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

chapter 6: non-compliance with a community-based compulsory treatment order or a community-based interim compulsory treatment order

Introduction

This chapter examines Part 7 Chapter 5 (sections 112 to 123) of the Act. It sets out the processes to be followed where a patient who is subject to a CTO or an interim CTO does not comply with the compulsory measures specified in the order other than the compulsory measure which authorises the patient's detention in hospital (for example, where a patient does not attend for medical treatment in accordance with the terms of their CTO).

This chapter does not deal with a situation in which a patient "absconds". Part 20 of the Act and Chapter 8 of this Volume of the Code of Practice examine that eventuality.

Overview of non-compliance procedures

01 Part 7 Chapter 5 of the Act deals with the powers and procedures which are relevant to a patient who has not complied with any community-based compulsory measure specified in a CTO or an interim CTO - that is, any compulsory measure other than the requirement which can be imposed on a patient by way of section 66(1)(a) of the Act to be detained in hospital. For further information on a situation where a patient fails to comply with the requirement to be detained in hospital, see the provisions relating to absconding which can be found in Part 20 of the Act.

02 Part 7 Chapter 5 of the Act provides for two sets of powers with respect to situations in which a patient does not comply with community-based compulsory measures. The first, described in sections 113 to 115 of the Act, relates to a lack of compliance with any community-based compulsory measure. This set of powers is discussed in paragraphs 4 to 27 of this Chapter and is illustrated by the flowchart on page 176. The second set of powers, described at section 112 of the Act, can be exercised with respect to a lack of compliance with the "attendance requirement" alone. (The attendance requirement is the compulsory measure which can be specified in a CTO or interim CTO by way of section 66(1) (c) of the Act.) These powers are discussed in paragraphs 30 to 33 of this chapter.

Which set of powers should be exercised?

03 It would be expected that, where the only compulsory measure not to have been complied with is the attendance requirement, the powers under section 112 of the Act would be exercised in preference to the powers exercisable under sections 113 to 123 of the Act. This is because they may be more likely to help professionals comply with the principle of treating the patient within an environment which appears to involve the minimum restriction on the freedom of the patient necessary in the circumstances. The final decision as to which set of powers are most appropriate where a patient has not complied with the attendance requirement will, however, ultimately depend on a wide range of factors which might include:

• the individual circumstances of the patient;

• the views of the patient as to what constitutes a lesser restriction on his/her freedom;

• whether the RMO considers that the criteria set out at section 113(2) or 113(3) of the Act are met; and

• whether the RMO considers that a more thorough medical examination of the patient than could be carried out in the 6 hour detention period authorised by section 112(4) of the Act is required with a view to determining whether a section 95 application to vary the terms of the CTO should be made to the Tribunal.

Lack of compliance with compulsory measures where hospital detention is not authorised (sections 113 to 123)

04 Where a patient fails to comply with any community-based compulsory measure specified in a CTO or an interim CTO, the RMO can exercise two powers under section 113(4) and (5) of the Act:

• the power to take the patient or to have the person taken into custody and conveyed to a hospital; and

• the power to detain the patient in hospital for a period of 72 hours beginning with the patient's arrival in hospital.

05 The Act does not specify the length of time a person may be held in custody under these powers. However, it would always be expected that the patient would be conveyed to hospital immediately and would be held in custody for as short a time as is practicably possible.

06 There are two sets of circumstances in which the patient's RMO can exercise the power to take the patient into custody and convey him/her to hospital. This power can be exercised where:

• reasonable steps have been taken to contact the patient following his/her lack of compliance with the compulsory measure;

• the patient has been afforded a reasonable opportunity to comply with the compulsory measure in a case where contact has been made with the patient; and

• it is reasonably likely that there would be a significant deterioration in the patient's mental health if the patient were to continue to fail to comply with the compulsory measure.

07 The second set of circumstances is set out at section 113(3) of the Act and is likely to be most relevant to a patient who is subject to a community-based CTO but whose mental health has deteriorated suddenly and significantly. The circumstances are where:

• it is reasonably likely that there would be a significant deterioration in the patient's mental health if the patient were to continue to fail to comply with the compulsory measure; and

• it is necessary as a matter of urgency to exercise the power to take the patient or have the patient taken into custody in terms of section 113(4) of the Act.

