Mental Health (care and treatment) (Scotland) Act 2003: Code of Practice Volume 1

Chapter 12: Correspondence, Telephones, and Safety and Security

Introduction

This chapter sets out the procedures which must be followed when considering restrictions on or withholding of patients' correspondence and restricting or preventing use of telephones by patients and implementing any such restrictions or prohibitions. It also sets out the measures which may be taken to ensure the safety and security of hospitals and staff, patients and visitors within them and how those may be imposed.

These procedures apply to all hospitals. Any restrictions or measures must be applied in a way which respects the patient's rights and dignity and is commensurate with any perceived risk to health, safety or welfare of the patient or any other person and, where applicable, to the safety and security and good order of the hospital.

Patient's Correspondence

01 In general the mail of detained patients should not be withheld and they should be able to correspond with whoever they wish. However, sections 281 to 283 of the Act make provision for the managers of the hospital in which a "specified person" is detained to withhold that patient's correspondence in particular circumstances.

02 The Act recognises that on occasion it may be necessary to withhold mail sent to or from a patient. This may be because a person has requested in writing that the hospital managers withhold mail addressed to them by a particular patient. Alternatively mail may be withheld where the hospital managers take the view that mail sent to or by a "specified person" should be withheld on grounds of potential distress to the addressee or any other person not on the staff of the hospital, or cause danger to any person, or that a postal packet received by that patient might not be in the interests of the health and safety of the patient or might be a danger to any other person.

03 Where the RMO considers restrictions on a particular patient's correspondence are necessary, then they must take the action set out in the Act and associated regulations made under section 281 ( The Mental Health (Definition of Specified Person: Correspondence) (Scotland) Regulations 2005) and designate the patient a "specified person". Until this step is taken the patient's mail may not be withheld. A patient in a state hospital will be a "specified person" for these purposes, and otherwise, it will be for the RMO to make a clinical judgement in the circumstances of each case. While such a decision is ultimately a clinical decision for the patient's RMO it would be best practice for the RMO to consult with other members of the patient's multi-disciplinary care team and to take any views expressed into account.

04 The regulations referred to, provide that all patients in the State Hospital are "specified persons". This is commensurate with the level of risk which patients detained in that hospital are considered to present. For these patients the RMO need take no special action to record the fact that the person is a "specified person" in respect of their correspondence. While a patient in the State Hospital cannot ask for a review of the fact that they are a "specified person" for this purpose all the remaining protections and review procedures in these regulations apply to these patients as to patients in other hospitals who are "specified persons".

05 For all patients who are "specified persons" there will be no assumption that their mail may be inspected at all times. Any interception and inspection of such mail by hospital managers has to be commensurate with the risk presented by each such patient at that time.

06 The Act makes specific provision on mail from people listed in section 281(5). Mail addressed to such people or coming to a patient from such a person may not be withheld whether or not the patient concerned is a "specified person". The list includes those people who might be concerned with ensuring that the patient's rights are upheld, such as their advocate, legal adviser, MSP, etc. Regulations made under section 283 ( The Mental Health (Specified Persons' Correspondence) (Scotland) Regulations 2005) have added the 'Scottish Freedom of Information Commissioner' to this list.

07 For any patient who is a "specified person", with the exception of mail to or from a "listed" person as mentioned above, mail addressed to or sent by or on behalf of that patient may be withheld by the hospital managers, if it is considered that this is necessary in the interests of the health or safety of that patient or for the protection of any other person.

08 The Act provides that the managers of the hospital may inspect and open any postal packet to enable them to determine whether it is addressed to any person who has requested that mail should be withheld and whether it should be withheld on grounds of health or safety of the "specified patient" or protection of any other person. Where these grounds are met, the hospital managers may withhold the mail or any item within it.

09 To enable the effective application of these procedures, it would be best practice if regular correspondents to "specified persons", such as advocacy groups or legal representatives, were advised to mark correspondence clearly on the outside of the letter or packet with their name, address and the capacity in which they are corresponding. This would avoid the need for staff to open the mail to obtain this information.

