A Consultation on proposals for a Mental Health (Scotland) Bill

Chapter 3 Criminal cases

Introduction

50. Provision for the disposal by the criminal courts of persons with mental disorder involved in criminal proceedings is made principally by Part VI and section 200 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). Part 8 of the 2003 Act amended the 1995 Act to provide for, amongst other matters, 2 new pre-sentencing disposals (assessment orders and treatment orders) and the replacement of interim hospital orders and hospital orders with interim compulsion orders and compulsion orders.

51. Since the commencement of the 2003 Act, a number of minor and technical refinements have been identified which will assist in providing greater clarity of meaning as well as improving operational efficiency and effectiveness. This chapter describes these technical amendments which are set out in Part 2 of the draft Bill,

Proposed Amendments

Making and effect of orders

52. The SG intends to make a minor amendment to sections 52B, 52C, 52D and, 52F which relate to AOs and to sections 52K, 52L 52M and 52P which relate to TOs. The word "remanded" will be inserted before the words "in custody" in each of these sections. The reason for these amendments is to clarify that - in the context of these sections - the references to 'in custody' do not include police custody.

53. The SG proposes to make a number of minor drafting amendments relating to the calculation of the time periods for AOs, TOs, ICOs, COs and HDs. For example, an assessment order authorises the removal to, and detention in, a specific hospital for up to 28 days with the 28 day period beginning on the day that the order is issued. The SG understands that this approach to calculating a period of detention, i.e. from the day of the relevant event, rather than the day after, appears to differ from the general rule applicable to the computation of time periods in the criminal court.

54. Scottish Court Service personnel have intimated that this can cause difficulties in the programming of criminal business particularly in the case of smaller courts and more remote courts where criminal business may only be heard one day a fortnight or less, but is held consistently on the same day of the week. To resolve this issue, clerks in smaller courts have to reduce the period of adjournment by one or more weeks to ensure the case calls again prior to the 28th day, which restricts the period of assessment available to the medical practitioners.

55. To assist in the smooth running of court business and to ensure that practitioners have the maximum time possible to carry out assessments or prepare reports etc. the SG proposes to bring forward a number of amendments to the provisions in the 1995 Act relating to the time periods applicable for these specific orders.

56. The SG proposes a more substantive amendment in relation to the extension of an AO. Where an AO is made by the Court under sections 52D or 52E of the 1995 Act, the period of detention in hospital authorised by the order is 28 days. Before the end of this period the patient's RMO must submit a report to the Court in accordance with section 52G. Currently, if following receipt of that report, the Court thinks that further time is required to complete the assessment then the Court may extend the AO, on one occasion only, for a further period of 7 days.

57. The SG considers that given the vagaries of situations that may be met within the criminal justice system and to ensure that the Court has all the relevant information it needs to deal with the person appropriately, an extension of 7 days does not provide sufficient flexibility. Provision is therefore made in the draft Bill for the Court to extend the AO for a period of up to 21 rather than 7 days, on one occasion only.

Question 12: Do you have any comments on any of the proposed amendments relating to the "making and effect of orders" provisions?

Variations of certain orders etc.

58. A court can make an ICO under section 53 of the 1995 Act after conviction and before final disposal. This order is intended to be used in cases where the offender may present a high risk to the public and a CORO or HD is in prospect. The assessment of the offender's mental disorder will include a full risk assessment, which would detail how any risk presented is related to the mental disorder and what final disposal may be appropriate.

59. It would be open to the RMO to state in their report to the Court that the treatment that the patient requires is no longer available in the hospital specified in the order and to recommend a change of hospital. However, it would appear that section 53B does not allow a Court to facilitate such a recommendation. The absence of a power to vary an ICO by way of changing the hospital specified in the order can lead to patients having to remain in a hospital which cannot manage them appropriately. This can lead to difficulties especially given that the period of detention authorised by an ICO is long compared to other orders (up to 12 months made up of individual periods of up to 12 weeks). To resolve this matter, the SG proposes to amend section 53B to provide the Court with a specific power to vary the hospital specified in the ICO.

60. The SG considers it prudent to make provision to enable an RMO, subject to the consent of the Scottish Ministers, to move a patient within the first seven days of that patient having been admitted to the hospital specified in the order. The order in question may be an AO, TO or an ICO. The rationale behind this is that the first seven day period is the time when a patient is being fully assessed. It may become apparent very quickly in that assessment process that the hospital specified in the order is not the most suitable environment for the patient to be in. Any delay, for example in court processes, in being able to move the patient could potentially be very damaging to both the patient's short and longer term health.

61. The SG does not envisage this power being used very often but when things go wrong for a patient at this stage of the process, experience has shown that the tendency is for them to go very wrong. The SG wishes to do what it can to mitigate against this happening, hence the need for the proposed new section 61A (Transfer of person to different hospital) set out in Part 2 of the draft Bill.

Question 13: Do you have any comments on the proposed amendments to the "variation of certain orders" provisions?

Related provisions in the 2003 Act

62. Section 157 places a duty on the RMO, where the officer intends to apply to the Tribunal for the extension and variation of a compulsion order, to notify the persons listed in that section before making the application. The Commission is one of the parties that the RMO requires to notify. Section 160 places a duty on the RMO to notify the persons listed in section 157 before making an application to the Tribunal for the variation of a compulsion order. The Commission has indicated to the SG that these are unnecessary notifications on which the Commission takes no action. The SG has agreed to make the necessary amendments to sections 157 and 160.