08 In judging whether reasonable steps have been taken to contact the patient following any non-compliance with a compulsory measure, in line with section 113(2)(a) of the Act, it would be best practice for the RMO to ensure that as extensive enquiries as practicable have been made with the patient and with the patient's named person, independent advocate, carers or relatives, community care providers, etc, as to why the compulsory measure has not been complied with. Similarly, as much information as practicable regarding the patient's current mental health and the circumstances surrounding the lack of compliance with the compulsory measure should be solicited from other members of the patient's multi-disciplinary team, particularly the patient's MHO and any person providing care and treatment to the patient in the community.

09 It is important, however, that such information sharing is seen as a two-way process. In other words, even though the final decision with respect to what to do about the patient's lack of compliance with the compulsory measure must be made by the RMO, all the relevant members of the multi-disciplinary team should be pro-active in helping the RMO establish the facts surrounding the patient's circumstances and non-compliance with the compulsory measure.

10 The RMO must also, in terms of section 113(2)(b) of the Act, consider whether the patient has been afforded a reasonable opportunity to comply with the compulsory measure before exercising any power to detain the patient in hospital. It would be expected that the decision to detain the patient in hospital would be seen as a last resort. It would also be expected that such a decision would only be taken once the relevant members of the patient's multi-disciplinary team have exhausted all the appropriate and practicable means of gaining the patient's compliance with the relevant compulsory measure.

11 If the RMO considers that reasonable steps have been taken to contact the patient and to afford the patient the opportunity to comply with the measure, he/she may exercise his/her powers under section 113(4) of the Act to take the patient or have the patient taken into custody and conveyed to hospital. In any case where the patient is being taken into custody, the process should be handled with sensitivity and flexibility.
It would be good practice to ensure that the roles and responsibilities of all the parties who might potentially be involved in taking the patient into custody, including the police, are carefully defined in line with those laid out in locally developed and agreed on Psychiatric Emergency Plans.
It will be particularly important to ensure police involvement within the development of such plans, particularly with respect to putting in place robust risk assessment procedures. (For further information on Psychiatric Emergency Plans, see Chapter 7 of this Volume of the
Code of Practice.)

12 The use of police cells while the patient is being held in custody should be avoided in all but the most exceptional circumstances.

13 Where the patient has been conveyed to hospital in such circumstances, the RMO also has the power under section 113(5) of the Act to detain the patient for a period of 72 hours beginning with the time of the patient's arrival at the hospital. The patient should only be detained in such circumstances where he/she does not or cannot consent to remaining in hospital on a voluntary basis.

14 As soon as reasonably practicable after the patient has been conveyed to the hospital, the patient's RMO must carry out a medical examination of the patient. In terms of section 113(6)(b) of the Act, the RMO may alternatively make arrangements for another approved medical practitioner to carry out such a medical examination. It would, however, always be best practice for the patient's RMO to carry out this medical examination.

Further period of hospital detention following lack of compliance with compulsory measures

15 Sections 114 and 115 of the Act confer on the patient's RMO further powers where a patient has not complied with the terms of a community-based CTO or interim CTO and has been detained in hospital for a period of 72 hours under the terms of section 113(5) of the Act. Section 114 relates to a patient subject to a CTO while section 115 relates to a patient subject to an interim CTO.

16 Where a patient is subject to a CTO when the failure to comply with the compulsory measure occurs, the patient's RMO may grant a certificate which would detain him/her in hospital for a further period of 28 days where certain criteria apply. These criteria are:

• the patient is currently detained in hospital under section 113(5) of the Act ( i.e. detained for up to 72 hours after being taken into custody and conveyed to hospital under section 113(4));

• the patient has been examined by either his/her RMO or another approved medical practitioner in terms of section 113(6) of the Act;

• the RMO is considering whether the compulsory measures currently specified in the CTO need to be modified or is satisfied that an application under section 95 of the Act needs to be made to the Tribunal to vary the compulsory measures specified in the CTO;

• the RMO considers that it is reasonably likely that there will be a significant deterioration in the patient's mental health if the patient does not continue to be detained in hospital;

• the RMO has consulted and obtained the consent of the patient's MHO to the proposed continued detention; and

• the RMO has consulted the patient's named person, where this was practicable to do so.

17 Where all these criteria have been met, the RMO may grant a certificate under section 114(2) of the Act authorising the patient's continued detention in hospital for a period of 28 days. This 28 day period begins at the point when the certificate was granted. In terms of section 114(5) of the Act, this certificate must be signed by the RMO and must state his/her reasons for believing that it is reasonably likely that there will be a significant deterioration in the patient's mental health if the patient does not continue to be detained in hospital.

