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

chapter 7 reviewing a hospital direction or a transfer for treatment direction

Introduction

This chapter begins by examining the formal processes to be followed where a hospital direction (" HD") or a transfer for treatment direction (" TTD") is being reviewed, as laid out in Part 11 of the Mental Health (Care and Treatment) (Scotland) Act 2003. It explores the duty placed on the RMO to carry out a formal review and report to the Scottish Ministers. The possible outcomes of the review are:

• the direction remains in place;
• the direction is revoked by the Scottish Ministers under section 210(2) and the patient is admitted to prison, institution or other place in which he/she might have been detained had the direction not been imposed;
• the Scottish Ministers refer the patient's case to the Tribunal in accordance with section 210(3).
• After holding a hearing the Tribunal may:
• direct the Scottish Ministers to revoke the direction in terms of sections 215(3), (4) or (5) and the patient is admitted to prison, institution or other place in which he/she might have been detained had the direction not been imposed;
• make no direction to the Scottish Ministers and the direction remains in place.

The chapter goes on to describe the duty placed on the RMO and the Scottish Ministers to keep under review the continuing need for the direction in terms of sections 208 and 212 respectively.

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

In this chapter a hospital direction and a transfer for treatment direction are both referred to as "directions". Unless stated otherwise the term "Tribunal" in this chapter refers to the Mental Health Tribunal for Scotland and the section numbers refer to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Act") unless stated otherwise.

Overview of the review process

01 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).

Review criteria

02 The criteria against which a patient's mental health must be judged when any review of a direction is taking place are referred to in section 206(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 would there 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 direction ("direction necessity criterion").

03 When assessing whether the patient still meets the criteria for the direction 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 direction unless the above criteria are met. The onus is therefore not on the patient to demonstrate that he/she does not meet the criteria.

04For information on the assessment of risk refer to Part 1, Chapter 5 of this Volume of the Code of Practice.

05 Where the RMO 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 (section 206)

06 During the 2 month period prior to the one year anniversary of the direction being imposed, the RMO must examine the patient (or arrange for another approved medical practitioner to do so), consider the review criteria set down in section 206(3)(b), consult the MHO and then prepare and submit a report to the Scottish Ministers.

07 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.

08 Aside from the statutory review criteria set down in section 206(3)(b) and (4) that must be considered by the RMO, best practice would also suggest that there would 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 207(2)) in paragraphs 12 to 23).

09 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

10 The statutory criteria that must be addressed in the medical examination are set out in section 206(3)(b) and (4). The RMO is under a duty to consult the MHO in accordance with section 206(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;
• 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;
• consider the views of the patient's named person.

11 The RMO must consider the criteria described in paragraph 2 above at the annual review of a direction under section 206 and when reviewing a direction 'from time to time' under section 208. In considering the statutory criteria, the RMO's conclusions may result in his/her being under a duty to recommend to the Scottish Ministers that the direction should be revoked (section 207(4) or (5)). With reference to the statutory criteria as described in paragraph 2, it would be expected that the following conclusions would be drawn:

• if the mental disorder criterion is not met the direction should be revoked (section 207(4));
• if the mental disorder criterion is met, but the treatability criterion or the civil risk criterion or the direction necessity criterion is not met, and the serious risk to others criterion is not met then the direction should be revoked (section 207(5));
• 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 the direction.

RMO's report to the Scottish Ministers (section 207(2))

12 When carrying out a review of a direction under section 206 the RMO must consider the statutory criteria as set down in section 206(3)(b) and (4) (and described in paragraph 2) and consult the designated MHO and any other person that the RMO considers appropriate.

13 As soon as practicable after carrying out the review the RMO must submit a report containing his/her findings to the Scottish Ministers in accordance with sections 207(2) or 208(3). Section 207(4) and (5) specifies the recommendations that the RMO must make depending on his/her conclusions regarding the application of the statutory criteria. If the outcome of the review is that the direction should be revoked the RMO is under a duty to recommend this course of action in his/her report to the Scottish Ministers.

14 The format and content of the RMO's report is not set down in the Act (aside from the information detailed in section 207(3) but a pro-forma, HD1, may be found on the Scottish Executive website at www.scotland.gov.uk/health/mentalhealth). Non-statutory guidance may also be obtained from the Scottish Executive Health Department. Best practice would therefore 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 prior to preparing and submitting the report.

