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

chapter 3 reviewing a compulsion order and a restriction order

Introduction

This chapter begins by examining the formal processes to be followed where a compulsion order and a restriction order (" CORO") are being reviewed, as laid out in Chapter 2 of Part 10 of the Act. It explores the duty placed on the RMO to carry out a formal review of the CORO and report to the Scottish Ministers, followed by best practice points for the designated MHO in relation to the review. The possible outcomes of the review are:

• the CORO remains unchanged;
• the restriction order is revoked and the patient remains subject to the compulsion order, the measures in which may be varied
• the patient is conditionally discharged with the Tribunal imposing such conditions as it thinks fit;
• the compulsion order is revoked and the patient absolutely discharged.

The chapter goes on to describe the duty placed on the RMO and the Scottish Ministers to keep the continuing need for the CORO under review in terms of sections 184 and 188 respectively.

The remainder of the chapter covers the applications that may be made to the Tribunal by the patient and named person, and the referrals to the Tribunal that may be initiated by the MWC.

All section numbers in this chapter refer to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Act") unless stated otherwise.

Overview of the review process

Review criteria

01 The criteria against which a patient's mental health must be judged when any review of a CORO is taking place are referred to in section 182(3)(b) and (4) of the Act. The criteria are that:

• the person has a mental disorder ("mental disorder criterion");
• medical treatment which would be likely to prevent the mental disorder worsening, or alleviate any of the symptoms, or effects, of the disorder is available for the patient ("treatability criterion");
• if the patient were not provided with such medical treatment there would be a significant risk to the health, safety or welfare of the patient or to the safety of any other person ("civil risk criterion");
• as a result of the person's mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment ("serious risk to others criterion");
• it continues to be necessary for the person to be subject to the compulsion order ("compulsion order necessity criterion");
• it continues to be necessary for the person to be subject to the restriction order ("restriction order necessity criterion").

02 When assessing whether the patient still meets the criteria for the CORO it must be borne in mind by the reviewer 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 CORO unless the criteria in paragraph 1 are met. The onus is therefore not on the patient to demonstrate that he/she does not meet the criteria.

03For information on the assessment of risk refer to Part 1, Chapter 5 of this Volume of the Code of Practice.

04 Where it is the RMO (rather than the Scottish Ministers) who is assessing the patient against these criteria, it would be expected that he/she would be fully supported by all members of the multi-disciplinary team who are involved in providing care, support and treatment to the patient.

Mandatory review by the RMO (sections 182 to 184)

Overview

05 During the 2 month period prior to the one year anniversary of the CORO being imposed, the RMO must examine the patient (or arrange for another approved medical practitioner to do so), consider the review criteria, consult the MHO and then prepare and submit a report to the Scottish Ministers.

06 Best practice would suggest that in most cases this review should be multi-disciplinary and multi-agency involving all those involved in the patient's care currently and perhaps those that might be involved in the patient's future care. The process of carrying out a mandatory review should be characterised from beginning to end by a great sense of multi-agency and multi-disciplinary co-operation and consultation. In that connection, it would be best practice for a full case conference to be held when a mandatory review is being carried out. 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 the efficiency of the various reporting procedures which have been in operation since the previous mandatory review.

07 Aside from the statutory review criteria set down in section 182(3)(b) and (4) that must be considered by the RMO, best practice would suggest that there would also be other issues which, although not a statutory provision under the Act, would require to be considered and reported on to the Scottish Ministers (see 'Responsible medical officer's report to the Scottish Ministers (section 183(2)), paragraphs 12 to 18).

08 Most of these issues would be expected to be relevant to the statutory review criteria and would give a broader understanding of the progress of the patient, his/her treatment needs and the assessment and management of risk.

