mental health (care and treatment) (scotland) act 2003 code of practice volume 2 ?civil compulsory powers (parts 5, 6, 7 and 20)
Volume 2 of the Code of Practice for the Mental Health (Care andTreatment) (Scotland) Act 2003 (“the Act”) deals with a range of issuesrelating to what can be termed “civil compulsory powers”.
chapter 5 reviewing a compulsory treatment order (part 7, chapter 4 or sections 77 to 111)
Introduction
This chapter examines the formal processes to be followed where a CTO is being reviewed, as laid out in Part 7 Chapter 4 of the Act. It explores, firstly, the duty placed on a patient's RMO to keep under review the continuing need for compulsory powers as well as the occasions on which he/she is under a duty to carry out a formal or mandatory review of the CTO. The possible outcomes of these reviews are that:
a CTO could be revoked;
a CTO could be extended with no variation of the compulsory measures or recorded matters specified in the order;
a CTO could be extended with a variation of the compulsory measures or recorded matters specified in the order; and
the compulsory measures or recorded matters specified in a CTO could be varied.
The procedures which must be followed with respect to each of these outcomes are discussed in sections 77 to 95 of the Act or paragraphs 5 to 85 of this chapter. These procedures are also illustrated by a range of flowcharts which can be found on pages 129, 136, 146 and 154.
Sections 96 to 100 of the Act or paragraphs 86 to 113 of this chapter then look at a range of other applications which can be made to the Tribunal with respect to a CTO. These are:
the RMO's duty to make a reference to the Tribunal where a recorded matter specified in a CTO is not being provided;
the Commission's power to make a reference to the Tribunal;
the patient's or the patient's named person's right to make an application to the Tribunal to revoke a section 86 determination to extend a CTO; and
the patient's or the patient's named person's right to make an application to the Tribunal to revoke a CTO or to vary the terms of a CTO.
Overview of the review process
What are the criteria which should be used when reviewing the CTO?
01 The criteria against which a patient's mental health must be judged when any review of a CTO is taking place are set out in section 77(3)(b) of the Act and are modelled on the criteria for granting the CTO which are set out in section 64(5)(a) to (d). The criteria are:
that the person has a mental disorder;
that medical treatment which would be likely to prevent the mental disorder from worsening or to alleviate any of the symptoms, or effect of the disorder, is available for the person;
that, if the person were not provided with this medical treatment, there would be a significant risk to the health, safety or welfare of the person or to the safety of any other person;
that, because of the person's mental disorder, their decision-making ability in respect of that medical treatment is significantly impaired; and
that it continues to be necessary for the person to be subject to a compulsory treatment order.
02 When assessing whether the patient still meets these criteria for compulsory powers, the RMO must bear in mind that it is his/her responsibility to demonstrate that the criteria are met. In other words, the presumption is always in favour of revoking the CTO unless the RMO is satisfied that the criteria are met. The onus is not therefore on the patient to demonstrate that he/she no longer meets the criteria.
03 In assessing the patient against these criteria, the RMO should be fully supported by all members of the multi-disciplinary team who are involved in providing care, support and treatment to the patient. This is particularly important where the patient is subject to a community-based CTO and/or where the RMO does not have a substantial day-to-day involvement in the patient's care. Where this is the case, it is the responsibility of the members of the multi-disciplinary team to provide the RMO and other members of the team with regular updates on the patient's progress towards recovery and on the extent to which the objectives of the care plan are being met. It is also the responsibility of the RMO to seek information on the patient's condition from other members of the
multi-disciplinary team.
04 The key consideration for the RMO when assessing the patient against the relevant criteria for compulsory powers is whether the care and treatment set out in the patient's care plan which are being provided on a compulsory basis do in fact still require to be provided on a compulsory basis. The assessment should thus focus on whether the care plan continues to represent the least restrictive environment in which the patient can safely be provided with beneficial care and treatment. Any such assessment should evaluate the potential risks to the mental health and welfare of the patient and of others if the elements of compulsion in the care plan were no longer to be provided on a compulsory basis. However, it would, in general, not be acceptable to justify the continued recourse to a CTO solely on the basis that the patient, once no longer subject to the compulsory measures authorised by the CTO, might revert to activities which could be detrimental to his/her mental health and welfare. A CTO should not be continued on the basis of a preventative function alone: it should only be continued where the RMO is satisfied that the criteria listed at section 83(2)(a) and (b) of the Act continue to be met with respect to the patient.
Carrying out a review - What must be done and when?
05 The Act places a duty on the patient's RMO to review a CTO on two separate sets of occasions. The RMO must:
carry out "mandatory reviews" of a CTO; and
review a CTO "from time to time".
06 Paragraphs 7 to 11 of this chapter examine the processes involved in carrying out a mandatory review while paragraphs 12 to 15 examine those connected with a "from time to time review". Paragraphs 16 to 17 look at the possible outcomes of these reviews.
Mandatory reviews (sections 77 and 78)
07 A mandatory review must be carried out during the 2 month period which ends with the day on which the CTO is due to expire. It should be noted that a CTO lasts for 6 months from when it was first made, then for a further 6 months if extended, after which it may be extended for a further 12 months and thereafter every 12 months. In addition therefore to the mandatory review which must be carried out before the expiry of the first 6 month period of compulsory powers authorised by the CTO, the RMO must also carry out "further mandatory reviews" . These must be carried out during the 2 month period which ends with the day on which the CTO is due to expire after having been extended by way of:
a section 86 determination to extend a CTO; and
an order made by the Tribunal under section 103 of the Act (such an order could be made subsequent to a section 92 application to extend and vary the CTO, a section 95 application to vary the CTO or applications by the patient or the named person under sections 99 and 100).
08 The steps which the RMO must take when carrying out any mandatory review are set out in section 77(3) to (5) of the Act. These are:
to carry out a medical examination of the patient (or arrange for another approved medical practitioner to examine the patient);
to consider whether the patient continues to meet the criteria for compulsory powers, as referred to at section 77(3)(b) of the Act and paragraph 1 above;
to consult the patient's MHO;
to consult the persons who appear to the RMO to provide to the patient the medical treatment, community care services or other relevant services which are set out in the patient's care plan; and
to consult any other persons whom the RMO deems to be appropriate (for example, any carers the patient may have).
09 It would always be best practice for the patient's RMO to carry out the medical examination forming part of the mandatory review rather than another approved medical practitioner, where this proves to be practicable.
10 It is important to bear in mind that the RMO must test whether it is necessary for the patient to be subject to a CTO. In other words, a particularly important aspect of any review is to test whether compulsory powers are still required and whether appropriate care and treatment could be given to the patient with the patient's consent.
