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

chapter 5 the imposition of a transfer for treatment direction

Introduction

Section 136 of the Act allows the Scottish Ministers to transfer a sentenced prisoner to hospital for care and treatment of his/her mental disorder under a Transfer for Treatment Direction (" TTD"). Section 136 has been amended to also include any person detained under the Immigration Act 1971 or under section 62 of the Nationality, Immigration and Asylum Act 2002. (For further information about this amendment refer to The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005).

This procedure was previously set down in section 71 of the Mental Health (Scotland) Act 1984 ("the 1984 Act") and a restriction direction under section 72 of the 1984 Act could also be imposed in addition to the order. However under the Act all such patients are restricted patients for the duration of the TTD; there is therefore no option or requirement for a restriction order to be imposed with the direction.

This chapter sets out the formal procedures involved in the making of a TTD.

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

Overview

01 A TTD may be made by the Scottish Ministers in accordance with section 136(2) following consideration of written reports from two medical practitioners, one of whom must be approved under section 22. The criteria for making a TTD are identical to those for a CTO which authorises detention in hospital except that, as with other procedures for mentally disordered offenders, the 'impaired decision making ability' criterion under section 64(5)(d) of the Act does not apply. So the criteria to be considered and which are set down in section 136(4) are:

• that the prisoner has mental disorder;
• that 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 prisoner;
• that if the prisoner were not provided with such medical treatment there would be a significant risk to the health, safety or welfare of the prisoner, or to the safety of any other person; and
• that the making of the TTD is necessary

02 There must be a suitable hospital available to admit the prisoner within 7 days of the imposition of the direction (section 136(3)(b) and (c)). A state hospital may be specified if having considered the medical reports the Scottish Ministers are satisfied that the prisoner requires to be detained under conditions of special security and that such conditions can be provided only in a state hospital (section 136(5)).

Measures Authorised by a TTD (Section 136(6))

03 The measures which may be authorised in a TTD are:

• within 7 days of the making of the direction the removal of the prisoner to the specified hospital by any of the following: a constable; a person employed in, or contracted to provide services in or to, the specified hospital who is authorised by the managers of that hospital to remove persons to hospital for the purposes of section 136(6)(a); or a specified person;
• the detention of the prisoner in the specified hospital; and
• the giving of medical treatment to the prisoner under Part 16 of the Act (which include medication, psychological and social interventions).

04 The removal of the prisoner to hospital would be expected to be arranged by the Scottish Prison Service and it would usually be carried out by the Prisoner Escort and Court Custody Service. (Where the prisoner is being returned to prison after being detained in hospital under a TTD, it would be expected that the hospital managers would arrange for the transport of the patient).

05 The direction may also include such directions as the Scottish Ministers think fit for the removal of the prisoner to, and detention of the prisoner in, a place of safety pending the prisoner's admission to the specified hospital (section 136(8)(b)). Best practice would suggest that, in keeping with the principles set down in section 1 of the Act, the most appropriate place of safety in these circumstances would be a hospital.

06 Information on the procedures after a prisoner has been admitted to hospital under a TTD are covered in the next chapter.

Medical Recommendations

07 If there are concerns about the mental health of a prisoner, best practice would suggest that prison staff should refer the prisoner to health care staff within the prison. If following assessment by the health care staff there are concerns that a prisoner may require treatment in hospital for mental disorder then an assessment by an approved medical practitioner should be arranged.

08 Two medical reports are required in terms of section 136(2), one of which must be provided by an AMP. Usually one report would be by a prison medical officer and the other by the assessing medical practitioner who would be required to be an AMP. Best practice would suggest that one of the reports should be by a medical practitioner from the hospital or unit where it is proposed that the prisoner should be admitted, although in urgent cases time may not allow for this. If this is the case, the AMP should check with the admitting hospital that a bed can be made available. Best practice would also suggest that the two medical practitioners should examine the prisoner within 5 days of each other. The reports should then be submitted to the Scottish Ministers by the prison governor or his/her representative.

