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

chapter 2 pre-conviction

Introduction

The pre-conviction stage covers the period from a person's arrest until he/she is convicted (either following a guilty plea or trial), acquitted or proceedings are abandoned.

The chapter begins by setting out best practice points for the initial assessment of a person while in custody. It goes on to describe the procedures surrounding the imposition of an assessment order and a treatment order by the court under section 52D and 52M respectively. The chapter then describes the procedures for the review, variation and revocation of these orders.

All section numbers in this chapter refer to the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") unless stated otherwise.

Assessment of a person in custody

Factors that may alert criminal justice personnel to the presence of mental disorder

01 The police, prosecutor, court (including the court social work services) or the person's solicitor may be alerted to the potential presence of mental disorder by:

• knowing there is a history of previous psychiatric treatment;
• the nature of the alleged index offence;
• the behaviour of the person in custody or in court;
• concerns expressed by others ( e.g. relatives, a mental health officer, a social worker etc.) about a person's recent mental state.

In such circumstances the police, prosecutor or court will usually request that a mental health assessment is undertaken.

Assessment of an accused in police custody

02 A psychiatric assessment may be performed while a person is in police custody having been detained or arrested. (Procedures are available allowing the police to detain a person who appears to be mentally disordered in a place of safety to enable a medical examination to be carried out, and arrangements made for the person to receive care and treatment (sections 297 and 298 of the 2003 Act). These are described in Chapter 15 of Volume 1 of this Code of Practice and are not covered here). These paragraphs concern persons who have been taken into police custody.

03 Although the person is not yet within the court's remit, findings at this stage may have an impact on the subsequent court process, and in some circumstances a medical practitioner who examines a person in police custody may make recommendations relevant to the person's first court appearance.

04 The initial assessment will usually be undertaken by the Police Casualty Surgeon, (" PCS"). In some areas the PCS may be able to request an urgent assessment by a psychiatrist at the police station where he/she considers it necessary and this may be done without reference to the prosecutor. The PCS may also be able to seek an assessment by a mental health officer (" MHO").

05 A psychiatric assessment may be undertaken at a hospital or clinic, which the police would need to convey the person to. In some circumstances an urgent psychiatric assessment may not be available or appropriate, and the PCS may proceed him/herself, sometimes with advice from a psychiatrist and an MHO. The conclusions of the assessment should be communicated to the police who would include this in their report to the prosecutor if one is submitted. A report may also be produced which may be submitted to the prosecutor for the person's first court appearance.

06 At this stage there may be limited information available. The person may be unable to give a detailed or coherent account due to his/her mental state and/or intoxication; there may be difficulty accessing background information from previous records or from someone who knows the person well and there may be limited information available about the alleged offence. The MHO may be able to provide useful information about the person. Every effort should be made to also take account of the relevant sources that may be accessible such as a relative, significant other, carer or named person. (For further information about the named person refer to paragraphs 51 to 53 below.)

07 The main issues that would be expected to be addressed under these circumstances are:

• does the person appear to be suffering from mental disorder?
• does he/she currently pose a risk to him/herself or other people?
• does he/she require assessment or treatment in hospital?
• if so, how urgently is this required?
• is the person fit to be interviewed and if so, does he/she require an appropriate adult?
• is the person fit to plead were he/she to appear in court?
• may the person require community care mental health services?

08 The following options are available depending on the mental condition of the person, the urgency of his/her need for psychiatric treatment, his/her willingness to accept treatment, the nature of the alleged offence and the risk he/she poses:

• informal admission or contact with psychiatric services (including community care mental health services);
• non-urgent application for a civil compulsory treatment order (section 63 of the 2003 Act);
• immediate application of e mergency civil detention (section 36 of the 2003 Act) or short-term civil detention (section 44 of the 2003 Act);
• recommendation for an assessment order (section 52D) or a treatment order (section 52M) when the person appears in court on the next working day. This would be the most appropriate option where the alleged offence is serious and/or the person appears to pose a significant risk to others. If despite this the person requires immediate admission to hospital, then he/she may be detained under civil detention procedures and a report recommending an assessment or treatment order should also be prepared;
• make no recommendation at present, but suggest that a non-urgent psychiatric assessment is sought while the person is on remand (either in custody or on bail).