11 The process of carrying out a mandatory review should be characterised from beginning to end by as great a sense of multi-agency and multi-disciplinary co-operation and consultation as is practicable. In that connection, it would be best practice for a full case conference to be held when a mandatory review is being carried out. This will be particularly important where the patient's RMO has had only limited active involvement in the day-to-day care management and delivery of the care plan, as could be the case with respect to a community-based patient. It would also be best practice to use the opportunity presented by the mandatory review to review not only whether the patient still meets the criteria for compulsory powers but also whether the various reporting mechanisms which have been in operation throughout the period of compulsory powers authorised by the CTO are operating effectively.
Other reviews of "from time to time reviews" (section 80)
12 The RMO should carry out "from time to time" reviews as frequently as
is practicable. Although it is difficult, by definition, to place a precise timetable on when such reviews should take place, they should not necessarily be seen as formal reviews which are separate from the simple day-to-day monitoring of the patient's progress towards recovery. Existing multi-disciplinary or multi-agency forums, such as ward rounds, planned out-patient visits to a day hospital or NHS resource centre could all, be seen as appropriate settings for a "from time to time" review. The fact that such a review has taken place should always be noted alongside any other matters routinely noted at such meetings.
13 Although the Act does not place a formal duty on the RMO to consult with, for example, the patient's MHO, other members of the patient's multi-disciplinary team or the patient's carers, during this 'from time to time' review process, it would always be best practice for the RMO to remain in close consultation with these parties as regularly as is practicable for the duration of the CTO. The importance of such regular contact with all relevant parties is to enable the RMO to be in full possession of all the relevant information (including the social circumstances dimension for which the MHO has responsibility) when assessing the extent to which the care plan's objectives are being met.
14 It is also important that such consultation process is seen as a dynamic two-way process. Other members of the multi-disciplinary team and, where relevant, other carers of the patient should feel free to and should be able to, contact the RMO with relevant information wherever they deem it appropriate.
15 While the Act places the responsibility on the patient's RMO for carrying out "from time to time" reviews, it would be expected that the continuing need for a CTO would also be monitored on a daily basis by all the parties providing care and treatment to the patient. These parties should be engaging with the RMO as well as with the other members of the multi-disciplinary team providing care, treatment and support to the patient to ensure that the order is monitored and reviewed effectively.
Options Subsequent to a Review Taking Place
16 After having complied with the review duties imposed by the Act and after having had regard to the views of those parties as required by the Act, a number of possibilities are open to the RMO. The RMO could:
revoke the CTO by way of sections 79 and 80;
extend the CTO by way of a determination under section 86;
apply to the Tribunal for extension of the CTO and variation of the compulsory measures or recorded matters specified in the order
under section 92 of the Act where he/she has carried out a mandatory review; orapply to the Tribunal under section 95 for variation of the compulsory measures or recorded matters specified in the CTO where he/she has carried out a "from time to time" review.
17 The possible outcomes of mandatory and "from time to time" reviews are illustrated below.
Revoking the CTO
When must a CTO be revoked? (sections 79, 80 & 82)
18 The patient's RMO must make a determination revoking the CTO where one or more of the 2 following conditions are met:
where the RMO is not satisfied that the conditions mentioned in section 64(5)(a) to (d) of the Act continue to be met in respect of the patient. (Note that these conditions are discussed above in paragraphs 1 to 4 of this chapter.)
where the RMO is not satisfied that it continues to be necessary for the patient to be subject to the CTO (that is, the RMO is satisfied that the patient does not need to be subject to compulsory powers and will accept treatment voluntarily).
19 The patient's RMO must make a determination revoking the CTO as soon as practicable after being satisfied that one or more of the two conditions above are met. If either of these conditions is met, the RMO should not simply allow the CTO to expire on its renewal date (which could be, for example, several weeks away) but should always comply with the relevant statutory procedures for revoking the CTO and notifying the relevant parties as soon as is practicable.
Whom must the RMO notify of the determination to revoke the CTO? (section 82)
20 Where the RMO decides to revoke a CTO, either as a result of a mandatory review or a 'from time to time' review, he/she must notify a range of parties of this decision. This notification must be accompanied by a statement of the reasons for the revocation. It is recommended that form REV2 be used for this purpose. The parties which the Act states must be notified are:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO;
the Tribunal; and
the Commission.
21 The patient, the named person, and any guardian or welfare attorney must be notified as soon as is practicable after the decision to revoke the CTO has been made and in any event within 7 days. Notification to the MHO, the Tribunal and the Commission must be given within 7 days of the making of the determination to revoke the CTO. The RMO should also bear in mind that these parties might not receive this written notice for several days. Best practice would therefore dictate that those parties be informed verbally as soon as is possible after making the determination.
The Commission's power to revoke a CTO (section 81)
22 The Commission has the power to revoke a CTO where it is satisfied that the conditions mentioned in section 64(5) for compulsory powers are no longer met or that it is no longer necessary for the patient to be subject to a CTO. Where the Commission makes such a determination, it must give notice of its decision and send a statement of its reasons to:
the patient;
the patient's named person;
any guardian and any welfare attorney of the patient;
the patient's MHO;
the patient's RMO; and
the Tribunal.
23 If the Commission revokes a CTO, it must notify the patient, the named person and any guardian and welfare attorney of the patient as soon as is practicably possible of its decision to revoke the order and in any event within 7 days. It must also notify the patient's RMO, the patient's MHO and the Tribunal, within 7 days.
24 Where the patient is to be discharged from compulsory powers when the CTO is revoked either by the RMO or by the Commission, the RMO should oversee arrangements for the drawing up and putting into practice of a coherent and comprehensive discharge plan of care. This will enable the RMO and the multi-disciplinary team to comply with the duty placed on them by way of section 1(6) of the Act to "have regard to the importance of the provision of appropriate services to the person who is, or has been, subject to a [ CTO]".
What happens where the RMO decides not to revoke the CTO?
25 After reviewing a CTO, the RMO may decide not to revoke the order.
At this point, section 83(3) of the Act places the RMO under a duty to:
assess the needs of the patient for medical treatment for mental disorder;
consider whether the CTO should be extended beyond the day on which it is due to expire;
consider whether any of the compulsory measures or recorded matters specified in the CTO need to be varied and what modification is appropriate; and
consider any views on these above three matters which may be expressed by the parties listed at section 77(3)(c) of the Act.
26 The parties listed at section 77(3)(c) of the Act are:
the patient's MHO;
any persons that the RMO considers appropriate to consult among those who provide medical treatment, community care services or relevant services, and any other treatment, care or service to the patient as set out in the care plan; and
any other persons that the RMO considers appropriate.
27 In effect, the RMO is being asked to review the objectives of the patient's care plan; the extent to which those objectives are being met; if they are not being met in full, the reasons why they are not being met and whether any changes to the compulsory measures or recorded matters specified in the order need to be sought in order to realise the objectives of the care plan.
