Memorandum of Procedure on Restricted Patients

6 ADMISSION

6.1 Mentally disordered offenders may be diverted into the mental health system from the criminal justice system at various points of the court process. This includes at the pre-trial stage, during trial, at the post-conviction but pre-sentence stage, at the sentencing stage and after sentencing.

• Pre-disposal orders: for assessment and treatment of offenders
• Disposal / sentence by court: a person may, due to their mental disorder, be ordered by the court to be detained in hospital to receive medical treatment for their mental disorder in lieu of receiving a prison sentence
• Post-sentence: a prisoner serving a term of imprisonment may also be transferred from prison to hospital via a transfer for treatment direction

6.2 The relevant orders are divided into pre-disposal, sentence and post-disposal under the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") which for reference are: -

Pre-disposal

Description of order	Legislation
An assessment order - a pre-disposal order made by the court authorising hospital detention for up to 28 days so that the patient's mental condition may be assessed. Compulsory treatment may also be given in certain circumstances (see e.g., sections 52D(6)(c) and 242(5) (b). The order may be renewed once only for 7 days.	section 52B-J of the 1995 Act
A treatment order - a pre-disposal order made by the court authorising hospital detention for treatment of a person's mental disorder. Compulsory treatment may be given. The order ceases at the end of the period for which the person is on remand or is committed, unless earlier terminated by the court.	section 52K-S of the 1995 Act
An interim compulsion order - a pre-disposal order made by the court authorising hospital detention for 12 weeks (but can be renewed regularly for up to one year) so that the court can gather further evidence on whether the forensic criteria apply. Compulsory treatment may be given.	section 53 or 57(2)(bb) of the 1995 Act

6.3 A person detained in custody whilst awaiting trial or sentence may be transferred to a hospital by order of the Court for assessment or treatment ⁵¹. Alternatively, a person may be detained in hospital whilst awaiting sentence under an interim compulsion order. Such patients are not restricted patients.

6.4 However, the Scottish Ministers do have a statutory role in relation to remand patients which role at this stage is two-fold:

• applications / notifications - the Scottish Ministers may themselves apply for either an assessment order or a treatment order where it appears to them that the person has a mental disorder, and they will otherwise be notified of an application for such an order where a prosecutor applies for one or where the court makes such an order of its own volition. Similarly, the Scottish Ministers will be notified where the court has imposed an interim compulsion order. Once the Court disposes of that person's case, or if proceedings are dropped, the relevant order lapses. (The Court ultimately may make a compulsion order with or without a restriction order under the 1995 Act, or it may ultimately impose a penal sentence instead);
• SUS- suspension of detention from hospital (granted under section 224 of the Mental Health (Care and Treatment) (Scotland) Act for restricted patients), - the Scottish Ministers' consent is required for any SUS for remand patients. for remand patients will be the exception rather than the rule, due to the high level of supervision that is recommended for such patients. (see Chapter 8 for further information).

6.5 The hospital authorities should include the Scotland Government Health Directorate (" SGHD") in their notification system when any such patients are admitted to hospital and when their cases are disposed of by the Court (or proceedings are dropped).

6.6 The have produced a protocol with Scottish Court Service ( SCS) and are notified by the courts of all new pre-disposal orders and any subsequent changes to their status.

6.7 In general terms, an accused person who is detained in hospital while awaiting trial should be subject, at least initially, to a high level of supervision. The patient should not be allowed to leave the ward or place of supervised occupation without an escort. In some cases this level of supervision will require to be maintained throughout the remanded person's stay in hospital. In other cases, where, for example, the previous history of the accused is well known, or where his mental condition improves, the Responsible Medical Officer (" RMO") may think it appropriate to allow some relaxation in supervision (see CEL 9 (2009)).

6.8 Where a patient detained under a predisposal order ⁵² has recovered from their mental disorder in advance of their anticipated court appearance, it will be appropriate for the RMO and Mental Health Officer to submit a report to the court who will decide whether or not it is appropriate to return the patient to custody or release them. The Scottish Ministers have no statutory role in this process.

6.9 There is no automatic provision for the continued detention in hospital of a patient subject to a predisposal order ⁵³ where the order ceases to have effect because the proceedings have been dropped or the person has been acquitted. In such circumstances, civil detention procedures should, where necessary, be effected ⁵⁴.

The Scottish Ministers cannot transfer patients on remand or Interim Compulsion Orders between hospitals and this can only be achieved by referral back to the court to change the hospital named on the order.

Disposal / sentence by court - orders and directions

Description of Order	Legislative reference
A compulsion order made by the court at the time of disposal following conviction or acceptance of a guilty plea.	section 57A of the 1995 Act
A compulsion order and restriction order made by the court following a finding of insanity in bar of trial or acquittal on the grounds of insanity. Where there is a finding of insanity in bar of trial, an examination of facts will determine beyond reasonable doubt whether the offence(s) in question took place	section 57(2) (a) and (b) of the 1995 Act
A restriction order made by the court at the time of disposal and is added to a compulsion order (under section 57A). It means that the measures specified in the compulsion order will be without limit of time.	section 59 of the 1995 Act
A hospital direction made in addition to a prison sentence. It allows the person to be detained in hospital for treatment of their mental disorder and then transferred back to prison to complete their sentence once detention in hospital is no longer required.	section 59A of the 1995 Act following a conviction on indictment under the 1995 Act

6.10 As noted above, a person may, due to their mental disorder, be ordered by the court at sentencing to be detained in hospital to receive medical treatment for their mental disorder in lieu of receiving a prison sentence.