09 If the person is immediately diverted to psychiatric services, either informally or under civil procedures, the police may still submit a report to the prosecutor.

Appropriate Adult

10 The police should always have an appropriate adult present when they interview a person with mental disorder. The role of the appropriate adult is to facilitate communication between the police and the person and to provide support for him/her.

11 The responsibility for the decision to request the presence of an appropriate adult belongs to the police. A medical assessment is not required before the police decide whether an appropriate adult should be requested, however if following an assessment a medical practitioner decides that a mentally disordered person is fit to be interviewed then the police should be advised to contact an appropriate adult. In some areas this may be done via the emergency social work services.

Assessment at the first court appearance

12 A psychiatric assessment addressing issues relevant to a person's first court appearance may have been conducted whilst the person was in police custody. Similarly an assessment by an MHO may also have been carried out. In some cases even though assessments were carried out in police custody further assessments may be required on the day of the first court appearance, particularly if perhaps due to intoxication or lack of background information, the best way to proceed was unclear. However it is possible that a mentally disordered person may not have been assessed whilst in police custody.

13 Some areas have court liaison schemes which are able to provide urgent psychiatric and MHO assessments for the courts. In other areas psychiatrists and MHOs may be available to perform these assessments, even though there is no formal scheme operating. In many areas there is no urgent psychiatric assessment available at the court itself. In these circumstances if there appears to be a clinical emergency, the person should be referred for an urgent assessment in the same way as such an assessment would be requested from a general practitioner.

14 The police may instruct an assessment on the day of the person's first court appearance and they may do so without any reference to the prosecutor. This notwithstanding, the police would always be expected to provide full information to alert the prosecutor to such issues and allow consideration by the prosecutor as to whether such an assessment is necessary.

15 At this stage, as with assessments in police custody, there is usually limited information available. The main issues that would be expected to be addressed under these circumstances are similar to those set out above for people in police custody:

• does the person appear to be suffering from mental disorder?
• does he/she currently pose a risk to him/herself or other people?
• does he/she require assessment or treatment in hospital?
• if so, how urgently is this required?
• is the person fit to plead? (this may not be able to be determined at this stage)
• may the person require community care mental health services?

16 The options available are identical to those set out in paragraph 8 above for persons in police custody. However in these circumstances it would be expected that informal diversion or civil procedures would only be applied if criminal proceedings are abandoned, generally where the offence is considered to be minor.

17 If at this early stage it appears that the person may be insane in bar of trial then this should be reported to the court. The person will not be found insane in bar of trial at his/her first court appearance; this finding has to be determined by the court on the basis of evidence from two medical practitioners. Best practice would suggest that these two medical practitioners should be psychiatrists.

18 If there is doubt about a person's fitness to plead or he/she appears to be insane in bar of trial, he/she will usually be in need of urgent psychiatric assessment and/or treatment in hospital. The options available in such a case are as outlined in paragraph 8 above.

19 In many cases where a person appears to be insane in bar of trial, the offence will be minor and proceedings will be abandoned, with arrangements being made for diversion either informally or under civil proceedings. Where there is doubt about the seriousness of the alleged offence then it would usually be appropriate to use provisions under the 1995 Act rather than abandon criminal proceedings.

Assessment subsequent to the first court appearance

20 At the first court appearance an accused person may be remanded in custody or on bail, or may be admitted to hospital on an assessment order (sections 52B to J) or a treatment order (sections 52K to S).

21 Under summary procedure the person may plead guilty at a first court appearance and therefore is no longer at the pre-trial stage but rather post conviction. A plea cannot be entered at the petition stage in solemn cases.

