Memorandum of Procedure on Restricted Patients

8 SUSPENSION OF DETENTION ( SUS)

8.1 This Chapter deals principally with the suspension of detention from hospital (granted under section 224 of the Mental Health (Care and Treatment) (Scotland) Act 2003 for restricted patients), (" SUS") for restricted patients; different rules apply as regards SUS for remand patients and you are referred to paragraphs 8.48 to 8.52 that highlight those differences.

8.2 SUS means very simply that detention within hospital is suspended. Liability to detention is, however, maintained as are any other measures authorised under the order or direction in question. A certificate authorising SUS will be required for all occasions when the patient leaves the hospital. Under the Mental Health (Care and Treatment) (Scotland) Act ("the 2003 Act"), The Responsible Medical Officer (" RMO") needs the Scottish Ministers' consent before granting any SUS from hospital for a restricted patient. The Scottish Ministers' consent is also a statutory requirement for any SUS from an interim compulsion order, treatment or assessment order (see paragraphs 8.48 to 8.52). It should be noted that leave in the grounds of the hospital, either escorted or unescorted, does not require permission from the Scottish Ministers and can be granted at the discretion of the RMO. The only exception to this being the Orchard Clinic (see paragraph 8.18).

Scottish Ministers' approach to SUS

8.3 The Scottish Ministers recognise that SUS, which serves a definable purpose, is well thought-out and carefully and sensitively executed, has an important part to play in the treatment and rehabilitation of restricted patients. Suspensions of detention provide information for the assessment of risk and help RMOs and the Scottish Ministers in determining when, and under what conditions, moves within the hospital system can safely be made. Suspensions of detention can also provide valuable information to all parties, including the Tribunal, when considering discharge into the community.

8.4 Clinical teams should plan SUS in the context of the Care Programme Approach (" CPA") and in response to a needs assessment and a risk assessment (including risk of harm to others and respect the fears of victims and others who may have been affected by the patient's offending behaviour). An example is given within the templates " Suspension of Detention Plan " Also to sustain public confidence in the arrangements as a whole, MAPPA should be applied at the required stages as detailed in paragraphs 8.18 and 8.19 below and Chapter 5. SUS can be requested exceptionally outwith the CPA process by letter to the Scottish Government providing feedback if appropriate on previous SUS.

Legislation

8.5 Section 224 of the 2003 Act sets out procedures for suspension of detention from hospital (" SUS") for patients who are on a compulsion order and restriction order, a hospital direction, a transfer for treatment direction, treatment order or an interim compulsion order. Where a patient is subject to any of these orders, the RMO may grant a SUS certificate for up to 3 months provided that:

• they have obtained the consent of the Scottish Ministers; and
• it does not take the sum of the periods of suspension granted over a total of 9 months in any 12-month period.

8.6 Section 221 of the 2003 Act separately sets out similar procedures for SUS from an assessment order, to which again the consent of the Scottish Ministers is required. However, as assessment orders only last 28 days, the 3 month suspension period above is not relevant.

Reporting

8.7 There is also a requirement for the RMO to report back to the Scotland Government Health Directorate (" SGHD") (for CORO, HD and TTD patients) not later than 3 months after consent to SUS is given or prior to any further requests for SUS are made to the Scottish Ministers; which ever is the earlier. This feedback can form:

• a part of a statutory report;
• an update of the Care Programme Approach documentation; or
• a further request for SUS.

SUS can be revoked at any point by the RMO or the Scottish Ministers when satisfied that it is in the interests of the patient or for the protection of any other person (see paragraphs 8.37 to 8.42).

Types of SUS

8.8 In general, the SGHD will consider SUS requests for the following purposes:

• rehabilitation (including pre-transfer visits to another hospital);
• quality of life;
• compassionate visits;
• scheduled treatment in hospital;
• emergency treatment in hospital;
• attendance at Court in relation to criminal proceedings; and
• attendance at Court in relation to civil proceedings.

The SUS can be granted either on an escorted or unescorted basis depending on the individual's circumstances, level of risk, etc. It may also be made subject to other conditions.