28 As a result of these deliberations, the RMO has three options with respect to the patient's CTO depending on whether a mandatory review or a "from time to time" review has taken place. These are:
the CTO can be extended without any variation of the compulsory measures or recorded matters it specifies where a mandatory review has been carried out. If the RMO chooses this option, he/she must make a "section 86 determination". This option is explored in paragraphs 31 to 43 of this chapter.
the CTO can be extended with a variation of the compulsory measures or recorded matters specified where a mandatory review has been carried out. If the RMO chooses this option, he/she must make an application to the Tribunal under section 92. This option is explored in paragraphs 49 to 69 of this chapter.
the compulsory measures or recorded matters specified in the order can be varied. If the RMO chooses this option, he/she will need to make an application to the Tribunal under section 95. This option only applies where the RMO has carried out a "from time to time review" not if he/she has carried out a mandatory review. This option is explored in paragraphs 70 to 85 of this chapter.
29 These three options and the resulting decisions which the Tribunal can make are illustrated by the flowchart below.
CTO REVIEW PROCESS (PART 7, CHAPTER 4)
Extending the CTO without a variation of its terms: "A section 86 determination"
30 Where the RMO decides that the CTO should be extended beyond the day on which it is due to expire, he/she must make a determination under section 86 of the Act to extend the CTO. The CTO can be extended by 6 months initially, then by a further 12 months, then 12 monthly thereafter. The flowchart on page 136 illustrates the process of making a section 86 determination.
Notification in advance of making the determination (sections 84 and 85)
31 Before the RMO can make a section 86 determination to extend the CTO, he/she must give notice to the patient's MHO that he/she intends to make such a determination. The RMO will need to issue this notification well in advance of the expiry of the CTO given that the MHO must comply with a range of duties before the order can be extended. It is therefore advisable that the RMO ensures that the MHO has received this written notification at least 2 weeks before the CTO is due to expire.
32 Upon being notified of the RMO's intention to make a section 86 determination, the MHO must carry out a range of duties. These
duties are:
to interview the patient, except where it is impracticable to do so;
to inform the patient that the RMO is proposing to extend the CTO for either 6 or 12 months;
to inform the patient of his/her rights in relation to the section 86 determination;
to inform the patient of the availability of independent advocacy services;
to take appropriate steps to ensure that the patient has the opportunity to make use of those independent advocacy services;
to inform the RMO of whether he/she agrees with the determination to extend the order; and, if he/she disagrees, the reasons for that disagreement; and
to inform the RMO of any other matters which he/she considers to
be relevant.
33 These MHO duties have a triple purpose. First, it is to ensure that the patient is as aware of the proposals as possible and able to exercise his/her rights with respect to the proposals (for example, so that he/she can make an appeal under section 99 to revoke a section 86 determination). Second, it is to evaluate the effectiveness of the care plan and the extent to which its objectives are being met. The MHO will also need to assess the likely continuing effectiveness of the order. Third, it is to assess the extent to which the patient is likely to accept treatment on a voluntary rather than compulsory basis.
34 It should be noted that many of the duties described above are similar to those which an MHO must carry out when making an application for a CTO and many of the duties applicable there are relevant here too. (For best practice guidance with respect to these duties, see Chapter 5 of this Volume of the Code of Practice.) It would therefore be expected that the MHO would attach the same degree of importance and effort to, for example, helping the patient access independent advocacy services upon being notified of the RMO's intention to make a section 86 determination as he/she would during the CTO application process.
35 At section 87(2)(a)(iii), the Act raises the possibility of the MHO not complying with the duty to inform the RMO of his/her opinion. However, there are in reality very few conceivable situations in which an MHO should not be able to comply with this duty. If, for reasons of practicability, the MHO is unable to comply with the duty within the prescribed timescales, the relevant local authority's MHO service should ensure that an alternative MHO provides the required assessment.
The RMO must make a "section 86 determination": i.e. prepare a record of the decision to extend the CTO
36 Before finally making the section 86 determination, the RMO is under a duty to have regard to the views of the patient's MHO as well as to the views of any providers of care, treatment or services which are set out in the patient's care plan. The RMO must also have regard to the principles of the Act and the other matters set out in sections 1 to 3. Of particular importance in this respect is the duty to have regard to the views of the patient's named person, carers, guardian and/or welfare attorney.
37 If, after having had regard to all those views, the RMO is still satisfied that the CTO should be extended without a variation of its terms, then he/she must make a determination to extend the order by 6 months, if the order has not already been extended, or by 12 months, if the order has already been in operation for 12 months or more. The RMO must then prepare a record of his determination in terms of section 87(2). It is recommended that form CTO3a be used for this purpose. This must be prepared as soon as is practicable after he/she has made the determination to extend the CTO.
38 The RMO's record of the section 86 determination must:
state the reasons for the determination to extend the CTO;
contain a statement of whether the MHO agrees or disagrees with the determination to extend the order. If the MHO does disagree, the RMO must state the MHO's reasons for disagreeing. Alternatively, the RMO can state that the MHO has not expressed any opinion as to whether the order should be extended; and
contain a statement as to the type(s) of mental disorder that the patient has. (These types of mental disorder are set out at section 328(1) of the Act. They are: mental illness, personality disorder, and learning disability.) If there has been any change in the type(s) of mental disorder which the patient has from the type(s) which the patient had when the CTO was first made, then the RMO must state this too.
39 This record must then be submitted to:
the Tribunal;
the patient;
the patient's named person;
the patient's MHO; and
the Commission.
40 Section 87(2)(c) of the Act gives the RMO the right to withhold a copy
of this record from the patient. However, he/she may only do so where he/she believes that sending him/her a copy would create a risk of significant harm to the patient or to others. The RMO must state on the record whether or not he/she will be providing the patient with a copy of the record. If a copy is being withheld, the record must contain a statement of the reasons for not giving the patient a copy.
41 There may be occasions on which there is a difference of professional opinion between members of the multi-disciplinary team with respect to the RMO's determination to extend the CTO under section 86 of the Act. One example could be where the RMO wishes to extend the CTO without a variation of its compulsory measures or recorded matters even though a clinical psychologist providing a psychological intervention to the patient, which is a recorded matter, is not satisfied that that psychological intervention remains appropriate or necessary.
42 In such a case, where the RMO and psychologist remain unable to resolve their difference of opinion, it would be expected that the psychologist would bring his/her views to the attention of the patient's MHO who has the right to formally disagree with the RMO's determination to extend the order. (Whether the MHO does exercise that right would be for the MHO to decide after consultation with the psychologist concerned, the RMO and other members of the multi-disciplinary team.) Where the MHO exercises this right, the Tribunal must review the CTO in terms of section 101(2)(a)(ii) of the Act. It would then be for the Tribunal to resolve this difference in professional opinion by determining whether or not the CTO should be extended and/or whether or not any recorded matter specified in the order should be varied. (Further information on the occasions when the Tribunal will review a section 86 determination can be found in section 101 of the Act and in paragraph 44 of this chapter.)