15 It would be expected that the report would detail the patient's progress in hospital since the last annual report and may include the following information:

• nursing and other care;
• occupational therapy;
• medication;
• psychological assessment and treatment ;
• 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.

16 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.

17 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.

18 Where the patient has a mental illness the report would be expected to 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 there may be an immediate risk;
• how risk issues will be managed.

19 Where the patient has a learning disability the report would be expected to 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 the patient's behaviour poses a risk to the public and the nature and level of any risk;
• how risk issues will be managed.

20 Where the patient has a personality disorder the report would be expected to 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 manifested themselves in the past and present, and how they may be managed in the future.

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

21 Section 206(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 direction and ensure that the RMO has his/her contact details.

22 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.

23 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

24 When forming his/her opinion in relation to the annual review of a patient subject to a direction (section 206(3)(c)) it would be expected that the MHO would consider the criteria applied by the RMO under section 206(3). The MHO should also:

• interview the patient;
• consult the named person and/or primary carer;
• 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.

25 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 When interviewing the patient and consulting the named person and/or the primary carer as outlined in paragraph 24, 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 revocation of the direction and referral to the Tribunal. The MHO should ensure that the patient is aware of the availability of advocacy services and support the patient 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.

Other reviews of a direction

RMO's duty to keep a direction under review (section 208)

27 The RMO must keep a direction under ongoing review, by considering 'from time to time' the matters set down in section 208(2). This review is outwith the annual review under section 206 and the report to the Scottish Ministers under section 207(2).

28 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 direction. 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 could be noted alongside any other matters routinely noted at such meetings.

29 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 direction - i.e. at the time of a mandatory review. The views of the MHO and the other various members of the multi-disciplinary care 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.

30 While the Act places the responsibility for a "from time to time" review on the RMO and the Scottish Ministers (see paragraphs 32 to 33 below), it would be expected that the continuing need for a direction 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.

31 If after the review described in paragraph 28, the RMO is of the opinion that the direction should be revoked, he/she must, in terms of 208(3) or (4), submit a report to the Scottish Ministers complying with the requirements set down in section 207(3) and including the recommendation, as soon as practicable after carrying out the review.

Scottish Ministers' duty to keep a direction under review (section 212)

32 The Scottish Ministers must keep a direction under ongoing review, by considering 'from time to time' the matters set out in section 212(2).

33 If following the review the Scottish Ministers are satisfied in terms of sections 210(2), or 212(3) or (4), that the direction should be revoked they must revoke it without recourse to the Tribunal. If the Scottish Ministers do not revoke the direction after receiving a report from the RMO under 207(2) that includes a recommendation, or a report under section 208(3) or (4), they are under a duty to refer the patient's case to the Tribunal (section 210(3)).

Power of the Scottish Ministers to revoke a direction

34 Where the Scottish Ministers have received a report from the RMO which contains a recommendation that the direction should be revoked they must either revoke the direction in accordance with section 210(2) or refer the patient's case to the Tribunal under section 210(3).

35 When considering whether the direction should be revoked, the Scottish Ministers must consider the matters set down in paragraphs (a) to (c) of section 212(2). These are essentially the same criteria as those considered by the RMO in the review of the direction.

36 Where a reference is made to the Tribunal in terms of section 210(3), after hearing the patient's case the Tribunal may direct the Scottish Ministers to revoke the direction (section 215(3) or (4)).

Circumstances which may prompt a reference or an application to the Tribunal

Reference initiated by the RMO

37 Where the RMO has submitted a report to the Scottish Ministers which includes a recommendation for the direction to be revoked (sections 207(2) or 208(3) or (4)), if the Scottish Ministers do not revoke the direction, they are under a duty to refer the patient's case to the Tribunal in accordance with section 210(3). This reference must include the name and address of the patient and of the patient's named person and the reason for making the reference (section 210(5)). Where they are making such a reference the Scottish Ministers must, in accordance with section 210(4), notify the patient, the patient's named person, any guardian, any welfare attorney, the RMO, the MHO and the Mental Welfare Commission.

MHO - best practice points where a reference has been initiated by the RMO

38 On receiving such a notification the MHO should take account of the nature of the changes being proposed and form a clear opinion in relation to them. This will require the MHO to have a well informed current knowledge of the patient's circumstances, the views of the multi-disciplinary team and the basis of the RMO's opinion and recommendation. The MHO should discuss any proposed change in conditions with, and know the views of, the patient, the primary carer, the named person, and any guardian or welfare attorney.

