Memorandum of Procedure on Restricted Patients

9 TRANSFERS

9.1 This Chapter deals principally with transfers of restricted patients; different rules apply as regards transfers for remand patients and you are referred to the discrete paragraphs 9. 49 to 9.51 below that highlights those differences.

9.2 All transfers of restricted patients must have the Scottish Ministers' approval under section 218(3) (in addition to securing the consent of the hospital managers in the receiving hospital), whether to higher, lower or equivalent levels of security. The patient and their named person must normally be given 7 days notice of the transfer ⁶⁶. However, where this is not possible, transfer may still take place in urgent cases and notification completed afterwards ⁶⁷. No notification is required if the patient consents to transfer ⁶⁸.

9.3 Transfer of a restricted patient's care from one Responsible Medical Officer (" RMO") to another or from one location to another should be considered via the normal Care Programme Approach procedures (see Chapter 4) and in response to needs assessment and risk assessment (including the risk of harm to others). When a patient transfers to another hospital the sending RMO must notify the local MAPPA Co-ordinator using the appropriate form. Where a transfer involves a reduction in the level of security, the new RMO should give consideration to whether a MAPPA referral is required at the point of transfer or whether this can wait until the first consideration of unescorted ground parole or suspension of detention from hospital (granted under section 224 of the Mental Health (Care and Treatment) (Scotland) Act 2003 Act for restricted patients) (" SUS").

9.4 Specific guidance is given in this chapter regarding the following types of transfer:

• Transfer to another ward within the same hospital;
• Transfer to another hospital with equivalent level of security;
• Transfer to another hospital involving a reduction in the level of security;
• Transfer to the State Hospital from conditions of lower security;
• Transfer to Scotland; and
• Transfer from Scotland.

9.5 There are other types of transfer that an RMO may encounter. For instance, the transfer of a restricted patient on conditional discharge, the transfer back to the home country of a person held in hospital and transfer from hospital back to prison of a TTD patient. Further advice is available from the Scotland Government Health Directorate (" SGHD") officials and guidance on transfer back to prison is detailed in Chapter 13.

9.6 The RMO should contact SGHD officials for specific advice about any planned transfers.

Transfer to another ward within the same hospital

9.7 Ward to ward transfers are at the discretion of the RMO, who should inform the SGHD and the designated Mental Health Officer (" MHO") when such a transfer takes place. However, where a patient is moving from a locked to an unlocked ward the RMO should consult with SGHD and the PMO ( FP) prior to transfer taking place. The RMO should write to the Scottish Government's Principal Medical Officer (Forensic Psychiatry) ("the PMO ( FP)") with details of:

• the reason for the transfer,
• the new ward and RMO (if appropriate) and
• the initial care plan following transfer.

The PMO ( FP) will consider whether it is necessary to arrange a visit to the patient to discuss with the RMO and clinical team.

Transfer to another hospital with equivalent level of security

9.8 Transfers to a different hospital, even one with the same level of security, require Scottish Ministers' approval and this is given on their behalf by SGHD officials, in consultation with the PMO ( FP). These transfers will take place for any number of reasons such as developments in a patient's care or rehabilitation, to move the patient closer to family and friends or hospital closure,. When the primary reason for transfer is to allow the patient to be closer to family and friends, a supporting report from the designated MHO and other involved social workers must be provided.

Pre-transfer matters

9.9 The RMO, after consulting with the designated MHO, should write to the PMO ( FP) with details of:

• the reason for the transfer;
• the receiving hospital and RMO;
• evidence that the receiving RMO has agreed to accept the patient;
• that the designated MHO will remain or transfer that role; and
• the initial care plan following transfer.

The PMO ( FP) will consider whether it is necessary to arrange a visit to the patient, RMO and designated MHO prior to giving consideration to the request for transfer.

9.10 Multidisciplinary teams should consider pre-transfer visits by the patient to the receiving hospital. SGHD approval must be sought for these through the normal SUS procedure for restricted patients. Where a number of pre-transfer visits are considered appropriate, a block request may be submitted. Further details are available in Chapter 8.