Medical examination

09 The statutory criteria that must be addressed in the medical examination are set out in section 182(3)(b) and (4). The RMO is under a duty to consult the MHO in accordance with section 183(3)(c) as part of the review. In addressing these criteria it would be expected that the RMO would:

• interview the patient;
• discuss the patient with all members of the multi-disciplinary team where relevant and appropriate;
• consult the named person and relatives/carers/significant other;
• consider the progress of the patient over the last year;
• consider the nature and circumstances of the index offence, previous offending and any other relevant incidents of concern;
• consider any other relevant background information;
• consider any issues requested by the Scottish Ministers; and
• consider any relevant third party information.

Recommendations which may result from the review of a CORO

10 In considering the statutory criteria under section 182(3)(b) and (4) the RMO's conclusions may result in his/her being under a duty to recommend to the Scottish Ministers that changes should be made to the compulsion order or the restriction order (thereby requiring referral of the patient's case by the Scottish Ministers to the Tribunal under section 185(1)). With reference to the statutory criteria as described in paragraph 1 of this chapter, it would be expected that the following recommendations would be made by the RMO:

• if the mental disorder criterion is not met the compulsion order (and therefore the restriction order) should be revoked - a bsolute discharge (section 183(4));
• if the mental disorder criterion is met, but the treatability criterion or the civil risk criterion or the compulsion order necessity criterion is not met, and the serious risk to others criterion is not met the compulsion order (and therefore the restriction order) should be revoked - absolute discharge (section 183(5));
• if the mental disorder criterion, the treatability criterion, the civil risk criterion and the compulsion order necessity criterion are met, but the serious risk to others criterion and the restriction order necessity criterion are both not met then the restriction order should be revoked, but the compulsion order continues (section 183(6));
• if the mental disorder criterion, the treatability criterion, the civil risk criterion, the compulsion order necessary criterion and the restriction order necessary criterion are met, but the serious risk to others criterion is not met the patient should be conditionally discharged (section 183(7));
• if the mental disorder criterion and the serious risk to others criterion are met, whether any of the other criteria are met or not, the patient should remain subject to a compulsion order with a restriction order.

11 Where the RMO is recommending that the restriction order should be revoked (section 183(6)), he she should also consider whether the measures in the compulsion order require to be varied (section 183(8)).

RMO's report to the Scottish Ministers (section 183(2))

12 As soon as practicable after carrying out the review the RMO must submit a report to the Scottish Ministers in accordance with section 183(2). Sections 183(3) to 183(8) specify the recommendations that the RMO must make depending on his/her conclusions regarding the application of the statutory criteria as set down in section 182(3)(b) and (4). If the outcome of the review is such that the compulsion order or the restriction order should be revoked, the RMO is under a duty to recommend this course of action in his/her report to the Scottish Ministers under section 183(4), (5) or (6).

13 The format and content of the RMO's report (aside from the information detailed in section 183(3)) is not set down in the Act but a pro-forma, CORO1, may be found on the Scottish Executive website at : www.scotland.gov.uk/health/mentalhealthlaw. Non-statutory guidance on the report may also be obtained from the Health Department of the Scottish Executive. Best practice would suggest that the report to the Scottish Ministers should detail the patient's progress in hospital since the last annual report and include the following information:

• nursing and other care;
• medication;
• psychological assessment and treatment;
• occupational therapy;
• changes in mental state since the last annual report;
• MHO opinion;
• social work assessment;
• child protection issues;
• issues in relation to sex offending registration;
• the patient's relations with staff and other patients;
• the patient's participation in activities while in hospital;
• freedoms available e.g. leave in grounds, suspension of detention etc. and how they are used;
• the patient's relations with family and friends;
• plans for the patient's future care;
• victim and public safety issues.

14 Where any of the information on the patient's background, family background, criminal record, medical history, psychiatric history or any other information previously provided to the Scottish Ministers has been important in informing the current understanding of the patient, and new information has come to light in the course of the year, or where old information has been proved inaccurate, this should be set out in the report. The report should also address whether there has been a change of understanding by the multi-disciplinary team of information previously known about the patient.

