Memorandum of Procedure on Restricted Patients

CHAPTER 15: SUMMARY OF KEY POINTS

The key summary points contained in each chapter are noted below:

CHAPTER ONE: Introduction

• this Scottish Government Memorandum of Procedure (MoP) for Restricted Patients replaces the last September 2005 Version of the MoP.
• the MoP is intended as a practical reference document for all those involved in the management and care of "restricted patients", and does not have formal legal status.

Executive Summary

• provides an overview of the Scottish Ministers' statutory role in relation to restricted patients, in relation to supervision, transfers, SUS etc, and explains that the Ministers' role is as an additional layer of scrutiny as regards the long term protection and security of the public from those patients who pose a risk of serious harm to the public.
• provides an overview of, and background to, the Scottish Ministers' policy on the management of mentally disordered offenders, giving links to various extraneous documents and websites in that regard.
• provides a list of terminology used in the MoP.

CHAPTER TWO: Roles & Responsibilities

• highlights that although Ministers have (as of the 2003 Act) remitted their previous powers to CD patients and to revoke restriction orders over to the MHTS, their ongoing statutory role in respect of restricted patients means that:
• their consent is still required for any: transfers between hospitals; transfers between hospital and prison; cross border transfers; SUS; and, for CORO patients, any variation of conditions of discharge or recall from conditional discharge;
• they may independently make certain references or applications to the MHTS in respect of a restricted patient
• they will be a party to MHTS hearings involving restricted patients.
• provides an overview of the role and responsibilities of the other personnel involved in the care and management of restricted patients, namely:
• SGHD staff;
• the MHTS, as the judicial body;
• the MWC, as the independent scrutiny and safeguarding body;
• the RMO, as the medical practitioner who has primary responsibility for the patient's care and treatment;
• the MHO, as the qualified and experienced local authority social worker;
• the ASW, who may provide support to the MHO
• the CPN, who reports to the Ministers on the progress of CORO patients on CD; and
• the police, in relation to sharing information with Health as the responsible authority for restricted patients under MAPPA, and helping to address any community safety issues for patients moving out of hospital to the community.

CHAPTER THREE: Risk Assessment & Management

• highlights that risk management and assessment is an overarching principle in the management of restricted patients, throughout the patient's journey, and that a multidisciplinary approach that engages the patient and has a focus on victim safety is an integral part of the risk management.
• highlights that good clinical care should therefore involve a multidisciplinary approach of structured risk assessment and management within the CPA.
• reminds that each of the decision points for multidisciplinary teams, Ministers and the MHTS must be supported by good quality risk assessments and risk management plans which are regularly updated within the CPA every 6 months and otherwise more regularly as circumstances change, thus requiring ongoing assessment and evaluation of the risk management strategies implemented and review of the patient's progress.
• highlights that the RMA Guidelines on risk management planning indicate that good qualify risk management relies upon: collaborative working; risk assessment; mapping of multi-layered risk management strategies to each identified risk factor and to each active protective factor; and documenting preventive actions and contingency actions (traffic light section) in the CPA documentation.

CHAPTER FOUR: Care Programme Approach ( CPA)

• provides a brief background to the CPA and notes that it has been adopted by the Scottish Government as the requisite mechanism for regular review for all patients subject to COROs, HDs, TTDs and ICOs with the purpose of maximising public safety and the reduction of risk of serious harm.
• CPA can be distinguished from MAPPA as, despite having the same underlying principles of gathering information, CPA focuses on the care and treatment likely to minimise the risk posed, whilst MAPPA focuses on multi agency management of risk.
• highlights that for NHS Health Boards, adherence to the CPA will enable them to meet many of their statutory obligations under MAPPA where they are the responsible authority, as the CPAdocumentation is used to record risk assessment and management plans as well as the ongoing care and treatment of the patient.
• provides a quick link to Scottish Government CEL 13 (2007) which contains guidance on the implementation of CPA
• provides link to Forensic Network updated guidance on CPA, the roles of individuals and templates for the documentation including a SUS plan which supports the CPA process.

CHAPTER FIVE: Multi-Agency Public Protection Arrangements ( MAPPA)

• explains that MAPPA focuses on multi agency management of risk, by providing systems and processes for relevant agencies to cooperate and share information about individuals who represent a risk to the community.
• explains that there are 3 levels of management in the MAPPA model, with restricted patients normally falling within level 1 or 2:
• Level 1 (ordinary risk management);
• Level 2 (local inter-agency risk management); and
• Level 3 (multi-agency public protection panel).
• highlights the circumstances in which:
• a MAPPAnotification must take place, namely: admission of a restricted patient to hospital, and any transfer between hospitals or back to prison; and
• a MAPPAreferral must take place, namely: unescorted ground parole or SUS; on identification of suitable accommodation in the community when planning CD; and when the RMO is considering recommending revocation of the CO or RO.