9.11 Once the SGHD, in consultation with the PMO ( FP), has approved the transfer, officials will write to the RMO indicating that the transfer is approved. Thereafter officials will liaise with the RMO to ascertain the date of transfer. Officials will then issue a letter to the Medical Directors and RMOs of both hospitals. This letter must remain with the patient's medical records as the formal record of the transfer. The current RMO must send notification of the change in address to the MAPPA co-ordinator using the notification form. The SGHD will notify the Mental Welfare Commission of the patient's transfer.

Post-transfer matters

9.12 Following transfer, the new RMO must write to the PMO ( FP) to confirm their view on the appropriateness of continuing the same level of SUS the patient was receiving prior to transfer (see paragraph 9.17). Any approval given previously for SUS does not transfer with the patient. If the patient was receiving extensive SUS and the transfer does not involve a drop in the level of security it is important that the patient is not adversely affected by an undue delay in consideration by the RMO and multi-disciplinary team.

Transfer to another hospital involving a reduction in the level of security

9.13 Transfer involving a reduction in the level of security, e.g. from the State Hospital or from a medium secure unit to a local hospital, again requires the consent of Scottish Ministers. In this case, the personal approval of the Scottish Ministers will be sought.SGHD officials will not seek the agreement of Ministers until all arrangements are agreed, pre-transfer visits have taken place and a bed is available in the receiving facility. In some circumstances however, officials can seek an "in principle" decision on transfer from Ministers, subject to a bed becoming available at the receiving facility. This decision "in principle" holds for up to six months and is contingent on the patient's stable mental state, a lack of any incident during the intervening pre-transfer period, successful pre-transfer visits and a pre-transfer CPA taking place. In these cases, an update from the RMO prior to transfer proceeding should be given to the SGHD. The final transfer should not take place until the SGHD has given consent in writing.

9.14 This type of transfer might be appropriate when a patient is no longer assessed as requiring either special security or detention in conditions of medium security. Usually this will result from an improvement in the patient's mental disorder and behaviour through treatment and rehabilitation. Alternatively, the patient may have been transferred to more secure conditions because of a particular set of circumstances, which no longer apply, and it may be appropriate to return the patient to conditions of lesser security.

9.15 The procedures outlined at paragraphs 9.9 to 9.11 above should be applied to a transfer to another hospital involving a reduction in the level of security.

9.16 In such cases, the PMO ( FP) will generally always arrange a visit to assess the patient along with the RMO and the designated MHO before the recommendation for transfer is put before the Scottish Ministers.

9.17 It is also important to be aware that any approval given previously for SUS does not transfer with the patient to the new hospital a hospital closing,

Appeal against transfer to a hospital other than the State Hospital

9.18 Under section 219 of the Mental Health (Care and Treatment) (Scotland) Act ("the 2003 Act") , a patient or their named person may appeal to the Tribunal against the patient's proposed or actual transfer from the date of receipt of notice of transfer up to 28 days after the actual date of transfer. For the patient's named person this extends to 28 days after their receipt of written notice of transfer.

9.19 When the Tribunal receives notice of an appeal, if the transfer has not yet taken place, the managers of the hospital shall not transfer the patient as proposed. However, the Tribunal may, if satisfied that pending consideration of the appeal the patient should be transferred as proposed, make an order that the patient be so transferred.

Transfer from conditions of lower security to the State Hospital

9.20 Transfers to the State Hospital from conditions of lower security require the Scottish Ministers' approval and this is given on their behalf by SGHD officials, in consultation with the PMO ( FP). In certain circumstances, it may be necessary for the multidisciplinary team in a local or medium secure unit to consider transferring a patient to the State Hospital e.g. on account of his dangerous, violent or criminal propensities.

9.21 When considering such a transfer, reference should be made to section 102(1) of the National Health Service (Scotland) Act 1978 which reflects the same statutory test which was set out in the right of appeal at section 220(6) of the 2003 Act, namely that the patient requires to be detained in hospital under conditions of special security, and that those conditions of special security can be provided only in a state hospital. For further guidance see section 102(1) of the National Health Service (Scotland) Act 1978 which reflects the same statutory test, i.e. on account of the patient's "dangerous, violent or criminal propensities". This was subsequently found in sS29 (4) of the Repatriation of Prisoners Act 1984 Act and this may also be used as the 'test' ⁶⁹ at an appeal hearing.

