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

chapter 9 transfer of a patient subject to a compulsion order and a restriction order, a hospital direction or a transfer for treatment direction

Introduction

Part 12 of the Mental Health (Care and Treatment) (Scotland) Act 2003 sets out the procedures for the transfer between hospitals in Scotland of a patient who is subject to:

• a compulsion order and a restriction order (sections 57A and 59 of the 1995 Act);
• a hospital direction (section 59A of the 1995 Act);
• a transfer for treatment direction (section 136 of the 2003 Act).

For the purposes of this chapter the orders and directions listed above are referred to as a 'relevant order'.

This chapter describes the formal processes associated with the transfer of a patient within Scotland who is subject to a relevant order. For information about the procedures for the transfer of these patients outwith Scotland refer to Volume 1, Chapter 14 of this Code of Practice.

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

Overview

01 Section 218 sets out procedures for the transfer of a patient who is detained in hospital under a relevant order. Examples of when it may be necessary to transfer a patient subject to a relevant order may include:

• where it is a part of the patient's rehabilitation through lower levels of security and nearer to the community to where he/she will ultimately return;
• where it is considered that the patient requires a higher level of security than that to which he/she is currently subject;
• where the treatment for mental disorder that the patient requires cannot be adequately provided in the current hospital;
• where the patient requires treatment for physical illness in a general medical hospital.

02 A transfer to another hospital should be planned well in advance, and such planning should involve staff from the current services (Health Board and local authority) including the RMO, the MHO and a suitably qualified psychologist where appropriate; staff from the receiving services (Health Board and local authority) including the proposed RMO, MHO and a suitably qualified psychologist where appropriate; the patient; the patient's named person and carers; the patient's advocate, and the Scottish Ministers.

03 Where the proposed transfer involves the patient moving outwith his/her area of origin (i.e to a different Health Board or local authority area other than that which holds current responsibility for funding and care management arrangements for the patient) the 'receiving' Health Board and local authority should be consulted as early as possible in the proceedings so as to secure any funding or care management commitment that may be required to support the proposed transfer. However under certain circumstances ( e.g. if it is necessary for the urgent medical treatment of the patient's physical illness) a rapid transfer may be necessary without such planning having occurred. In these circumstances the RMO should ensure that the MHO, the primary carer and the named person are notified as soon as possible.

04 In practical terms, the range of issues which should be considered when planning the transfer of a patient include:

• ensuring that the patient, and his/her relatives, carers, named person, independent advocate and representatives have been informed of an agreed departure time in advance of the transfer, and ensuring that the patient is fully supported in preparing for the journey;
• providing an appropriate, swift and comfortable means of transport which is also suitable for the provision of medication, where necessary;
• anticipating any difficulties in relation to the required level of security and possible absconding en route (in as far as this is possible), bearing in mind the importance of caring for the patient in the manner which involves the minimum restriction on the patient's freedom that is necessary in the circumstances;
• ensuring that there is a clearly identified RMO in the receiving hospital.

Non-urgent transfer

Overview

05 Under sections 218(2) and 218(3) the managers of the hospital in which the patient is detained ("the current hospital") may transfer a patient subject to a relevant order to another hospital ("the receiving hospital") with the consent of the managers of the receiving hospital and the Scottish Ministers. At least 7 days notice must be given to the patient (unless the patient consents to the transfer) and the named person in accordance with section 218(4).

06 If the proposed transfer does not occur within 3 months of the notice being given, section 218(9) provides that the transfer may only proceed if the managers of the receiving hospital and the Scottish Ministers still consent to it, and at least 7 days notice has been given to the patient (unless the patient consents to the transfer) and the named person of the proposed date of transfer.

07 Best practice would suggest that care should be taken in the assessment of what constitutes the patient giving consent in circumstances where the patient is still subject to compulsory powers (as described in paragraphs 5 and 6 above). For example, where it is judged that the patient is giving voluntary consent, consideration should be given to the involvement of an advocate and/or the named person in the decision. A clear record should be made on the medical records and this may include any direct record which the patient might him/herself wish to provide.

