Memorandum of Procedure on Restricted Patients

13 TRANSFERRED PRISONERS

13.1 Section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act") makes provision for persons serving a prison sentence to be transferred to hospital for treatment of mental disorder - a transfer for treatment direction (" TTD").

13.2 Hospital directions, on the other hand, are a hybrid court order which combines a prison sentence with initial detention in hospital for treatment for mental disorder which may be followed by transfer to prison to complete the sentence.

Overview of TTDs

13.3 Where a person is subject to a transfer for treatment direction ⁸⁶, they will remain subject to the measures authorised by that direction for so long as the person would have been held in custody under their prison sentence had they not been transferred (unless they no longer require detention in hospital and so are returned to prison at an earlier stage). If a patient is to be detained in hospital beyond the expiry of their sentence, further steps should be taken, see paragraphs 7.17 to 7.19 below ⁸⁷.

13.4 A TTD patient subject to a transfer for treatment direction cannot be transferred from one hospital to another or be granted suspension of detention from hospital (" SUS") without the consent of Scottish Ministers ⁸⁸. There is also no possibility of a TTD patient who is subject to such a direction being conditionally discharged from hospital under the 2003 Act. If it ceases to be appropriate for such a patient to be detained in hospital, the direction may be revoked by the Scottish Ministers, either upon reviewing the direction themselves or following a recommendation from the Responsible Medical Officer (" RMO") in consultation with the designated Mental Health Officer (" MHO") ⁸⁹. Where the direction is so revoked, the patient will be returned to prison by direction of the Scottish Ministers.

13.5 Where Ministers decide not to act on a recommendation from the RMO to revoke the transfer for treatment direction, they must refer the case for consideration by the Tribunal. Should the Tribunal conclude that the direction indeed be revoked in accordance with the relevant statutory tests, it will direct Ministers to revoke it and return the patient to prison ⁹⁰.

13.6 Return of a patient to prison is effected by warrant on the recommendation of the RMO and the Scottish Government's Principal Medical Officer (Forensic Psychiatry) ("the PMO ( FP)"), and following revocation of the TTD by Scottish Ministers. In no circumstances can the RMO return the person to prison without the Scottish Ministers' instruction following on revocation of the TTD. If the RMO, after consultation with the patient's designated MHO, concludes that it is no longer necessary or appropriate for the patient to remain in hospital, they should inform the PMO ( FP) accordingly so that the appropriate steps may be taken.

Alteration of sentence

13.7 In the event of a patient becoming the subject of a further court order or decision while in hospital, for example, as a result of a separate offence or appeal against sentence, the RMO must notify the Scotland Government Health Directorate (" SGHD") and Scottish Government Justice Directorate (" SGJD") immediately as this may affect the transfer for treatment direction and the timing of a review of the case by the Parole Board.

13.8 If the RMO is aware that the person has been to court but not of the outcome, they must find out and inform the SGHD and SGJD (with a copy of the Court order or decision) and must keep in close contact with other interests within the hospital. The SGHD and SGJD do not receive notification direct from the courts.

Statutory provisions governing release for patients subject to TTDs

13.9 A transfer for treatment direction ceases to have effect where the patient is released under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 or otherwise (Section 217 of the 2003 Act refers). Therefore on admission to hospital of any transferred prisoner the RMO and the designated MHO should take careful note of when the prisoner is due to be released from their sentence because the direction will automatically cease to have effect on that date.

Transferred prisoners serving determinate or extended sentences

13.10 A transfer for treatment direction given in respect of a determinate or extended sentence prisoner ceases to have effect on the date on which, but for the transfer to hospital, that person would have been released from prison ⁹¹.

Short-term prisoners

13.11 A "short-term" prisoner, i.e. those sentenced to less than 4 years, or an extended sentence prisoner whose custodial term is less than 4 years, is automatically released as soon as he has served one half of the sentence. Short term prisoners convicted of sexual offences are released on licence where they are either subject to an extended sentence or (where they are not subject to such a sentence) have been sentenced to a term of imprisonment of 6 months or more and are subject to the notification requirements of Part 2 of the Sexual Offences Act 2003.

Long-term prisoners

13.12 A "long-term" prisoner, i.e. those sentenced to 4 years or more (excluding those sentenced to life imprisonment), or an extended sentence prisoner whose custodial term is 4 years or more, is eligible for parole (early release on licence) after serving one half of the custodial term (known as the "Parole Qualifying Date" or PQD). If the Parole Board for Scotland ("Parole Board") does not release the prisoner at this stage he must be released on licence after serving two thirds of the sentence (known as the "Earliest Date of Liberation" or EDL).