15 Where detailed consideration of the risk posed by the patient and the management of this risk is of particular importance, the RMO would be expected to consider and report on:

• the level of security which the patient requires;
• the factors relating to the index offence and other previous dangerous behaviour;
• the potential risk factors in the future;
• how risk issues will be managed;
• the patient's attitude to his/her index offence, other dangerous behaviour and any previous victims;
• issues related to previous and potential future victims;
• issues related to alcohol or substance misuse;
• the outward evidence of change and how the patient has responded to stressful situations;
• any physical, verbal or sexual aggression by the patient;
• short and longer-term treatment plans;
• the patient's attitude to supervision and the quality of his/her relationship with the care team.

16 Where the patient has a mental illness it would be expected that the report would address the following:

• the relationship between dangerous behaviour and the patient's mental illness;
• which symptoms of mental illness remain;
• whether the patient's condition is currently stable and whether this has been tested in various circumstances;
• issues relating to medication including effectiveness and compliance;
• the patient's insight into his/her illness and the need for treatment;
• early signs indicating relapse in the patient's illness and signs which indicate that there may be an immediate risk;
• how risk issues will be managed.

17 Where the patient has a learning disability it would be expected that the report would address the following:

• the relationship between dangerous behaviour and the patient's learning disability;
• whether the patient has benefited from treatment including psychological treatment and education;
• whether the patient's inappropriate behaviour is currently stable and whether this has been tested in various circumstances;
• whether the patient is able to understand the consequences of his/her actions;
• whether his/her conduct poses a risk to the public and the nature and level of any risk;
• how risk issues will be managed.

18 Where the patient has a personality disorder it would be expected that the report would address the following:

• the relationship between dangerous behaviour and the patient's personality disorder;
• which personality issues are considered to relate to the index offence/other dangerous behaviour;
• treatment approaches and effectiveness;
• how generalised the patient's learning has become; how this manifests itself, and how much is context specific;
• areas of functioning that continue to be a problem, how they manifest themselves in the past and present, and how they may be managed in the future.

Consultation between the RMO, the MHO and the multi-disciplinary team

19 Section 182(3)(c) requires that the RMO must consult the MHO as part of the patient's annual review. To aid this communication the designated MHO should make him/herself known to the RMO as soon as practicable after the imposition of the CORO and ensure that the RMO has his/her contact details.

20 Best practice would suggest that there should be a procedure in place to support the RMO notifying the MHO well in advance of the annual review being carried out so that the MHO has sufficient time to come to an informed opinion.

21 It would be expected that the designated MHO would maintain a sufficiently close involvement with the patient, any carer(s), and other members of the multi-disciplinary team, to ensure that he/she has a good understanding of the patient's progress and knowledge of any events which may have a bearing on recommendations at the time of a review. The multi-disciplinary team should keep the MHO informed of any key developments in the care and/or treatment of the patient.

Best practice points for the MHO

22 When forming his/her opinion in relation to the annual review of a patient subject to a CORO (section 182(3)(c)) the MHO should:

• interview the patient;
• consult the named person and relatives/carer/significant other;
• consult the RMO;
• consult all members of the multi-disciplinary team where relevant and appropriate;
• review medical and social work records;
• with the patient's agreement, consult any other relevant person who is significantly involved in the patient's care and treatment.

23 When interviewing the patient and consulting the named person and others as outlined in paragraph 22, the MHO should ensure that each party has a clear understanding of the purpose of the review and the procedure that will be followed. The MHO should also ensure that each of the parties are aware of the possible consequences of the review in relation to the recommendations which may subsequently be made to the Tribunal. The MHO should ensure that the patient is aware of the availability of advocacy services and support him/her in making arrangements to have access to these services if required. For further information see Chapter 6 of Volume 1 of this Code of Practice.

24 Although not set down in the Act best practice would suggest that when forming an opinion in relation to the review of a CORO, some of the issues that the MHO should consider may include:

• does the patient continue to suffer from a mental disorder? What is the psychiatric opinion and evidence in relation to this matter?
• does the patient require medical treatment in a hospital? Could the treatment be provided safely and effectively in the community?
• as a result of the mental disorder does the patient present a risk of serious harm to others?
• which compulsory measures are necessary to safeguard the patient's care and treatment requirements, and ensure the safety of others?

