Memorandum of Procedure on Restricted Patients

14 THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND

14.1 The Mental Health (Care and Treatment ) (Scotland) Act 2003 ("the 2003 Act") established a judicial body - the Mental Health Tribunal for Scotland ("the Tribunal"). The primary role of the Tribunal is to consider and determine applications, references and appeals in relation to compulsory detention and treatment of persons diagnosed as suffering from a mental disorder.

14.2 A tribunal comprises a panel of three members: a legal member (who acts as a convener) a medical member; and a general member. In most cases, the convener will be either the President of the Tribunal or a legal member. However, in the case of restricted patients and those patients subject to a hospital direction or a transfer for treatment direction, the convener must be the President or a sheriff ; this is the case for all applications, references or appeals relating to such a patient other than proceedings relating solely to an application under section 255 or 256 of the 2003 Act (applications to Tribunal for order appointing a named person or declaring that a named person should not be the named person).

14.3 Tribunal hearings take place locally where possible, e.g. in the hospital where the patient is detained. To that end, NHS Boards and local authorities are required under the 2003 Act, in so far as it is reasonably practicable to do so, to provide appropriate accommodation where Tribunal hearings can be held. A purpose built hearing suite is also available at the Tribunal's headquarters in Hamilton.

Applications and References: overview

14.4 A case relating to a CORO patient, and those patients subject to a hospital direction or a transfer for treatment direction, may be put forward for consideration by the Tribunal ¹⁰⁰ by:

• an application or appeal by the patient or their named person;
• a reference or application by the Scottish Ministers.

Application to the Tribunal by the patient or their named person - COROs and directions

14.5 Under section 192 of the 2003 Act, a patient subject to a compulsion order and restriction order and their named person, may make an application to the Tribunal for an order under section 193 of the Act -

• conditionally discharging the patient;
• revoking the restriction order to which the patient is subject;
• revoking the restriction order and varying the compulsion order by modifying the measures specified in it; or
• revoking the compulsion order to which the patient is subject.

14.6 The CORO patient or their named person cannot make an application until at least 6 months after the compulsion order was made or within 3 months of a decision made by the Tribunal under section 193 of the 2003 Act. In addition the patient and the named person may make only one application in any subsequent 12-month period beginning with, or with an anniversary of, the expiry of the first 12-month period.

14.7 Under section 214 of the 2003 Act a TTD patient or HD patient and their named person may make an application to the Tribunal for the revocation of the direction to which the patient is subject. Where the patient is a HD patient an application cannot be made within 6 months of the direction being made. Where the patient is a TTD patient an application cannot be made within 6 months of the direction being made unless it is made within 12 weeks of the direction being made. In the case of either type of direction, only one application can be made by each of the patient and named person in the 12-month period.

14.8 Where a restricted patient makes an application to the Tribunal under either section 192 or 214, the Scottish Ministers will receive notice of the application from the Tribunal and must respond to the Tribunal within 14 days indicating whether they wish to make representations (whether orally or in writing) or to lead or produce evidence. In effect this means that the Scottish Ministers will give notice of whether they intend to resist the application and, if so, the reasons for this or the position they intend to take in respect of the application. Prior to responding on behalf of the Scottish Ministers, SGHD officials will contact the Responsible Medical Officer (" RMO") to discuss the appropriateness of any order sought by the patient in the application. A written report will also be required from the RMO and, in some cases, further reports may be sought from the social worker, psychologist or an independent clinician.

14.9 As the application will be determined by the Tribunal in accordance with it's powers under section 193, it is crucial that the written report from the RMO addresses the sequential tests set out in that section, namely:

1. whether the patient has a mental disorder;

2. whether, as a result of the CORO 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 "risk of serious harm requiring detention in hospital" test);

3. whether medical treatment which would be likely to -

(i) prevent the mental disorder worsening; or

(ii) alleviate any of the symptoms or effects of the disorder,

is available for the patient;

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

(i) to the health, safety and welfare of the patient; or

(ii) to the safety of any other person;

4. whether it continues to be necessary for the CORO patient to be subject to the compulsion order (the "necessity for a compulsion order" test); and

5. whether it continues to be necessary for the CORO patient to be subject to the restriction order (even if not requiring detention in hospital) (the "necessity for a restriction order test").(See Chapter 7 for more details on the legal tests.)

