Memorandum of Procedure on Restricted Patients

2 ROLES AND RESPONSIBILITIES

Role of the Scottish Ministers

The Scottish Ministers' statutory role is to provide for the protection of the public.

2.1 As indicated in paragraph 1.4, the underlying purpose of the Scottish Ministers' statutory role in respect of the management of restricted patients is to provide an additional layer of scrutiny as regards the long-term protection and security of the public, whilst a the same time delivering appropriate care and treatment to the patient. This statutory role, reflected in the framework of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"), is one which the Scottish Parliament has given to the Scottish Ministers. The scheme of the legislation thus places on the Scottish Ministers the responsibility in the case of restricted patients to balance a patient's claim to liberty against the interests of other members of society to be safeguarded against the risks to which such liberty may give rise. In the performance of these statutory duties, the Scottish Ministers are, of course, both politically accountable to the Scottish Parliament as well as being bound by the controls that the Scotland Act 1998 places on them in their actions, of which compliance with human rights legislation is most relevant.

2.2 Under the 2003 Act the Scottish Ministers no longer have the power to conditionally discharge patients or to revoke restriction orders. These powers are now reserved to the Tribunal. However, the authority of the Scottish Ministers is still required at key points in the care of restricted patients:

Authority of the Scottish Ministers required	Section of the 2003 Act
transfer between hospitals	section 218
transfer between hospital and prison ( TTD patients)	section 210
cross border transfers	section 290
SUS ( i.e. authorising any leave from the hospital grounds)	sections 221 and 224
variation of conditions of discharge ( CORO patients)	section 200(2)
recall from conditional discharge ( CORO patients)	section 202

All requests when the authority of Scottish Ministers' is required should be directed to the Scottish Government's Principal Medical Officer (Forensic Psychiatry) (" PMO ( FP)") ²⁰, who will thereafter ensure that the appropriate action is taken within the Government. On receiving such a request from a Responsible Medical Officer (" RMO"), Scottish Ministers will consider and give authority as appropriate. The Scotland Government Health Directorate (" SGHD") officials will relay the decision of the Scottish Ministers to the RMO and designated Mental Health Officer (" MHO"). Where the Scottish Ministers do not authorise a request, the reason for this will be included.

2.3 In addition, the Scottish Ministers are responsible for making references or applications to the Tribunal following:

Application or Reference circumstance	Section of the 2003 Act
a recommendation from the RMO, having consulted with the designated MHO	sections 185 ( CORO patients) & 210 ( HD&TTD patients)
notice from the Mental Welfare Commission	sections 186 ( CORO patients) & 211 ( HD&TTD patients)
a period of not more than 2 years after the date of the patient's previous reference/application or the day on which the CORO, HD or TTD is made	sections 189 ( CORO patients) & 213 ( HD&TTD patients)
as a result of the Scottish Ministers duty to keep CORO under review ( CORO patients)	section 191

SGHD are required to refer cases to the Tribunal for consideration when the triggers above for making an application or reference occur. The Scottish Ministers are a party in references, applications and appeals involving restricted patients and will provide a Position Statement setting out their position. This Statement will reflect any concerns relating to risk.

2.4 It is important that multidisciplinary teams allow sufficient time for consideration by the Scottish Ministers of such decisions. Scottish Government officials will for their part make every effort to process requests timeously. RMOs and MHOs can assist in this by ensuring that all relevant information is provided to the SGHD to enable the Scottish Ministers or the Tribunal to make the decision.

2.5 It is very important that RMOs and MHOs do not presume that a favourable decision will result from any request to the Scottish Ministers and, in particular, they should not raise a patient's expectations unrealistically.

Role of Officials in the Scottish Government Health Directorate ( SGHD)

2.6 The SGHD undertakes the casework on restricted patients on a day to day basis on behalf of the Scottish Ministers. The SGHD role is therefore to help ensure that the management of restricted patients provides an additional layer of scrutiny as regards the long-term protection and security of the public, whilst delivering appropriate care and treatment to the patient. At the heart of the work carried out by officials in SGHD is ensuring that patients are subject to the Care Programme Approach ( CPA) and robust risk assessment and management plans are in place. These are updated/reviewed on a 6 monthly basis or prior to key rehabilitation stages or in advance of Tribunal hearings.