08 Section 218(12) places a duty on the managers of the current hospital to notify the MWC of the matters set down in section 218(13) within 7 days of the transfer taking place. These matters are:

(a) the date on which the patient was transferred;
(b) the hospital to which the patient was transferred;
(c) that:
(i) notice was given under section 218(4); or
(ii) if no such notice was given, the reasons why it was necessary that the patient be transferred urgently;
(d) whether notice was given under section 218(6) or (10)(b).

Transfer to another hospital as part of rehabilitation - best practice points

09 A patient subject to a relevant order may be transferred to another hospital as part of his/her rehabilitation. This may include a transfer to another hospital:

• which provides a lower level of security ( e.g. a transfer from a state hospital to a local hospital's medium or low security ward, or transfer from a secure ward within one hospital to an open ward in another hospital);
• which is closer to the community to where the patient will eventually be discharged ( e.g. a transfer from a secure ward in one part of Scotland to a secure ward in another part of Scotland);
• which provides treatment which may not be available for the patient in the current hospital ( e.g. a transfer of a patient with learning disability from a ward in a hospital for patients with mental illness to a ward in another hospital specialising in the treatment of patients with learning disability).

10 Such transfers should be planned well in advance (see paragraphs 2 to 4 of this chapter). Where the RMO, in consultation with the MHO and the other members of the multi-disciplinary team in the current hospital (and the patient and the primary carer), is of the opinion that such a transfer may be appropriate in the near future, a referral should be made to the appropriate local health and social work services. These local services should arrange for a multi-disciplinary assessment involving the proposed RMO, MHO, nursing staff, and any other appropriate members of the team ( e.g. a suitably qualified psychologist). Following these comprehensive assessments, if agreement to the transfer is reached in principle, the care planning process should be put in place to support further transfer planning.

11 Careful consideration should be given to any possible funding and care management issues that may require to be agreed or put in place prior to formally agreeing and commencing a transfer. For example it may be anticipated that the patient's future community care needs will be complex and that provisional planning for such services should be commenced as part of the proposed transfer to local services. Such forward planning can help reduce undesirable delayed discharges at a later stage, and potential difficulties in implementing rehabilitation planning in future. If agreement to the transfer is reached in principle, then plans should be put in place with respect to the appropriate timing of the transfer actually taking place (in accordance with section 218) in liaison with the Scottish Ministers.

12 Usually the patient would visit the receiving hospital initially under the suspension of detention provisions set down in section 224 which would require the consent of the Scottish Ministers. (For further information see Part 1, Chapter 6 of this Volume of the Code of Practice.) Depending on the individual circumstances of the patient this may involve just a few visits, or may involve a number of visits over a more prolonged period. If following these visits the transfer seems feasible and appropriate, then a formal request should be made to the Scottish Ministers for consent to the transfer by the RMO (who will be acting on behalf of the managers of the current hospital) stating the approximate date of the proposed transfer, that there is an appropriate bed available and that an RMO in the receiving hospital has been identified and has consented to the transfer (he/she will be acting on behalf of the managers of the receiving hospital).

13 The request for the transfer to the Scottish Ministers may include details relating to the following matters:

• the patient's treatment and progress while in hospital including his/her response to any period where detention has been suspended;
• evidence of the patient's current condition and behaviour;
• the patient's insight into his/her mental disorder and the need to accept treatment;
• the opinion of the designated MHO;
• the views of the primary carer and the named person;
• confirmation that the proposed RMO has assessed the patient and is prepared to accept the patient into his/her care;
• details of pre-transfer visits, if necessary, and the patient's reactions and behaviour on these;
• details of the initial treatment and care plans for the patient in the receiving hospital following transfer, including any anticipated needs and planning for community care services in the foreseeable future (this would usually be drawn up by the receiving RMO in consultation with the rest of the multi-disciplinary team where relevant);
• information in relation to the victim or the victim's family if transfer is to the area in which the index offence took place.