Timing of Requests

8.9 The Scottish Ministers' responsibilities require that proper consideration be given to each SUS request, that any risk to the public has been properly identified and evaluated, and that sound measures have been taken to guard against it. As a general rule, the longer or more unusual the freedoms sought, then the more advance notice the SGHD requires to consider the request. It is important that, where possible, the SGHD is given at least three weeks notice of a request for SUS. This may be longer in the case of requests for unescorted SUS for transferred life sentence prisoners as the Scottish Ministers take these decisions personally (see paragraph 8.35). Separate arrangements are in place to deal with emergency requests for SUS (see paragraphs 8.31-8.33 below).

8.10 Given that the Scottish Ministers' consent is a statutory pre-requirement for any SUS granted by an RMO, the RMOshould not make final arrangements for the SUS to take place until the Scottish Ministers' consent has been received. Care should also be taken not to raise the patient's expectations. It is appreciated that it is very upsetting for a patient (and where involved, the patient's family) when a SUS planned by the multidisciplinary team is not approved by the SGHD due to lack of time for full consideration of the request, or any other reason; this situation should therefore be avoided.

Escorted SUS

How to make an application

8.11 Permission for SUSfrom the State Hospital is sought by submitting an appropriately completed "Patient Outing Application Form" to the Scottish Government's PMO ( FP). Each application should inform whether the use of handcuffs has been considered necessary and, if so, the reasons for this and the arrangements for their use. Suspensions of detention from the State Hospital should adhere strictly to that described within the 'Patient Outing Application Form'. Only in an emergency situation is any deviation from the details contained in the form appropriate. If deviation has been necessary this should be reported to the SGHD.

8.12 For patients in medium secure units and other psychiatric hospitals, requests should be made in writing to the PMO ( FP) detailing the purpose, duration, frequency and escorting arrangements and should be accompanied by the following information:

• a recent risk assessment and risk management plan ; or
• up-to-date CPA documentation (which include elements of risk assessment and a risk management plan); and
• where SUS is being considered for the first time to the home of a patient's family member or friend, an up-to-date social work report on the property (completed by the Mental Health Officer (" MHO") or allocated social worker).

Series of events

8.13 Where it is intended that the patient make a series of similar events over a known time span (such as a series of hospital appointments, pre-transfer visits, rehabilitation programme including, for instance, attendance at college), a single detailed request may be submitted for the planned SUS.

8.14 The RMO should make clear the escort arrangements, if appropriate, and whether there are plans to vary the arrangements over time. Agreement would generally be granted to such arrangements, although each SUS would be subject to the patient's mental state being stable on the day.

8.15 The RMO should inform the SGHD immediately should any change occur which affects the basis on which the Scottish Ministers' consent has been given for a SUS.

8.16 For many patients the level of risk will remain unchanged when the patient receives escorted SUS and only change when unescorted SUS or leave within the grounds of the hospital is approved. However it must be recognised that a small number of patients may also present an increased risk to the public ( e.g. through absconding) while on escorted leave. It is therefore essential that the risk management plan is reviewed before any request for escorted SUS is made to the Scottish Ministers. Examples of risk management traffic lights which address absconding risk is contained in Annex H.

8.17 In exceptional circumstances where the risk is considered to be high and escorted SUS is being considered it may be appropriate for the RMO to make a MAPPA referral (see Chapter 5). However this should be discussed with the police link in the first instance.

Unescorted SUS

New Requirements involving MAPPA

8.18 When a restricted patient is first being considered for any unescortedSUS, including unescorted leave within the hospital grounds, the multidisciplinary team must initiate a MAPPAreferral. Note, however, that unescorted leave within the secure perimeter of the State Hospital or Rowanbank Medium Secure Unit would not normally be expected to trigger such a referral. In the case of patients in the Orchard Clinic Medium Secure Unit, leave in the grounds of the Royal Edinburgh Hospital is classed as SUS (either escorted or unescorted) and consent should be sought from the PMO ( FP) using the appropriate guidelines.