10 If any mail or its contents is withheld then the hospital managers must make a record of this. Where mail sent to or from a "specified person" is withheld, the hospital managers must notify the Commission within 7 days. The notice must identify the "specified person" (ie the patient involved), the nature of the mail or the contents withheld and the reason for doing so. If mail is withheld the hospital managers must tell the patient that the mail was withheld, and, where mail addressed to a patient is withheld, the person who sent that mail (where known). The hospital managers must also provide the patient and the person who sent the mail (where known) with information about their rights to apply to the Commission to have the decision to withhold that item reviewed.

11 Regulations made under section 282 (The Mental Health (Specified Persons' Correspondence) (Scotland) Regulations 2005) set out that when a patient's mail is withheld, the hospital managers must take all reasonable steps to ensure that the patient is aware of their right to apply to the Commission for a review of that decision and to ensure the patient has the opportunity to make use of independent advocacy services in connection with any such application.

12 There are no formal procedures by which the patient must apply to the Commission for such a review and a phone call by the patient or on their behalf may suffice. Any such application to the Commission must be made within 6 months of the decision to withhold mail being notified to the patient.

13 These regulations also provide that the Commission will give notice to the hospital managers of such an application. The hospital managers must produce the item withheld to the Commission within 14 days of a request to do so, to enable the Commission to inspect it. Where the Commission considers that the decision to withhold the mail was not appropriate, it may direct that the relevant item is released. The hospital managers must comply with any such direction.

14 It will be best practice to ensure that any patient who is identified as a "specified person" is made aware from the outset that their correspondence may be withheld, why this might be considered necessary and how to apply to the Commission for a review of any decision to withhold their mail.

15 Where a patient is a "specified person", this does not in itself justify the withholding of all their correspondence. It is only in relation to those items which the RMO reasonably considers (to avoid distress to others, to protect the health of that patient, or the safety of others) should be withheld, that restrictions will be applied. Any decision to specify a patient will last for 6 months. The patient's RMO must keep under review the decision that the patient is a "specified person". Where the RMO considers that specification is no longer required it should be removed and the patient, their named person and the Commission informed.

16 Where after the 6 month period during which the patient is specified, the RMO considers it is still necessary for that patient to be a "specified person", that will be recorded with the reasons for this decision. Again the patient, their named person and the Commission should be informed of this decision.

17 References to mail or correspondence in this part of the Code, means any letter, parcel, packet or other article which may be sent through the post (whether by the Post Office or other carrier). The restrictions do not apply to e-mails or other electronic communications sent to or from a "specified person".

18 When hospital managers withhold any item they must retain it for 9 months to allow time for the patient to request a review of their decision by the Commission and for the Commission to carry out this review.

Patient's Telephone Calls

19 In general the telephone calls of detained patients should not be prohibited or restricted and they should be able to contact or be contacted by whoever they wish. Reasonable access to a telephone should be provided to patients (whether or not detained), subject to any general policy a hospital may have on the use of telephones by patients. Regulations made under section 284 of the Act (The Mental Health (Use of Telephones) (Scotland) Regulations 2005) set out the conditions under which a detained patient's telephone calls may be restricted or prohibited.

20 These regulations do not cover the use of mobile telephones. A patient's access to a mobile phone may be prohibited or restricted for reasons of safety and security in line with the conditions set out in regulations made under section 290 of the Act (The Mental Health (Safety and Security) (Scotland) Regulations 2005). (See paragraphs 33 to 66 of this chapter.)

21 All patients in the State Hospital are "specified persons" in relation to the regulations on the use of telephones and may therefore potentially have their telephone calls restricted. In any other hospital before a patient's calls may be restricted, the patient's RMO must record a reasoned argument that the patient is a "specified person" in respect of whom restrictions may be necessary. The patient, their named person and the Commission should also be told that the patient is a "specified person". The patient may ask for a review of the RMO's decision to specify once in each 6 month period. Other than for patients in the State Hospital, the specification lasts for a period of 6 months.

22 It would be best practice for the RMO, in consultation with the multi-disciplinary care team, to keep under review the decision that the patient is one whose calls may be restricted. The specification may be removed at any time where the RMO considers that it is no longer necessary.

23 The regulations provide that all "specified persons" shall have the right to make telephone calls subject to the conditions set out in the regulations and to their paying for these calls.