9.22 The RMO, after consulting with the designated MHO, should write to the PMO ( FP) with details of:

• the reason for the transfer;
• the receiving RMO;
• evidence that the RMO has agreed to accept the patient; and
• that the designated MHO will remain or transfer that role.

9.23 The proposed transfer must have the agreement of the receiving RMO and the managers of the State Hospital before permission is sought from the Scottish Ministers. SGHD officials appreciate that, by its nature, a transfer to the State Hospital may need to be effected urgently, and are willing to accept telephone and fax contact from the RMO where immediate permission is required ⁷⁰.

9.24 The RMO should again notify in writing the patient, their named person and their designated MHO of the transfer 7 days in advance , where possible. Where urgent transfer is required or where it is felt that to inform the patient prior to transfer may lead to a further deterioration in their behaviour, this notification should again be made "after the fact".

9.25 The SGHD will notify the Mental Welfare Commission of the patient's transfer.

Appeal against transfer to the State Hospital

9.26 Under section 220 of the 2003 Act, a patient or their named person may appeal to the Tribunal against the Scottish Ministers' decision to transfer them to the State Hospital (or against the actual transfer if it has already taken place). They may appeal from the date of receipt of notice of transfer (where given) up to a period of 12 weeks after the date of transfer. For the patient's named person this extends to 12 weeks after receipt of written notice of transfer.

Transfer to Scotland

9.27 Transfer to a hospital in Scotland from elsewhere in the UK may be appropriate for a number of reasons, for example for a restricted patient who is Scottish or who has close family ties in Scotland. Any transfer of a patient to Scotland can only take place if the Scottish Ministers have given their consent ⁷¹. While the legislation permits such a transfer, there are some particular issues to be addressed before it may be approved. The requirements which must be complied with for the reception of any patient into Scotland are laid down in Part III of the Cross-Border Regulations ( SSI 2005/467). It should be noted that a patient may only be transferred if they would be legally detainable under equivalent Scottish legislation.

Pre-transfer matters

9.29 Immediately the receiving hospital is contacted about the transfer and before agreeing to it, the RMO approached must contact the SGHD about the transfer. This is especially important where the patient is a transferred prisoner as it is not possible to transfer a prisoner from prison outwith Scotland directly to a hospital in Scotland. It is also not possible to transfer a patient on remand or who has not yet received a final disposal (see paragraph 9.51 in that regard). SGHD officials will liaise with the Ministry of Justice, Northern Ireland Office or government of other country of origin and will seek background information on the patient including:

• diagnosis and whether detainable;
• index offence and criminal history;
• police reports;
• details of patient's care and treatment in hospital; and
• reasons for transfer (if this relates to family circumstances, a social work report will be required).

9.29 SGHD officials will also require a copy of the receiving RMO's assessment of the patient including their view on whether the patient is detainable.

9.30 It should be noted that a patient may only be transferred if they would be legally detainable under equivalent Scottish legislation. SGHD officials will seek the views of the solicitors in the Scottish Government Legal Directorate about whether the patient would be legally detainable under Scottish legislation. If this is not the case, the patient cannot be transferred.

9.31 Once it is agreed in principle that the patient may be accepted, the receiving RMO may proceed to liaise with the patient's current RMO in arranging the transfer.

9.32 If pre-transfer visits are required, these should not take place before determination of whether the patient is detainable under Scottish legislation has been completed. Thereafter, it is the responsibility of the sending hospital to arrange any visits with the receiving hospital. Pre-transfer, short-term, cross-border visits would be effected under the regulations relevant leave of absence provisions under the legislation in the jurisdiction in which the patient is detained relating to short term, cross border visits.

9.33 Once SGHD officials, acting on behalf of Scottish Ministers, and having consulted the PMO ( FP), agree that the patient may be accepted for transfer, they will notify the receiving RMO and the Ministry of Justice/Northern Ireland Office/country of origin. The receiving RMO should liaise with the patient's present hospital to arrange the transfer. The RMO will also need to contact the relevant Scottish local authority to ensure that a designated MHO is appointed for the patient and must ensure the necessary paperwork is received when the patient transfers. A warrant will be required.

