mental health (care and treatment) (scotland) act 2003 code of practice volume 2 ?civil compulsory powers (parts 5, 6, 7 and 20)

chapter 9 transfers: patients within scotland (part 7, chapter 6)

Introduction

This chapter describes the processes attached to the transfer of certain categories of patients from one hospital to another.

Part 7 Chapter 6 of the Act deals with the transfer between hospitals in Scotland of a patient subject to a CTO. (Note that this chapter refers to transfers inside Scotland as "domestic transfers".) This chapter therefore outlines the basic procedures to be observed before moving on to a description of the process by which a patient or a patient's named person can appeal to the Tribunal against such a transfer.

The chapter concludes with an examination of how a patient who is subject to an emergency, short-term detention certificate or to an extension certificate may be transferred from one hospital to another within Scotland.

For information on the procedures to be followed where any patient is being transferred to or from Scotland under sections 289 or 290 of the Act, see Chapter 14 of Volume 1 of the Code of Practice.

Domestic transfer of a patient subject to a CTO (Part 7 Chapter 6)

01 The Act makes provision at section 124 for the domestic transfer of a patient subject to a CTO. In terms of section 124(3) of the Act, a domestic transfer may only take place where the managers of the receiving hospital have consented to the transfer taking place.

What practical considerations should be taken into account when transferring the patient?

02 The transfer should be carefully planned well in advance. The range of issues which should be considered by the members of the patient's multi-disciplinary team and by the managers of the sending and receiving hospitals include:

• ensuring that the patient, and his/her relatives, carers, named person, independent advocate and representatives have been informed of an agreed departure time in advance of the transfer, and ensuring that the patient is fully supported in preparing for the journey;

• providing an appropriate, swift and comfortable means of transport which is also suitable for the provision of medication, where necessary;

• anticipating any difficulties in relation to the required level of security and possible absconding en route (in as far as this is possible) bearing in mind the importance of caring for the patient in the manner which involves the minimum restriction on the patient's freedom that is necessary in the circumstances;

• ensuring that there is a clearly identified RMO in the receiving hospital;

• ensuring that the patient has a clearly identified MHO;

• ensuring that the receiving hospital has been informed of any relevant dates with respect to the Act's provisions, for example for consenting to medical treatment, or renewing a CTO;

• ensuring that staff in the receiving hospital are properly prepared for the patient's arrival and that time is taken to ensure that the patient can settle quickly into the new environment; and

• in the case of a patient aged under 18, that services are available in the receiving hospital which are appropriate to the needs of that patient.

Does any prior notice have to be given before the transfer takes place?

03 Yes.The managers of the hospital in which the patient is currently detained must in terms of section 124(4) of the Act give at least 7 days' notice of the proposed transfer to the following parties:

• the patient;

• the patient's named person; and

• the patient's primary carer.

04 Under sections 124(7) and 124(5) of the Act, hospital managers can waive this notification requirement where:

• the patient consents to the transfer, or

• if the patient has to be transferred urgently to another hospital ( i.e. where there are strong clinical reasons for doing so).

05 In both these circumstances, the managers of the sending hospital must notify the patient, his/her named person and the patient's primary carer as soon as possible before the transfer takes place or, if this is not feasible, then as soon as possible after the transfer has taken place.In all cases, best practice is to ensure that as much advance notice is given as possible.

What happens if the transfer is delayed?

06 Nothing changes unless the proposed transfer does not take place within 3 months of the notice of the transfer being given to the patient; his/her named person; and his/her primary carer. If this 3 month period has elapsed, then the transfer can only proceed where additional conditions imposed by section 124(10) of the Act have been met. These additional conditions are:

• the managers of the receiving hospital continue to consent to the transfer of the patient; and

• the patient and his/her named person and primary carer have been given at least 7 days' notice of the transfer. (However, if the patient continues to consent to the transfer or if the transfer must take place urgently (that is, for strong clinical reasons), then this 7 days' notice requirement can be waived. Notification must also be given in those circumstances as soon as practicable before or after the transfer takes place.)

Who must be notified after the transfer has taken place?

07 The responsibility for notification rests with the managers of the transferring hospital. Under section 124(12) of the Act, the managers of the hospital from which the patient is transferred are required to notify the Commission of a range of matters within 7 days of the transfer taking place. These matters are:

• the date of the transfer;

• the name and address of the hospital to which the patient was transferred;

• whether 7 days' notice of the transfer had been given to the patient and his/her named person and primary carer; and

• if 7 days' notice was not given, why it was necessary to transfer the patient urgently and whether notice was subsequently given.

Can an appeal be made against a domestic transfer?