43 An alternative course of action in the above example (and one which is likely to represent the option of last resort) where those differences of professional opinion remain unresolved, would be for the psychologist to bring his/her views to the attention of the Mental Welfare Commission. The Commission has the power under section 98 of the Act to make a reference to the Tribunal on any subject. On receipt of such a reference, the Tribunal could make an order under section 104 of the Act varying any of the compulsory measures or recorded matters specified in the CTO.
Will the Tribunal always review the RMO's section 86 determination? (section 101)
44 The Tribunal need not always review the RMO's decision to make a section 86 determination. Section 101 of the Act sets out the circumstances when the Tribunal shall review the determination.
These are:
if, in the RMO's record submitted to the Tribunal, there is a difference between, on the one hand, the type(s) of mental disorder set out in that record, and, on the other, the type(s) of mental disorder recorded in the CTO;
if the MHO disagrees with the RMO's determination;
if the MHO has failed to inform the RMO whether he/she agrees or disagrees with the RMO's determination; and
if a Tribunal hearing has not been held with respect to that patient's CTO within the last 2 years ( i.e. within the period of 2 years finishing with the day on which the CTO would be due to expire if not
otherwise extended).
Does the Tribunal require any other documents where it is reviewing a section 86 determination?
45 Yes. The Mental Health (Compulsory Treatment Orders - Documents and Reports to be submitted to the Tribunal (Scotland) Regulations 2005 ( SSI No. 366) ("the regulations") provide that if the Tribunal is of the view it has insufficient information to make a decision, the regulations provide that it may require the patient's MHO to prepare and submit a report which should include the following details:
the steps taken by the MHO in pursuance of with the requirements of the MHO's duties to the patient under section 85(2);
the views of the MHO on the determination and reasons for these;
the patient's views and those of the patient's named person, and reason for those views if known to the MHO;
relevant details of the patient's personal circumstances;
details of any advance statement made by the patient (and not withdrawn) if known; and
any other information the MHO deems of assistance to the Tribunal in considering the determination.
Who must be given the opportunity to make representation to the Tribunal where a section 86 determination is being reviewed?
46 Section 102(3) of the Act makes clear that, where the Tribunal is reviewing a section 86 determination, a range of parties must be allowed to make representation and lead or produce evidence. These are:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO;
the patient's RMO;
the patient's primary carer;
any curator ad litem appointed in respect of the patient; and
any other person appearing to the Tribunal to have an interest in the determination. (This could include, for example, the patient's solicitor or a psychologist or other party who is providing care and treatment to the patient.)
What can the Tribunal authorise as a result of reviewing the section 86 determination?
47 In terms of section 102(1) of the Act, the Tribunal can make any of the following decisions where it is reviewing the RMO's section 86 determination to extend the CTO. It can:
confirm the section 86 determination to extend the order;
confirm the section 86 determination to extend the order and vary any of the compulsory measures or recorded matters it specifies;
revoke the section 86 determination to extend the order (this does not necessarily mean that the order would be revoked as its expiry date could be some time after the Tribunal has reviewed the section 86 determination); or
revoke the section 86 determination and the order itself.
48 The Tribunal must record in the CTO any modifications which it has made to the CTO as a result of any such review.
SECTION 86 DETERMINATION TO EXTEND A CTO WITH NO VARIATION OF ITS TERMS (AFTER A MANDATORY REVIEW)
Notes on the flowchart explaining the process of making a section 86 determination
Note 1: The parties are:
the patient's MHO;
any person who provides medical treatment, community care services or other relevant services to the patient as set out in the care plan, in as far as this is seen as appropriate by the RMO;
any other persons as the RMO considers appropriate.
Note 2: The relevant criteria are that:
it will continue to be necessary for the patient to be subject to the CTO after the day on which the order is due to expire;
it is not necessary to vary the compulsory measures or recorded matters specified in the CTO.
Note 3: The MHO must:
interview the patient, where this is practicable;
inform the patient of the RMO's proposal to make a section 86 determination;
inform the patient of his/her rights with respect to that determination;
inform the patient of the availability of independent advocacy services and help the patient make use of those services.
Note 4: The parties are:
the MHO;
any person who provides medical treatment, community care services or other relevant services to the patient as set out in the care plan, in as far as this is seen as appropriate by the RMO;
any other persons the RMO considers appropriate.
Note 5: The parties are:
the patient (except where he/she considers there would be a risk of significant harm to the patient or others if that record were sent to the patient);
the named person;
the MHO;
the Commission.
Note 6: The information to be recorded in the MHO's report is:
the steps taken by the MHO in pursuance of the requirements of MHO's duties to the patient under section 85(2);
the views of the MHO on the determination and reasons for these;
if known to the MHO, the patient's views and those of the patient's named person, and reason for those views;
relevant details of the patient's personal circumstances;
if known, details of any advance statement made by the patient (and not withdrawn),
any other information the MHO deems of assistance to the Tribunal in considering the determination.
Extending the CTO with a variation of its terms subsequent to a mandatory review: "A section 92 application"
49 Where the RMO has complied with all the relevant duties connected with the process of carrying out a mandatory review (see paragraphs 7 to 11 above), the RMO may decide that the CTO needs to be extended and that the compulsory measures or recorded matters specified in the order do need to be varied. The processes involved in extending and varying a CTO are more complex than the process for extending the order with no variation of its terms by way of a section 86 determination. This is because the RMO must make a formal application to the Tribunal under section 92 of the Act to seek an extension and variation of the order's terms. The Tribunal must therefore always review the RMO's wish to extend and vary the CTO. The flowchart and notes on pages 146 to
148 illustrate the processes involved in making a section 92 application.
When does an application need to be made? When does an order need to be varied?
50 There are two sets of circumstances under which an application would need to be made to extend and vary the patient's CTO. The first is where one or more of the 8 compulsory measures listed at section 66(1) of the Act is to be added to or deleted from the order. For example, the Tribunal could make a CTO which specifies only 2 compulsory measures: first, the detention of the patient in hospital by way of section 66(1)(a); and, second, the giving of medical treatment by way of section 66(1)(b). On carrying out a mandatory review, the patient's RMO may well be satisfied that although the patient still requires to be subject to compulsory powers, he/she no longer requires to be detained in hospital and the order should instead specify community-based measures (for example, the imposition on the patient of the requirement by way of section 66(1)(d) to attend for medical treatment on specified or directed dates). To remove the hospital detention requirement from the patient's CTO and to add the "attendance requirement", the RMO would have to make an application under section 92 to extend and vary the order.