CORO - section 57A & 59 (either direct or via section 57(2)(a) & (b)) of the Criminal Procedure (Scotland) Act 1 995 Act

6.11 There are two disposals that the court can now give at sentencing that bring patients under the supervision of the Scottish Ministers: a restriction order with compulsion order ( CORO) and a hospital direction ( HD) ⁵⁵:

a)The court may firstly impose a compulsion order under the 1995 Act instead of a prison sentence, where the offender meets the relevant criteria. In receiving such a mental health disposal, the patient may additionally be made subject to a restriction order, in which case the special restrictions which will apply to the patient are those contained in Part 10 of the Mental Health (Care and Treatment) (Scotland) Act ("the 2003 Act") ( CORO patients), without limit of time. A CORO may be imposed directly by the court under section 57A with section 59 where the offender is convicted of an offence punishable by imprisonment (where the sentence is not fixed by law), or where the case is remitted to the High Court for sentencing.

b)Alternatively, the court may make an order under section 57(2)(a) and (b) of the 1995 Act that a CORO should be made where the offender has been either acquitted on the grounds of his insanity at the time of the act, or has been found to be insane in bar of trial.

6.12 CORO patients are also subject to the various further statutory safeguards arising from the Scottish Ministers' role in relation to their management and care, as summarised in paragraph 1.4 above.

Hospital direction - section 59A of the 1995 Act

6.13 Alternatively, a hospital direction, which is a hybrid order of hospital disposal with prison sentence, may instead be imposed by the court. A hospital direction will be used where the person has a mental disorder which meets the criteria for admission to hospital, but either the mental disorder and the offence are not closely linked or the offender is likely to remain a risk to the public even after appropriate treatment of the mental disorder.

6.14 With the imposition of a hospital direction, Part 11 of the 2003 Act will apply during the lifetime of the offender's prison sentence, unless earlier revoked. HD patients are also subject to the various further statutory safeguards arising from Scottish Ministers' role in relation to their management and care, as summarised in paragraph 1.4 above.

Order for Lifelong Restriction

6.15 Part 1 of the Criminal Justice (Scotland) Act 2003 provides for the establishment of the Risk Management Association and, from June 2006, for a new High Court disposal for high risk violent and sexual offenders, the Order for Lifelong Restriction (" OLR"). The OLR is not a mental health order [but may sit alongside one]; rather it is designed to ensure that offenders are not released into the community until they have served an adequate period in custody to meet the requirements of punishment and thereafter do not present an unacceptable risk to public safety.

6.16 Where an offender with a mental disorder is convicted of a serious violent or sexual offence such that he meets both the criteria for the Court to impose an OLR and the criteria for a Compulsion Order, the High Court will have the choice between:

• a Compulsion Order and Restriction Order; or
• an Order for Lifelong Restriction and a Hospital Direction.

6.17 The deciding factor between these two would be whether the offender's risk is "directly or in significant part linked to a mental disorder likely to benefit from treatment ⁵⁶" - if it is, then the mental health disposal would be more appropriate than the OLR. If, however, the offender is suffering from a mental disorder not directly linked to their offending and requires detention in hospital for treatment, an OLR and a Hospital Direction may be applied. For further information on the interaction between OLRs and CORO/ TTD patients see Chapter 7.

Post disposal / sentence directions or transfers

Description of direction or transfer	Legislative reference
A transfer for treatment direction - an order made by Scottish Ministers which allows the transfer of a prisoner to hospital for treatment of a mental disorder.	Section 136 of the 2003 Act
Transfer to Scotland of detained patients from another jurisdiction - reception into Scotland of such patients	SSI 2005/467, made under section 290 of the 2003 Act

Transfer for treatment directions - section 136 of the 2003 Act

6.18 As noted above, prisoners serving a term of imprisonment may also be transferred from prison to hospital via a transfer for treatment direction, in which case Part 11 of the 2003 Act will again apply during the lifetime of the offender's prison sentence, unless earlier revoked. TTD patients are again also subject to the various further statutory safeguards arising from Scottish Ministers' role in relation to their management and care, as summarised in paragraph 1.4 above.

Transfers from outwith Scotland

6.19 Restricted patients may be accepted on transfer from other UK jurisdictions with which there are reciprocal legislative arrangements ( i.e. England, Wales and Northern Ireland). The transfer might be on compassionate (such as family reasons) or on treatment grounds. Patients from Northern Ireland, who require care in conditions of special security which are not available presently in Northern Ireland, may be transferred to the State Hospital if the hospital agrees to accept these patients while they require such care. Once received into Scotland, such patients will be treated as Scottish patients and detained under the equivalent provision in the 1995 or 2003 Acts. The laws from their original jurisdiction will cease to apply.

6.20 Patients from outwith the UK may also be transferred to Scotland via the Repatriation of Prisoners Act 1984, which requires the Scottish Ministers to issue a warrant. In terms of that Act the foreign provision contained in the warrant will have the same effect as a Scottish detention or court order.

6.21 No patient may be received into Scotland (whether restricted or unrestricted) from outwith Scotland without the consent of the Scottish Ministers ⁵⁷. Therefore, the Scottish Government Health Directorate ( SGHD) carries out a series of checks, including as to whether the patient is detainable under the legislation currently applying, for all patients in respect of whom a transfer to Scotland is proposed, before arrangements can be made for the transfer.