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

chapter 6 the hospital direction and the transfer for treatment direction in operation

Introduction

There are two ways in which a sentenced prisoner may receive compulsory care and treatment for his/her mental disorder in hospital. These are:

• At sentencing the court may, in addition to imposing a custodial sentence, impose a hospital direction in terms of section 59A of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") which allows the prisoner to be detained initially in hospital for medical treatment in accordance with Part 16 of the Act;
• The Scottish Ministers may make a transfer for treatment direction in terms of section 136 of the Act which allows for the transfer of a sentenced prisoner to hospital for medical treatment in accordance with Part 16 of the Act.

For information and guidance on the imposition of a hospital direction refer to Part 1, Chapter 5 of this volume of the Code of Practice. For information and guidance on the imposition of a transfer for treatment direction refer to the previous chapter in this volume.

In this chapter both procedures are referred to as 'directions'. Unless stated otherwise the term "Tribunal" in this chapter refers to the Mental Health Tribunal for Scotland.

The chapter outlines the processes which should be followed in the immediate aftermath of a direction being made.

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 significant number of prisoners have mental disorders. In some cases it may be appropriate for the prisoner to receive voluntary treatment in prison. However in other cases treatment in hospital may be necessary. The Act provides a specific definition of "hospital" in section 329. Health care centres and hospitals in prisons are not hospitals in which patients may be detained for treatment under the Act. If a prisoner requires compulsory treatment for mental disorder in hospital he/she must be transferred to hospital using the appropriate legislation as outlined in the introduction above. Under no circumstances should compulsory treatment for mental disorder by way of a compulsory treatment order (section 64) or a compulsion order (section 57A of the 1995 Act) authorising compulsory measures in the community be appropriate whilst a person is serving a sentence in prison.

Remand prisoners

02 A prisoner who has not yet been sentenced (either pre-trial or post-conviction) may be transferred to hospital under an assessment order or treatment order. (For further information refer to Part 1, Chapters 2 and 4 of this Volume of the Code of Practice.) Previously section 70 of the 1984 Act provided for the transfer of unsentenced prisoners to hospital for treatment.

03 Most prisons and young offenders' institutions have visiting psychiatrists and mental health multi-disciplinary teams with access to MHO services. If there are concerns that a person on remand is mentally disordered he/she is usually referred by prison staff, or refers him/herself to the prison medical officer (usually a general practitioner) or to the mental health team. If it then appears that a mental health assessment is necessary the person may be referred to a visiting psychiatrist and an MHO. If the outcome of the assessment is that the person requires to be transferred to hospital for assessment and/or treatment, an application should be made via the Scottish Ministers for an assessment order or a treatment order (in terms of sections 52C and 52L of the 1995 Act respectively).

Sentenced prisoners

04 Section 136 makes provision for a Transfer for Treatment Direction (" TTD") which allows for the transfer of sentenced prisoners with mental disorder to hospital. The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 amended section 136 to also include any person detained under the Immigration Act 1971 or under section 62 of the Nationality, Immigration and Asylum Act 2002.

05 The Hospital Direction (" HD") was inserted into the 1995 Act by amendments made in the Crime and Punishment (Scotland) Act 1997. New provisions relating to HDs are inserted into the 1995 Act by paragraph 8(6) of Schedule 4 to the Act. An HD may be imposed by a court under section 59A of the 1995 Act where a person with mental disorder has been convicted on indictment of an offence punishable by imprisonment. It allows the court to impose a prison sentence and direct that the person be detained initially in hospital for medical treatment of his/her mental disorder in accordance with Part 16 of the Act (which includes medication, psychological and social interventions). For further information about the imposition of this direction refer to the previous chapter.

06 Where a patient is subject to either direction mentioned in paragraphs 4 or 5 a prison sentence runs concurrently with his/her period of detention in hospital. When the patient no longer requires medical treatment for mental disorder in hospital in terms of the Act the Scottish Ministers may revoke the direction (in accordance with sections 210(2), 212(3) or (4) or 215(5)) and direct the return of the patient to prison, institution or other place in which the patient might have been detained had the patient not been detained in hospital by virtue of the direction (section 216).