51 The second set of circumstances under which an application would need to be made to the Tribunal to extend and vary a patient's CTO will depend on what the Tribunal specified in the order. Taking the example of a CTO which imposes a requirement that the patient must attend for medical treatment on specified or directed times, the Tribunal has the choice to specify in the order the times at which the patient must attend for treatment or it can leave such details to the directions of the RMO, see Chapter 3 of this Volume. Where the Tribunal has specified that the patient must attend for treatment, for example, every second Tuesday or twice a week, an application would have to be made to the Tribunal under section 92 to vary those details where the RMO wishes the patient to attend on different dates or at different intervals and where the RMO wishes to extend the order. Where the Tribunal has not specified such detail in the order and has left such detail to the direction of the RMO, no such application would need to be made and the RMO could simply make a determination to extend the CTO under section 86 of the Act.
The RMO must notify the MHO of the proposal to make a section 92 application (section 88(3))
52 Before the RMO can make a section 92 application to the Tribunal, he/she must give notice to the patient's MHO of his/her intention to do so, Specifically, the RMO must notify the MHO of the details of the proposed variation to the order.
53 It would be best practice for the RMO to issue this notification well in advance of the expiry date of the CTO given that the MHO must comply with a range of duties before the application to the Tribunal can be made. It is therefore advisable that the RMO ensures that the MHO has received this notification at least 2 weeks before the CTO is due to expire.
What must the MHO do in advance of the section 92 application being made? (section 89)
54 Upon receiving notification from the RMO that he/she is proposing to make a section 92 application, the MHO must comply with a range of duties which are set out in section 89 of the Act. These are:
to interview the patient, except where it is impracticable to do so;
to inform the patient that the RMO is proposing to apply to the Tribunal for an order which would extend the CTO and vary the measures or recorded matters specified in it. The MHO must also inform the patient of the variations which are being proposed as well as of his/her rights in relation to the application;
to inform the patient of the availability of independent advocacy services and take the appropriate steps to ensure that the patient has the opportunity of making use of those services;
to inform the RMO whether he/she agrees or disagrees with the proposed application as well as his/her reasons for disagreeing, if that is the case; and
to inform the RMO of any other matters which he/she considers to be relevant to the application.
55 The principal duty of the MHO in this regard is to evaluate the effectiveness of the care plan, as delivered thus far, and to evaluate the extent to which the objectives of the care plan are being met. The MHO will also need to assess the likely continuing effectiveness of the order if it is extended without any variation of its terms. As with the MHO's duties with respect to a section 86 determination, it would be expected that the MHO would devote as much time and effort to carrying out these duties as he/she would when carrying out similar duties during the CTO application process. (For further information and best practice guidance on these duties, see Chapter 5 of this Volume of the Code of Practice.)
56 At section 92(a)(v), the Act raises the possibility of the MHO not complying with the duty to inform the RMO of his/her opinion. However, there are in reality very few conceivable situations in which an MHO should not be able to comply with this duty. If, for reasons of practicability, the patient's designated MHO is unable to comply with the duty within the prescribed timescales, the relevant local authority's MHO service should ensure that an alternative MHO provides the required assessment.
Whom must the RMO notify that the application is going to be made?
57 The patient's RMO is not only under a duty to notify the MHO, as described above, but also to notify the following parties in terms of section 91 of the Act that he/she intends to make a section 92 application. The parties are:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO; and
the Commission.
58 These parties must be given this notification of the application as soon is practicable after the duty to make the application arises. At the very least, this notification must be given before the application to the Tribunal is made. It would be best practice for the RMO to inform the parties representing the patient of his/her intention to make the application verbally, where possible and practicable. Otherwise, the patient or the patient's representatives will have to wait several days before receiving formal written notification of the application. The RMO should also ensure that all the members of the multi-disciplinary team providing care and treatment to the patient have been informed of his/her intention to make the section 92 application.
The RMO must make "a section 92 application" to the Tribunal
59 The RMO can only make the section 92 application to the Tribunal when he/she has complied with the following duties:
he/she has had regard to the views of the patient's MHO with regard to the proposed application;
he/she has had regard to the views of any other persons involved in providing treatment, care or other services to the patient with regard to the proposed application;
he/she is satisfied that it continues to be necessary for the patient to be subject to the CTO but that the order should be varied; and
he/she has notified various parties of the intention to make the application in terms of section 91 of the Act. These parties are listed at paragraph 57 above.
60 The RMO must make this application as soon as practicable after the need to make the application arises. Any unnecessary delay in making the application could prevent the patient from receiving the care and treatment they require. It is recommended that form CTO4 be used for the purpose of this application.
61 An application made under section 92 of the Act must state the following:
the patient's name and address;
the named person's name and address;
what form of modification of the compulsory measures or any recorded matter(s) is being sought, and the reasons for seeking this modification; and
whether the patient's MHO agrees or disagrees with the RMO's application to extend and vary the order along with the reasons for the MHO's view. The RMO may alternatively state that the MHO has failed to comply with the duty to inform the RMO of his/her opinion.
Does the Tribunal require any other documents where it is reviewing a section 92 application?
Care Plan
62 Yes. The Mental Health (Compulsory Treatment Orders - Documents and Reports to be submitted to the Tribunal (Scotland) Regulations 2005 ( SSI No. 366) ("the regulations") provide that the following documents must be provided by the patient's RMO to the Tribunal where it is reviewing a section 92 determination. These are:
a copy of the patient's care plan first made under section 76 of the Act:
a copy of the most recent version of that care plan amended under section 76(3) or (4)(a) (where a more recent version exists).
63 The RMO should submit to the Tribunal the two versions of the care plan, where a more recent version exists. It is important that both versions are submitted because the review of the section 86 determination is likely to be taking place several months after the section 76 care plan was first drawn up. It could even be taking place close to 2 years later. It is therefore highly possible that the care plan will have been amended in the intervening period to reflect, for example, changes in the patient's condition; periods during which compulsory measures were suspended; etc. Submitting the two versions will allow the Tribunal to see how (or whether) the objectives of the section 76 care plan have evolved over the period that compulsory measures have been in place and to evaluate the extent to which those objectives are being met.
MHO Report
64 If the Tribunal is of the view it has insufficient information to make a decision, the regulations provide that it may require the patient's MHO to prepare and submit a report which should include the following details:
the steps taken by the MHO complying with the requirement of the MHO's duties to the patient under section 89(1);
the views of the MHO on the application and reasons for these;
if known to the MHO the patient's views and those of the patient's named person, and reason for those views;
relevant details of the patient's personal circumstances;
if known, details of any advance statement made by the patient (and not withdrawn); and
any other information the MHO considers to be of assistance to the Tribunal in considering the application.
Who must be allowed the opportunity to make representation to the Tribunal?
65 Where the Tribunal is determining a section 92 application, it must allow a range of parties to make representation and lead or produce evidence. These parties are:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO;
the patient's RMO;
the patient's primary carer;
any curator ad litem appointed in respect of the patient; and
any other person appearing to the Tribunal to have an interest in the application. (This could include, for example, the Commission, the patient's solicitor or a psychologist or other party who is providing care and treatment to the patient.)