22 Following the first court appearance psychiatric and MHO assessments may be undertaken of a person who is on bail, in custody, or detained in hospital on an assessment order or a treatment order. Unlike the urgent assessments in police custody or for the first court appearance, at this stage there will usually be time and resources available to gather detailed background information, to interview the person at length, to consider the details of the alleged offence and to refer and consult thoroughly with the MHO service.

23 This psychiatric assessment would be expected to address:

• whether the person appears to be suffering from mental disorder;
• whether an assessment or treatment order is indicated;
• whether the person may be insane in bar of trial;
• the risk the person poses to him/herself or others;
• whether the person's mental condition may have a bearing on his/her responsibility for the alleged offence;
• whether, if the person were convicted, a mental health disposal would be indicated.

24 In most cases where the person appears to be mentally disordered the most appropriate initial recommendation would be expected to be an assessment order or a treatment order. In some cases where the presence of mental disorder is clear and the offence is relatively minor (not solemn cases) it may be appropriate to recommend a final disposal at this stage, to be applied if the person is convicted. It would not be expected that final mental health disposals would be recommended in a pre-trial report in serious cases. In all such cases the recommendation should be for an assessment order or a treatment order (either pre- or post-conviction) or an interim compulsion order (post-conviction).

25 If the person appears to be insane in bar of trial and/or to have been insane at the time of the offence, it would be expected that in most cases an assessment order or a treatment order would be recommended pre-trial.

Mental disorder detected during a remand in custody

26 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 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 respectively).

Best practice points

Examinations in police custody

27 When examining a person who has been detained or arrested by the police, the medical practitioner should consider issues which may be relevant to the person's first appearance in court, such as fitness to plead and whether an assessment order should be recommended.

28 If these issues are unclear at this stage, then a further psychiatric assessment should be recommended, either that day or the next (if there are urgent clinical issues) or whilst the person is on remand (on bail or in custody).

29 The medical practitioner should seek the opinion of an MHO to assist in the assessment and decision making process.

30 Where appropriate, consideration should be given to the person's possible need for psychiatric or community care mental health services on a voluntary basis. Such information may have relevance for the prosecutor in any consideration of diversion.

31 There should be a clear procedure to enable the police to arrange for the assessment of a person in their custody who appears to be mentally disordered. In each area this procedure should be known to the police, the prosecutor, the courts, social work and mental health services.

32 If a person is in police custody charged with a serious offence or the person appears to pose a significant risk to others, the most appropriate step would be to recommend an assessment order or a treatment order at his/her first court appearance. If emergency admission prior to the first appearance is necessary then emergency or short-term detention under section 36 or 44 of the 2003 Act should be applied for, the police should report the case to the prosecutor and a report recommending an assessment order should be submitted to the prosecutor for the first court appearance.

33 Medical practitioners should not recommend that a person be remanded in custody or imprisoned.

First court appearance

34 When assessing a person for his/her first court appearance a medical practitioner should, at a minimum, address whether the person is fit to plead, whether an assessment order should be recommended and whether the person should be admitted informally or under civil procedures if charges are dropped. An MHO opinion should also be sought. This has particular relevance in relation to the person's possible need for community care mental health services if there is a possibility of charges being dropped or if consideration is being given to civil procedures.

35 There should be a clear procedure to enable the prosecutor or the court to obtain a psychiatric assessment and an MHO assessment if an accused person appears to be mentally disordered at or before his/her first court appearance. In each area this procedure should be known to the police, the prosecutor, the courts, social work and mental health services.

36 Every mental health service should be able to provide an emergency assessment, as it would for a person referred by a general practitioner, if an accused person appears to require one on clinical grounds.

37 A recommendation for an assessment order or a treatment order should only be made after the medical practitioner has discussed the case with a consultant from the unit where the person would be admitted and only after this consultant has agreed to admit the patient. The medical practitioner should also seek the opinion of an MHO in an advisory capacity to inform any knowledge of background and possible alternatives, and to assist in the assessment and decision making process.

