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

chapter 8 discharge of a patient subject to a hospital direction or a transfer for treatment direction

Introduction

Throughout the duration of a hospital direction or a transfer for treatment direction the Scottish Ministers may revoke the direction under sections 210(2) or 212(3) or (4) of the Act, without any recourse to the Tribunal, either following their own review of the patient's case, or following a report which includes a recommendation from the patient's RMO. In certain circumstances the Scottish Ministers are under a duty to revoke the direction when directed to do so by the Tribunal in terms of sections 215(3) or (4).

The chapter describes the different scenarios which may arise at the expiry of the patient's sentence in relation to his/her detention under the Act.

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

Revocation of a direction before the expiry of sentence

01 Where the direction is revoked before the expiry of the patient's sentence the Scottish Ministers must, in accordance with section 216(2), direct that the person is admitted to prison or another institution or place in which he/she would have been liable to be detained if he/she had not been admitted to hospital under the direction. It would be expected that this would be instigated by the Scottish Ministers issuing a warrant.

02 It would be expected that it would be the responsibility of the hospital managers to arrange for the transportation of the person to prison.

03 The direction ceases to have effect upon the person's admission to the prison, institution or place to which the patient is admitted under section 216(3).

Direction ceasing to have effect at the expiry of sentence

04 If a patient is detained in hospital under a direction at the point when he/she is released under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 or otherwise, the direction ceases to have effect on that date (section 217).

05 If at that time the patient meets the criteria for a compulsory treatment order as set down in section 64(4), an application should be made to the Tribunal for this order to come into force at the end of the direction in accordance with section 71 of and Schedule 3 to the Act. (See 'Continued detention at the expiry of sentence' in paragraph 6).

Continued detention at the expiry of sentence (Section 71 and Schedule 3 to the Act)

06 For those patients who are considered to still require to be detained in hospital for compulsory medical treatment for mental disorder under the Act at the time when he/she would have been released from prison, section 71 of, and Schedule 3 to, the Act set out the procedure for an application for a compulsory treatment order (" CTO") to be made to the Tribunal. The Tribunal may make the CTO within the 28 day period before the expiry of the direction and the order takes effect on the day that the direction ceases.

07 Given the timescale involved, best practice would suggest that at least 2 months before the direction is due to fall the RMO, in consultation with the MHO and the other members of the multi-disciplinary team where relevant and appropriate, should review the patient's case and make a decision as to whether an application should be made to the Tribunal for a CTO. The application requires a mental health officer's report and a proposed care plan by an MHO, and mental health reports by two medical practitioners. Best practice would suggest that where an application is considered necessary it should be made by the patient's designated MHO. For further information on the application process see Chapter 3 of Volume 2 of this Code of Practice, bearing in mind the application provisions set down in section 71 of, and Schedule 3 to, the Act.

08 As a general rule it would be expected that emergency detention (section 36) or short-term detention certificates (section 44) would not be used at the end of a direction to detain a person in hospital. However in some circumstances this may be necessary, for example:

• where a patient has agreed to remain as an informal patient but then, perhaps due to a deterioration in his/her mental state or otherwise, he/she refuses to stay in hospital;
• where a decision has been made to allow a patient to be discharged, but prior to discharge there is a deterioration in his/her mental state;
• where a prisoner has been transferred to hospital within days of the direction lapsing and there is insufficient time to take the necessary steps required to apply for a CTO.

09 Under such circumstances Parts 5 and 6 of the Act, and the Code of Practice relating to these parts must be followed (Volume 2, Chapters 2 and 7). However, it is expected that the circumstances where these procedures may require to be followed should be rare.

Compulsory powers imposed in the community on a patient who is released on licence

10 Where a patient is being released on licence, the RMO and the MHO should when arranging aftercare services give careful consideration to any possible conditions which may be imposed by the licence.

11 Where the RMO considers that compulsory treatment of the patient's mental disorder should be imposed in the community while the patient is on licence, an application may be made to the Tribunal by an MHO for a CTO which authorises compulsory powers in the community (see section 71 of, and Schedule 3 to, the Act). The application requires a mental health officer's report and a proposed care plan by an MHO, and mental health reports by two medical practitioners. Best practice would suggest that this application should be made by the patient's designated MHO. Chapter 3 of Volume 2 of the Code of Practice should be referred to for information, bearing in mind the application provisions set down in section 71 of, and Schedule 3 to, the Act.

12 The Tribunal may make a CTO in these circumstances within the 28 day period before the expiry of the direction and the measures specified in the CTO do not come into effect until the expiry of the direction. Care should therefore be taken in the timing of the application to the Tribunal in relation to any Parole Board hearing where the patient's release on licence is being considered.