18 Where a patient is subject to an interim CTO when the failure to comply with a compulsory measure occurred, the patient's RMO may grant a certificate under section 115(2) of the Act authorising the patient's continued detention in hospital from the point of the certificate being granted to the point of the interim CTO expiring. Such a certificate could only be granted where certain limited criteria apply. These criteria are:

• the patient is currently detained in hospital under section 113(5) of the Act ( i.e. detained for 72 hours after being taken into custody and conveyed to hospital under section 113(4));

• the patient has been examined by either his/her RMO or another approved medical practitioner in terms of section 113(6) of the Act;

• the RMO considers that it is reasonably likely that there will be a significant deterioration in the patient's mental health if the patient does not continue to be detained in hospital;

• the interim CTO will not have expired by the time the 72 hour detention period authorised by section 113(5) of the Act expires;

• the RMO has consulted and obtained the consent of the patient's MHO; and

• the RMO has consulted the patient's named person, where this was practicable to do so.

19 Where all these criteria have been met, the RMO may grant a certificate under section 115(2) of the Act authorising the patient's continued detention in hospital until the expiry of the interim CTO. This certificate must be signed by the RMO and must state his/her reasons for believing that it is reasonably likely that there will be a significant deterioration in the patient's mental health if the patient does not continue to be detained in hospital.

20 Any certificate issued under sections 114(2) or 115(2) of the Act must be followed up by a series of notifications in terms of section 116 of the Act. The managers of the hospital in which the patient is detained must notify the following parties of the granting of either certificate as soon as practicable after it was granted:

• the patient;

• the patient's named person;

• any guardian of the patient; and

• any welfare attorney of the patient.

21 These hospital managers must also notify the Tribunal and the Commission within 7 days of the certificate being granted. They must also send a copy of the certificate to these parties within the same timescale.

22 The patient's RMO is under a duty by way of sections 117 and 118 of the Act to revoke any certificate issued under sections 114(2) and 115(2) where certain circumstances apply. With respect to a certificate issued under section 114(2) (that is, with respect to a patient who is subject to a CTO), these circumstances are:

• where the patient's RMO is satisfied that the compulsory measures specified in the CTO do not in fact need to be modified; or

• where the patient's RMO is required to make an application to the Tribunal under section 95 of the Act, but is not satisfied that it is reasonably likely that there will be a significant deterioration in the patient's mental health if the patient does not continue to be detained in hospital.

23 With respect to a patient subject to an interim CTO and a certificate issued under section 115(2) of the Act, these circumstances are:

• where the patient's RMO is not satisfied that it is reasonably likely that there will be a significant deterioration in the patient's mental health if the patient does not continue to be detained in hospital.

24 In any case where the patient's RMO considers it appropriate to revoke a certificate issued under sections 114(2) or 115(2) of the Act, it would be best practice for him/her to first discuss the proposed revocation with the patient's MHO and other members of the patient's multi-disciplinary team and the patient's carers, where applicable, to ensure that suitable arrangements continue to be in place for the patient's care and treatment when he/she is no longer in hospital.

25 In any case where the patient's RMO revokes a certificate issued under sections 114(2) or 115(2) of the Act, he/she must provide notification, in terms of section 119, to certain parties as soon as practicable after the revocation. These parties are:

• the patient;

• the patient's named person;

• any guardian of the patient; and

• any welfare attorney of the patient.

26 The RMO must also notify the Tribunal and the Commission of any such revocation within 7 days of the certificate being revoked. It would also be best practice to ensure that the patient's MHO has been notified of any such revocation.

27 Under section 120 of the Act, the patient and the patient's named person both have a right to apply to the Tribunal to revoke any certificate which has been granted under sections 114(2) or 115(2) of the Act. On such an application, the Tribunal must revoke the relevant certificate where it is not satisfied that it is reasonably likely that there will be a significant deterioration in the patient's mental health if the patient does not continue to be detained in hospital.

Interaction between a CTO or an interim CTO and any detention period or certificate authorised under sections 113 to 115

28 Section 121 of the Act describes the interaction between a CTO or an interim CTO and the detention period of 72 hours authorised by section 113(5) of the Act (that is, the 72 hour period of hospital detention subsequent to a patient's non-compliance with any of the compulsory measures specified in a CTO or an interim CTO). During this 72 hour detention period, the compulsory measures specified in the CTO or interim CTO are suspended. The one exception to this relates to the compulsory measure listed at section 66(1) (b) of the Act: that is, the giving of medical treatment to the patient under Part 16 of the Act.
This compulsory measure continues to be authorised by the CTO or interim CTO throughout the period of detention authorised by section 113(5) of the Act.