38 If an assessment order or a treatment order is made then the person should be admitted to a unit of appropriate security considering the risk he/she poses to him/herself and/or others. A person should not be admitted to a secure ward or unit, solely on the ground of having been detained under section 52D or 52M.

39 Medical practitioners should not recommend that a person be remanded in custody or imprisoned.

Subsequent court appearances

40 It should be noted that although assessment prior to the first court appearance often requires to be carried out quickly, most subsequent assessment of the person should draw on the available multi-disciplinary skills base where relevant and appropriate, so that the person's health and social care needs can be fully investigated and comprehensive advice provided to the court to assist in decision making.

41 When assessing a person for a subsequent court appearance a medical practitioner should consider whether the person is sane and fit to plead; any issues related to his/her responsibility for the alleged offence; whether a mental health disposal should be made pre-sentence, and whether a mental health disposal should be made if the person is convicted or found to be insane in bar of trial and/or to have been insane at the time of the offence.

42 If the person has previously been made subject to one of the orders described in section 232 of the 2003 Act as a 'relevant event', an MHO will have been designated as having responsibility for the person's case. (For further information about the designation of an MHO refer to section 229 of the 2003 Act and Chapter 9, Volume 1 of this Code of Practice.) The medical practitioner should contact this MHO to assist in the assessment and decision making process. The MHO may also have produced a Social Circumstances Report, (" SCR"), following the making of the previous order which should be used as a source of information. (For further information about SCRs refer to Part 1, Chapter 6 of this Volume of the Code of Practice and Chapter 11 of Volume 1).

43 In most cases where admission to hospital is indicated, the initial recommendation should be for an assessment order or a treatment order.

44 In serious cases, or where the person might pose a significant risk to others, if a recommendation is made as to disposal following conviction or a finding of insanity, this recommendation should be for an assessment order, a treatment order or an interim compulsion order.

45 A recommendation for a mental health order should only be made after the medical practitioner has discussed the case with a consultant from the unit where the person would be admitted and only after this consultant has agreed to admit the patient.

46 If a mental health order is made then the person should be admitted to a unit of appropriate security considering the risk he/she poses to him/herself and/or others. A person should not be admitted to a secure ward or unit, solely on the ground of having been detained under provisions set out in the 1995 Act.

47 There should be a clear procedure to enable the prosecutor or court to request a psychiatric assessment and an MHO assessment of a person remanded on bail, in custody or in hospital. In each area this procedure should be known to the prosecutor, the courts, social work services and mental health services. If the person is already in hospital it would be the patient's responsible medical officer, (" RMO"), who would be instructed to prepare a report. (For further information about the appointment of the RMO refer to section 230 of the 2003 Act and Chapter 9 of Volume 1 of this Code of Practice).

48 If a medical practitioner wishes to recommend an order which requires two medical recommendations, then he/she may suggest an appropriate medical practitioner, and inform the prosecutor or court that a second assessment is required and that he/she has identified someone who may provide this. Where practicable the second opinion should be as independent as possible, e.g. from a medical practitioner working in a different unit. The prosecutor or court would then, if appropriate, instruct this second medical practitioner to examine the person. If the medical practitioner is unable to identify an appropriate medical practitioner, he/she should inform the prosecutor or court of the need for a second opinion, and the prosecutor or court should then seek a second medical practitioner.

49 Where possible a mental health disposal at this stage should have one recommendation by a medical practitioner from the unit where it is proposed that the person should be admitted. This is a statutory requirement in terms of section 61(1A) for certain orders. (For further information see Part 1, Chapter 6 of this Volume of the Code of Practice).

50 Medical practitioners should not recommend that a person be remanded in custody or imprisoned.

Named person

51 The 2003 Act creates a new role - the "named person" - who has particular powers and rights in relation to persons who become subject to compulsory powers, whether under the 2003 Act or the 1995 Act. Broadly speaking, the role of the named person is to represent and safeguard the interests of the patient and he/she has similar rights to the patient to apply to the Mental Health Tribunal for Scotland (the "Tribunal"), and to appear and be represented at Tribunal hearings.

