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

chapter 4 discharge of a patient subject to a compulsion order and restriction order

Introduction

This chapter outlines the processes surrounding the conditional discharge and absolute discharge of a patient subject to a compulsion order and a restriction order (" CORO"). It describes the statutory provisions which relate to conditional discharge as set down in Chapter 3 of Part 10 of the Act as well as best practice points allied to these provisions.

The chapter goes on to examine the statutory processes involved in the absolute discharge of a patient subject to a CORO and includes best practice points allied to these provisions.

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

Conditional Discharge

Overview

01 Section 193(7) allows the Tribunal to order the conditional discharge of a patient who is subject to a CORO and impose such conditions as it sees fit. Conditional discharge allows a period of formal supervision of the patient in the community by closely monitoring his/her mental health and behaviour for any indicators of increased risk to others so that steps can be taken to assist him/her and protect the public. It also allows a period of assessment of the patient in the community before a final decision is taken on whether to remove the safeguards and control imposed by the restriction order by means of an absolute discharge.

02 Although it is the Tribunal alone that has the power under the Act to order the conditional discharge of a patient, it would be expected that the process of planning for conditional discharge would involve liaison between the Scottish Ministers and the patient's multi-disciplinary team. Consideration of plans for conditional discharge should be made well in advance, involving appropriate local health and social work services. In so doing, a supervising RMO and MHO should be identified for the period when the patient is in the community, and consideration given to the following matters:

• where the patient will reside;
• who will be the individuals involved in providing care, treatment and services;
• which places will the patient be required to attend ( e.g. clinic, hospital, day-hospital, day-centre, work placement, college);
• treatment to be given ( e.g. medication, psychological therapies).

03 In some cases the police may be involved in planning conditional discharge; certain mentally disordered offenders may be required to register with the police following discharge ( e.g. those patients requiring to register under the Sexual Offences Act 2003).

04 It would be expected that in most cases, prior to conditional discharge, the patient will have undergone periods where his/her detention was suspended in accordance with section 224, during which time he/she was able to spend time in the community and engage with the treatment, care and services which would make up his/her conditional discharge care package.

The power to grant conditional discharge

05 Conditional discharge may be ordered by the Tribunal under section 193(7) and such conditions as seem fit to the Tribunal may be imposed. Examples of such conditions may include:

• residence at a stated address;
• supervision by a social worker;
• psychiatric supervision;
• attendance at specific places ( e.g. clinic, hospital, day-hospital, day-centre, work placement);
• allowing access to specified people ( e.g. psychiatrist, MHO, social worker, community psychiatric nurse);
• taking medication (treatment cannot be physically forced on a patient while in the community, but failure to take medication could be seen as a breach of the conditions of discharge; this may result in the patient being taken to a clinical setting to be given compulsory medical treatment in accordance with Part 16 of the Act);
• compliance with other treatments ( e.g. engagement in a psychological treatment);
• restrictions on use of alcohol and illicit substances including compliance with regular drug/alcohol screening;
• prohibition from going to certain areas or places ( e.g. to prevent contact with victims).

It should be noted that this is not an exhaustive list of conditions that may be imposed.

Variation of conditions by the Scottish Ministers

06 Section 200 allows the Scottish Ministers to vary the conditions imposed by the Tribunal on the conditional discharge of the patient if they are satisfied that it is necessary. For example this might be as a result of a psychological intervention coming to an end or the victim moving away to another area. As soon as practicable after varying the conditions the Scottish Ministers must notify the patient, the named person, the RMO and the MHO of these variations (section 200(3)).

Appeal against variation

07 Within 28 days of being notified by the Scottish Ministers of the proposed variation to the conditions imposed by the Tribunal on the conditional discharge of the patient, the patient and his/her named person, may appeal to the Tribunal against the variation under section 201. In terms of section 201(3), section 193 of the Act (which sets out the procedures and powers available to the Tribunal) is deemed to apply in relation to such an appeal as if the patient or named person had applied under section 192 for conditional discharge.

Recall from conditional discharge

08 A conditionally discharged patient may be recalled to, and detained in, hospital if the Scottish Ministers are satisfied that this is necessary and they issue a warrant to this effect (section 202). If there are concerns that a patient's mental state has deteriorated, or that there is an increased risk to others, or that the patient has breached any of the conditions imposed the Scottish Ministers should be notified of this, usually by the patient's RMO. Best practice would suggest that where the MHO becomes aware of such concerns he/she should immediately notify the RMO.

09 Before notifying the Scottish Ministers, the RMO should always consult the designated MHO to consider what action may be required, and to inform any recommendation to the Scottish Ministers. In notifying the Scottish Ministers the RMO would be expected to give an opinion as to whether the patient should be recalled to hospital, but the decision to issue a warrant under section 202 is for the Scottish Ministers to make.

10 There may be circumstances where admission to hospital (voluntarily or under civil procedures) is necessary but recall is not appropriate or not considered necessary. Where admission is being arranged on a voluntary basis, best practice would suggest that great care should be taken to ensure that the patient is properly and fully aware of his/her rights. (For example the patient may decide to discharge him/herself or refuse treatment). However it would be expected that in most cases where a prolonged admission to hospital is necessary, the patient would be recalled under section 202.

11 In most cases the hospital specified will be the one from which the patient had been discharged ( i.e. the one specified in the compulsion order). However, under certain circumstances (for example, if no bed is available or a patient requires a degree of security higher or lower than that available at that hospital), it would be expected that the patient would be recalled to an alternative hospital, and this alternative must be specified in the warrant. Where a patient is recalled he/she is subject to detention under the compulsion order as had been the case prior to his/her conditional discharge in terms of section 203.