08 Yes. Sections 125 and 126 of the Act make provision for an appeal to be made to the Tribunal against a proposed domestic transfer. Section 125 provides for an appeal where the transfer is to a hospital other than a state hospital while section 126 provides for an appeal where the transfer is to a state hospital.

09 The right of appeal can be exercised by either the patient or the patient's named person where the patient has already received notice of the proposed transfer or where the transfer has already taken place. It is therefore important to note that an appeal can be made to the Tribunal even after a transfer has taken place.

10 It will be important for all members of the patient's multi-disciplinary team to make sure that the patient and the patient's named person are fully aware that they have a right to appeal against a domestic transfer. It would also be best practice for them to ensure that they provide the patient and the named person with information and assistance to enable them to exercise their rights, should they wish to do so.

What are the timescales within which an appeal must be made?

11 In the case of a patient, where he/she makes an appeal under section 125(3)(a) of the Act against a transfer to a hospital other than a state hospital, the timescales are as follows:

• if the patient received notice before the transfer took place, the appeal can be made at any point from the day on which notice was given up to 28 days after the transfer has taken place;

• if the patient received notice either on or after the day of the transfer, the appeal must be made within 28 days of the notice being given to the patient; and

• if the patient was not given notice of the transfer before it took place, the patient must make the appeal within 28 days of the transfer taking place.

12 In the case of the named person, if the appeal is made under section 125(3)(b) against a transfer to a hospital other than a state hospital, the timescales are as follows:

• if notice was given to the named person before the transfer took place, the appeal can be made at any point from the day on which notice was given to 28 days after the transfer; and

• if notice was given to the named person on or after the transfer, the appeal must be made within 28 days of the notice being given.

13 Where a patient or the patient's named person makes an appeal to the Tribunal under section 126(3) against a transfer to a state hospital, the same timescales apply as those described in the two preceding paragraphs except that the period of 28 days is replaced by the period of 12 weeks.

What are the possible outcomes of an appeal?

14 In terms of section 125(4) and section 126(4) of the Act, if an appeal is made against a domestic transfer, and if the transfer has not yet taken place, then the transfer may not go ahead unless the Tribunal gives its explicit approval for the patient to be transferred pending the appeal being determined.

15 In determining an appeal against a transfer to a hospital which is not a state hospital, the Tribunal can, in terms of sections 125(5), make an order:

• that the transfer should not take place; and

• where the transfer has already taken place, that the patient should be returned to the hospital from which the patient was transferred.

16 Where an appeal is made against a transfer to a state hospital, the Tribunal can in terms of section 126(5) make an order:

• that the transfer should not take place; and

• where the transfer has already taken place, that the patient should be returned to the hospital from which the patient was transferred.

17 The Tribunal can only make such an order where it is not satisfied that the following conditions are met:

• the patient requires to be detained in hospital under conditions of special security; and

• those conditions of special security can only be provided in a state hospital.

18 In the exceptional circumstances where a patient must be transferred to another hospital urgently for reasons of clinical necessity (for example, where the patient's condition has deteriorated rapidly) even though an appeal has been made to the Tribunal against the transfer, it would be permissible for the RMO in the sending hospital to grant a suspension certificate which would suspend the hospital detention requirement in the patient's CTO. Exceptional circumstances would indeed have to apply before such actions could be taken, and it would be best practice for
the patient's RMO to always seek advice from the Mental Welfare Commission before granting the suspension certificate. For further information on the process by which a suspension certificate can be granted in respect of a compulsory treatment order, see Chapter 4 of Volume 2 of the Code of Practice.

Transferring patients subject to other certificates

19 A patient who is subject to an emergency detention certificate, a short-term detention certificate or an extension certificate can be transferred from one hospital to another. There are no formal procedures in the Act for the domestic transfer of such a patient. This is because a hospital is not specified in these certificates, in contrast to a CTO where a hospital must be specified in the order by way of section 66(1)(a). A patient subject to any of these detention certificates may therefore be transferred between two hospitals in Scotland without the need to comply with formal procedures under the Act.

20 Where it is proposed to transfer a patient to another hospital who is subject to such a detention certificate, it would be best practice to ensure, that:

• the transfer takes place, wherever possible, with the consent of the patient or the patient's named person;

• as much prior notice of the transfer as possible has been given to the patient, the patient's named person, the patient's MHO and other members of the multi-disciplinary team, and, subject to the patient's consent, their independent advocate and any carers and relatives of the patient; and

• due regard has been given to the same issues which are outlined in paragraph 2 above with respect to the transfer of a patient subject to a compulsory treatment order.