29 Sections 122 and 123 of the Act describe the interaction between a CTO or an interim CTO and the certificates issued under sections 114(2) and 115(2) of the Act (that is, the certificates which could be issued authorising detention subsequent to a 72 hour period of detention under section 113(5)). During the continued detention period authorised by either of these certificates, the compulsory measures specified in the CTO or the interim CTO are suspended. The one exception to this rule is the compulsory measure listed at section 66(1) (b) of the Act: that is, the giving of medical treatment to the patient under Part 16 of the Act. This compulsory measure continues to be authorised by the CTO or interim CTO throughout the period of detention authorised by the section 114(2) or section 115(2) certificate.

Lack of compliance with the "attendance requirement" (section 112)

30 Section 112 of the Act confers certain powers on the patient's RMO in relation to a patient's lack of compliance with an "attendance requirement" specified in a CTO or an interim CTO. An attendance requirement compels a patient to attend specified places at specified times with a view to being given medical treatment for their mental disorder (see section 66(1)(c) of the Act). Where a patient does not comply with an attendance requirement, section 112 of the Act authorises the RMO to take certain steps either in addition to or as an alternative to the powers he/she may exercise under sections 113 to 115 of the Act. The RMO may take or may have the patient taken into custody and conveyed to the place where they were to receive their medical treatment or to any hospital. The patient can be detained at that place or hospital for no more than 6 hours from the point of arrival. The purpose of the 6 hour detention period is to administer the medical treatment in accordance with Part 16 of the Act to the patient which he/she would have been given had he/she complied with the attendance requirement. Medical treatment should not be forcibly administered to the patient in their own home.

31 Before exercising this power, however, the patient's RMO must consult and obtain the consent of an MHO in terms of section 112(2) of the Act. Where practicable, it would be good practice for the RMO to ensure that consent is sought from and granted by the MHO who has been designated under section 229 of the Act as having responsibility for that patient's case.

32 If the CTO or interim CTO does not specify the giving of medical treatment to the patient under Part 16 of the Act, the patient's RMO may use the 6 hour detention period to determine whether the patient is capable of consenting to medical treatment. In accordance with section 112(4)(b) of the Act, where the patient is capable of giving consent, the RMO should determine whether the patient does indeed consent to receive any medical treatment.

33 Where a patient fails to comply with the attendance requirement specified in the CTO or interim CTO, it would be expected that the RMO would take all the steps which are reasonable and practicable under the circumstances to investigate why the patient has been unable to comply with the attendance requirement before exercising the power to take the patient or to have the patient taken into custody. It would therefore be standard practice for the RMO to ensure that the reasonable steps which would be taken before exercising powers under section 113 or 114 would also be taken here before the power to detain the patient for 6 hours is exercised.

FLOWCHART ILLUSTRATING THE PROCEDURES TO BE FOLLOWED WHERE A PATIENT SUBJECT TO A COMMUNITY-BASED CTO OR INTERIM CTO DOES NOT COMPLY WITH A COMPULSORY MEASURE AUTHORISED IN THE ORDER

Notes relating to the flowchart illustrating the procedures to be followed where a patient subject to a community-based CTO or interim CTO does not comply with a compulsory measure authorised in the order

Note 1: The RMO considers that:

• reasonable steps have been taken to contact the patient following the patient's non-compliance with a compulsory measure;

• the patient has been afforded a reasonable opportunity to comply with the measure (if contact has been made with the patient);

• it is reasonably likely that there would be a significant deterioration in the patient's mental health if he/she were to continue to fail to comply with the compulsory measure.

Note 2: The RMO considers that:

• it is reasonably likely that there would be a significant deterioration in the patient's mental health if he/she were to continue to fail to comply with the compulsory measure;

• it is necessary as a matter of urgency to take the patient into custody and convey him/her to a hospital.

Note 3: The patient's RMO:

• is considering whether the CTO needs to be varied or has decided that a section 95 does need to be made;

• considers that it is reasonably likely that there would be a significant deterioration in the patient's mental health if he/she does not continue to be detained in hospital.

Note 4: The conditions are:

• the patient's RMO considers that there will be a significant deterioration in the patient's mental health if he/she does not continue to be detained in hospital;

• the interim CTO will not have expired by the time the 72 hour period of detention authorised by section 113(5) expires.

Note 5: The parties are:

• the patient;

• the patient's named person;

• any guardian or welfare attorney of the patient.