Memorandum of Procedure on Restricted Patients

ANNEX D MISCELLANEOUS ISSUES

Marriage

The Scottish Ministers have no specific power to agree to or withhold permission for restricted patients to marry. In terms of the Marriage (Scotland) Act 1977 the Registrar is required to consider any objections to a marriage under section 5 of the 1977 Act and if satisfied that the objections are valid, the marriage cannot proceed. One of the grounds forming a legal impediment to a marriage is set out at section 5(4)(d) and states that "one or both of the parties is or are incapable of understanding the nature of a marriage ceremony or of consenting to marriage".

While ultimately it is for the Registrar to satisfy himself on this point, there is an onus on the Scottish Ministers if they have any doubts that this condition is satisfied to communicate these to the Registrar in writing as required in the Act. It is, therefore, important that the Scotland Government Health Directorate (" SGHD") are informed of any impending marriage plans to allow the Scottish Government's Principal Medical Officer (Forensic Psychiatry) and the Responsible Medical Officer (" RMO") to provide their view on whether consent and understanding is likely to be clearly there. The fact that the patients are detainable in terms of the Mental Health (Care and Treatment ) (Scotland) Act 2003 (the 2003 Act") does not necessarily mean they are incapable of understanding the nature of marriage or of giving appropriate consent.

In the case of a marriage ceremony within a hospital, it will be for the managers of that hospital to consider whether this is appropriate. In the case of a marriage ceremony outwith the hospital, the Scottish Ministers' consent will be required for suspension of detention from hospital (" SUS") for inpatients.

Withholding correspondence

Section 281 of the 2003 Act sets out the statutory powers of hospital managers in withholding mail. Mail may be withheld:

• if the addressee has requested that communications addressed to him by the patient should be withheld; or
• if the managers of the hospital consider that the correspondence is likely -
• to cause distress to the person in question or any other person who is not on the staff of the hospital; or
• (ii) to cause danger to any person.

Any request for the purposes of paragraph (a) of this subsection requires to be made by a notice in writing to the managers of the hospital, the RMO or the Scottish Ministers. This provision applies to all patients detained in hospital. Sections 281 to 283 of the 2003 Act, along with the regulations made under those sections ¹³³, set out further information about when the power to withhold mail does not apply, when managers of the hospital may open and inspect any postal package, the functions of the managers of the hospital and the duty to notify the Mental Welfare Commission.

Requests from the media to interview restricted patients

The decision on whether it is appropriate for a restricted patient to be interviewed by the media rests with the RMO and the managers of the hospital. The RMO will have to consider whether it is clinically appropriate for the patient to take part in the programme and address the questions of the patient's competency and appropriateness of the interview. RMOs should clearly record their reasons for their conclusions and a copy of this should be sent to the SGHD.