6. whether it is necessary for the CORO patient to be detained in hospital (the detention in hospital test)

14.10 The RMO must consider whether each of the 6 criteria are met. It is important that reasons are given in the report for the conclusion reached in respect of each of the tests.

Review of CORO - application to the Tribunal by the Scottish Ministers

14.11 The Scottish Ministers have a duty to keep a CORO patient's compulsion order and restriction order under review ¹⁰¹. This duty is separate from the duty to refer the CORO patient's case to the Tribunal where a recommendation has been received from an RMO¹⁰² or notification has been received from the Mental Welfare Commission that it requires a reference to be made to the Tribunal ¹⁰³. Section 188 additionally requires the Scottish Ministers from time to time to consider the continued appropriateness of the compulsion order and restriction order ¹⁰⁴. Where they are not satisfied that the CORO patient continues to meet the relevant criteria they must make an application to the Tribunal for an order ¹⁰⁵ -

• conditionally discharging the patient;
• revoking the restriction order to which the patient is subject;
• revoking the restriction order and varying the compulsion order by modifying the measures specified in it; or
• revoking the compulsion order to which the patient is subject.

The application to the Tribunal by the Scottish Ministers ¹⁰⁶ is made using form CORO2.

14.12 Where the Scottish Ministers are to make such an application to the Tribunal, they are required, as soon as practicable after the duty to make the application arises, to give notice of the making of the application to the following persons -

• the patient;
• the patient's named person;
• any guardian of the patient;
• any welfare attorney of the patient;
• the patient's RMO;
• the mental health officer; and
• the Mental Welfare Commission.

Review of hospital direction and transfer for treatment direction - no application to Tribunal

14.13 Section 212 of the 2003 Act imposes on the Scottish Ministers a similar duty in respect of a patient's hospital direction or transfer for treatment direction, namely a duty to keep the relevant direction under review. Again, this duty ¹⁰⁷ is separate from the duty to refer the HD or TTD patient's case to the Tribunal where a recommendation has been received from an RMO¹⁰⁸ or notification has been received from the Mental Welfare Commission that it requires a reference to be made to the Tribunal ¹⁰⁹.

14.14 Following such a review, however, the Scottish Ministers must themselves revoke the direction where they are not satisfied that the grounds for the direction continue to be met; unlike a CORO review, no application is made to the Tribunal for revocation. This requirement to revoke a hospital direction or transfer for treatment direction without further reference to the Tribunal sits alongside the requirement on the Scottish Ministers to revoke the direction ¹¹⁰ on receiving a relevant report from the patient's RMO.

Reference to the Tribunal by the Scottish Ministers - COROs and directions

14.15 Scottish Ministers have a duty to make a reference to the Tribunal in respect of the compulsion order and restriction order or hospital direction or transfer for treatment direction to which a patient is subject, in the following circumstances -

• on receipt of a recommendation from the RMO¹¹¹;
• on receipt of notice from the Mental Welfare Commission ¹¹²; or
• where no reference or application has been made to the Tribunal for two years i.e. two-year review provisions ¹¹³

14.16 A reference to the Tribunal by the Scottish Ministers under sections 185(1) and 187(2) is made using form CORO1¹¹⁴; a reference to the Tribunal by Scottish Ministers under section 189(2) is made using form CORO2¹¹⁵; and a reference to the Tribunal by Scottish Ministers under sections 210(3), 211(2) or 213(2) is made using form HD2¹¹⁶.

14.17 When making a reference under these sections to the Tribunal, the Scottish Ministers must include: the name and address of the patient and the patient's named person; the recommendation submitted by the RMO, or the reason given by the Mental Welfare Commission or the Scottish Ministers for making the reference as the case may be. They must also give notice of the making of the reference.