25 When considering the issues listed in paragraph 24 above the MHO should take into account his/her own direct knowledge of the patient (for example the patient's presentation, capacity and capabilities), the patient's understanding of the mental disorder or diagnosis and the patient's attitude towards any ongoing treatment that may be required.

26 In relation to the assessment and management of risk, matters that the MHO would be expected to give careful consideration to may include:

• the original circumstances which led up to the patient being made subject to the CORO;
• the needs which were identified in the original care plan, and the extent to which these have been met;
• progress that has been achieved during the period of care and treatment;
• any potential risks which still require management with compulsory powers;
• the patient's history of drug or alcohol misuse, and any implications this may have in relation to the person's behaviour;
• victim issues, including the patient's attitude towards his/her offending; evidence of victim empathy; possible risks from previous victims or associates;
• the patient's historical and current attitude towards complying with services and treatment.

27 When forming his/her opinion the MHO should bear in mind the different outcomes that may result from the annual review of the CORO and give full consideration to their implications, these being: no change to the CORO; the revocation of the restriction order (with or without a variation to the compulsion order); conditional discharge or absolute discharge.

The revocation of the restriction order

28 When forming his/her opinion on whether the restriction order should be revoked the MHO should consider the criteria applied by the RMO under section 183(6). With reference to the statutory criteria as described in paragraph 1 of this chapter, it would be expected that in reaching this conclusion the MHO would be satisfied that the mental disorder criterion, the treatability criterion, the civil risk criterion and the compulsion order necessity criterion are met, but the serious risk to others criterion and the restriction order necessity criterion are both not met.

29 Best practice would suggest that before a recommendation is made to the Scottish Ministers for the restriction order to be revoked there would be agreement on this point between the RMO, the MHO and the other members of the multi-disciplinary team where relevant and appropriate.

30 The MHO should also be satisfied that the person's ongoing care and treatment can only be safely and adequately managed by compulsory measures, whether in hospital or in the community. In forming this opinion the MHO would give careful consideration to his/her own knowledge of the patient and to that of the RMO, the multi-disciplinary team, the patient's carer (if appropriate) and other care and service providers.

31 If the Tribunal subsequently revokes the restriction order under section 193(5) the patient's future care and treatment would be managed under the same arrangements that apply to a patient subject to a compulsion order under Part 9 of the Act.

Conditional discharge

32 Before conditional discharge is considered as a possibility for a patient subject to a CORO it would be expected that the patient would already have undergone periods during which his/her detention in hospital had been suspended under section 224. This practice allows the patient to have a graduated experience of rehabilitation to the community, and it provides an informed basis for all members of the multi-disciplinary team to formulate the requirements of the future care plan and proposed conditional discharge.

33 When forming his/her opinion on whether the patient should be conditionally discharged the MHO should consider the criteria applied by the RMO under section 183(7)(a) and (b). With reference to the statutory criteria as described in paragraph 1 of this chapter, it would be expected that in reaching this conclusion the MHO would be satisfied that the mental disorder criterion, the treatability criterion, the civil risk criterion, the compulsion order necessity criterion and the restriction order necessity criterion are met, but the serious risk to others criterion is not met.

34 The MHO should be satisfied that the patient's care and treatment requirements, and the protection of others, can be safely and effectively provided for and managed in the community. It would be expected that a comprehensive care plan informed by a full community care assessment detailing need and risk management requirements would be prepared and the services that would be necessary to support the care plan would be identified and their provision agreed. These may include accommodation; levels of support and supervision; programme of structured activity; and any other relevant requirements that will form part of the proposed conditional discharge.

35 In the interests of best practice the RMO, the MHO, and the rest of the multi-disciplinary team, should bear in mind that planning and commissioning appropriate community services can require significant time, particularly in complex cases. Therefore in cases where conditional discharge is a possibility, the patient should be kept informed about realistic timescales and possible outcomes of the annual review.