13.13 Long-term determinate and extended sentence prisoners qualify for consideration of early release on licence at the half-way point of sentence ⁹² ( PQD) and if not released at that point they must be released at the two-thirds stage of the sentence ( EDL). Where such a prisoner is transferred to hospital, a note should be taken by the RMO and the designated MHO of both of these dates. Scottish Ministers may release the individual on licence on any date between the PQD and EDL if this is recommended by the Parole Board.

13.14 Approximately 6 months prior to the prisoner's PQD, officials in the Criminal Justice and Parole Division ( CJPD) will write to the RMO for an assessment on whether or not it is appropriate for the parole review to take place and for confirmation of whether or not the patient wishes the review to proceed. Only in the most exceptional circumstances, that is, where an RMO has reason to believe that consideration of early release by the Parole Board would bring about a serious deterioration in the patient's mental health, should the RMO recommend that a parole review should not proceed. In addition, close regard must be had to the patient's own views on the matter. He or she has the right to opt out of the review process (apart from when the Board is considering licence conditions).

13.15 In all of these cases, SGHD will take careful note of the date when the patient is either to be automatically released from his sentence or to have his suitability for early release on parole considered by the Board and will write to the RMO approximately 6 weeks prior to this date, highlighting the possibility of the patient's release and the need to consider re-detention under the 2003 Act.

13.16 Where it is determined that the review should proceed, the parole co-ordinator at the prison where the individual was last detained will assemble the dossier of papers on his or her circumstances including a comprehensive report from the RMO on the patient's progress in the mental health system and reports from the designated MHO and a community based social worker. RMOs and MHOs will wish to bear in mind that the Parole Board is concerned primarily with the question of the risk that the patient's early release would present to the public and they should make a specific comment about this in any report that they prepare for the Parole Board.

13.17 Once all the reports have been received by the prison, the parole co-ordinator will assemble these into a dossier which will be submitted to SGJD. (It would be expected that the parole co-ordinator would receive all the reports from the hospital no later than 6 weeks from their being requested). SGJD will subsequently refer the case to the Parole Board to consider the patient's suitability for early release on licence. In accordance with the Parole Board (Scotland) Rules 2001, a copy of the dossier which is sent to the Parole Board will also be sent to the patient (and the RMO) who will be given the opportunity to submit written representations to the Board about his case and to be interviewed by a Parole Board member prior to the consideration of his case at a Parole Board casework meeting. This meeting is an administrative one to which the patient is not invited.

13.18 In other circumstances where the RMO is of the view that the patient meets or is likely to meet the criteria for discharge during the period between the PQD and the EDL, he or she may recommend through the PMO( FP) that release on licence direct from hospital should be considered. This will then be raised with SGJD to consider whether or not the individual's case should be referred to the Parole Board to consider his suitability for early release at that time.

Use of civil detention powers at end of prison sentence

13.19 Where there are no plans to return a patient to prison or otherwise discharge from hospital before the date on which the transfer for treatment direction ceases to have effect ⁹³, the RMO, in consultation with the designated MHO, should consider whether it is necessary for the patient to continue to be detained in hospital under the 2003 Act when the direction ceases to have effect.

13.20 Where the patient meets the relevant criteria for making a Compulsory Treatment Order ( CTO), an application should be made to the Mental Health Tribunal for the patient to be made subject to CTO which will have effect when the direction comes to an end. The Mental Health Tribunal may make a CTO in these circumstances within the 28 day period before the date on which the transfer for treatment direction ceases to have effect by virtue of section 217(2) of the 2003 Act. If these steps are not taken, the patient must be discharged on that date. (The patient may, of course, remain as a voluntary patient where they are in a local psychiatric hospital.)

13.21 The Tribunal can grant an Interim Compulsory Treatment Order ( ICTO) where an application for a CTO has been made. It lasts up to 28 days and can contain the same kind of conditions as a CTO. The Tribunal can make one or more ICTOs so long as this does not result in a continuous period of more than 56 days. It is revoked and so comes to an end with the making of a CTO (though it can be earlier revoked by the RMO or the Commission)

13.22 A Short Term Detention Certificate ( STDC) allows the patient to be detained in hospital for up to 28 days to determine his/her medical needs and to be given medical treatment. It is a step towards detention, and an application would be made for a CTO thereafter. A STDC can only be granted by an approved medical practitioner; the consent of a MHO is mandatory, and allows right of appeal to the Tribunal to revoke the certificate. Where a CTO (or ICTO) is subsequently made, the STDC comes to an end.