52 With respect to mentally disordered offenders the named person has no formal role under the 2003 Act prior to the court making a final disposal. However best practice would suggest that medical practitioners and mental health officers involved in the care and treatment of a person with mental disorder who is progressing through the criminal justice system should be aware of any views expressed by the named person.

53For further information on the named person refer to sections 250 to 258 of the 2003 Act and Chapter 6 of Volume 1 of this Code of Practice.

Pre-trial court procedures

Duty of the prosecutor to bring before the court any available evidence on the mental condition of the accused (section 52)

54 When a person has been arrested and charged with an offence, and it appears to the police that he/she may be suffering from a mental disorder, the police should seek mental health assessments by a medical practitioner and an MHO. Where the outcome of the assessment is that the person appears to be suffering from a mental disorder, the medical practitioner will so advise the court before which the person first appears.

55 The prosecutor has a statutory duty, where it appears to him/her that a person may be suffering from mental disorder, to bring before the court such evidence as may be available of the mental condition of the person. However, it may be the case that the person's apparent mental disorder is not detected until later and perhaps not until he/she actually appears in court. It is open to anyone with an interest in the case, e.g. police, defence agent, prosecutor, judge or sheriff, doctor, MHO, court social worker, named person, carer etc. to raise the possibility of mental disorder with the court.

Remit of certain mentally disordered persons from district court to sheriff court (section 52A)

56 A person charged in a district court with an offence punishable by imprisonment, who appears to have a mental disorder, must be remitted to the sheriff court. The sheriff court may then deal with the case in the same manner as if the charge had originally been raised in that court. This would include, but is not restricted to, the granting of a mental health disposal.

Assessment Orders and Treatment Orders

Background

57 Previously at the pre-trial stage, section 52 of the 1995 Act allowed a court to remand a person to hospital instead of in custody, where it appeared that the person was suffering from a mental disorder. This did not allow for the person to receive medical treatment under the 1984 Act. If the person had been remanded in custody, section 70 of the 1984 Act allowed for the person to be transferred to hospital for treatment if he/she fulfilled the same criteria for detention as applied to civil cases, but it did not allow for the person to be transferred for assessment.

58 The Millan Committee recommended that assessment or treatment in hospital should be available pre-trial whether the person is appearing in court or has been remanded in custody and that the position of patients detained in hospital pre-trial should be similar to those detained under civil legislation.

59 The 2003 Act inserts sections 52B to U into the 1995 Act which make provision for two new orders to be used by the courts prior to trial where it appears that the person charged has a mental disorder. These are an "assessment order" and a "treatment order" which together replace the powers of the court under section 52 of the 1995 Act and section 70 of the 1984 Act; they can also be used after conviction before sentencing to assist the court in making the appropriate final disposal.

Purpose

60 The key purpose of an Assessment Order is to allow the appropriate examination and assessment by an approved medical practitioner (" AMP"), of a person prior to trial or after conviction before sentencing.

It authorises the removal to, and detention in, a specified hospital for up to 28 days and also the giving of medical treatment in certain circumstances (which includes medication, psychological and social interventions).

61 Within 28 days of the imposition of the assessment order the RMO has a duty in terms of section 52G to report back to the court on the person's mental condition, including a view as to whether he/she meets the conditions specified in section 52D(7) (which are the same conditions as for a treatment order), so that the court can decide how to proceed. It would be expected that the designated MHO and other members of the multi-disciplinary team where relevant and appropriate would contribute to this assessment.

62 The Treatment Order is for use in respect of a person with a mental disorder who is awaiting trial or sentence. It authorises his/her removal to, and detention in, a specified hospital and the giving of medical treatment in certain circumstances (which includes medication, psychological and social interventions). Section 52R(2) and (3) sets out the circumstances in which the order ceases to have effect.