39 Best practice would suggest that there should already have been close consultation and collaboration between the RMO and MHO prior to the RMO finalising his/her opinion and preparing the report for the Scottish Ministers.

40 Where, following the receipt of a report from the RMO recommending that the direction be revoked the Scottish Ministers do not revoke the direction, the MHO should be clear as to the basis for the differing opinions, and consider carefully the potential implications for the patient's health, welfare, safety, or the safety of others, associated with the revocation and the non-revocation of the direction.

41 Many of the matters for consideration by the MHO in these circumstances, are similar to the considerations described in Part 2, Chapter 3 of this Volume of the Code of Practice in relation to a review of a CORO. However a significant difference with respect to a direction is that the alternative to care and treatment in hospital under compulsory powers is a return to prison, and treatment only on a voluntary basis if appropriate. Best practice would suggest that the MHO should therefore consider carefully the implications of this alternative for the patient, and be satisfied that arrangements for his/her return to prison will not immediately present a serious risk of detriment or deterioration to the patient's mental health. Equally it may be that the patient is keen to return to prison and may perceive this as an important step and one that best enhances his/her sentence progression and eventual rehabilitation within the criminal justice system.

Reference initiated by the MWC (section 209)

42 The MWC may notify the Scottish Ministers in writing that it requires the patient's case to be referred to the Tribunal in a similar manner to a reference being made under section 186 in respect of a patient subject to a CORO. For further information refer to Part 2, Chapter 3 of this Volume of the Code of Practice.

Automatic reference made by the Scottish Ministers after two years (section 213)

43 Where none of the following references or applications have been made to the Tribunal during the two year period following the imposition of the direction, or during any subsequent two year period ending with the anniversary of the imposition of the direction, the Scottish Ministers must refer the patient's case to the Tribunal for review:

• a reference by the Scottish Ministers under sections 210(3) following a recommendation from the patient's RMO;
• a reference by the Scottish Ministers under section 211(2) following notice from the MWC;
• • an application under section 214(2) by the patient or the patient's named person.

44 In terms of section 213(3) a previous reference to the Tribunal under section 213 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. Section 213(5) sets down the information that must 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 213(4), inform the patient, the patient's named person, any guardian, any welfare attorney, the RMO, the MHO and the Mental Welfare Commission.

Application by patient or named person (section 214)

45 The patient and the patient's named person may make an application to the Tribunal requesting that the Tribunal revoke the direction (section 214(2)).

46 Where the patient is subject to an HD this application cannot be made within 6 months of the making of the direction (section 214(4)).

47 Where the patient is subject to a TTD, he/she may make an application to the Tribunal during the first 12 weeks of the direction being made. Should he/she not do so an application cannot be made until 6 months have passed since the making of the TTD (section 214(5)).

48 Only one application each may be made by the patient and the named person in the 12 month period beginning with the imposition of a direction, and then in every 12 month period thereafter (section 214(6)). Where an application is made by the named person then he/she must inform the patient in terms of section 214(7).

49 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, or 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 (section 215)

50 Following a reference or an application being made under sections 210(3), 211(2), 213(2) or 214(2) the Tribunal may make:

• no direction to the Scottish Ministers to revoke the direction (section 215(2));
• a direction to the Scottish Ministers to revoke the direction (section 215(3) or (4)).

51 The Scottish Ministers are under a duty under section 215(5) to revoke the direction where directed to do so by the Tribunal; it is not a matter for the Scottish Ministers' discretion.

52 In terms of section 215(6), before making its 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;
• the Scottish Ministers;
• RMO;
• MHO;
• any other person appearing to have an interest (This could include, for example, the patient's solicitor or a psychologist or other party who is providing care and treatment to the patient).

Appeal against the decision of the Tribunal

53 The procedures for an appeal to be made against a decision of the Tribunal are set down in Part 22 of the Act. 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 a decision of the Tribunal. In relation to a decision by the Tribunal to make a direction under section 215(3) or (4) ( i.e. where the Tribunal directs the Scottish Ministers to revoke the direction), where the Scottish Ministers appeal against the decision 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 direction continue to have effect pending the outcome of the appeal. For further information about appeals against a decision of the Tribunal see Chapter 13 of Volume 1 of the Code of Practice.