36 Given that an MHO and an RMO will have been allocated to the patient's case from the time of the imposition of the restriction order, or earlier, under sections 229 and 230 respectively, joint assessment and care planning for a proposed conditional discharge should be able to be commenced well in advance of a recommendation for conditional discharge being made to the Scottish Ministers by the patient's RMO under section 183(7). Best practice would suggest that planning for a conditional discharge should conform with any local health and social work protocols that are in place which apply to planning for the discharge of a patient from hospital.

Absolute discharge

37 When forming his/her opinion on whether the patient should be absolutely discharged the MHO should consider the criteria applied by the RMO under section 183(4) and (5). With reference to the statutory criteria as described in paragraph 1 of this chapter, it would be expected that in reaching this conclusion the MHO would be satisfied that:

• the mental disorder criterion is not met; or
• the mental disorder criterion is met, but the treatability criterion or the civil risk criterion or the compulsion order necessity criterion is not met, and the serious risk to others criterion is not met.

38 Best practice would suggest that the MHO may also wish to consider the following:

• the patient's current needs for care, treatment and support;
• the extent to which these needs will continue to be adequately met by a suitable care plan;
• the patient's own opinion about his/her need for any required ongoing care and treatment;
• the implications for the provision of future care and treatment, if the powers of compulsion or conditional discharge are removed;
• the risks, if any, which may arise if the patient were to disengage from services in future;
• the risks, if any, which may result from any future deterioration in the patient's health or behaviour;
• the contingency plans, if any, that require to be put in place to respond to the patient's possible future disengagement from services or deterioration in health and the patient's awareness of these plans;
• is the patient properly provided with information about how to seek assistance or access to services in future?
• the views of the named person, carer, or others who may have a significant involvement with the patient;
• the views of any current service providers, particularly where it is expected that such services will continue to support the patient in future.

39 A recommendation for the absolute discharge of a patient subject to a CORO would usually be expected to follow a successful period of the patient being conditionally discharged under section 193(7).

Other reviews of a CORO

RMO's duty to keep a CORO under review (section 184)

40 Section 184 places a duty on the RMO to keep a CORO under ongoing review, by considering 'from time to time' the matters set down in section 184(2) (see paragraph 1 of this chapter). This review is outwith the annual review under section 182 and report to the Scottish Ministers under section 183(2).

41 The RMO should carry out the "from time to time" review as regularly as is practicable. By definition, it is difficult to place a precise timetable on when such reviews should take place. However, a "from time to time" review should not necessarily be seen as a formal review separate from the day-to-day monitoring of the CORO. Existing multi-disciplinary or multi-agency forums, such as multi-disciplinary team meetings, planned out-patient visits to a day hospital or NHS resource centre could all, for example, be seen as appropriate settings for a "from time to time" review. The fact that such a review has taken place should be noted alongside any other matters routinely noted at such meetings.

42 Even though the Act does not place a formal duty on the RMO to consult with, for example, the patient's MHO and those providing care and treatment to the patient during this 'from time to time' review process, it is considered that it would nonetheless be best practice for the RMO to remain in close consultation with these parties as regularly as is practicable in order to be in full possession of all the relevant assessment information, including the social circumstances dimension for which the MHO has responsibility. This is important to allow an assessment of the extent to which the care plan's objectives are being met. It would be poor practice for the RMO to only consult these parties when statutorily required to do so during the operation of the CORO - i.e. at the time of a mandatory review. The views of the MHO and the other members of the multi-disciplinary team should be sought regularly and often as these parties may have crucial information relating to the advisability of any course of action which the RMO is considering taking. The involvement of such parties should not be restricted to simple notification after the event. It is also important that this consultation process be seen as a dynamic two-way process. Other members of the multi-disciplinary team should feel free to contact the RMO with relevant information wherever they deem it appropriate.

43 While the Act places the responsibility for a "from time to time" review on the RMO and the Scottish Ministers (see paragraph 45), it would be expected that the continuing need for a CORO and the compulsory measures it authorises 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 and the MHO 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.