07 In terms of section 217 the direction ceases to have effect upon the expiry of the prison sentence if it has not been revoked prior to this. Under such circumstances the patient must be discharged or may remain in hospital as an informal patient or be detained under civil procedures (by way of a CTO in terms of section 64 taking into account the application provisions contained in section 71 of and Schedule 3 to the Act). In some cases, for example where a life sentence has been passed, the patient may be released on life licence in accordance with section 2(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 following a hearing by the Parole Board for Scotland ("the Parole Board") sitting as a Life Prisoner Tribunal (" LPT") at which point the direction also ceases to have effect.

08 Patients subject to these directions have "restricted" status and so decisions about suspension of detention and transfer to another hospital must be authorised by the Scottish Ministers. In addition it should be noted that only the Scottish Ministers may revoke a direction as mentioned in paragraph 6 above although the Tribunal may, under certain circumstances, direct the Scottish Ministers to do so in accordance with section 215(5). Where a direction is revoked the patient must be returned to prison or other institution and the direction ceases to have effect (section 216).

Suspension of detention (sections 224 to 226)

09 Suspension of detention was called "leave of absence" under the 1984 Act. Part 13 of the 2003 Act sets out the statutory procedures for the suspension of the measure in a direction specifying detention of the patient. For further information on these procedures refer to Part 1, Chapter 6 of this Volume of the Code of Practice.

Transfer (sections 218 to 221)

10 Part 12 of the Act sets out the statutory procedures for the transfer within Scotland of a patient who is subject to a direction. For further information on these procedures refer to Part 2, Chapter 9 of this Volume of the Code of Practice.

Absconding

11 The statutory procedures in relation to absconding by mentally disordered offenders are set out in The Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005. For further information refer to these regulations and to Part 1, Chapter 6 of this Volume of the Code of Practice.

Responsibilities subsequent to a direction being imposed

12 The effect of being admitted to hospital under an HD or a TTD is covered by Part 11 of the Act. Both sets of patients are subject to an almost identical regime which is itself very similar to that for patients who are admitted to hospital under a compulsion order and a restriction order (" CORO").

13 Following the imposition of an HD or a TTD the patient must be conveyed from the court or prison to the specified hospital in accordance with section 59C(7) of the 1995 Act or section 136(6) of the Act respectively. Where a TTD has been imposed by the Scottish Ministers, it would be expected that the arrangement of the transport of the patient to hospital would be the responsibility of the Scottish Prison Service. Where an HD has been imposed by the court, it would be expected that the transport of the patient to the hospital would be the responsibility of the court.

14 As soon as practicable after the patient's admission to hospital the hospital managers have a duty under section 260(5)(a) to ensure that the patient and his/her named person are fully informed of, and understand the 'relevant matters' as set down in sections 260(5)(a) to (h) and also informed of the availability of independent advocacy services under section 259. For further information on these procedures see Chapter 6 of Volume 1 of this Code of Practice.

15 An RMO and an MHO must be allocated to the patient under sections 230 and 229 respectively and a multi-disciplinary assessment should be initiated. In the case of a patient who has been made subject to an HD, an RMO and an MHO should already have been appointed given that the patient would have been assessed in hospital prior to the making of the direction by way of an assessment order and/or an interim compulsion order.

RMO responsibilities - the care plan

16 Although not a statutory duty under the Act, the RMO should prepare a care plan setting out the medical treatment that is currently being given to the patient (which includes medication, psychological and social interventions) and the medical treatment which it is proposed will be given to him/her. Although not a statutory duty it would be expected that the RMO would also record in the care plan similar information to that which is required in a Part 9 care plan for a patient who is subject to a compulsion order as set down in The Mental Health (Content and amendment of Part 9 care plans) (Scotland) Regulations ( SSI No. 312).For further information on the content of a Part 9 care plan refer to these regulations and to Part 2, Chapter 1 of this Volume of the Code of Practice.