09 In most cases the medical practitioners would be expected to interview the prisoner separately, although with the prisoner's consent they may interview him/her together. As much information as possible should be taken into account when assessing a prisoner, although the information available and the time to gather this will depend on the circumstances of the case. Relevant sources of information may include various records ( e.g. health, prison, social work) and liaison with others ( e.g. prison staff, relatives, social work services, mental health services).

10 The criteria set out in section 136(4) (as detailed in paragraph 1) must be considered and the medical practitioners must, in accordance with section 132(7), be in agreement about the presence of the same type of at least one of the three categories of mental disorder (as defined in section 328(1)).

11 The hospital to which it is proposed to admit the prisoner must be suitable for the purpose of giving medical treatment to him/her in accordance with Part 16 of the Act (which includes medication, psychological and social interventions); it should be specified in the reports and a bed must be available within 7 days of the TTD being imposed (section 136(3)). (This 7 day period commences with the day on which the order is made. For example, if the order were imposed on Tuesday a bed in the specified hospital would require to be available to the person by the following Monday if not before).

12 The level of security of the unit to which the prisoner is to be transferred should be the least restrictive setting taking into account the risk the prisoner poses and his/her clinical needs. It would be expected that where there is a difference of opinion regarding the prisoner's security categorisation, either between the Scottish Prison Service and the medical practitioners, or between the medical practitioners themselves, there would be a discussion with a view to reaching a mutually acceptable solution.

13 Section 136(5) allows for the prisoner to be admitted to a state hospital where it appears to the Scottish Ministers that he/she requires to be detained in hospital under conditions of special security that can only be provided by a state hospital. When considering whether conditions of special security are required it would be expected that reference would be made to section 102(1) of the National Health Service (Scotland) Act 1978. Whether a prisoner should be admitted to a state hospital would depend on the risk he/she poses to others and whether this could be managed safely in a less secure setting.

14 It should be noted that although there is no legal bar to the transfer of a prisoner to hospital for voluntary treatment (as happens when a prisoner requires treatment for physical illness), this would not be expected to happen where hospital treatment is required for mental disorder. In such cases, provided that the statutory criteria set down in section 136(3) are met, the prisoner should be transferred under a TTD; the fact that a prisoner consents to treatment in hospital does not mean that a TTD may not be imposed.

15 The assessing medical practitioners should bear in mind that the prisoner is serving a sentence of imprisonment, and therefore treatment in the community as an alternative to hospital is not an option; in these cases the options are either voluntary treatment in prison or compulsory treatment in hospital.

Best practice - MHO opinion

16 Although not a statutory provision under the Act, best practice would suggest that an MHO opinion should be sought as part of the assessment of the prisoner prior to reports being submitted to the Scottish Ministers recommending a TTD.

17 It would be expected that the first point of contact for a medical practitioner seeking an MHO opinion in this situation would be the local authority for the area in which the patient was resident prior to being made subject to the TTD. Where the situation is urgent the provision of this opinion should not create unnecessary delay.

18 In forming his/her opinion the MHO should consider:

• the views of the prisoner about the proposed transfer;
• the views of any primary carer, or significant other person who has current and direct knowledge of the prisoner;
• the medical practitioners' concerns relating to the prisoner's mental health;
• the diagnosis and proposed treatment;
• if there any alternative ways in which the required care and treatment could be provided other than by imposing compulsory powers;
• the risks involved if the prisoner were not made subject to compulsory powers.

19 In considering these matters the MHO should take into account all information that is available about the prisoner's personal circumstances and history, including the information contained in the prison social work records. Consideration should be given to whether the prisoner has a history of serious mental health difficulties that may have required treatment in the past and if so, the manner in which this was provided, whether on a voluntary basis or under compulsory powers. Which risks, if any, were known previously as being associated with a deterioration in the prisoner's mental health? For example, is there knowledge of current or historical drug misuse and if so has this been associated in the past with the onset of serious mental illness? The MHO should also identify if the prisoner is subject to any notification requirements or a sexual offences prevention order in terms of the Sexual Offences Act 2003.