2.7 Officials in the SGHD concerned with restricted patients are: -

• The PMO ( FP); a consultant forensic psychiatrist who is responsible for liaison with the RMO and for advising the Scottish Ministers and their administrative officials on clinical aspects in relation to restricted patients. The PMO ( FP) will visit all restricted patients on an annual-18 month cycle and/or when the RMO recommends transfer involving a drop in the level of security; conditional discharge of CORO patients; revocation of the compulsion order and/or revocation of the restriction order; and where appropriate, recommending return to prison of patients under a Transfer for Treatment Direction.
• The PMO ( FP) also offers access to a psychotherapy service aimed at multidisciplinary teams working with personality disordered patients. This service is designed to act as an additional support for those who may be experiencing difficulties in managing these very challenging patients. Any member of the clinical team may make a referral to this service. The psychotherapist will make a psychodynamic formulation of the patient in order to work with the team.
• Officials in Branch 4 of Mental Health Division of the SGHD are responsible for administrative matters generally in relation to case work on restricted patients, and the preparation and submission of specific recommendations about a patient for consideration by the Scottish Ministers. Officials also prepare Position Statements reflecting risk considerations for the Mental Health Tribunal for Scotland.
• Officials in Branch 3 of Mental Health Division of the SGHD are responsible for administrative matters ( e.g. suspension of detention, SUS) in relation to remand patients (see CEL 9 (2009)).

Mental Health Tribunal for Scotland

2.8 Part 3 of the 2003 Act established a new judicial body - the Mental Health Tribunal for Scotland ("the Tribunal") - to replace the former role of the Sheriff Court as the body for dealing with the majority of mental health hearings. The primary role of the Tribunal is to consider and determine applications, references and appeals in relation to compulsory detention and treatment of those persons diagnosed as suffering from a mental disorder. Further information on the Tribunal and its role in respect of restricted patients is detailed at Chapter 14.

The Mental Welfare Commission

2.9 The Mental Welfare Commission for Scotland (" MWC") is an independent body first established in 1960 and continued in an extended role under Part 2 of the 2003 Act, to work to safeguard the rights and welfare of everyone with a mental illness, learning disability or other mental disorder. The MWC will give advice and guidance to patients and to service providers. It will arrange to visit people detained in hospital, including people subject to restriction orders. Whilst the Mental Welfare Commission cannot order the discharge of a restricted patient it can require the Scottish Ministers to refer a patient's case to the Mental Health Tribunal for consideration.

2.10 The Commission has a duty to monitor the operation of the 2003 Act and to promote best practice in its use ²¹. It publishes information about the use of legislation on its website and in ad hoc reports. This includes promotion of the principles of the 2003 Act. The Commission publishes guidance on a number of topics including consent to treatment^22,carers and confidentiality²³, restraint and restriction of freedom and the use of seclusion²⁴.

2.11 In addition the Commission operates a telephone advice service for service users, carers and professional staff. Further information is available on the MWC's website²⁵ or through its telephone advice service at 0131 222 6111.

The multi-disciplinary team

2.12 The wide ranging variety of needs within a forensic mental health patient population mean that in order to assess, plan and deliver care, treatment, intervention and support for recovery, the teams which care for them must be multidisciplinary and multi-agency. In the case of restricted patients and for clarity, particular responsibilities are given to members of this team. These roles are described herein.