CHAPTER SIX: Patient Journey: Overview

• provides an overview of the patient journey, starting from admission and ending with the end of special restrictions, in the form of a chart.

Patient Journey: Admission

• summarises the different types of mental health court orders or directions which lead to admission to the mental health system from the criminal justice system.
• the pre-disposal orders are:
• assessment orders (s52B-J), which authorise detention for up to 28 days for assessment of mental condition;
• treatment orders (s52K-S), which authorise detention, enable compulsory treatment to be given, and can last until conviction or final disposal by the court; and
• interim compulsion orders (s52), which authorise detention, enable compulsory treatment to be given, and can last for up to 12 weeks (and 12 months in total);
• the orders at disposal / sentencing:
• compulsion orders (s57A) which can authorise detention, enable compulsory treatment to be given in hospital or in the community, and last for 6 months (thereafter extension by 6 months, following which 12 month renewals) or until revoked by the RMO;
• compulsion orders (s57A) with restriction order (s59) ( CORO), which authorise detention, enable compulsory treatment to be given, apply the restriction order without limit of time such that the compulsion order does not need to be reviewed, and can only be revoked by the MHTS ( CORO may be direct or via s57(2)(a) & (b)); and
• hospital directions (s59A) which are a hybrid order, authorising detention together with simultaneous imposition of prison sentence, enable compulsory treatment to be given, and can last until patient no longer requires treatment (transfers to prison) or until end of prison sentence;
• the post disposal / sentencing directions are:
• transfer for treatment direction (s136 of 2003 Act), enables Scottish Ministers to transfer prisoner from prison to hospital for treatment of mental disorder, during which time patient is subject to restrictions, and lasts until end of prison sentence or TTD is revoked (sending patient back to prison); and
• transfer from another jurisdiction, either via SSI 2005/467 for patients from other UK jurisdictions, or via the Repatriation of Prisoners Act 1984 for patients coming in from outwith the UK.

CHAPTER SEVEN: Patient Journey: Management in Hospital

• highlights that Scottish Ministers require a report to be provided on admission of each restricted patient to hospital, together with a copy of the Part 9 Care Plan, and a further report at the 3 month stage following admission.
• reminds that RMOs are thereafter required to prepare (having first consulted with the MHO) and submit to Scottish Ministers an annual report on each restricted patient, together with a copy of the most recent CPA documentation (for which a template is given) and either form CORO1 or HD1.
• provides guidance on the detail of the information to be included in the reports for CORO patients and HD/ TTD patients, noting that this is circumscribed by the requirements of the 2003 Act, to include background information on the patient, the RMO's opinion of the patient's current mental state, and whether the patient is detainable under the 2003 Act at the time of making the report

CHAPTER EIGHT: Patient Journey: Suspension of Detention ( SUS)

• Highlights that SUS means very simply that detention in hospital is suspended.
• SUS should be planned in the context of the CPA and SUS plan template given
• Section 224 of the 2003 Act sets out procedures for SUS and the consent of Scottish Ministers is required.
• The total sum of SUS granted over a year must not total more than 9 months.
• There is a requirement for the RMO to report back to Scottish Ministers no later than 3 months after the SUS
• SUS can be revoked at any point by the RMO or Scottish Ministers when satisfied that it is in the interests of the patient or for the protection of any other person.
• Prior to consideration of unescorted SUS for the first time either in the grounds of the hospital or in the community a MAPPA 2 referral must be made
• Where at all possible a programme of SUS over several weeks/months should be prepared using the template SUSform.
• When there is a change in the RMO the new RMO must review the SUS and confirm they are content for the level of SUS to continue
• Four overnights is the maximum of overnights permitted in any one week other than in exceptional circumstances i.e. the Tribunal ordering conditional discharge
• SUS requests to cover emergencies such as urgent clinical appointments can be sought in advance
• SUS for restricted patients who are sex offenders must be notified to the police if they are to be released from detention for a period of 3 days or more
• Scottish Government must be informed immediately if restricted patient is involved in an incident while on SUS or absconds.