44 If after the review described in paragraph 40 the RMO is of the opinion that there should be a change to the status of the patient, he/she must in terms of section 184 submit a report to the Scottish Ministers complying with the requirements set down in section 183(3) and including the recommendation as soon as practicable after carrying out the review.

Scottish Ministers' duty to keep a CORO under review (section 188)

45 Section 188 places a duty on the Scottish Ministers to keep a CORO under ongoing review, by considering 'from time to time' the matters set out in paragraph 1 of this chapter. If following the review the Scottish Ministers are of the opinion that a change in the status of the patient is indicated then they are under a duty to make an application to the Tribunal under section 191 for an order under section 193. (In relation to the case of a patient who is subject to a CORO a referral to the Tribunal is called an 'application' in the Act when it is made on someone's own initiative such as the Scottish Ministers, the patient or the named person, and it is called a 'reference' when made by the Scottish Ministers following a recommendation from the RMO (section 185) or notification from the MWC (section 186) or because it has been 2 years since the last Tribunal review of the patient's case (section 189)).

The circumstances which may prompt a reference or an application to the Tribunal

Reference initiated by the RMO

46 Where the RMO has submitted a report to the Scottish Ministers which includes a recommendation for a change to the status of a patient subject to a CORO (sections 183(2) or 184), the Scottish Ministers must in accordance with section 185 refer the patient's case to the Tribunal. This reference must include the name and address of the patient and of the patient's named person, and the recommendation of the RMO (section 185(3)). Where they are making such a reference the Scottish Ministers must in accordance with section 185(2) notify the patient, the patient's named person, any guardian, any welfare attorney, the RMO, the MHO and the MWC.

Reference initiated by the MWC (section 186)

47 The MWC may notify the Scottish Ministers in writing under section 186 that it requires the patient's case to be referred to the Tribunal for review. The MWC must, in accordance with section 186(3), include in the notification to the Scottish Ministers its reasons for requiring the reference to be made. Although not set down in the Act best practice would suggest that when considering whether to require the Scottish Ministers to refer the patient's case to the Tribunal the MWC should apply the same statutory criteria as that applied by the RMO at an annual review under section 182(3)(b). The reference to the Tribunal by the Scottish Ministers under such circumstances (section 187) proceeds in an identical way to that under section 185 (following a recommendation by the RMO) except that the MWC's reasons for requiring the reference to be made must be stated (section 187(4)).

Automatic reference made by the Scottish Ministers after two years (section 189)

48 Under section 189, where none of the following references or applications have been made to the Tribunal during the two year period following the imposition of the CORO, or during any subsequent two year period ending with the anniversary of the imposition of the CORO, the Scottish Ministers must refer the patient's case to the Tribunal for review:

• a reference by the Scottish Ministers under section 185(1) following a recommendation from the patient's RMO;
• a reference by the Scottish Ministers under section 187(2) following notice from the MWC;
• an application by the Scottish Ministers under section 191;
• an application under section 192(2) by the patient or the patient's named person.

49 In terms of section 189(3) a previous reference to the Tribunal under section 189 must be disregarded if it was made in the first year of the two year period under consideration. In practice it would be expected that the Tribunal would review the patient's case a minimum of every two years.

50 Section 189(5) sets down the information that should be included in the reference, namely the name and address of the patient, the name and address of the patient's named person and the reason for making the reference. Where making such a reference to the Tribunal the Scottish Ministers must, in accordance with section 189(4), inform the patient, the patient's named person, any guardian, any welfare attorney, the RMO, the MHO and the MWC.

Application by patient or named person (section 192)

51 Under section 192 the patient and his/her named person may make an application direct to the Tribunal for an order under section 193 of the Act:

• conditionally discharging the patient;
• revoking the restriction order to which the patient is subject;
• revoking the restriction order and varying the compulsion order by modifying the measures specified in it; or
• revoking the compulsion order to which the patient is subject

52 In accordance with section 192(4) the patient and the patient's named person can each apply once in the period beginning with the day 6 months after the compulsion order was made and ending on the anniversary of the order; and once in any subsequent twelve month period. Neither of them can apply within a three month period following the Tribunal having made an order under section 193 or having made a decision under that section to make no order. The named person must notify the patient if he/she makes an application (section 192(6)).