• The Responsible Medical Officer ( RMO)
• The Mental Health Officer ( MHO)
• Allocated social worker ( ASW)
• The Community Psychiatric Nurse ( CPN)
• Police Liaison (as described in Chapter 5 : MAPPA and pre- CPA)

Role of the Responsible Medical Officer

2.13 The Responsible Medical Officer (" RMO") is an approved medical practitioner who is appointed to have the primary responsibility for the patient's care and treatment ²⁶. The 2003 Act effectively places a responsibility on NHS Health Boards to ensure that each restricted patient has an RMO at all times, by requiring hospital managers to appoint an RMO as soon as practicable after the occurrence of what is referred to as "an appropriate act" ²⁷. The RMO is responsible for planning the patient's care and treatment with due regard to public safety and ensuring that it is implemented within the confines of his/her responsibility for that patient and the legislative framework. The RMO must work in close co-operation with the designated MHO involving them in the decision making process ²⁸ and all others within and outwith the hospital involved with the care of the patient and with the Scottish Government Health Directorate ( SGHD). A restricted patient must have an RMO at all stages of their care.

2.14 SGHD would usually expect an RMO to be a Consultant Psychiatrist or Consultant Forensic Psychiatrist. The RMO must be an Approved Medical Practitioner ²⁹. In some circumstances, i.e. annual leave, it may be necessary for a Specialist Registrar (SpR) or Specialty Registrar years 4-6 (StR 4-6) to act as RMO, suitably supervised in the Consultant's absence. In such cases, the Consultant or Medical Director must inform SGHD in writing prior to any period where an SpR or StR 4-6 will act as RMO. A locum Consultant who is not on the specialist register should not act as RMO.

2.15 It is the responsibility of the RMO, in consultation with the rest of the multidisciplinary team, to recommend to the PMO ( FP) any action to be considered by the Scottish Ministers .

2.16 The RMO leads the contribution to Multi-Agency Public Protection Arrangements in respect of the restricted patients under his or her care ³⁰.

2.17 The RMO must ensure, in consultation with other relevant parties within the hospital, that any incidents or other unusual issues relating to the patient are reported to the SGHD and the designated MHO immediately, and that the notifications and routine reports mentioned in the following paragraphs are submitted timeously.

In hospital

• Within 3 months of admission to hospital an admission report
• Annual report with copy of Care Plan ³¹
• Applications for suspension of detention from hospital (granted under section 224 of the 2003 Act for restricted patients) (" SUS") should be included in the CPA, with the exception of those detained at the State Hospital
• A formal risk assessment and risk management plan must be in place before consideration of unescorted leave and updated/reviewed at 6 monthly intervals
• A progress report on SUS (contained within CPAdocumentation or annual report).

For CORO patients on Conditional Discharge (" CD")

• Any breach of CD should trigger consideration of recall or other appropriate action by the care team and report outcome
• Monthly or 3-monthly reporting (see RMOSupervisor Form) and copied to MHO and CPN
• Annual report

Both inpatients and those CORO patients on CD

• Notification of Incidents (see Annex B)
• Notification of Positive Drug tests
• CPA- [ CPADocumentation] (minimum 6-monthly)
• MAPPA Notifications and Referrals at appropriate points in the patient's care (see Chapter 5).

The Mental Health Officer

2.18 An MHO is a qualified and experienced social worker who has undergone added accredited training in mental disorder and mental health law, and who has been appointed (or deemed to be appointed) as such by their local authority ³². MHOs for restricted patients should also have undertaken some level of forensic MHO training. In addition to their involvement with the patient, the MHO has particular responsibilities in respect of the Named Person ³³. A restricted patient must have a designated MHO at all stages of their care. If the designated MHO changes, SGHD should be informed as soon as possible.

2.19 The designated MHO provides reports as part of the annual review process. In addition, where a patient is visiting the home of a relative or friend for the first time, a social work report will be required prior to the visit being authorised, usually by the MHO or an allocated social worker.

In hospital

• Explain to the patient their rights in relation to advocacy
• Explain to the patient their rights in relation to legal representation
• Explain the Tribunal process to the patient
• Explain to the patient the role of the named person and their right to receive full tribunal papers in the same way as the patient does
• Liaise with community services
• Provide report regarding home visits
• Contribute to risk assessment and risk management planning and consideration of SUS.