CHAPTER NINE: Patient Journey: Transfers

• Highlights that all transfers of restricted patients must have the Scottish Ministers' approval under S218(3) of the 2003 Act
• Patient and their named person must normally be given 7 days notice except in urgent cases when notification can occur afterwards.
• Pre-transfer CPA meetings should take place
• Risk assessment and management plans should be reviewed/updated
• The RMO must notify the local MAPPA Co-ordinator
• Ward to ward transfers are at the discretion of the RMO who should inform the SGHD and the MHO but in cases where this involves transfer from a locked ward to an unlocked ward the RMO should consult with SGHD and the PMO( FP) prior to transfer
• A patient can appeal against transfer. If a patient appeals and the transfer has not yet taken place the patient cannot be transferred unless the Tribunal has made an order pending determination of the appeal.
• It is not possible to transfer between hospitals in Scotland patients on remand or detained on an Interim Compulsion Order. These cases must be remitted back to court to change the hospital named on the Order.
• It is not possible to transfer remand patients or those who have not yet received a final disposal between jurisdictions.

CHAPTER TEN: Patient Journey: Planning for CD

• This chapter only applies to CORO patients as prisoners on transfer for treatment directions or Hospital Directions cannot be conditionally discharged.
• Only the Tribunal can grant conditional discharge and set such conditions as it sees fit.
• Conditions imposed normally relate to residence, supervision by RMO, MHO and CPN and any other additional conditions necessary for the protection of the public.
• Once on CD only Scottish Ministers can vary the conditions of discharge. The patient has a right of appeal to the Tribunal (S201 of the 2003 Act) against any change.
• Prior to accommodation being identified the police should be invited to a Pre- CPA meeting to share intelligence about the proposed accommodation
• Once accommodation has been identified and patient is progressing on overnight SUS a MAPPA referral should be made

CHAPTER ELEVEN: Patient Journey: Management whilst on CD

• Highlights the requirement for the RMO, MHO and CPN to provide monthly reports initially when patient first conditionally discharged
• Conditions of discharge must be stringently adhered to by the patient and any breach should trigger automatically whether formal recall or other supports are required
• A formal breach of conditional discharge is one where the SGHD have written directly to the patient copied to the managers of the Health Board, RMO, MHO and CPN.
• Provides guidance on role of RMO, MHO and CPN supervisors
• Scottish Ministers should be consulted when there is a change of address
• When RMO, MHO or CPN absent from their post responsibility for the case should be transferred to a colleague with any changes being notified to SGHD as soon as possible.
• CD does not preclude a CORO patient going on holiday.
• Under Section 202 of the 2003 Act Scottish Ministers have the power to recall a CORO patient from conditional discharge.
• There is a general duty to inform a patient within 72 hours of his recall to hospital, of the reasons for that recall
• The CORO patient has a right of appeal to the Tribunal within 28 days of formal recall

CHAPTER TWELVE: Patient Journey: End of special restrictions

• For CORO patients the Tribunal can order revocation of compulsion order, or revocation of restriction order
• Provides examples of certain patients detained under the mental health legislation whose status as a restricted patient automatically comes to an end on a particular date.
• If the Compulsion Order is revoked the Restriction Order automatically falls
• The Early Discharge Protocol which can be used in conjunction with MAPPA should be used for patients who no longer, or may no longer meet the criteria for compulsory intervention under the 2003 Act or the Criminal Procedure (Scotland) Act 1995.
• Prior to making a recommendation for revocation of the compulsion order and/or the restriction order a MAPPA referral must be made
• Provides link to the necessity of the restriction order guidance

CHAPTER FIFTEEN: Patient Journey: Transferred Prisoners

• Provides an overview of transfer for treatment directions and those subject to a Hospital Direction
• A "short term" prisoner is when the sentence is less than 4 years
• A "long term" prisoner is one who is sentenced to 4 years or more, excluding life sentence prisoners
• Civil detention powers may be used to compulsory detain a prisoner at the end of the prison sentence if appropriate
• A MAPPA referral should be made prior to a recommendation by the RMO for release on life licence

CHAPTER SIXTEEN: Patient Journey: MHTS

• Provides background on the role of the Tribunal in considering and determining applications, references and appeals
• Applications to the Tribunal may be made by the patient or their named person
• Review of hospital direction and transfer for treatment direction
• The Scottish Ministers are required to make a reference on receipt of a recommendation from the RMO, on receipt of notice from the Mental Welfare Commission or where no reference or application has been made to the Tribunal for two years
• Appeals to the Tribunal by the patient or their named person
• The patient, their named person, the Scottish Ministers and certain other people may appeal to the Court of Session against a decision taken by the Tribunal.
• 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 this does not take effect until the expiry of the appeal period
• At the State Hospital, the patient, named person, any guardian or welfare attorney and the Mental Welfare Commission may make an application to the Tribunal declaring that the patient is being detained in conditions of excessive security.
• The RMO and MHO are responsible for providing background papers for the Tribunal and are expected to attend the hearing.