24 The RMO may prohibit or restrict any call to or from a "specified person" where he/she is of the view that the call is likely to cause distress to that specified person or any other person not on the staff of the hospital, a significant risk to the health, safety or welfare of the specified person or to the safety of others. The RMO may also prohibit or restrict the use of telephones generally by a "specified person" for up to 3 months, if they have concerns for the above reasons. There may be other measures in place in relation to a particular patient which have to be taken into account, for example, there may be a court order which prohibits or restricts a patient's ability to make contact with a particular individual. Any call by a patient to that individual would be unlawful if it breached the court order.

25 In making any decision on the use of telephones by a "specified person", the RMO must have due regard to minimising the impact on that patient's rights, and restrictions imposed must be proportionate in the particular circumstances.

26 The regulations provide that any person whose calls are restricted is entitled to ask their RMO for a review of this decision. Where the RMO has prohibited a specific call for a period of 7 days then the patient may ask for one review of that decision in that 7 day period.

27 On reviewing any such decision the RMO may remove or vary the restriction in any way they consider appropriate. Again, it would be best practice for the RMO to consult and take account of the views of the patient's multi-disciplinary care team when reviewing that decision.

28 The hospital managers are required by the regulations to keep a record of any decisions to prohibit calls or restrict or prohibit the use of the telephone by any "specified person" with the dates and times of such restrictions. The managers must inform the patient concerned (unless to do so would be prejudicial to the patient's health) and their named person of any such restrictions.

29 The regulations allow the managers of a hospital to intercept or arrange for the interception of any telephone call that has been restricted or prohibited or which would be unlawful. Any call would be unlawful if it breached a court order banning such a call.

30 "Intercept" in the regulations has the same meaning as set out in section 284(7) of the Act. It would therefore include a nurse listening in to a telephone call where considered necessary. Only "specified persons" may have calls intercepted. The calls have to have been restricted or prohibited in advance of the interception. There might have been a restriction to the effect that a patient could only make one call a week to a relative or that a call would only last 10 minutes. The nurse could intervene if a second call was being made or to cut short the duration in accordance with what had already been decided. The nurse could not suddenly decide to intercept a call that was not the subject of a prohibition or restriction.

31 Section 284(6) of the Act provides that for any detained patient, phone calls to or from the list of people set out at section 281 may not be restricted. This is the same list of persons in respect of whom correspondence may not be restricted. The regulations referred to at paragraph 19 above add to the list 'the Scottish Freedom of Information Commissioner'. However, there is an exception to the general exclusion of such calls from the ambit of the restrictions: if an individual on the list has requested that calls to them from a patient should be intercepted or where such a call would be otherwise unlawful, then such calls may be intercepted.

32 The regulations do not provide for covert monitoring of telephone calls which are being made to or received through the public telephone network.

Safety and Security in Hospitals

33 Regulations made under section 286 of the 2003 Act (The Mental Health (Safety and Security) (Scotland) Regulations 2005) authorise a number of interventions in relation to patients detained in hospital on the grounds of safety and security, provided that these are carried out in accordance with the conditions laid out.

34 As part of their general management procedures all hospitals should have in place policies on safety and security in respect of all patients and their visitors. Such policies require to conform with these regulations.

Definitions of levels of security

35 At present mental health legislation provides no distinction between different hospitals providing treatment for mental disorder on the basis of security, other than "conditions of special security" which applies to the State Hospital. This means that the legislation making provision on security is equally applicable to all other hospitals.

36 The 2003 Act makes provision for further levels of security to be delineated in relation to appeals against being held in conditions of excessive security. Further consultation will take place on this in relation to the development of forensic services in the coming months with a view to developing regulations prior to the appeal provisions coming into effect in May 2006.

37 In the meantime, the regulations referred to in paragraph 33 above provide that all patients in the State Hospital and the Orchard Clinic will be treated as "specified persons" for the purposes of the regulations. In other hospitals, detained patients may be "specified persons" where their RMO decides that that is appropriate.

38 The regulations allow for measures to be applied to "specified persons" when considered necessary and appropriate, for example, the taking of samples from patients, restricting of articles which can be kept or brought in to the hospital, searching and surveillance in relation to patients and visitors, in line with conditions provided for in the regulations.

Specified persons

39 The regulations provide that any patient in the State Hospital or the Orchard Clinic is a "specified person". This reflects the high/medium secure conditions in which patients are detained in these hospitals. For patients detained in these hospitals, the RMO does not need to make and record a decision on whether a patient is a "specified person". However, each patient must be informed of their status and the effect
of it including their right to review and re-assessment. They may also request that the Commission consider any aspect of the application of the regulations.