Post-transfer matters

9.34 Once a patient has been received in Scotland, they become treated as if their detention in hospital had been authorised under the relevant provision of the 2003 Act or the Criminal Procedure (Scotland) Act1995 ("the 1995 Act") Put simply, they become a Scottish detained patient and cease to be detained in the sending jurisdiction. Again, reference should be made to Part III of the Cross-Border Transfers Regulations ( SSI 2005/467), which imposes various requirements on RMOs and MHOs following any transfer. This includes that an assessment of the patient be carried out by the RMO within 7 days of their reception with resulting notification requirements, the preparation of a care plan, and thereafter, after 3 months, an admission report will be required on the patient with annual reports thereafter. The SGHD and the local authority should be informed when the patient has been transferred.

Transfer out of Scotland

9.35 Patients may be transferred to hospitals in other jurisdictions in appropriate circumstances. For instance, a patient who is not Scottish may wish to return to their home area or to be nearer family and friends. For some patients, it may be beneficial to transfer them for a period to a hospital that can cater specifically for their special needs and/or give them treatment that is not available in Scotland. Patients from Northern Ireland who have been transferred to the State Hospital because of their requirement for conditions of special security will be returned to Northern Ireland when they no longer require such conditions.

9.36 Transfers between jurisdictions require some additional consideration to ensure that the process is completed successfully. The information required would depend on whether the transfer is to a hospital with the same level of security or to conditions of lesser security. It is also necessary for SGHD officials to liaise with the officials in the receiving jurisdiction to ensure that they are content to receive the patient before the transfer can be finalised.

Pre-transfer matters

9.37 It is the responsibility of the RMO to identify a receiving hospital and to ensure that any financial considerations are managed satisfactorily. If this should prove difficult to finalise, the RMO should contact the SGHD who may be able to provide some assistance through liaison with officials in the receiving country.

9.38 The requirements of the Cross-Border Transfer Regulations ( SSI 2005/467) must again be complied with, Part II applies to transfers out of Scotland. In particular, it is for Scottish Ministers to effect the transfer of any patient out of Scotland, by means of a warrant for removal. In considering transfer requests involving a drop in the level of security, Scottish Ministers will need the same type of information as described above at paragraph 9.13.

9.39 The Scottish Ministers are required to have regard to a number of factors (listed in regulation 8(2) of SSI 2005/467) in deciding whether to authorise the removal of a patient from Scotland. These are: the best interests of the patient, the existence in the place to which a patient is to go after removal of arrangements which will secure appropriate treatment, any wish or preference of patient and any risk to the safety of any person. Therefore, in order to allow them to make that decision, The SGHD will also require the following information from the RMO:

• why it is considered appropriate to transfer the patient to another jurisdiction;
• whether the patient is in agreement with the transfer; and
• the plans for his future care.

9.40 On receipt of the transfer request and supporting information, the PMO ( FP) may visit the patient and discuss with the RMO the plans for transfer. Notwithstanding the distances involved, it may still be helpful to hold a full case conference with both care teams and, if necessary, officials from the SGHD to discuss any matters of concern and ensure that the arrangements proceed smoothly. Pre-transfer visits should be given serious consideration by the care teams. If arranged, they will require approval as set out in the chapter on SUS.

9.41 The SGHD will also contact officials in the receiving jurisdiction to gain their approval to the transfer, which is necessary before final approval for the transfer can be sought from the Scottish Ministers.

9.42 Thereafter, if the transfer is to conditions of lesser security, the SGHD officials will prepare a case for the Scottish Ministers' consideration. It is at this point that the officials may identify any further information required and request this from the RMO. Once all arrangements are agreed and after the patient has successfully completed any agreed pre-transfer visits, officials will seek the Scottish Ministers' agreement to the transfer. Where the transfer is to a hospital with the same level of security this can be approved on behalf of the Scottish Ministers by SGHD officials in consultation with PMO ( FP).