8.19 The RMO should assign a provisional MAPPA Level to the patient, complete the MAPPA referral form and submit to the local Co-ordinator with a copy to SGHD. A MAPPA Group meeting will be arranged within 20 working days to review the patient's risk assessment and management plans. A copy of the minutes of the meeting will be sent to SGHD. No requests for unescorted SUS will be considered by SGHD until the MAPPA referral process has been completed

How to make an application

8.20 Requests for unescorted SUSfrom the State Hospital are rare. However, in cases where this is considered appropriate, permission is sought by submitting an appropriately completed "Patient Outing Application Form" to the PMO ( FP). It should be accompanied by an up-to-date risk assessment and risk management plan or CPA documentation. Suspensions of detention from the State Hospital should adhere strictly to that described within the 'Patient Outing Application Form'. Only in an emergency situation is any deviation from the details contained in the form appropriate. If deviation has been necessary this should be reported to the SGHD. The Community Discharge Group at the State Hospital should see and agree plans involving direct discharge from the State Hospital.

8.21 For patients in medium secure units and other psychiatric hospitals, requests should be made in writing to the PMO ( FP) detailing the purpose, duration and frequency and should be accompanied by the following information:

• a recent risk assessment and risk management plan ; or
• up-to-date CPAdocumentation (which include elements of risk assessment and a risk management plan) along with SUSplan;
• and, where SUS is being considered for the first time to the home of a patient's family member or friend, an up-to-date social work report on the property (usually completed by the MHO).

8.22 The RMO should inform the SGHD immediately should any change occur which affects the basis on which the Scottish Ministers' consent has been given for a SUS.

Programme of SUS

8.23 While, "one-off" requests can be necessary, the Scottish Ministers would usually expect requests for unescorted SUS to be made in the form of a graduated programme over a number of weeks/months. Such phased programmes should relate to the overall care and treatment plan and should set personal objectives for the patient The request to the PMO ( FP) should explain the part this suspension will play in the patient's overall rehabilitation plan. Once consent is given, the programme of unescorted SUS should develop according to the patient's progress, mental state and behaviour, and any significant changes resulting in an alteration to the agreed plan should be notified to SGHD.

Overnight SUS

8.24 At the point where the RMO and clinical team are seeking accommodation for a patient in the community, the risk assessment and management plan must be updated and the police invited to a pre- CPA meeting to discuss possible accommodation options. Once the accommodation has been identified and the plan is to progress the patient towards conditional discharge a further MAPPA referral should be made. The RMO must complete the MAPPA referral form and submit it to the local Co-ordinator with a copy to SGHD. A MAPPA Group meeting will be arranged within 20 working days. The patient's SUS programme may continue in the meantime.

8.25 Permission may be given for a patient to spend overnight SUS at the home of a family member or at accommodation identified as part of a package of care in the community. Such SUS usually forms part of the latter stages of a patient's rehabilitation programme and is a key factor is assessing a patient's suitability for a return to the community. The maximum number of overnights permitted in any one week is four. A patient would be expected to gradually increase the number of overnights spent at his/her accommodation over a period of at least four months, e.g. one overnight the first month, two the second month and so on, until the maximum number is reached.

8.26 In cases where the Tribunal order conditional discharge and Scottish Ministers do not oppose conditional discharge it will be open to the RMO to seek unescorted SUS to cover the period up until advised by the Scottish Government of the conditional discharge taking effect

Change in RMO and reviewing current SUS not involving transfer

8.27 When there is a change in the RMO for the patient, the new RMO must review as soon as practicable the current SUS plan for the patient and confirm they are content for the level of SUS previously agreed to continue.

Change in RMO and reviewing current SUS following transfer

8.28 Consent to escorted or unescorted SUS does not automatically move with the patient if they are subsequently transferred. The new RMO must consider whether or not they wish to adopt the same plan for SUS as before and if they are content to keep the current permissions they must write to SGHD. However, in cases where the transfer has been from high security to medium or low security a fuller consideration is required. In these cases the existing SUS should be revoked and a new application for SUS should be submitted by the RMO, following consultation with the patient's designated MHO, together with an updated risk assessment reflecting the changed circumstances. There may also be a requirement for a MAPPA referral if there is considered to be a significant change to the patient's level of risk following transfer or if the patient has moved to a new MAPPA area.