63 Within 21 days of the imposition of either an assessment order or a treatment order the MHO, (designated by the local authority in accordance with section 229 of the 2003 Act), is required to provide the RMO with a Social Circumstances Report (" SCR") unless he/she considers that to do so would serve little or no practical purpose (section 321 of the 2003 Act). The purpose of this report is to contribute to the mental health assessment of the person and consideration of further recommendations in the case. All members of the multi-disciplinary team should participate in the assessment process where relevant and appropriate.

Overview

64 The assessment order and the treatment order provide flexible procedures at the pre-trial and post-conviction stage to allow a person to be admitted to hospital for assessment and/or treatment, and to inform the court in the consideration of an appropriate disposal.

65 Either may be applied for by the prosecutor, by the Scottish Ministers (where the person is in custody) or by the court on its own motion. Application by the Scottish Ministers is appropriate in cases where the person has been remanded in custody and waiting for the next court appearance would lead to an unreasonable delay or would not allow for an adequate assessment pre-trial or pre-sentence.

66 A person may be detained in hospital under either an assessment order or a treatment order but in most cases an assessment order would be expected to be used initially as it requires only one medical recommendation and the test is that the person only has to appear to be suffering from a mental disorder.

67 However, in some cases where a person is clearly mentally disordered and requires treatment in hospital, and where two recommendations are available, a treatment order may be applied for directly. Where an MHO has been designated for the patient the RMO would be expected to consult him/her and to have regard to any SCR prepared before making an application for a treatment order.

68 An assessment order may only last 28 days (extendable by 7 days under certain circumstances in terms of section 52G(4)) whereas a treatment order may last for the whole of the pre-trial or pre-sentence stage. Although a person is on a treatment order, ongoing assessment will inform the most appropriate course of action at the next court appearance. All members of the multi-disciplinary team should participate in the assessment process where relevant and appropriate.

69 It should be noted that a person who is subject to an assessment order or a treatment order is classed as a "restricted patient" in that the consent of the Scottish Ministers is required before the person may be granted a period where his/her detention in hospital is temporarily suspended. (For further information about the suspension of detention provisions in the 2003 Act refer to sections 221 to 226 of that Act and Part 1, Chapter 6 of this Volume of the Code of Practice). Although not a statutory duty under the 2003 Act it would be expected that the consent of the Scottish Ministers would also be sought prior to the RMO recommending to the court under section 52G(9) or 52Q(1)(b) respectively that an assessment order or treatment order be varied to allow the transfer of the person to another hospital (see paragraphs 97 to 100 and 150 to 153 below).

Assessment Order

General - Sections 52B to J:

Procedure prior to the making of an assessment order

70 Prior to conviction, the prosecutor (section 52B), or if the person is in custody awaiting trial or sentence, the Scottish Ministers, (section 52C) may apply to the court for an assessment order to be made. The court may also make an assessment order on its own initiative (section 52E).

Application by prosecutor for assessment order (section 52B)

71 The prosecutor will apply for an assessment order having been alerted that a person may be suffering from mental disorder by a medical practitioner who has previously examined the person, or because of the person's conduct in court. A report must be available to the prosecutor recommending an assessment order as set out in section 52D(2)(a). If alerted that a person may be suffering from a mental disorder perhaps by the police or because of the person's conduct in court, the prosecutor would first instruct that a medical practitioner should assess the person.

Application by Scottish Ministers where person has been remanded in custody (section 52C)

72 If a medical practitioner examines a person remanded in custody and is of the opinion that the person should be transferred to hospital for assessment, then that medical practitioner should prepare a report recommending an assessment order (as set out in section 52D(2)(a)). This report should be sent to the prison governor or his representative. The prison governor or his representative should then notify the Scottish Ministers and an application may be made to the court for an assessment order using the supporting recommendation from the medical practitioner. The application should be sent to the court which remanded the person, not to the court within which jurisdiction the prison or hospital is situated. As soon as reasonably practicable after the application is made the Scottish Ministers must inform:

• the person in respect of whom the application is made;
• any solicitor acting for that person; and
• where a "relevant disposal" in terms of section 52B has not been made, the prosecutor.