17 This would be done as soon as practicable after admission ( e.g. following next case review after the making of the direction) in consultation with the MHO, a suitably qualified psychologist where appropriate and the other members of multi-disciplinary team.

18 It would be expected that the RMO would send a copy of the care plan to the patient, the patient's named person/nearest relative/primary carer, the MHO, the Scottish Ministers and the other members of the multi-disciplinary team where relevant and appropriate. The RMO should record on the care plan details of the parties who have received a copy.

19 Although not a statutory duty under the Act best practice would suggest that the RMO would, in consultation with the MHO and other members of the multi-disciplinary team where relevant and appropriate, update the care plan at least once a year following a statutory review of the direction under sections 206(2) if not more often.

20 Although most mentally disordered offenders are not subject to the provisions of the Sexual Offences Act 2003, in the minority of cases where a patient who is subject to a direction is also subject to a notification requirement under Part 2 of the Sexual Offences Act 2003 the plan should be updated when the relevant notification period expires. If the patient is subject to a sexual offences prevention order under section 105 of the same Act the plan should be updated where that order is varied, renewed or discharged.

21 It would be expected that the RMO would send a copy of the updated plan to the parties mentioned in paragraph 18 at the time of the statutory annual review of the direction under section 206(2).

22 Although not a statutory provision under the Act, it is current practice for the Scottish Ministers to request a report from the RMO three months after the admission of a patient subject to a direction; and thereafter an annual report is requested. The care plan should form part of the RMO's report to the Scottish Ministers in every case. Best practice would suggest that, where the RMO is unfamiliar with this process and the administrative procedures involved he/she should contact the Health Department of the Scottish Executive for further information.

MHO responsibilities

23 When a direction is imposed the relevant local authority must allocate a designated MHO for the patient in accordance with section 229. This MHO should work in close collaboration with the RMO and the rest of the multi-disciplinary team who are responsible for overseeing the care of the patient. The duties of the MHO after a direction has been imposed are very similar to those of an MHO after a CTO has been granted by the Tribunal under section 64. One exception is in relation to the Social Circumstances Report (" SCR") prepared by the MHO in terms of section 231; best practice would suggest that the MHO would send a copy of the SCR to the Scottish Ministers. For information on the duties of the MHO see Chapter 4 of Volume 2 of this Code of Practice.

24 As soon as practicable after the direction is imposed the MHO must take such steps as are reasonably practicable to ascertain the name and address of the patient's named person (section 205).

25 Where a patient has been admitted under a TTD, the MHO should review the circumstances that led up to the transfer; interview the patient, the named person and any primary carer; ascertain the views of these parties about the need for the transfer, and their opinions about the expected benefit for the patient. The MHO should also obtain the views of prison social work staff who may have knowledge of the patient's circumstances leading up to the transfer.

26 Depending on the status of the patient while in prison, it is possible that a criminal justice social worker may have been allocated from the patient's relevant local authority as being responsible for the prisoner's case. Best practice would suggest that if this is the case the designated MHO should liaise closely with this worker in the preparation of the SCR, and take steps to ensure that he/she is fully involved in the initial process of multi-disciplinary assessment, following the patient's transfer to hospital. Local criminal justice social work services may hold significant information about the patient's personal and social circumstances, previous patterns of offending, mental health concerns; drug and alcohol misuse, and other relevant information.

27 Once a direction has been imposed and the person has been admitted to hospital, the role of the MHO is similar to that as described in Part 2, Chapters 2 and 3 of this Volume of the Code of Practice in relation to patients who are subject to a CORO. However a significant difference is where the patient is still detained in hospital at the expiry of the sentence (at which time the direction simultaneously ceases to have effect); if the patient meets the criteria for a CTO the designated MHO may make an application to the Tribunal in accordance with Schedule 3. (For information about this procedure refer to Part 2, Chapter 8 of this Volume of the Code of Practice).