Transfer to a more secure hospital - best practice points

14 The level of security of the unit to which a patient is transferred should be the least restrictive setting taking into account the risk the patient poses and his/her clinical needs. The question of whether a patient should be transferred to a more secure hospital depends on the risk he/she poses to others and whether this could be managed safely in a less secure setting. However under certain circumstances ( e.g. a deterioration in a patient's mental state, a patient displaying aggressive behaviour, a patient escaping or absconding, the emergence of new information which changes the assessment of the risk the patient poses) consideration may require to be given to transferring the patient to another hospital so that he/she may be cared for in a more secure environment. Usually this would not arise as an urgent issue, but it may and if so should be dealt with as set out in paragraphs 15 to 17 below.

15 Although not a statutory provision under the Act, best practice would suggest that the RMO should consult the designated MHO about any proposed transfer. In forming his/her opinion the MHO should consider if he/she is satisfied that the proposed transfer is necessary to provide the care and treatment that the patient requires, including the protection of others and the public.

16 Where practicable the MHO should interview the patient and, with the patient's consent, consult the primary carer and named person, or any other relevant party who is directly and significantly involved in the patient's care and treatment. In consultation with the RMO, consideration should also be given to the assessment of the patient's capacity, particularly if the circumstances of the proposed transfer are associated with a significant or acute deterioration in the patient's mental health.

17 The current RMO should refer the patient to the potential receiving hospital, for assessment by a psychiatrist (and usually other members of the clinical team including any proposed new designated MHO and a suitably qualified psychologist if appropriate). If the assessing psychiatrist accepts that the patient should be transferred, then a formal request for transfer should be made to the Scottish Ministers as outlined in paragraph 13. In most cases the RMO will have liaised with the Scottish Ministers regarding the potential transfer before making this request. The RMO (who will be acting on behalf of the managers of the current hospital) should state the approximate date of the proposed transfer, that there is an appropriate bed available and that an RMO in the next hospital has been identified and has consented to the transfer (he/she will be acting on behalf of the managers of the receiving hospital).

Transfer to a general medical hospital for treatment of physical illness

18 In most cases treatment in a general medical hospital for physical illness would be expected to be undertaken via the suspension of detention provisions set down in section 224. (For further information see Part 1, Chapter 6 of this Volume of the Code of Practice.) In such circumstances the MHO should be closely involved as it is likely that there may be increased concerns for the patient and any carers at that time. The MHO should be fully involved in assessing the need for increased support for carers which should also include advice and practical assistance.

19 If it seems likely that the patient will require a prolonged period of treatment for physical illness (lasting longer than 3 months which is the maximum time that section 224(2) allows for one continuous period where the patient's detention has been suspended) the Scottish Ministers' consent should be sought for a transfer to this hospital in terms of section 218(3). Best practice would suggest that this should be done well in advance of the end of the three month period allowed under the suspension of detention provisions set down in section 224.

20 An appropriate RMO at the receiving hospital, who would be expected to be a consultant psychiatrist, would be identified, and the consent of the managers of the receiving hospital must be given in terms of section 218(3).

Urgent transfer

Overview

21 An urgent transfer differs from a non-urgent transfer in that notification need not be given to the patient and named person at least 7 days before the transfer (section 218(5)), but such notification must be given as soon as practicable, either before or after the transfer has occurred (section 218(6)). As with a non-urgent transfer, no notification to the patient is required if the patient consents to the transfer (section 218(7)), (see paragraph 7 relating to the assessment and the recording of consent). The requirements as to the consent of the Scottish Ministers and the managers of the receiving hospital still apply (section 218(3)). Similarly the duty placed on the current hospital by section 218(12) to notify the MWC also applies (see paragraph 8).

Transfer to a general medical hospital for treatment of physical illness

22 It would be expected that medical emergencies would not be dealt with using these provisions, but would be more appropriately dealt with under provisions for 'suspension of detention' as set down in sections 224 to 226. (For further information see Part 1, Chapter 6 of this Volume of the Code of Practice.)