13.23 A CTO is often the preferred option because it may be applied for in advance of the TTD coming to an end, and its effect is then suspended till the TTD is revoked and the CTO smoothly takes over such that there is no gap in detention ⁹⁴

13.24 The steps for the continued detention of the patient by way of a CTO are prescribed in Chapter 1 of Part 7 of the 2003 Act, as applied in a modified way by section 21 of, and Schedule 3 to, that Act. Given the timescale involved care should be taken in the timing of the application to the Tribunal. Best practice would suggest that at least 2 months before the direction is due to fall, the RMO, in consultation with the MHO and the other members of the multi-disciplinary team where relevant and appropriate, should review the case and make a decision as to whether an application for a CTO should be made to the Tribunal. Any such application requires to be accompanied by an MHO's report and proposed care plan and mental health reports by 2 medical practitioners, following examination of the patient. Best practice would suggest that where an application is necessary it should be made by the designated MHO.

13.25 The 6-month period during which the measures are authorised by the CTO does not begin until the day on which the direction ceases to have effect. In such cases, the patient has a right to apply to the Tribunal for an order revoking or varying the CTO but not until 3 months after the date on which the order was made.

Release on licence

13.26 All determinate sentence prisoners sentenced to 4 years or more, those sentenced to 6 months or more for a sexual offence and all extended sentence prisoners, require to be released on licence. In cases where a transferred prisoner is in hospital prior to their release date, the licence authorising the release will be sent to the individual's RMO, with a copy to the designated MHO, with a request that the purpose and terms of the licence be explained to the patient. Ideally, both the RMO and the designated MHO should discuss the terms of the licence with the patient.

13.27 Information on parole eligibility or licence requirements of a transferred prisoner with a determinate or extended sentence can be obtained from Criminal Justice Parole Division, Scottish Government Criminal Justice Directorate, St Andrew's House, Regent Road, Edinburgh, EH1 3DG. (See Annex E for further contact details.)

Transferred prisoners serving indeterminate sentences

13.28 Where a person has been sentenced to life imprisonment, detention for life or detention without limit of time, they will not have an "earliest date of liberation". Therefore, if they are transferred to hospital, the measures authorised by the transfer for treatment direction will apply indefinitely. If the person makes a full recovery from mental disorder, 2 options exist; either -

• a return to prison ⁹⁵; or
• release on life licence direct from hospital ⁹⁶.

In either event, the transfer for treatment direction will cease to have effect.

13.29 Under the relevant provisions of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ⁹⁷, a "punishment part" of the sentence is set by a judge in open court. This is the length of time that the judge considers a life sentence prisoner should serve in custody to satisfy the criminal justice requirements of retribution and deterrence. As soon as the punishment part has expired, the prisoner has the right in law to require Scottish Ministers to refer his case to the Parole Board for consideration of his suitability for release on life licence.

Life Prisoner Tribunal

13.30 The case is reviewed by the Parole Board sitting as a Life Prisoner Tribunal ( LPT) held at the hospital. It consists of 3 members of the Parole Board. An official from CJPD attends the hearing to present the Scottish Ministers' views on whether the patient continues to present an unacceptable risk and so should continue to be confined for the protection of the public. The Scottish Ministers' views in this respect are set out in the dossier in a "Scottish Ministers' Position Statement" and these are, in the main, based on the information contained within the reports received from the hospital although the patient's previous offending history and any previous response in prison are also taken into consideration. The Position Statement requires to be approved by SGHD prior to it being submitted by CJPD for inclusion in the patient's dossier. If the RMO's assessment of the patient's risk and suitability for release subsequently alters significantly from the view previously stated in their report for the patent's dossier, the RMO should inform SGHD and CJPD of this immediately. The patient, his legal representative and the RMO are also invited to attend the hearing.

13.31 At the hearing the Scottish Ministers' official will lead evidence from the RMO (usually in the form of questioning of the RMO) as to the patient's progress in hospital, the level of risk that the RMO considers that the patient presents to the public at that time and the future management plan in place for him in terms of his care and treatment for mental disorder and rehabilitation. The Scottish Ministers' official will discuss these issues with the RMO prior to the LPT taking place. If there has been any key change in the RMO's assessment of the patient's risk and suitability for release since their discussion with an official, the RMO should inform the official of this as far in advance of the hearing as possible. The patient is then given the opportunity to present his case to the LPT where he is representing himself or if not, through his legal representative. The LPT will ask questions of all parties during the hearing which it considers appropriate to the question of risk.