40 For patients detained in other hospitals on an order under the 2003 Act or the Criminal Procedure (Scotland) Act 1995 the regulations provide that a patient may be a "specified person" where the RMO has, in the last 6 months, recorded the reason for their opinion that the person has or would seek to acquire any item which is likely to be prejudicial to the health or safety of any person or the security or good order of the hospital and informed the patient (unless to do so would be prejudicial to their health), their named person and the Commission. The patient and their named person must also be informed of the measures which may be taken and of their right to seek a review of the decision to specify them and a re-assessment of the need for any measures sought to be applied.

41 Identifying a person as a "specified person" means that the measures set out in the regulations in relation to safety and security may be carried out in relation to that person, subject to the conditions set out in the regulations. However, it must be stressed that the regulations do not require such searching, etc, to be carried out at specific intervals or indeed at all. Any searching and other permitted measures should be carried out only when considered necessary to ensure the safety and security of patients or of the hospital in general.

General conditions

42 Any measures taken will be subject to the following general conditions:

• the patient's RMO considers that not to do so would pose a significant risk to the health, safety or welfare of any person in the hospital or to the security or good order of the hospital;

• the RMO must at the request of the patient, or of their visitor where this is appropriate, review the risk and may reverse the decision or apply the measure in some other way;

• the RMO must record the reasons and the outcome of taking the measure (ie a search) in the patient's records and in the hospital's records; and

• the RMO must notify the "specified person" (unless to do so would be prejudicial to that person's health or treatment), their named person and the Commission.

Searching patients and their belongings

43 The regulations set out the conditions under which a search of a "specified person" and their belongings may be carried out, the types of search which may be carried out and the manner in which any search should be carried out.

44 The person's permission must be sought for each search. Where the person does not consent then the RMO on re-assessing the risk may decide that nonetheless the search should proceed. The regulations provide for two types of search: a "rub-down" search and a "removal of clothing search". It would be best practice to ensure that the type of search undertaken is commensurate with the level of risk perceived. All searches must be carried out by a person of the same sex and with due regard to the dignity and privacy of the person being searched. They should be witnessed by a person of the same sex, wherever practicable.

Authority for taking samples

45 The Act provides for the regulations to allow the taking of samples from a patient externally by swabbing from the mouth, samples of body tissue, blood or other body fluid or material and the taking hypodermically of samples of blood and the examination of all such samples under conditions as set out in these regulations.

46 The taking of samples, etc, referred to in these regulations is for reasons of safety and security and can only be taken by authorised persons. It is envisaged that such samples may require to be taken, for instance, when the patient is suspected of having taken an illicit substance such as alcohol or drugs, perhaps during an outing to another hospital. The regulations would permit random sampling of "specified persons" where this is considered appropriate.

47 The "specified person's" consent should be sought for the taking of each sample. Where the person does not consent, the RMO may reconsider whether the risk presented is such that the sample should be taken and may do so. Physical force should not be used when taking samples. It would be best practice to ensure that the patient understands the basis on which the sample is required, the consequences of not consenting or co-operating with the taking of the sample and how any continuing risk presented by the patient will be addressed by the hospital managers.

48 These regulations do not apply where samples, such as blood samples, are required in relation to a patient's treatment. Where such samples are required these are subject to the treatment provisions of Part 16 of the Act.

Restrictions on patients' belongings

49 The Act provides for the regulations to place restrictions on the kinds of things which "specified persons" may have with them while detained in hospital and the removal from them of articles kept in breach of such restrictions.

50 The condition on the placing of restrictions on having articles in hospital is that restrictions be applied in such a way as to minimise the impact on the patient concerned in so far as possible while considering health, safety or welfare of any person or the good order or security of the hospital. Articles or types of articles may be restricted either generally or in terms of their number, the access to or use of such article or type of article which the particular patient may have.

51 Any articles removed should be retained and returned to the patient at the end of their period of detention in the State Hospital or Orchard Clinic or otherwise ceasing to be a "specified person", unless the patient agrees to the article's disposal before that time.