Best practice points for information that should be noted upon the admission of a patient subject to a direction

28Short-term prisoners
In accordance with section 1(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"), where a prisoner has been sentenced to a determinate sentence of less than four years, the prisoner must be released as soon as he/she has served one half of the sentence at which time the direction to which he/she is subject falls. This date is known as the prisoner's earliest date of liberation (" EDL"). Therefore on admission of a short-term prisoner the RMO and the MHO should take careful note of the prisoner's EDL because the direction will cease to have effect on this date. (It would be expected that this information would be obtained by the Medical Records Manager following the patient's admission).

29Long-term prisoners
In accordance with section 1(2) of the 1993 Act, where a prisoner has been sentenced to a determinate sentence of four years or more, he/she becomes eligible for parole after serving one-half of the sentence (this is known as the prisoner's parole qualifying date (" PQD")) and must be released on license after serving two-thirds of the sentence which is the prisoner's EDL. The prisoner may therefore be released on licence by the Parole Board at any point between the PQD and the EDL, at which time the direction ceases to have effect.

30 Where the prisoner is released he/she is placed on licence and conditions may be imposed which if breached may result in the prisoner being recalled to custody. Therefore on admission of a long-term prisoner the RMO and the MHO should take careful note of the prisoner's PQD and EDL because the prisoner may be released by the Parole Board at any point between those two dates at which time the direction will cease to have effect. (It would be expected that this information would be obtained by the Medical Records Manager following the patient's admission).

31Life prisoners
In accordance with section 2(2) of the 1993 Act, when sentencing a person to life imprisonment the sentencing judge must specify a proportion of the sentence as being the 'punishment part' which is the period that the court considers the person should serve to satisfy the requirements of retribution and deterrence.

32 In accordance with section 2(6) of the 1993 Act, after a life prisoner has served the punishment part, he/she may require the Scottish Ministers to refer his/her case to the Parole Board for review. It is the responsibility of the Parole Board sitting as the Life Prisoners Tribunal (" LPT") to consider in terms of section 2(5)(b) of the 1993 Act, the level of risk that the prisoner might present to the public if released. The right of a life prisoner to have his/her case referred to the LPT is not affected by his/her being subject to a direction.

33 A patient subject to a direction who is serving a life sentence may be discharged in one of two ways:

• by being returned to prison, institution or other place under section 216(2) because the direction has been revoked by the Scottish Ministers under section 210(2), 212(3) or (4) or 215(5);
• by being released directly from hospital on life licence under section 2(4) of the 1993 Act. In accordance with section 217 of the Act the direction ceases to have effect on the date of release.

34 The LPT has the power, in considering the case of a life prisoner, to instruct the Scottish Ministers to release the prisoner on life licence under section 2(4) of the 1993 Act where it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (section 2(5)(b) of the 1993 Act). Where instructed to do so by the LPT the Scottish Ministers are under a duty to release the prisoner.

35 Therefore on admission of a life prisoner under a direction, the RMO and the MHO should take careful note of the date when the prisoner will have served the punishment part of his/her sentence because at that time he/she will have his/her case reviewed by the LPT which may result in the prisoner's release at which point the direction will cease to have effect. (It would be expected that this information would be obtained by the Medical Records Manager following the patient's admission). If the prisoner is released he/she is placed on licence indefinitely in accordance with section 11(2) of the 1993 Act, and conditions may be imposed under section 12 of that Act, which if breached may result in the prisoner being recalled to custody in terms of section 17 of the same Act.

36 If the prisoner requires compulsory treatment for his/her mental disorder in terms of the Act while on life licence this may be accomplished under civil procedures (sections 36, 44 or 63 of the 2003 Act). However if the potential for recall and the need for compulsory medical treatment of the prisoner's mental disorder are issues at the time of his/her being released on life licence then it would be expected that an application would be made to the Tribunal by the designated MHO for a CTO under section 66 authorising compulsory powers in the community under the Act. Where a prisoner who is released on life licence is subject to a CTO which authorises compulsory powers in the community, he/she may be recalled directly to hospital in accordance with sections 112 and 113.