What can the Tribunal authorise as a result of determining the section 92 application? (sections 103 & 105 to 108)
66 Section 103 of the Act gives the Tribunal the power to make any of the following decisions with respect to the RMO's section 92 application. It can:
extend the order and vary any of the compulsory measures or recorded matters specified in the order;
extend the order ( i.e. extend it alone but not vary any of the compulsory measures or recorded matters as had been requested in the section 92 application);
refuse the section 92 application (this does not mean that the order is revoked and its expiry date could be some time after the Tribunal has reviewed the section 86 determination); or
refuse the section 92 application and revoke the CTO.
67 If the Tribunal considers that it will not be able to determine the application under section 92 before the CTO expires, it may also grant an order which would modify the CTO on an interim basis. Any such interim order can:
extend the CTO;
extend and vary the compulsory measures and/or recorded matter specified in the CTO; or
vary the compulsory measures and/or recorded matter specified in the CTO.
68 An interim order may not last for more than 28 days, and the total duration of all the interim orders taken together must not be more than a continuous period of 56 days. The Tribunal may grant an interim order on its own initiative or on the application of any party who has an interest in the proceedings. It may also extend a CTO where it is satisfied that it will not be able to determine the section 92 application before the date on which the CTO is due to expire.
69 The Tribunal must record in the CTO any modifications it has made to the CTO as a result of this hearing.
SECTION 92 APPLICATION TO EXTEND A CTO WITH A VARIATION OF ITS TERMS (AFTER A MANDATORY REVIEW)
Notes on flowchart explaining the process of making a section 92 application
Note 1: The parties are:
the patient's MHO;
any person who provides medical treatment, community care services or other relevant services to the patient as set out in the care plan, in as far as this is seen as appropriate by the RMO;
any other persons the RMO considers appropriate.
Note 2: The criteria are:
that it will continue to be necessary for the patient to be subject to a CTO after the day on which the order will cease to authorise the measures specified in it;
that the CTO should be varied by modifying the measures or any recorded matter specified in it.
Note 3: These duties are:
to interview the patient, where it is practicable to do so;
to inform the patient of the RMO's proposal to make a section 92 application;
to inform the patient of the variations to the order which the RMO is proposing and to inform the patient of his/her rights with respect to that determination;
to inform the patient of the availability of independent advocacy services and help the patient make use of those services.
Note 4: The parties are:
the patient;
the patient's named person;
any guardian and any welfare attorney of the patient;
the MHO;
the Commission.
Note 5: The information is:
the name and address of the patient and of the named person;
the variation of the terms of the CTO being sought by the RMO and the reasons for seeking that variation;
whether the MHO agrees/disagrees that the application should be made or whether the MHO has failed to inform the RMO of his/her views.
Note 6: The information to be included is:
the steps taken by the MHO to comply with the requirement of MHO's duties to the patient under section 89(1);
the views of the MHO on the application and reasons for these;
if known to the MHO, the patient's views and those of the patient's named person, and reason for those views;
relevant details of the patient's personal circumstances;
if known, details of any advance statement made by the patient (and not withdrawn);
any other information the MHO considers to be of assistance to the Tribunal in considering the application.
Varying the CTO subsequent to a "from time to time" review: Making "A section 95 application"
70 As a result of a "from time to time" review, rather than a mandatory review, the RMO may decide that the compulsory measures or recorded matters specified in the CTO need to be varied. In such circumstances, an application must be made to the Tribunal under section 95 of the Act. The steps which must be taken throughout this process are set out in sections 93 to 95 of the Act and in the following paragraphs of this Chapter. They are also illustrated by the flowchart on page 154.
When does an application need to be made? When does an order need to be varied?
71 For a discussion of this issue, please see paragraphs 50 and 51 of this chapter.
What must be done before the section 95 application is made?
72 The duties imposed on the RMO in relation to a section 95 application are set out in section 93 of the Act. The RMO must:
assess the needs of the patient for medical treatment;
consider which modifications of the compulsory measures or recorded matters specified in the CTO are appropriate; and
consult the patient's MHO and any other parties whom the RMO considers to be appropriate.
73 If, after having had regard to the views of the MHO and the other relevant parties, the RMO is still satisfied that it would be appropriate for any of the compulsory measures or recorded matters specified in the CTO to be varied, then he/she must make an application to the Tribunal under section 95 for an order which would vary the terms of the CTO. The consultation process leading up to the RMO's decision to make a section 95 application should be as wide and inclusive as is possible under the circumstances and within the bounds of patient confidentiality. Any intention to vary the terms of the CTO should be communicated to the members of the multi-disciplinary care team and to other legitimately interested parties such as carers and relatives, within the bounds of patient confidentiality, and their views sought and taken into account.
Whom must the RMO notify that the application is going to be made?
74 In terms of section 94 of the Act, the parties who must be notified of the RMO's intention to make a section 95 application are:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO; and
the Commission.
75 These parties must be notified before the application to the Tribunal is made. Section 94 of the Act makes clear that the RMO must notify these parties as soon as is practicable after the duty to make the application arises. It would be best practice for the RMO to inform the parties representing the patient of his/her intention to make the application verbally, where possible and practicable, rather than oblige the patient or the patient's representatives to wait several days before receiving formal written notification of the application. The RMO should also ensure that all the members of the multi-disciplinary team providing care and treatment to the patient have been informed of his/her intention to
make the section 92 application.
How is the section 95 application made?
76 The section 95 application must state the following:
the patient's name and address;
the named person's name and address;
what form of modification of the compulsory measures or any recorded matter(s) is being sought, and the reasons for seeking this modification;
whether the patient's MHO agrees or disagrees with the RMO's application to vary the CTO and, if he/she disagrees, the reasons for the MHO's view. The RMO may alternatively state that the MHO has failed to comply with the duty to inform the RMO of his/her opinion.
Care Plan
77 Yes. The Mental Health (Compulsory Treatment Orders - Documents and Reports to be submitted to the Tribunal (Scotland) Regulations 2005 ( SSI No. 366) ("the regulations") provide that the following documents must be provided to the Tribunal where it is reviewing a section 95 determination. These are:
a copy of the patient's care plan first made under section 76 of the Act along with the most recent version of that care plan (where a more recent version exists). This is to be submitted by the patient's RMO.
78 The RMO should submit to the Tribunal the two versions of the care plan, where a more recent version exists. It is important that both versions are submitted because the review of the section 86 determination is likely to be taking place several months after the section 76 care plan was first drawn up. It could even be taking place close to 2 years later. It is therefore highly possible that the care plan will have been amended in the intervening period to reflect, for example, changes in the patient's condition; periods during which compulsory measures were suspended etc.. Submitting the two versions will allow the Tribunal to see how (or whether) the objectives of the section 76 care plan have evolved over the period that compulsory measures have been in place and to evaluate the extent to which those objectives are being met.