SUSfor compassionate reasons

8.29 SUS for compassionate reasons will be given serious consideration by the SGHD. It should be noted that such a request is more likely to be considered acceptable if efforts have been made to ensure a low profile, particularly, for example, where the media are already aware of the patient's background.

8.30 Where a patient's relative has died and the patient requests permission to attend the funeral, consideration should be given to the impact this might have on other family members, the victim and their family, and the general public in the area. In some cases an alternative may be for the patient, together with their escort, to visit the funeral parlour or family home the evening prior to the funeral to view the deceased in the company of close family members.

SUSfor cases of emergency

8.31 Telephone requests by the patient's RMO or the duty RMO may be made in compassionate or emergency circumstances which necessitate urgent SUS (for example, to a hospital for treatment of a serious physical ailment). In these cases, the RMO or duty RMO must contact the PMO ( FP) or a SGHD official to obtain the necessary approval. Prior consent for urgent clinical appointments may be sought however a written or oral update must be provided after each event.

8.32 The PMO ( FP) and officials may be contacted at any time including out of office hours . Out of hours contact details are circulated separately to Health Boards. These details should not be posted on notice boards or incorporated within CPA documentation. Where exceptionally no contact can be made with an official, a message may be left with the Security Guards at Victoria Quay by dialling the main Scottish Government phone number - 0131 556 8400. Security will relay the message to an official as soon as possible. Please note that on no account should patient details be left as part of such a message

8.33 Where permission is not obtained in advance of urgent leave (such as an emergency visit to hospital), a telephone report must be made to the SGHD by the RMO as soon as possible thereafter, followed by a formal report including details of why prior contact was not possible.

Attending Tribunal hearings

8.34 Where the case involves an appeal to the Tribunal, the patient would be allowed to attend unless this would be inappropriate. The Tribunal Rules, for example, make provision for a curator ad litem to be appointed to represent the patient's interest in certain circumstances in the proceedings before the Tribunal, including subject to: the health provisions outlined in the Rules of Procedure ⁶⁰; or where the patient has been excluded from all, or part, of the hearing ⁶¹. Where the hearing is taking place outwith the hospital, a request must be made for SUS.

SUSfor life sentence prisoners

8.35 Scottish Ministers personally approve all requests for SUS for transferred life sentence prisoners. It is, therefore, helpful to draw up a programme of freedoms for a period of time for which approval can be sought in advance; one-off requests for life sentence prisoners should be avoided. Prior to submitting a request, it is often helpful for the multidisciplinary team at the hospital, the designated MHO, the PMO ( FP) and Scottish Government Health and Justice Directorate officials to meet when rehabilitation has progressed to unescorted SUS. This ensures that all the relevant parties are informed at the appropriate stage about a provisional timescale in relation to possible release on life licence. The SUSplan should also be incorporated for transferred prisoners receiving SUS.

SUSfor sex offenders

8.36 Section 96 of the Sexual Offences Act 2003 provides a power to make regulations requiring those who are responsible for an offender while they are in detention to notify other relevant authorities of their release or transfer to another institution. The main change affecting mentally disordered offenders will be the requirement on hospital managers to inform the police when a patient is transferred to another hospital, discharged from hospital and in cases where the patient is to be released from detention for a period of 3 days or more. Guidance on the operation of the regulations will be issued as soon as practicable after they come into force.

Revocation of a certificate authorising SUS

8.37 A SUS certificate can be revoked by the patient's RMO or Scottish Ministers if either is satisfied that it is necessary to do so in the interests of the patient or for the protection of any other person.

8.38 Revocation of a SUS certificate SUS3a⁶² (using form SUS3b⁶³ by the RMO or SUS3c⁶⁴ by the Scottish Ministers) authorises the immediate conveyance of the patient back to hospital by the staff of the hospital and/or the police.

8.39 As soon as is practicable after the revocation of the certificate in respect of a restricted patient or one subject to an interim compulsion order, the RMO or the Scottish Ministers (as the case may be) must notify:

• the patient;
• the patient's named person;
• the patient's RMO or the Scottish Ministers (depending on who revokes the certificate);
• the patient's general practitioner (where the certificate specified a period of more than 28 days);
• the Mental Welfare Commission (within 14 days of the revocation of the certificate);
• the patient's designated mental health officer, and
• where a patient is being kept in charge of a person authorised in writing by the RMO, that person.

