would need to meet the new criteria.

You can find more details in the following examples.

Suspension of detention - example scenarios for transitional and savings provisions

For illustrative purposes only, our examples use 1 May 2017 as the commencement date for the 2015 Act and assume that the transitional provisions will contain a three month compliance period, expiring on 31 July 2017.

These examples are also only looking at what would be allowed under the law, rather than what best practice would be in relation to applying for a community-based order or revoking the order rather than suspending detention for several months.

Example 1 - patient potentially reaching new maximum sus limit (200 days) shortly before 1 May 2017.

John has had several short periods of suspension for testing out between August and November 2016. These lasted between 2 and 10 days and totalled 30 days. His detention was then suspended on a longer term basis and has been suspended continuously since 8 November 2016.

Under the new 2015 Act timescales, John will have had his detention suspended for 204 days of the previous year on 1 May, in excess of the new 200 day limit. If there was no compliance period, and if the order has not been revoked or converted to a community-based order, then John would be required to return to hospital and his detention could not be suspended again until August.

However, as there is a three-month compliance period in the transitional provisions, the current timescales of 9 months can be applied meaning that he can continue to be under suspension of detention for another 65 days or so in total during the period 1 May - 31 July 2017, during which time arrangements can be made for a community based order or revocation of the order etc.

Example 2 - patient potentially reaching new maximum suspension limit (200 days) shortly after 1 May 2017.

Ruth had her detention suspended for the first time on 8 January 2017 and it has been suspended continuously since. This means it will have been suspended for 113 days by 1 May. Under the current timescales, detention could then be suspended until around 8 October 2017, i.e. 9 months of suspended detention.

Under the new timescales in the 2015 Act, detention could only be suspended until 27 July 2017, if they came into force immediately, as that is the date on which the total would be 200 days. With a three month compliance period, detention could be suspended until 30 July 2017, the end of the compliance period but still within 9 months.

Example 3 - patient who has only had their detention suspended shortly before 1 May 2017.

Dan has had suspended detention for 5 accompanied daytime visits in February 2017 and then several short periods of sus testing out between 1 March and 25 March 2017 totalling 17 days. He then has his detention suspended from 2 April, meaning that his suspension total on 1 May is 46 days. His detention could therefore be continuously suspended until after 31 July (the end of the compliance period) under either of the limits.

The new timescales should therefore be used, which means the 5 days in January no longer count towards the limit, as periods of less than 8 hours no longer count towards the cumulative limit. Detention can be suspended for a cumulative total of up to 154 further days until 1 March 2018.

For the provision in section 9 of the 2003 Act that relates to gaining consent from Scottish Ministers for certain reasons for patients on certain orders, we are proposing that where the event for which the suspension is required falls after the commencement date, then consent from Scottish Ministers is not required.

Question 19 - do you agree with the proposals set out above? Please state if you have any concerns or suggestions for changes to the proposal.

Other provisions

Transitional and savings provisions need to be considered for the majority of parts 1 and 2 of the 2015 Act to allow for the transition from the current system where there are changes.

As a general approach, where the change is to something about the granting or reviewing of an order (e.g. the length or the notification requirements) then it is proposed these only apply to those where the process for granting or reviewing of the order, certificate or direction begins on or after the commencement date. If it is a change to something about an action other than review whilst someone is subject to an order, then generally it is proposed that the action, can be taken from the commencement date, regardless of when the order was granted. We hope that will be the simplest and clearest approach for service users and practitioners.

Question 20 - do you agree with the general approach to savings and transitional provisions detailed above? Please state if you have any concerns or suggestions for changes to the proposal.

You can find our proposal for the following transitional provisions at Annex A including examples.

Procedure for compulsory treatment - sections 1-3
Emergency, short-term and temporary steps - sections 4 and 5 only
Suspension of orders and measures - sections 7 and 8 only
Specification of hospital units - sections 11-13
Removal and detention of patients - sections 19-20
Periodical referral of cases - section 21
Advance statements and patients' rights - sections 26 and 30 only
Services and accommodation for mothers - section 31
Cross-border transfers and absconding patients - section 33 only
Arrangements for treatment of prisoners - section 35 only
Part 2 - Criminal cases - sections 40-44 and 46-50 only.

[to note - sections 9 and 10 are covered above. Sections 14-18 are already in force. Sections 22 - 25 were covered by our previous consultation. Any other section in Parts 1 and 2 of the 2015 Act that are not covered in Annex A is considered not to require transitional and savings provisions.]

Question 21 - do you have any views on the proposals for individual sections as set out at Annex A?

We will ensure that these changes are supported by clear guidance for practitioners, service users and others in relation to transitional and savings provisions, to ensure it is clear how and when each section of the 2015 Act applies.

Question 22 - Do you have any views about specific information that should be contained in the guidance in relation to transitional and savings provisions? Do you have any views on how best this guidance should be targeted, including to specific groups of practitioners?