79 The RMO should make this application to the Tribunal as soon as is practicable after the need to make the application arises. Any unnecessary delay in making the application could prevent the patient from receiving the care and treatment they require. It is recommended that form CTO5 be used for this purpose of this application.
80 At section 92(a)(v), the Act raises the possibility of the MHO not complying with the duty to inform the RMO of his/her opinion. However, there are in reality very few conceivable situations in which an MHO should not be able to comply with this duty. If, for reasons of practicability, the designated MHO is unable to comply with the duty within the prescribed timescales, the relevant local authority's MHO service should ensure that an alternative MHO provides the required assessment.
Does the Tribunal require any other documents where it is reviewing a section 95 application?
MHO Report
81 If the Tribunal is of the view it has insufficient information to make a decision the regulations provide that it may require the patient's MHO to prepare and submit a report which should include the following details:
the steps taken by the MHO complying with the requirement of the MHO's duties to the patient under section 89(1);
the views of the MHO on the application and reasons for these;
if known to the MHO, the patient's views and those of the patient's named person, and reason for those views;
relevant details of the patient's personal circumstances;
if known, details of any advance statement made by the patient (and not withdrawn) and,
any other information the MHO considers to be of assistance to the Tribunal in considering the application.
Who must be allowed the opportunity to make representation to the Tribunal? (section 103(5)&(6))
82 Where the Tribunal is making a decision on the section 95 application, it must allow a range of parties to make representation and lead or produce evidence. These parties are:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO;
the patient's RMO;
the patient's primary carer;
any curator ad litem appointed in respect of the patient; and
any other person appearing to the Tribunal to have an interest in the application. (This could include, for example, the Commission, the patient's solicitor or a psychologist or other party who is providing care and treatment to the patient.)
What can the Tribunal authorise as a result of determining the section 95 application? (sections 103 & 106 to 108)
83 Section 103(4) of the Act gives the Tribunal the power to make any of the following decisions with respect to the RMO's section 95 application. It can:
vary the CTO by modifying any of the compulsory measures or recorded matters specified in the order;
refuse the section 95 application to vary the CTO (this does not mean that the order is revoked and its expiry date could be some time after the Tribunal has reviewed the section 86 determination); or
refuse the section 95 application and revoke the CTO.
84 It should be noted that the Tribunal may grant an interim order varying the compulsory measures or recorded matters specified in the CTO if it feels it is appropriate to do so while it is determining the section 95 application. It may grant an interim order on the application of any party with an interest in the proceedings or on its own initiative. Each interim order varying the CTO can last up to a maximum of 28 days although all the interim orders taken together must note exceed a period of more than 56 days (see section 107 of the Act).
85 The Tribunal must record in the CTO any modifications it has made to the CTO as a result of determining the section 95 applications.
Section 95 application to vary a CTO subsequent to a "from time to time" review.
Notes on the flowchart explaining how to make a section 95 application
Note 1: The duties which the RMO must carry out are to notify the MHO:
that he/she is proposing to make an application to the Tribunal under s95 of the Act for an order under s103 varying the CTO; and
of the modification of the measures or any recorded matters, specified in that order which he/she is proposing.
Note 2: The duties which the MHO must carry out are to:
interview the patient (where practical);
inform the patient that the RMO is proposing to make an application to the Tribunal varying the compulsion treatment order by modifying the measures or recorded matters specified in it;
inform the patient of their rights in relation to that application;
inform the patient of their rights to independent advocacy under s259
of the Act and take appropriate steps to ensure the patient can access those services;inform the patient's RMO of whether they agree or disagree with the application being made and their reasons for any disagreement and any other matters that the MHO considers relevant.
Note 3: The parties are:
the patient;
the patient's named person;
any guardian and any welfare attorney of the patient;
the MHO;
the Commission.
Note 4: The information is:
the name and address of the patient and of the named person;
the variation of the terms of the CTO being sought by the RMO and the reasons for seeking that variation;
whether the MHO agrees/disagrees that the application should be made or whether the MHO has failed to inform the RMO of his/her views.
Note 5: The information to be included in the MHO's report is:
the steps taken by the MHO complying with the requirement of MHO's duty to patients;
the views of the MHO on the application and reasons for these;
if known to the MHO, the patient's views and those of the patient's named person, and reason for those views;
relevant details of the patient's personal circumstances;
if known, details of any advance statement made by the patient (and not withdrawn);
any other information the MHO deems of assistance to the Tribunal in considering the application.
What other applications can be made to the Tribunal with respect to a CTO?
86 The Act confers powers, rights and duties on several parties to make a range of further applications to the Tribunal. These are:
the RMO's duty to make a reference to the Tribunal where a recorded matter is not being provided (sections 96 and 97);
the Commission's power to make a reference to the Tribunal (section 98); and
the patient's or the named person's right to apply to the Tribunal to revoke a section 86 determination to extend an order (section 99) or to have a CTO revoked or varied (section 100).
87 These applications are dealt with in the remaining paragraphs of this chapter.
The RMO's duty to make a reference to the Tribunal where a recorded matter is not being provided (sections 96, 97 and 104)
88 If the patient's RMO is satisfied that a recorded matter is not being provided, he/she must make a reference to the Tribunal. Before doing so, he/she must consult the patient's MHO and any other relevant parties to find out why this recorded matter is not being provided. After having had regard to any views expressed by the MHO and the other relevant parties, the RMOmust make a reference to the Tribunal. It would be expected that the RMO make this reference as soon as is practicable after the need to do so arises, and it is recommended that form CTO10 be used for this purpose.
89 The RMO's reference must contain:
the name and address of the patient;
the name and address of the patient's named person; and
the reason for making the reference.
What other documents must be submitted along with the reference?
90 The regulations provide that documents which must be submitted with the reference are:
a copy of the patient's care plan first made under section 76 of the Act; and
a copy of the most recent version of that care plan amended under section 76(3) or (4)(a) (where a more recent version exists).
91 The RMO should submit to the Tribunal the two versions of the care plan, where a more recent version exists. It is important that both versions are submitted because the review of the section 86 determination is likely to be taking place several months after the section 76 care plan was first drawn up. It could even be taking place close to 2 years later. It is therefore highly possible that the care plan will have been amended in the intervening period to reflect, for example, changes in the patient's condition; periods during which compulsory measures were suspended; etc. Submitting the two versions will allow the Tribunal to see how (or whether) the objectives of the section 76 care plan have evolved over the period that compulsory measures have been in place and to evaluate the extent to which those objectives are being met.
92 The regulations also provide that where the Tribunal considers that it has insufficient information to enable it to make a decision it may require the MHO to submit a report recording:
the MHO's views on why the recorded matter is not being provided; and
any other information which the MHO considers may assist the Tribunal's consideration of the reference made under section 96.