8.40 Where the revocation is of a SUS of an assessment order, then the RMO or the Scottish Ministers need notify only the persons listed at the first three bullet points above.

8.41 The RMO must make the SGHD aware if any SUS is terminated or if an adverse incident has taken place during the SUS. When an event has been cancelled the reasons for this should be made known and whether it is planned that the event will take place at a later date.

8.42 There is no provision within the legislation for RMOs to "suspend" SUS, i.e.where SUS is no longer considered appropriate the RMO must formally revoke the measures by completion of formSUS3b. It is possible however if the patient consents to remaining in hospital and confirms this in writing for the SUS not to be revoked. If SUS is subsequently considered appropriate once more, then a fresh application must be made and the Scottish Minsters' consent obtained anew.

Absconding while on SUS

8.43 A patient will be treated as having absconded (and so is liable to be taken into custody and returned to hospital ⁶⁵) if he absconds from the charge of an authorised person in terms of section 224(7)(a)of the 2003 Act whilst out on a period of SUS. Where the patient is on unescorted SUS, an abscond also includes failure to return from a period of SUS by the specified time.

8.44 In these circumstances, the SUS certificate will not require to be revoked for the accompanying nurse to have the power to return the patient to hospital. Any abscond must be reported to SGHD officials immediately.

Short Cross Border Visits - Scotland to England, Wales or Northern Ireland

8.45 Restricted patients may have escorted SUS to England, Wales or Northern Ireland for short periods. RMOs should submit the SUS request in the usual way outlining the duration, location and reason for the visit along with the most recent risk assessment and management plan. Officials in SGHD will liaise with officials in the Ministry of Justice or Northern Ireland Office to ensure they are content for the visit to proceed.

Similar arrangements exist for restricted patients in England and Wales and Northern Ireland to visit Scotland.

8.46 The leave of absence provisions in the Mental Health Act 1983 will apply to enable patients in England and Wales to visit Scotland, whilst the Mental Health (Northern Ireland) Order 1986 makes provision as regards leave of absence for Northern Irish patients.

Inappropriate use of SUS

8.47 It should be noted that SUS is not an appropriate mechanism for any longer term stays in a hospital other than the one in which the patient is currently detained, either within Scotland or outwith Scotland. Reference is made to the alternatives provided by the permanent transfer provisions between hospitals: for hospitals within Scotland, found in Part 12 of the 2003 Act; and for any transfers to hospitals outwith Scotland, the Cross-Border Transfer Regulations made under section 290 of the 2003 Act (see Chapter 9).

Pre-disposal cases ( AOs, TOs & ICOs,)- court appearances & urgent clinical outings

8.48 As noted at paragraph 8.1 above, this chapter is principally aimed at setting down the procedures for SUS for restricted patients, and pre-disposal remand patients are in a different position as regards SUS.

8.49 As with restricted patients, those who are subject to a pre-disposal order may only be granted SUS by their RMO with the consent of the Scottish Ministers. However, for remand patients, due to the high level of supervision that is recommended in respect of such patients whilst awaiting disposal of their case, the Scottish Ministers view is that SUS should be the exception rather than the rule.

8.50 Consent may be obtained in advance for court appearances and urgent clinical outings for patients awaiting final disposal. Although not a statutory requirement, SGHD will consult with the Procurator Fiscal in relation to all requests for SUS (except urgent clinical or court requests) to ensure that the Scottish Ministers have all the relevant information to hand in considering such requests. Further details, including the agreed procedure for RMOs seeking the necessary statutory consent for any SUS for patients subject to an assessment order, a treatment order or an interim compulsion order, may be found in CEL 9 (2009).

8.51 If the RMO considers that the patient is not well enough to attend court, the RMO should inform the court of this; if SUS had been granted for that purpose then it should be revoked.

8.52 A written/oral update must be provided to SGHD after each event.