It would also be best practice for the MHO to:

• Ensure that the named persons have an understanding of the reasons for the patient's detention and the events and illness which led to the order being made (subject to issues around disclosure which may require consent from the patient)
• Ensure named persons are fully aware that they will receive full Tribunal papers including a full transcript of any court hearing with details of index offence and the possible implications of this
• Support named persons to consider the sensitive nature of all the papers relating to such cases and how they may store and dispose of them with due care and attention
• Advise others of any changes relating to the named persons

CORO patients on Conditional Discharge

• Any breach of CD should trigger consideration of recall or other appropriate action by the care team
• Monthly/3 monthly reporting ( MHOsupervisor form) and copied to RMO and CPN
• Annual Report

Both inpatients and those CORO patients on CD

• Attendance at Clinical team meetings
• Attendance at CPA meetings
• Attendance at shrieval Tribunals
• Notification of Incidents (see Annex B )
• Care Programme Approach ( CPADocumentation)
• MAPPA Notifications and Referrals at appropriate points in the patient's care (see Chapter 5).

The allocated Social Worker

2.20 A person subject to any kind of compulsory order may already be allocated within social services. The type of allocation will depend on the person's need, for example, mental illness, learning disability and also age in the case of older people. An allocation begins with a needs assessment and then develops into care management with appropriate resources, where necessary.

2.21 To fulfil these population needs, councils in Scotland employ social work staff with different professional qualifications such as social work, occupational therapy and nursing. Social work professionals can be located in a range of specialist teams such as older people, mental illness, learning disability and community care.

2.22 The role of the Mental Health Officer on the other hand, has a specific remit to be an independent assessor within the 2003 Act. Some councils have dedicated MHO teams which make this role much clearer. Other councils have a mixture of dedicated MHOs and social workers with an extra remit as MHOs. They may therefore rightly be involved in progressing further assessments within the restricted patients system such as home assessments before SUS or discharge. This is different from an assessment of needs which the MHO can request from their council using section 227 in the 2003 Act.

2.23 In the case of a restricted patient, a conditional discharge will probably involve a social work assessment from the relevant specialist team as described above, for appropriate resources as part of the conditions.

The Community Psychiatric Nurse

2.24 The Community Psychiatric Nurse (" CPN") has responsibility to report to the Scottish Ministers on the progress in the community of conditionally discharged CORO patients. In some cases they will have had additional forensic training and be a Forensic Community Psychiatric Nurse although this is not always the case. The CPN will be identified by the community service manager in the health board area in which the CORO patient will reside on conditional discharge following a referral from the RMO. It is essential that the CPN is identified at the earliest opportunity to enable development of relationship with the patient, participation in the risk assessment, risk management planning and involvement in the discharge planning process.

For CORO patients on Conditional Discharge

• Monthly/3 monthly reporting ( CPNsupervisor form) and copied to RMO and MHO
• CPA - ( CPADocumentation)
• Any breach of CD should trigger consideration of recall or other appropriate action by the care team.

The Police Role

2.25 The Police have two key roles in relation to management of restricted patients

• Sharing information to help the responsible Health authority assess and manage risk appropriately
• To help address community safety issues when patients are moving towards spending time in the community or discharge to the community

2.26 Police engagement in the CPA process will be at the following stages, this may be at a pre- CPA meeting rather than the main CPA meeting, dependant on the input required.

• Admission - allows suitable police liaison officer from the patient's home force to be identified and will assist with gathering of intelligence for the risk assessment process;
• When consideration for first time of escorted/unescorted SUS or in certain circumstances escorted leave within hospital grounds;
• Prior to accommodation being identified for CORO patient progressing towards CD
• When a breach of condition occurs or if a CORO patient is recalled; and
• Any other occasion when it can be demonstrated that a police officer's presence is essential.

2.27 Police will also be key partners in MAPPA, and will be involved in the oversight of management of restricted patients via these arrangements - see Chapter 5.