Restrictions on Visitors

52 The Act allows the regulations to provide for prohibitions or restrictions to be applied to visitors of "specified persons". These are in relation to their entry to the hospital and their conduct, as well as on the kinds of things which the visitor might bring with them into the hospital. Visitors to "specified persons" may require to be searched and have their visits restricted or prohibited either as a consequence of such a search or where they refuse to co-operate. Items they carry with them may be searched and they may be refused entry to the hospital unless they agree to particular items being removed from them and returned to them at the end of the visit. (Illicit items such as drugs should be dealt with through the normal police procedures.)

53 These regulations provide that searches of visitors are authorised subject to conditions set out in the regulations. Where it is considered necessary that a visitor is searched, only a 'rub down' search is authorised. The visitor's consent for the search must be sought. Where the visitor refuses then they may be refused entry to the hospital. Where the visitor is a child (ie under age 16) who is able to consent then that consent must be sought. Where the child is able to consent but refuses then no search may take place but the child may be refused entry. Where the child is unable to consent (for instance, due to age) then the consent of an adult with the child must be sought for the search. Any search must be carried out with due regard for the visitor's dignity and privacy and, where the visitor is a child, with due regard for the welfare of the child.

54 For the State Hospital and Orchard Clinic all visitors may be searched. However, the regulations do not require such searching. Consent to a search may be a condition of entering the unit, as in the State Hospital, and visitors who do not submit to being searched may be refused entry.

55 Restricting a visitor's access because the patient is ill should be a clinical decision and should be recorded in the patient's notes. The visitor should be told of the reason for the restriction (while observing appropriate medical confidentiality) and the length of the restriction. At the end of the period of restriction (or sooner where appropriate) the care team may extend it, as considered necessary in the circumstances or allow visits.

56 In either case, it would be best practice to inform the patient, their named person and known potential visitors of the continuance of the restriction or its end.

Surveillance of visitors

57 Some level of surveillance of visitors is likely in any hospital with security camera systems. Normal rules would apply to such surveillance ó such as visitors and patients being informed of the surveillance and the reasons for it ó and such surveillance is not subject to these regulations.

58 In addition, the care and treatment of many patients will include some level of direct observation by nursing staff depending on the circumstances. Such observation is not the subject of these regulations.

59 The Act provides that regulations will set out the conditions under which specific surveillance for reasons of safety and security takes place of a "specified person" and, where appropriate, his/her visitors. The type of surveillance envisaged by the Act is, for instance, video surveillance of a patient in their room or specific surveillance of a patient and his/her visitor. The conditions are that the consent of the "specified person" must be sought before any such surveillance takes place. In the absence of consent, the surveillance may only be carried out if, after re-assessment, the RMO considers it necessary in the circumstances. The surveillance of any visitors of a "specified person" shall only take place in visiting areas where conspicuous signs give notice of the surveillance.

60 Covert surveillance is not allowed under these regulations. Where a hospital wishes to undertake covert surveillance for any reason this will be carried out under the provisions of the Regulation of Investigatory Powers Act 2000 and authorisation for this should be sought in the normal way.

Reports to Scottish Ministers

61 The regulations require that hospital managers report to the Scottish Ministers when requested to do so on the implementation of these regulations. Such reports should comprise a statement of the hospital policy on safety and security, and how the measures allowed for in the regulations have been used, including details of the effectiveness of the measures, the number of instances where they have been used, the outcome of that use, a record of any complaints and how those were resolved and any plans for review or update of the hospital policy arising out of its implementation or other issues.

62 Scottish Ministers' main interest will be to ensure that hospital managers are effectively implementing the regulations. Scottish Ministers would not expect to receive any patient-identifiable information in any such reports.

Mental Welfare Commission

63 The Commission's main interest in monitoring the implementation of these regulations will be to ensure the protection of patients' interests and rights while recognising that hospital managers must maintain safety and security.

64 The regulations provide that the records kept by hospital managers on the implementation of the regulations will provide to the Commission either by making those available to the Commission on inspection or by sending copies on request.

65 Regulations provide that the Commission may issue a direction that can require a hospital not to undertake searches or other security measures in relation to a particular "specified person" for up to 6 months, where they have identified and expressed concern about the use of such measure(s) in relation to that particular patient, except where the Commission gives its permission or supervises the search or application of the measure.

66 Regulations also provide that the Commission can issue a direction to hospital managers to inform the named person that the regulations are to be applied in respect of a particular "specified person" in a specified way.