Transfer to a more secure hospital - best practice points

23 It would be expected that 'suspension of detention' arrangements under sections 224 to 226 would not be used to transfer a patient to a more secure hospital. If an urgent situation arises where a patient requires to be transferred to a more secure hospital, or a more secure ward in another hospital:

• an urgent referral should be made to the proposed receiving hospital;
• the Scottish Ministers should be notified and urgent consent sought for transfer if the receiving hospital accepts the referral.

24 Sometimes there will be time for an assessment by a psychiatrist (and perhaps other staff such as a suitably qualified psychologist) from the potential receiving hospital, but in emergency circumstances this may not be feasible.

25 Although not a statutory provision under the Act, the RMO should notify the MHO as soon as possible in cases of urgent transfer. The MHO can ensure that any such transfer is urgently notified to the receiving local authority and if necessary, arrange the transfer of designated MHO duties. The MHO should liaise closely with the primary carer, the named person or any other significant party directly and significantly concerned with the patient.

26 This procedure should be used where the urgency of the situation means that giving the 7 days notice necessary for non-urgent transfers as set down in section 218(7) would involve undesirable delay bearing in mind the mental health needs of the patient and the risk he/she poses. However the urgent procedure should not be used to simply transfer a patient quickly, but where the circumstances do not warrant the use of non-urgent procedure with the required 7 days notice to the patient and named person.

Appeal against transfer

27 Sections 219 and 220 set down the procedures for a patient who is subject to a relevant order, and the patient's named person, to appeal to the Tribunal against the patient being transferred to another hospital within Scotland.

28 Best practice would suggest that the RMO and the MHO should ensure that the patient and the named person are fully and properly advised of their rights of appeal against transfer, and are supported in pursing these rights where they require. This should be done as far in advance of any proposed transfer as possible, the exception being where the transfer has been urgently necessary to immediately safeguard the health and safety of the patient or others.

Appeal against transfer to a hospital other than a state hospital

29 Sections 219(2) and (3) set down the timescales for appeals by the patient and the named person against a transfer to a hospital other than a state hospital. Where the patient was notified of the transfer before it took place, the patient and the patient's named person may appeal to the Tribunal during the period beginning with the day on which notice was given and ending 28 days after the transfer. Where the patient was notified on or after the transfer, he/she and his/her named person may appeal to the Tribunal during the period beginning with the day on which the patient was transferred and ending 28 days after the day on which notice was given. Where no notice was given to the patient, the patient alone may appeal to the Tribunal within the period of 28 days beginning with the day on which he/she was transferred.

30 If an appeal has been made to the Tribunal before the proposed transfer has taken place, the transfer must not go ahead until the appeal has been concluded unless the Tribunal orders that it should in accordance with section 219(4)(b).

Appeal against transfer to a state hospital

31 Sections 220(2) and 220(3) set down the timescales for appeals by the patient and the named person against a transfer to a state hospital. Where the patient was notified of the proposed transfer before it took place, the patient and the patient's named person may appeal to the Tribunal during the period beginning with the day on which notice was given and ending 12 weeks after the transfer. Where the patient was notified on or after the transfer, he/she and his/her named person may appeal to the Tribunal during the period beginning with the day on which the patient was transferred and ending 12 weeks after the day on which notice was given. Where no notice was given to the patient, the patient alone can appeal to the Tribunal during the period of 12 weeks beginning with the day on which the transfer took place.

32 Where an appeal has been made to the Tribunal before the transfer has taken place, the transfer must not go ahead until the appeal has been concluded unless the Tribunal orders that it should in accordance with section 220(4)(b). An example of where this might be appropriate would be where the patient's mental state and behaviour is such that the RMO and the Scottish Ministers consider that, for the safety of the patient and for the protection of others, the patient should be transferred to the state hospital before the appeal has been concluded.

33 If the Tribunal is not satisfied that the patient requires to be detained in hospital under conditions of special security and that those conditions can be provided only in a state hospital then it may make an order that the proposed transfer not take place or, as the case may be, that the patient be returned to the hospital from which the patient was transferred. (section 220(5) and (6)).