13.32 If the risk to the public is considered by the LPT to be acceptable, it will direct that the patient should be released on life licence. If that is the decision, it will direct the Scottish Ministers in writing to release him or her. The letter advising of the decision must be issued to the patient, (copied to the other parties at the LPT), by the Chairperson of the LPT no later than 14 days after the date of the hearing. The Scottish Ministers are statutorily obliged, on receipt of a direction, to release the patient as soon as practicable thereafter. The Parole Board will also decide on the conditions to be included in their life licence.

13.33 If the LPT considers that the level of risk is unacceptable, it will advise the patient in writing, (copied to the other parties at the LPT), no later than 14 days after the date of the hearing, explaining why it considers that they require to continue to be confined. The LPT may also make recommendations about the steps that could be taken to reduce the patient's risk before the next hearing. It will fix the date for the next hearing no later than 2 years from the current disposal. (The right of a life prisoner to require the Scottish Ministers to refer his or her case to the Parole Board is not affected by transfer to hospital under the 2003 Act).

Release on life licence direct from the hospital

13.34 A MAPPAreferral should be made prior to a recommendation by the RMO for release on life licence.

13.35 Where a patient subject to life imprisonment, detention for life or detention without limit of time no longer meets the criteria for continued detention in hospital under a transfer for treatment direction they should be returned to prison to continue serving their sentence.

13.36 However, where the advice of the RMO is that the patient cannot be returned to prison on medical grounds, the RMO may propose that the individual is prepared for release on life licence direct from hospital. The preparatory period for such release can be lengthy. Scottish Ministers will normally expect the patient to progress through a local hospital and be gradually re-introduced to the community and tested/prepared for release through a programme of increasing unescorted freedoms.

13.37 Where an RMO, after consultation with the designated MHO, intends to recommend that a transferred prisoner should be released in this way, this should be made clear to the PMO ( FP) at the earliest possible stage. The RMO should be as specific as possible about the likely timescale and preparations for release and whether these will include a proposal for transfer to another hospital, a move to a less restricted regime, or increasing outside freedoms. Suitable accommodation and supervision arrangements should also be in place in the community. Although such patients are unlikely to progress quickly through their rehabilitation, the RMO should make the SGHD aware of their views on the patient as early as possible and certainly at least 18 months before they make any formal recommendation for release on life licence upon the transfer for treatment direction ceasing to have effect. The Scottish Government Health and Justice Directorates will need to consider the future plans for the patient and the timescale envisaged by the RMO. This process is likely to involve detailed correspondence and discussions between representatives of the Scottish Government, the RMO and the designated MHO.

13.38 Once the RMO considers that, in 6 to 12 months time, the patient will be well enough for release on life licence and will no longer present an unacceptable risk to the public, they should make their views known to the Scottish Ministers. Release on life licence may only take place once the patient has served the punishment part of the life sentence ( i.e. the period for retribution and deterrence) and on the direction of the Parole Board where it considers that the level of risk to the public is acceptable. The RMO must also be aware that release is not automatic and even if there is a good clinical case for return to the community, the Parole Board may take the view, from the wider perspective of the risk to public safety, that it is not appropriate to direct release on life licence. The RMO and the designated MHO should ensure that the patient's expectations about the timing of their discharge from hospital/release on life licence are not raised unrealistically.

Transfer from hospital back to prison (revocation of the TTD)

Review of the TTD by the RMO

13.39 A patient who is the subject of a transfer for treatment direction from prison to hospital may be considered for transfer back to prison once the RMO considers that the patient no longer needs to be detained in hospital for treatment. As noted in paragraph 13.3 above, this may arise as a result of the annual review of the transfer for treatment direction under section 206 or under the general "time to time" review requirement on the RMO under section 208. In that event the RMO submits a report to the Scottish Ministers which includes a recommendation that the transfer for treatment direction be revoked.

13.40 In such cases, the transfer for treatment direction is revoked. At the review, the RMO is required both to consider whether the conditions set out in section 206(4) and 207(3) of the 2003 Act continue to apply in respect of the patient, as well as whether or not either the serious harm requiring detention in hospital test is met or it is otherwise necessary for the patient to be subject to the direction.

13.41 In terms of the section 206(4) conditions that the RMO must consider in reviewing the direction, these are whether:

1. the patient has a mental disorder;

2. medical treatment which would be likely to -

• prevent the mental disorder worsening; or
• alleviate any of the symptoms or effects of the disorder,

is available for the patient; and

3. if the patient were not provided with such medical treatment there would be a significant risk -

• to the health, safety and welfare of the patient; or
• to the safety of any other person.

