mental health (care and treatment) (scotland) act 2003: code of practice- volume 3 compulsory powers in relation to mentally disordered offenders

introduction to volume 3

Coverage of this volume

01 This Volume of the Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003 covers a range of issues relating to mentally disordered offenders.

02 Procedures for the disposal of cases of persons with mental disorder who are involved in criminal proceedings are set out in Part VI and sections 200 and 230 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). Provisions in the Mental Health (Care and Treatment) (Scotland) Act 2003, ("the Act") have replaced or made amendments to some of these procedures.

03 The 1995 Act set out a wide range of disposals at various stages of the criminal justice process. The changes brought about by the Act, as informed by the Millan Committee, built on rather than made any fundamental changes to the system.

04 Previously, the 1995 Act set out the range of disposals and their related court procedures, whilst the Mental Health (Scotland) Act 1984, ("the 1984 Act"), set out the consequences of being made subject to these disposals. The 1984 Act has been repealed by the Act, but there is a similar division between the provisions of the Act and the 1995 Act. Part 8 of the Act inserts new mental health disposals into the 1995 Act and Parts 9 to 13 of the Act set out the consequences of these disposals and the procedures for their variation, renewal and revocation.

05 Part 1 of this volume addresses the procedures relating to mentally disordered offenders under Part VI of the 1995 Act as amended by Part 8 of the Act.

06 Part 2 of this volume addresses the consequences of the mental health disposals inserted into Part VI of the 1995 Act by the Act, and the procedures for their variation, renewal and revocation.

Structure of this volume

Part 1: Part VI of the Criminal Procedure (Scotland) Act as amended by the Mental Health (Care and Treatment) (Scotland) Act 2003

07 Following a brief overview of the procedures for mentally disordered offenders under the 1995 Act as amended by the Act, Part 1 consists of six chapters. The first chapter provides a general overview of the changes made to the 1995 Act by the Act. Chapters 2 to 5 cover the different stages of the criminal justice process: pre-conviction, insanity, post-conviction and pre-disposal, and final disposal. Chapter 6 covers over-arching issues relevant to many of the mental health disposals such as absconding and suspension of detention. Unless detailed otherwise, all section numbers in Part 1 refer to the 1995 Act.

08 Each chapter begins with an overview of that stage of the criminal justice process and how the presence of mental disorder may be addressed at that time. Following this each chapter is separated into sections related to the various disposals available. For each order there is an introductory section with background, the purpose of the order and an overview of the legislation. This is followed by detailed material relating to each order.

Part 2: Parts 9 to 13 of the Mental Health (Care and Treatment) (Scotland) Act 2003

09 Part 2 covers a range of issues relating to the effect of the mental health orders that may be imposed by a court in terms of the Act where it makes a final disposal in the case of a mentally disordered offender. It therefore provides guidance on Parts 9, 10, 11, 12 and 13 of the Act. Unless detailed otherwise, all section numbers in Part 2 refer to the Act.

10 Part 2 consists of nine chapters. Chapter 1 covers the effect of the Compulsion Order under Part 9 of the Act. This is an order which authorises compulsory treatment of a mentally disordered offender for a period of at least 6 months. The chapter describes the review and renewal procedures for a Compulsion Order which are very similar to those for a Compulsory Treatment Order (" CTO") under Part 7 of the Act (an order made in relation to patients detained under civil proceedings). Rather than duplicating the information contained in Volume 2 of the Code of Practice which describes these procedures for a CTO, this chapter simply points out where the two procedures are different.

11 Chapter 2 covers the effect of the Compulsion Order when combined with a Restriction Order (" CORO") and describes the processes which should be followed in the immediate aftermath of a CORO being imposed.

12 Chapter 3 examines the processes to be followed when carrying out a review of a CORO as set out in Part 10 of the Act. Chapter 4 outlines the procedures surrounding the conditional discharge and absolute discharge of a person who is subject to a CORO.

13 Chapter 5 sets out the formal procedures involved in the making of a Transfer for Treatment Direction under Section 136 of the Act. This direction allows for the transfer of a sentenced prisoner from prison to hospital for care and treatment for mental disorder under the Act.

14 Chapter 6 covers the effect of the Hospital Direction and the Transfer for Treatment Direction as set out in Part 11 of the Act. Chapter 7 describes the processes associated with their review and revocation. Chapter 8 outlines the procedures surrounding the discharge of a person who is subject to one of these directions and describes the different scenarios which may arise at the expiry of the person's sentence in relation to his/her detention.

15 Chapter 9 details the processes associated with the transfer to another hospital within Scotland of a person who is subject to a CORO, a Hospital Direction or a Transfer for Treatment Direction as set down in Part 12 of the Act.