Tribunal Hearings - procedure

14.18 Hearings will take place on a date and at a venue set by the Tribunal. The Tribunal will notify all relevant parties of the arrangements and will issue a set of papers to the parties no less than 7 days prior to the hearing date. A "party" is defined in the Tribunal Rules as being-

• the person who initiated the proceedings before the Tribunal;
• the patient;
• the named person;
• any person whose decision (which includes any direction or order, determination or grant of a certificate) is the subject of the proceedings before the tribunal;
• any person added as a party under rule 48;
• in the case of proceedings under sections 264 to 267 of the 2003 Act, the relevant Health Board; and
• where the proceedings relate to a restricted patient, the Scottish Ministers.

14.19 The RMO and the Mental Health Officer (" MHO"), not being parties to the proceedings before the Tribunal, will not receive a full set of the papers for the hearing - consisting of the reports and other documents submitted by the applicant or authority making the reference, and those submitted by the respondent.

14.20 SGHD will provide the RMO and MHO with a copy of the Position Statement and the Inventory of Productions documenting the papers lodged - which in the main will have been submitted by the RMO. SGHD will copy to the RMO and MHO any independent reports submitted to the Tribunal by the Scottish Ministers (where instructed by Ministers) or received from the Tribunal by the Scottish Ministers (where instructed by the patient or named person).

14.21 Most restricted patients have legal representation at Tribunal hearings and members of the patient's clinical team are likely to be invited to give oral evidence. In most cases, Scottish Ministers are represented by officials from SGHD and also have legal representation from the Scottish Government Legal Directorate (" SGLD"). Scottish Ministers will provide written representations in uncontested cases with only the more complex or contested cases involving representation by SGHD officials or legal representation by a solicitor from the SGLD or by Counsel.

Appeals to the Tribunal by the patient or their named person

14.22 The patient and their named person may appeal to the Tribunal:

• under section 201 of the 2003 Act ¹¹⁷, against the Scottish Ministers' decision to vary the conditions imposed on a CORO patient's discharge within 28 days of receipt of the written notice from the Scottish Ministers;
• under section 204 of the 2003 Act ¹¹⁸, against the Scottish Ministers' decision to recall a CORO patient from conditional discharge within 28 days of their return to hospital;
• under section 214 of the 2003 Act, for revocation of the transfer for treatment direction (patient seeking transfer to prison);
• under sections 219 & 220 of the 2003 Act, against the Scottish Ministers' decision to transfer a patient from one hospital to another (regardless of level of security);
• under regulation 13 of the Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005), against the Scottish Ministers' decision to transfer a patient between jurisdictions i.e. a cross-border transfer.

Appeals to the Court of Session by various parties

14.23 The patient, their named person, the Scottish Ministers and certain other people (depending on the decision appealed against), may appeal to the Court of Session against a decision taken by the Tribunal (section 322 of the 2003 Act).

Effect of certain applications, orders and appeals

14.24 An ongoing application to the Tribunal by a patient should not halt or delay the normal progress of their care and treatment.

14.25 An ongoing application does not affect the Scottish Ministers' decision-making powers. The RMO should continue to report on progress and request permission for suspension of detention from hospital (" SUS"), etc., where appropriate. If a patient is progressing towards transfer or conditional discharge the pre-transfer or pre-discharge planning process should continue as normal. Where there is likelihood that an application for discharge will be successful, the RMO should inform the relevant local authority and other agencies to allow contingency planning to be put in place. It is important for this to be done at an early stage. The Early Discharge Protocol NHSHDL (2002) 85 is based on the principles of the Care Programme Approach and provides guidance in respect of a small number of patients who may no longer meet the grounds for detention under the mental health legislation but may continue to pose a significant risk.

14.26 Where the Tribunal makes an order under section 193 revoking a compulsion order, revoking a restriction order, conditionally discharging a patient or varying a compulsion order the order does not have immediate effect.