9.43 SGHD Officials will let the RMO and designated MHO know when the transfer is agreed. Officials will continue to liaise with the RMO and the Ministry of Justice, Northern Ireland Office or country of origin to ensure provision of a transfer warrant for the patient at the appropriate time. This warrant must accompany the patient on their transfer to the new hospital and be filed in the patient's medical records as the formal record of the transfer.

9.44 Where the Scottish Ministers agree to the removal of a patient from Scotland, they shall give written notice to:

• the patient;
• the patient's named person;
• the designated Mental Health Officer; and
• the Mental Welfare Commission.

9.45 In a case where removal is to a place in the UK, this notice will be given at least 7 days before the proposed removal date, and this period extends to 28 days where the removal is to a place outwith the UK. Where the patient consents to transfer or where urgent transfer is required, the Scottish Ministers may waive the need for prior notice. However, they must inform the Mental Welfare Commission of their decision to waive notice and the reasons for this decision.

Post-transfer matters - appeals against transfer to another jurisdiction

9.46 Where notice is given by the Scottish Ministers of their intention to transfer a restricted patient from Scotland, the patient may, during the period between the day on which the notice is given and the patient's removal from Scotland, appeal to the Tribunal against the proposed removal ⁷². On receipt of such an appeal, the Tribunal may make or refuse to make an order that the proposed removal shall not take place. The patient must not be moved before the expiry of the appeal period. Similarly, the patient must not be moved after an appeal has been lodged, as the effect of the warrant for transfer is suspended pending determination of the appeal ⁷³, meaning that there is no authority under the warrant to transfer the patient.

9.47 Should the Tribunal refuse the application, the patient may appeal this decision to the Court of Session ⁷⁴. Where on appeal, the Tribunal has refused to make an order that the proposed removal shall not take place, the proposed removal shall again not take place within 21 days of the decision, except where the patient consents in writing to the removal. This is to allow time for that further appeal from the Tribunal to the Court of Session to be lodged. The Court of Session is the final court of appeal.

9.48 Once transferred, the patient ceases to be subject to the Scottish legislation (the 2003 Act and the 1995 Act) and is instead detained under the legislation of the receiving jurisdiction. As a result, once transferred, the patient has no right of appeal back to the Tribunal against the transfer.

Pre-disposal cases ( AOs, TOs & ICOs,)

9.49 As noted at paragraph 8.1, this chapter is principally aimed at setting down the procedures for the transfer of restricted patients. It should be noted that pre-disposal patients are in a different statutory position as regards transfers, either between hospitals or between jurisdictions.

9.50 As far as inter-Scottish hospital transfers are concerned, for remand patients and interim compulsion order patients:

• an assessment order or treatment order will specify the hospital in which the patient is to be detained. There is then a window of 7 days in which if, "by reason of emergency or other circumstances", it is not reasonably practicable for the patient to be admitted to the specified hospital, then either the Scottish Ministers or the court may direct that the patient be admitted to the hospital specified in the direction; if such a direction is given, the original court order is then treated as though it had specified the hospital named in that direction. Once admitted to the specified hospital, the patient cannot be transferred to another hospital without going back to court to have the AO or TO amended;
• an interim compulsion order (" IOC") will also specify the hospital in which the patient is to be detained. Again, there is then a window of 7 days in which if, "by reason of emergency or other circumstances", it is not reasonably practicable for the patient to be admitted to the specified hospital, then either the Scottish Ministers or the court may direct that the patient be admitted to the hospital specified in the direction; if such a direction is given, again the court order becomes treated as though it had originally specified the hospital named in the direction. It is emphasised that, although ICOs may last up to 12 months, there is no equivalent provision to section 218 of the 2003 Act to enable hospital managers to transfer those subject to an ICO to another hospital. Therefore once admitted to hospital, patients subject to an ICOcannot be transferred to another hospital without going back to court to have the ICO amended, and it should be noted that the statutory authority to detain the patient continues to be for the hospital specified in the court order.

1. 9.51 In relation to cross border transfers, there is no statutory power to transfer remand patients, either from Scotland to another jurisdiction or into Scotland from another jurisdiction. This is on the basis that they are still subject to ongoing criminal proceedings within their existing jurisdiction and therefore transfer to another jurisdiction is not appropriate.