13.42 The other consideration which the RMO must give, as above, is similar to that for the continuation of a restriction order for a CORO patient, namely whether: as a result of the TTD patient's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment (the "detention in hospital" test); OR, it is otherwise necessary for the patient to remain subject to the TTD. When considering "serious harm" ⁹⁸, it is relevant to consider the environment into which he will be transferred. Different considerations may apply depending on whether the patient is being released into the community or back to prison.

13.43 In considering whether revocation of a transfer for treatment direction is appropriate, the SGHD will need information about:

• the patient's progress and behaviour;
• why the patient is considered to no longer need treatment in hospital, and why the direction is thought to no longer be otherwise necessary; and
• what plans there are for the ongoing care of the patient's mental health while in prison, if appropriate.

13.44 The PMO ( FP) will assess the patient and provide a view to the SGHD. The SGHD will need to be reassured that the patient no longer presents a risk of serious harm to the public as a result of their mental disorder.

13.45 The information required by the SGHD will therefore include:

• patient's treatment and progress while in hospital;
• evidence of patient's current mental disorder and behaviour;
• confirmation that the prison medical team has assessed the patient and are prepared to accept the patient into their care; and
• details of Care Programme Approach arrangements made.

13.46 Under section 210(2)) of the 2003 Act, where, following on a report from the RMO, Scottish Ministers are satisfied that the patient no longer requires to be detained in hospital, they shall revoke the direction to which the patient is subject and return them to prison. The patient will be returned to the prison from which they were originally transferred.

13.47 Where the Scottish Ministers decide not to revoke a transfer for treatment direction or on the recommendation of the RMO, they shall make a reference to the Tribunal in terms of section 210(3) of the 2003 Act. The Tribunal will then, under section 215, either make no direction (thus maintaining the status quo), or it will direct the Scottish Ministers to revoke the TTD.

Review of the TTD by the Scottish Ministers and role of the Mental Welfare Commission

13.48 The Scottish Ministers are also separately required to keep a transfer for treatment direction under review from time to time by virtue of the duties on them under section 212 of the 2003 Act, and to revoke the direction if appropriate.

13.49 The Scottish Ministers are then also required to refer the transfer for treatment direction to the Tribunal for consideration where either the Mental Welfare Commission has required them to do so, or for a two-year "catch up" consideration where there has been no reference to the Tribunal during that time. Again, the Tribunal has powers under section 215 either to make no order, or to direct the Scottish Ministers to revoke the TTD.

Notification of revocation of TTD and transfer back to prison

13.50 The Mental Welfare Commission and the designated MHO will be notified by SGHD of the patient's return to prison. Notification will be required to the MAPPA coordinator to indicate the patients change in status. Most probably they will be leaving the MAPPA system, or they may remain if they are also a registered sexual offender.

Hospital directions

13.51 Hospital Directions ⁹⁹ allow the courts to impose a sentence of imprisonment on someone who is in immediate need of treatment for mental disorder, and at the same time direct their admission to hospital for as long as they are in need of that treatment up to the release date in terms of their sentence. If a patient on a hospital direction recovers sufficiently so as to no longer warrant detention in hospital before the date they would be released from prison, they can be transferred to prison to serve the balance of their sentence.

13.52 A patient subject to a hospital direction is subject to the same statutory procedures regarding review of the direction as a patient who is subject to a transfer for treatment direction, as described above in paragraphs 13.39 to 13.47. Where an RMO is considering the return to prison of a patient subject to a hospital direction he should, following consultation with the MHO, contact the PMO ( FP) to discuss the case and allow the opportunity for them to review the patient. The RMO should put their formal recommendation in writing to the PMO ( FP). If, however, the patient does not recover before the "expiry date" of the hospital direction, and still requires treatment in hospital, the RMO must take the steps outlined above. For indeterminate sentenced prisoners on a Hospital Direction the steps outlined above should be followed.

13.53 A patient who is subject to a hospital direction may also be transferred to prison to complete his sentence. The same tests as set out in paragraphs above apply.

SUSfor TTD and HD patients

13.54 As discussed in Chapter 8, section 224 of the 2003 Act also enables suspension of detention from hospital "( SUS") for patients who are on a hospital direction or a transfer for treatment direction. However, it would not normally be considered appropriate to consider SUS for prisoners who are not being rehabilitated through the mental health system other than for clinical or compassionate reasons. SUS for transferred prisoners follows the same principles as those for CORO patients. Chapter 8 provides guidance on SUS and paragraph 8.35 covers SUS for life sentence prisoners being rehabilitated through the mental health system.