Whom must the RMO notify that a reference has been made? (section 97)
93 Where the RMO makes a reference to the Tribunal, he/she must also give notice of the reference to the following parties in terms of section 97 of the Act:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO; and
the Commission.
94 This notification must be provided as soon as practicable after the duty to make the reference to the Tribunal arises. In practice, this means that the RMO should provide the notification before the reference is submitted to the Tribunal, not after. It would also be expected that the RMO inform the other members of the multi-disciplinary team providing care and treatment to the patient of the fact that a reference has been made.
Which parties must be given the opportunity to make representation to the Tribunal?
95 The following parties must be allowed the opportunity to make representation and lead or produce evidence to the Tribunal with respect to any such reference:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO;
the patient's RMO;
the patient's primary carer;
any curator ad litem appointed in respect of the patient; and
any other person appearing to the Tribunal to have an interest in the reference (for example, the Commission, the patient's solicitor or a psychologist or other party who is providing care and treatment to
the patient.)
What can the Tribunal authorise with respect to this reference? (section 104 & 106 to 108)
96 On receiving a reference from the RMO, the Tribunal can in terms of section 104(1) of the Act make an order which would vary any of the compulsory measures or any recorded matter specified in the order; or revoke the CTO outright.
97 It should be noted that the Tribunal may also grant an order which would vary the compulsory measures or recorded matters specified in the CTOon an interim basis, if it feels it is appropriate to do so, while it is determining the reference (see section 106(2) of the Act). It may grant an interim order on the application of any party with an interest in the proceedings or on its own initiative. Each interim order can last up to a maximum of 28 days although all the interim orders taken together must not exceed a period of more than 56 days (see section 107 of the Act).
The Commission's power to make a reference to the Tribunal (section 98)
98 The Commission has the power to make a reference to the Tribunal in relation to any aspect of the operation of a CTO. It may do so at any time where it appears appropriate to it to do so. Where the Commission makes such a reference to the Tribunal, it must in terms of section 98(3) provide notification to the following parties:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's RMO; and
the patient's MHO.
99 This will enable these parties to make any necessary investigations into the patient's care and treatment which may be required before they can make representation to the Tribunal. It would also be expected that the RMO would inform the other members of the multi-disciplinary team providing care and treatment to the patient, of the fact that a reference has been made.
100 A reference made to the Tribunal by the Commission must state:
the name and address of the patient;
the name and address of the patient's named person; and
the reason for making the reference.
Who must be given the opportunity to make representation to the Tribunal where a reference is made?
101 In terms of section 104(2) and (3) of the Act, the following parties must be allowed the opportunity to make representation and lead or produce evidence to the Tribunal where the Commission makes a reference to
the Tribunal:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO;
the patient's RMO;
the patient's primary carer;
any curator ad litem appointed in respect of the patient; and
any other person appearing to the Tribunal to have an interest in the reference. (This could include, for example, the patient's solicitor or a psychologist or other party, who is providing care and treatment to the patient.)
What are the powers of the Tribunal with respect to such a reference?
102 Subsequent to such a reference, the Tribunal has the power in terms of section 104(1) of the Act to make an order which would vary any of the compulsory measures or recorded matters specified in the order or which would revoke the CTO.
103 The Tribunal may also grant an order varying the terms of the CTOon an interim basis, if it feels it is appropriate to do so, while it is determining the reference (see section 106 of the Act). It may grant an interim order on the application of any party with an interest in the proceedings or on its own initiative. Each interim order can last up to a maximum of 28 days although all the interim orders taken together must not exceed a period of more than 56 days (see section 107 of the Act).
The patient's or the named person's right to apply to the Tribunal (sections 99 and 100)
104 There are two applications which the patient or the patient's named person can make to the Tribunal. They are:
an application under section 99 of the Act to revoke a section 86 determination to extend a CTO; and
an application under section 100 of the Act to revoke a CTO or to vary any of the compulsory measures or recorded matters specified in the CTO.
When can these applications be made? How many applications can be made? (section 100)
105 With regard to an application made by the patient or by the named person under section 99 to revoke an RMO's section 86 determination to extend a CTO, such an application can be made at any point during the CTO's operation after the point where the RMO has made that section 86 determination.
106 If the Tribunal refuses the application to revoke a section 86 determination, the person who made the application cannot make another application within the 6 month or 12 month period of the CTO continuing in effect. This means that, for example, if a patient's application to revoke a section 86 determination is refused, the patient could not make a second application with respect to that determination. However, even though the patient's application has been refused, the patient's named person could then also apply for a revocation of the determination.
107 With regard to an application by the patient or the named person to revoke or vary a CTO, such an application cannot be made within 3 months of:
the CTO being made;
an order which extends the CTO following a section 86 determination; or
an order which extends the CTO and varies the compulsory measures and/or recorded matters specified in the CTO.
108 Section 100(6) states that the person who made the application ( i.e. the patient or the named person) may only make one further application under section 100. This means that the patient and the named person can each make two applications under section 100 within each 6 month or 12 month period of the CTO being in effect.
Who must be afforded the opportunity to make representation to the Tribunal? (section 103(5)&(6))
109 Where the patient or the named person makes such an application to the Tribunal, the following parties must be afforded the opportunity to make representation and lead or produce evidence to the Tribunal:
the patient;
the patient's named person;
any guardian of the patient;
any welfare attorney of the patient;
the patient's MHO;
the patient's RMO;
the patient's primary carer;
any curator ad litem appointed in respect of the patient; and
any other person appearing to the Tribunal to have an interest in the reference. (This could include, for example, the Commission, the patient's solicitor or a psychologist or other party who is providing care and treatment to the patient.)
What are the powers of the Tribunal with respect to these applications? (section 103(2) to (4))
110 Where the patient or the named person makes an application to revoke a section 86 determination, the Tribunal has the power to:
revoke the section 86 determination;
revoke the section 86 determination and the CTO outright;
confirm the section 86 determination; or
confirm the section 86 determination and vary the CTO by modifying any of the compulsory measures or recorded matters specified in it.
111 Where the patient or the named person makes an application to vary or revoke the CTO, the Tribunal has the power to:
refuse the patient's or named person's application;
revoke the CTO; or
vary the CTO by modifying any of the compulsory measures or recorded matters specified in it.
112 It is important to note that in all cases where an appeal is being made to the Tribunal, the presumption is always in favour of revoking the CTO unless the RMO is satisfied that the criteria are met. The onus is not therefore on the patient to demonstrate that he/she no longer meets the criteria.
113 The Tribunal may, in accordance with section 106, grant an interim order which would vary any of the compulsory measures or recorded matters specified in the CTO, if it feels it is appropriate to do so while it is determining the application. The Tribunal may grant an interim order on the application of any party with an interest in the proceedings or on its own initiative. Each interim order can last up to a maximum of 28 days although all the interim orders granted when taken together must not exceed a continuous period of 56 days (see section 107 of the Act).
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