16 Chapter 10 provides a glossary of commonly used terms throughout this volume.

17 Chapter 11 provides a list of both statutory and non-statutory forms. Although there is no requirement to use the non-statutory forms, you are strongly recommended to do so as these draw attention to some procedural requirements under the Act. Failure to observe procedural requirements may invalidate the application or certificate or report etc. From September 2005, all forms will be available on the Scottish Executive website at: www.scotland.gov.uk/health/mentalhealthlaw

Good practice versus best practice

18 The phrase "best practice" has been used throughout this Code of Practice in preference to the phrase "good practice". This is to provide consistency with the duty placed on the Mental Welfare Commission by way of section 5 of the Act to "promote best practice" in relation to the operation of Act. The use of the term "best practice" does not imply that any of the activities or duties described in that way are purely aspirational or less likely to be achieved than an activity or duty which might elsewhere be described as being indicative of "good practice". Where the phrase "best practice" is used in this Code of Practice, it should be read as being synonymous with the phrase "good practice".

Patient Confidentiality

19 The principles in Section 1 of the 2003 Act require that any decision or course of action being considered (other than a decision about medical treatment) should as far as practical and reasonable take into account the needs and circumstances of the patient's carer and the importance of providing such information to any carer as might assist the carer to care for the patient. However, when a person is considering the information to be shared with the carer, it would be best practice to consider in every case the patient's right to confidentiality about their private medical details and treatment options, before information is supplied. It should also be noted that the Community Care and Health (Scotland) Act 2002 amends the Social Work (Scotland) Act 1968 to give carers a right to have their carer needs assessed by the local authority. It would be best practice to bring this assessment right to the notice of any carer providing a substantial amount of care where the carer appears to have unmet caring needs.

Timescales in the Act

20 The Act uses a number of ways of counting the time period in relation to orders, etc. In all cases, the relevant section of the Act is specific about how these time periods should be counted.

21 Where the Act specifies a number of hours these should be counted in hours from the time of signing the certificate, etc. Examples of this are the period of 72 hours provided for at section 36(8) and in section 44(5)(a) where the Act says the 'period beginning with the granting of the certificate'.

22 Where the Act specifies a number of days or weeks beginning at a certain point these are counted from the beginning of the 1st day of the period. Examples of this are the period of 3 days provided for at section 44(5)(a) and the 7 day period in section 45(3)(b) where the Act states 'before the expiry of the 7 day period beginning with the day on which the MHO is consulted …', and the period of 28 days provided for at section 44(5)(b where the Act says 'a period of 28 days beginning with … the beginning of the day on which …'

23 The Act also provides at some points for time periods (generally months or years) ending at a specific time. For example section 165 states 'the period of 2 years ending with the day on which the order would have ceased to authorise these measures …'. This period will be counted back from the beginning of the day on which the order ceases to have effect.

24 At some sections the Act specifically says "working" days. Section 47(8) of the Act defines a 'working day' as a day which is not:

(a) a Saturday;
(b) a Sunday; or
(c) a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in Scotland.

25 At all other places where the Act mentions days, weeks or months these are calendar days, weeks, months as appropriate.

Note of abbreviations

26 Although the use of abbreviations has been avoided wherever possible, the following are used commonly throughout this volume:

AMP	Approved medical practitioner
CO	Compulsion order
CORO	Compulsion order and a Restriction Order
CTO	Compulsory treatment order
EDL	Earliest date of liberation
EOF	Examination of facts
HD	Hospital direction
LPT	Life Prisoner Tribunal
MHO	Mental health officer
MWC	Mental Welfare Commission
PCS	Police casualty surgeon
PQD	Parole qualifying date
RMO	Responsible medical officer
SCR	Social Circumstances Report
SER	Social Enquiry Report
STO	Supervision and treatment order
Tribunal	The Mental Health Tribunal for Scotland
TTD	Transfer for treatment direction

27 The following pieces of legislation are also on occasion referred to in an abbreviated form:

"the 1984 Act"	Mental Health (Scotland) Act 1984
"the 1993 Act"	Prisoners and Criminal Proceedings (Scotland) Act 1993
"the 1995 Act"	Criminal Procedure (Scotland) Act 1995
"the 2000 Act"	Adults with Incapacity (Scotland) Act 2000
"the Act" "the 2003 Act"	Mental Health (Care and Treatment) (Scotland) Act 2003

The Code of Practice

28 The Act and the 1995 Act should be read in conjunction with all subordinate legislation made under the Act. The Code of Practice refers to the regulations, orders and directions made under the Act at appropriate points.

29 Readers should be aware in particular of two orders made under the Act - The Mental Health (Care and Treatment) Scotland Act 2003 Modification Order 2004 ( SSI No. 533) and The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 - which have amended the Act.

30 The Code of Practice points out where important changes have been made but practitioners may be advised to check the relevant orders themselves and to seek their own legal advice as required, when referring to the relevant provisions of the Act.

31 At the time of drafting this version of the Code of Practice and some of the regulations and orders referred to have not yet been approved by the Scottish Parliament. It was felt that nonetheless it was helpful to the reader to include references prospectively. Practitioners are advised to check the mental health pages on the Scottish Executive website for current information and links to the latest versions of subordinate legislation on HMSO.