53 Best practice would suggest that the RMO and the MHO should bear in mind that the patient and/or the named person may require particular assistance to make an application, the support of advocacy services, and information about appropriate legal services. The RMO and the MHO should be satisfied that where required the patient and the named person have access to appropriate information about services that are available for the purpose of making the application.

Powers of the Tribunal upon receipt of a reference or application

54 Section 193 sets out the powers of the Tribunal following a reference or application being made under sections 185(1), 187(2), 189(2), 191 or 192(2). The Tribunal may make:

• no order - the compulsion order and restriction order remain in place (section 193(2));
• an order revoking the compulsion order (and therefore the restriction order - see section 197, i.e. absolute discharge (sections 193(3) or 193(4));
• an order revoking the restriction order but keeping the compulsion order in place - see section 198 as read with section 193(5)). The compulsion order may remain unchanged or it may be varied under section 193(6). If the compulsion order is varied the Tribunal shall specify the modifications made in accordance with section 194. In terms of section 1198, the compulsion order continues as set out under Part 9 of the Act.
• an order that the patient be conditionally discharged (section 193(7)). This may be deferred by the Tribunal under section 195 until the necessary arrangements have been made. The Tribunal may attach any conditions it sees fit to the discharge in accordance with section 193(7).

55 In terms of section 193(8) and (9), before making a decision the Tribunal must hold a hearing, and allow the following persons to make representations (orally or in writing) and lead/produce evidence:

• patient;
• named person;
• primary carer;
• guardian;
• welfare attorney;
• curator ad litem appointed by the Tribunal in respect of the patient;
• Scottish Ministers;
• RMO;
• MHO;
• any other person appearing to have an interest. This might include, for example, the patient's solicitor or a psychologist or other party who is providing care and treatment to the patient.

End of restriction order with continuation of compulsion order

56 Where a patient is subject to a CORO, the assessment of the risk posed by the patient and the measures required to manage any risks may be such that it is no longer felt to be appropriate for the patient to be subject to a restriction order, although he/she continues to meet the criteria for a compulsion order. In these circumstances where the restriction order is revoked in terms of sections 193(5) the compulsion order will continue under the provisions set down in Part 9 of the Act as if the patient had been placed on the compulsion order on the day on which the Tribunal revoked the restriction order (section 198(2)). The renewal and review procedures as set down in Part 9 of the Act would also apply and continue with the timescales for the reviews being based on that day.

57 Where the Tribunal revokes a restriction order, section 193(6) allows it to also vary the measures specified in the compulsion order at that time, for example from specifying detention in hospital to authorising compulsory measures in the community. However it would be expected that this route to community supervision of the patient would be unusual - conditional discharge should be the usual route, provided that the statutory criteria are met.

Appeal against a decision of the Tribunal

58 The procedures for an appeal to be made against a decision of the Tribunal are set down in Part 22 of the Act. In accordance with section 196 an order made by the Tribunal to revoke a compulsion order, revoke a restriction order, conditionally discharge a patient or vary a compulsion order does not come into effect until whichever occurs first of the following:

• the expiry of the appeal period as set down in The Mental Health (Care and Treatment) (Scotland) Act 2003 (Period for Appeal) Regulations 2005 where no appeal has been made under section 322 during that period; or
• if an appeal under section 322 has been lodged with the Court of Session within the appeal period:
  - the Scottish Ministers have notified the Court of Session and the hospital managers that they do not intend to ask the Court of Session to order that the patient should continue to be detained under restrictions pending the outcome of the appeal (section 323);
  - the Court of Session have refused to make such an order; and
  - the recall of such an order or the expiry of its effect.

59 For further informatiion about the procedures for an appeal against a decision of the Tribunal see Chapter 13 of Volume 1 of this Code of Practice and the regulations referred to in paragraph 58 above.