Appeal against recall from conditional discharge

12 Within 28 days of the patient returning to hospital, the patient and his/her named person may appeal against the recall from conditional discharge to the Tribunal under section 204. In terms of section 204(3), section 193 of the Act (which sets out the procedures and powers available to the Tribunal) is deemed to apply in relation to such an appeal as if the patient or named person had applied under section 192 for conditional discharge.

Review of a patient while on conditional discharge

13 If conditional discharge is granted in terms of section 193(7) the CORO to which the patient is subject is still in effect given that it has not been revoked by virtue of section 193(3) or (4) as read with section 197.

14 Therefore the provisions set down in Part 10 of the Act concerning reviews and reports by RMOs; reviews by the Scottish Ministers; notification from the MWC to the Scottish Ministers; references and applications to the Tribunal by the Scottish Ministers; automatic referral to the Tribunal if there has not been a Tribunal review within a 2 year period and applications to the Tribunal by patients or named persons, all apply to patients on conditional discharge as they do to patients detained in hospital under a CORO. It should be noted that the Scottish Ministers may require that a patient's case is reviewed and a report submitted to them more frequently during the initial period of conditional discharge.

15 Although not a statutory provision under the Act, it is the current practice of the Scottish Ministers to request a monthly report from the RMO during the first year of conditional discharge and then every three months thereafter. Best practice would suggest that where the RMO is unfamiliar with the process and these administrative procedures he/she should contact the Health Department of the Scottish Executive for guidance.

Patients granted conditional discharge unexpectedly

16 In most cases it would be expected that conditional discharge would be part of the patient's planned rehabilitation. However there may be cases where the Tribunal conditionally discharges a patient under section 193(7) against the recommendation of the RMO and/or the Scottish Ministers. Where no arrangements have been put in place in the community for the patient the conditional discharge of the patient may be deferred by the Tribunal in accordance with section 195 to allow for appropriate services to be put in place.

17 During this period it would be expected that an appropriate package of care incorporating the conditions specified by the Tribunal would be set up as soon as practicable. It would be expected that there would be clear protocols for Health Boards and local authority services together to support immediate care and treatment planning and the provision of necessary services.

18 The patient, the patient's named person, any guardian of the patient, any welfare attorney of the patient and the Scottish Ministers have the right under section 322(2) to appeal to the Court of Session against an order made by the Tribunal under section 193. In relation to conditional discharge in particular, where the Scottish Ministers appeal against a decision of the Tribunal to order a patient's conditional discharge the Scottish Ministers may also, in accordance with section 323, ask the Court of Session to order that the patient continue to be detained and that the CORO continue to have effect pending the outcome of the appeal.

Further offending

19 If a patient has committed an offence during a period of conditional discharge and a prosecution is pending, and if he/she is on bail or in custody and is no danger to him/herself or others as a result of his/her mental disorder, the Scottish Ministers may choose to decide to let the law take its course. In that event, it would be expected that the court would decide whether a new mental health order is necessary (such as an assessment order), whether a different disposal is called for, or whether the most appropriate course of action would be for the patient to be recalled to hospital. In this last event the court may, for example, convict the patient but impose no penalty or only a nominal penalty in the knowledge that the Scottish Ministers intend to recall the patient immediately to hospital.

20 If a conditionally discharged patient is convicted of a further offence and the court imposes a non-custodial sentence, and recall to hospital is not considered appropriate, it would be expected that the terms of the previous conditional discharge would continue and the supervisors would resume their roles. However in such circumstances best practice would suggest that the RMO, the MHO and the other members of the multi-disciplinary team should review the patient's care plan to ensure that it fully takes the further offending into account and update the risk management plan accordingly.

21 If a conditionally discharged patient is convicted of a further offence and the court imposes a sentence of imprisonment, the Scottish Ministers may choose to reserve judgement on the patient's status under the Act until the patient nears the end of his/her prison sentence when an application to the Tribunal under section 191 may be initiated seeking the revocation of the compulsion order (absolute discharge), so ending liability to detention under the Act. Alternatively conditional discharge may continue on release from prison or the patient may be recalled to hospital under section 202 on release from prison.

Absolute Discharge

Overview

22 A patient who is subject to a CORO is absolutely discharged when the Tribunal revokes the compulsion order to which he/she is subject (sections 193(3) or (4)). In such circumstances, in terms of section 197, any restriction order to which the patient was subject shall cease to have effect at the same time as the compulsion order is revoked. It would be expected that in most cases this would follow a period of conditional discharge in the community during which the patient has been settled and is no longer considered to require formal supervision. Non-compulsory treatment and contact with services would be expected to continue in most cases.

23 Best practice would suggest that there should be close consultation between the RMO, the MHO and the other members of the multi-disciplinary team before a recommendation is made to the Scottish Ministers for the absolute discharge of a patient. Suitable aftercare arrangements for the patient should be agreed and put in place in advance of the recommendation being made even though these would not be subject to compulsion.

24 Where the RMO is not making such a recommendation, but it is anticipated that the Tribunal may absolutely discharge a patient, it would be expected that contingency aftercare arrangements should be made in advance. Where such arrangements have not been made, efforts should be made to rectify this as soon as possible. Where the Tribunal orders absolute discharge under sections 193(3) or 193(4) there is no provision in the Act for it to be deferred until arrangements have been made; the patient must be discharged once any appeal period has expired or once any appeal has been determined (section 196(2)).