14.27 The order will not come into effect until the expiry of the appeal period (where no appeal has been made) or (where an appeal has been made) the end of the appeal process. Section 196 of the 2003 Act provides in that regard that the order will not have effect until one of the following events occur -

• the expiry of the period for appeal, provided no appeal has been lodged timeously within that period;
• where an appeal has been lodged timeously under section 322 of the 2003 Act, where the Scottish Ministers have given notice that they do not intend to ask the Court of Session to make an order under section 323;
• where an appeal has been lodged timeously under section 322 of the 2003 Act, and the Court of Session refuses to make an order under section 323;
• where an appeal has been lodged timeously under section 322 of the 2003 Act, and any order made by the Court of Session under section 323 is recalled or expires.

14.28 Where the Scottish Ministers appeal to the Court of Session under section 322 of the 2003 Act against a decision made by the Tribunal, they can apply to the Court of Session for an order continuing the patient's detention and continuing the patient's compulsion order and restriction order, hospital direction or transfer for treatment direction. If an order is granted by the Court of Session under section 323 then it has the effect of continuing the patient's detention until the appeal is finally determined.

14.29 If an appeal is made to the Tribunal against a proposed cross-border transfer under the Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005, then the patient cannot be transferred pending determination of the appeal (regulation 11).

Preparation of reports and attendance at hearings

14.30 SGLD will act on behalf of the Scottish Ministers in appeals and contested applications by restricted patients/named persons. Counsel will be instructed by SGLD for all Court of Session hearings and they may also be required for Tribunal appeals ¹¹⁹.

14.31 On receipt of papers indicating an application or appeal to the Tribunal, the SGHD will write to the RMO and the MHO requesting a report containing their view of the patient's mental disorder, appropriate detention and any other aspect of their case, which is relevant to the appeal. SGHD will also request a report from the patient's MHO.

14.32 Appeals to the Court of Session will be heard on the basis of evidence previously presented to the Tribunal. No additional reports or oral evidence will be admitted. Where the court decides to remit the case back to the Tribunal for further consideration, it may also issue directions to the Tribunal about the consideration of the case, as it deems appropriate.

14.33 In cases where the Scottish Ministers intend defending an application, appeal or reference to the Tribunal, the SGHD may instruct a second medical report on the patient from a consultant psychiatrist with appropriate experience relating to the patient's mental disorder. It should also be noted that the PMO ( FP) will examine, and thereafter give an opinion on the patient's case and that will be factored in to the Scottish Ministers' position in relation to the appeal.

14.34 SGHD officials will keep the RMO and designated MHO appraised of all matters including any decision to defend the appeal and of the general progress of the case. In particular, the SGHD will inform the RMO of date(s) for any hearing and whether the RMO and designated MHO will be required to attend as a witness as soon as those date(s) are known.

14.35 When giving oral evidence before a Tribunal it is important that the RMO and MHO should vouch their opinions with reference to the reports and assessments they have provided in advance of the hearing. Although by no means exhaustive, below is a list of the documents which Tribunals appear to find most useful:

• annual reports;
• risk assessments;
• risk management reports;
• community care assessments;
• treatment review reports; and
• CPA documentation.

Applications against detention in conditions of excessive security (section 264)

14.36 When the Mental Health (Care and Treatment) (Scotland) Bill was undergoing its passage through the Scottish Parliament, concerns were raised about "entrapped" patients in the State Hospital. As a result, patients detained in the State Hospital can make applications to the Tribunal for an order declaring that they are being detained in conditions of excessive security. Part 17, Chapter 3, of the 2003 Act refers. These provisions apply to any patient detained in the State Hospital not just restricted patients.

State Hospital patients

14.37 Restricted patients who are detained in the State Hospital may now therefore make an application to the Tribunal under section 264(2) of the 2003 Act seeking an order:

(a) declaring that they are being detained in conditions of excessive security; and

(b) specifying a period (not exceeding 3 months) within which the relevant Health

Board must identify an alternative hospital, which the Scottish Ministers, Board and

managers agree is appropriate, and in which accommodation is available.

14.38 The patient's named person, any guardian or welfare attorney and the Mental Welfare Commission, may also make an application to the Tribunal for such an order in respect of the patient's detention in the State Hospital. It should be noted, however, that an appeal may not take place within the first 6 months from the date of the compulsion order, HD or TTD being made or the first 6 months in the State Hospital and only one application may be made in any 12 month period.

14.39 Prior to determining any such application for an order that a restricted patient is being held in conditions of excessive security at the State Hospital, the Tribunal must allow various persons including Scottish Ministers the relevant Health Board, the patient's RMO, the managers of the State Hospital, the MHO and the patient to make representations (orally or in writing) and to lead or produce evidence to the Tribunal. ¹²⁰

14.40 Thereafter, if satisfied that the patient does not require to be detained under conditions of special security which can only be provided in the State Hospital, the Tribunal may (ie it is not required to do so) make an order under section 264(2).

14.41 Following on from the making of the order if, within the specified period, the Tribunal does not receive notification from the Health Board that the patient has been transferred to an appropriate hospital, the Tribunal must hold a further hearing under section 265. At this hearing, the Tribunal may grant the Health Board a further period, again not exceeding 3 months, to identify a suitable hospital. It may also at this stage make a final 28 day order which would mean that the application would not automatically return to the Tribunal but would be directly enforceably by action in the Court of Session. If a further period, again not exceeding 3 months is granted and the patient is still not transferred within this period, the Tribunal will hold a final hearing under section 266 of the 2003 Act at which they may make a final order to the effect that the Health Board has 28 days to find a suitable place for the patient.

14.42 It should be noted that the "hospital" that the Health Board is required to identify will always be a Scottish hospital due to the terms of the 2003 Act. If it is ultimately intended therefore that a patient be transferred to a hospital outwith Scotland then they must either be transferred prior to an order under section 264 being made by the Tribunal (thereby avoiding an order requiring the Health Board to find alternative accommodation in Scotland). If an order is made and the patient is transferred outwith Scotland, then at the appropriate time an application should be made for recall of the order under the provisions of section 267, as on transfer of the patient to England the existing order would impose a statutory obligation on Health Boards that could no longer be complied with. The normal transfer provisions and procedures detailed in Chapter 8 are utilised.

14.43 When an order has been made by the Tribunal under section 264(2) or 265(2), either the Scottish Ministers or the relevant Health Board may make an application to the Tribunal for recall of the order. It should be noted that although the RMO has the right to apply to the Tribunal for recall of an excessive security order for non-restricted patients detained at the State Hospital, they do not have a similar right to apply for recall in respect of restricted patients and Scottish Ministers are instead given that role under the legislation. Again, other parties are given the right to make representations and to produce evidence for a recall hearing.

14.44 Otherwise, however, should the Health Board fail to comply with a final order of the Mental Health Tribunal, then the Board will be in breach of its statutory duty. The Mental Welfare Commission may, under section 45(b) of the Court of Session Act 1988, take the Health Board to court for failure to perform their statutory duty. This is without prejudice to any rights that the patient has to raise an action under section 45(b).

Patients in other (non-State) hospitals

14.45 Although the 2003 Act provides similar rights for patients in section 268 to 271 of the 2003 Act to make an application for an order from the Tribunal that they are being held in conditions of excessive security in the hospital in which they are detained, these provisions have not yet been commenced.

14.46 However, at present, what is required to bring into being the right of appeal for patients held in other hospitals, for example, at medium secure levels, is that regulations be made under section 268 of the 2003 Act to specify "qualifying patients" or "qualifying hospitals" to which the provisions in sections 268 to 270 would apply. In terms of when such regulations will be made, which would make sections 268 to 270 operative, and so bring in a similar right of appeal for patients in hospitals other than the State hospital, the Scottish Ministers are keeping this under review with a view to ensuring that patients are detained in the right conditions and care settings.