Making of assessment order by court on its own initiative (section 52E)

73 Should the court have evidence available from a medical practitioner recommending an assessment order (as set out in section 52D) it may make an assessment order. If the court suspects that a person appearing before it suffers from mental disorder without having the necessary evidence available, the court would instruct a medical practitioner to assess the person.

The role of the court (section 52D(2) and (4))

74 For the court to impose an assessment order it must be satisfied:

• on the written or oral evidence of a medical practitioner as to the matters mentioned in subsection 52D(3); and
• that having regard to all the circumstances (including the nature of the offence with which the person is charged or, as the case may be, convicted) and any alternative means of dealing with the person, it is appropriate.

Criteria for making an assessment order (section 52D)

75 The criteria for making an assessment order are set out under section 52D(1) to (5). When a medical practitioner is assessing a person with a view to recommending an assessment order specific consideration should be given to the following matters:

• does it appear that the person has a mental disorder? The category of mental disorder need not be specified.
• is it likely that detention in hospital is necessary to assess whether the conditions set out in section 52D(7) (which are the same as the conditions for a treatment order) are met? These conditions are that:-
• the person in respect of whom the application is made has a mental disorder;
• medical treatment is available which would be likely to prevent the mental disorder worsening or alleviate any of the symptoms, or effects, of the disorder;
• if the person were not provided with such medical treatment there would be a significant risk to the health, safety or welfare of the person, or to the safety of others.
• is it likely that there would be a significant risk to the person's health, safety or welfare or to the safety of any other person if the assessment order were not made?

It should be noted that for the above three issues the medical practitioner need only be satisfied that there are reasonable grounds for believing that they are the case.

76 The medical practitioner's recommendation must also address the following two issues:

• is a suitable hospital placement available which will be able to admit the person within 7 days of the order being made? (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). If it is the case, the medical practitioner should make arrangements with a specific hospital unit taking into consideration the nature of the person's mental condition and the risk he/she may pose.
• is there a reasonable alternative to enable the assessment to be undertaken rather than by making an assessment order? The medical practitioner would be expected to seek the opinion of an MHO to inform the consideration of alternatives.

Medical evidence (sections 52D(2)(a) and (3))

77 Evidence is only required from one registered medical practitioner who does not have to be approved under section 22 of the 2003 Act. If the medical practitioner is satisfied as to the points set out at paragraphs 75 and 76 above regarding criteria, then an assessment order should be recommended. The medical practitioner will usually submit his/her opinion and recommendation in the form of a written report, but oral evidence alone may be given to the court.

Attendance at court

78 The person should usually attend the court hearing at which the court decides whether to make an assessment order. However, if the person's mental condition is such that it may be detrimental to his/her health to appear in court or may pose a significant risk to him/herself or others if appearing in court then the medical practitioner should inform the prosecutor or the court of this, giving reasons for this opinion. The court may then make an assessment order in the absence of the person (section 52D(8)). Under such circumstances the person's legal representative must be present and have an opportunity to be heard. Further, the court must be satisfied that it is impracticable or inappropriate for the person in respect of whom the order is being made to be brought before it.

Notification by the court of the order being made (section 52D(10))

79 As soon as practicable after an assessment order has been made, the court must inform the following parties of the making of the order:

• the person subject to the order;
• any solicitor acting for that person;
• where the person has been charged with an offence and a relevant disposal as defined in section 52B(4) has not been made in respect of the offence, the prosecutor;
• where immediately before the order was made the person was remanded in custody, the Scottish Ministers; and
• the Mental Welfare Commission.

Duty of a local authority to appoint an MHO (section 229 of the 2003 Act)

80 A local authority has a duty to designate an MHO to be responsible for the person's case as soon as is reasonably practicable after an assessment order has been made. The designated MHO must complete an SCR in relation to the person in terms of section 231 of the 2003 Act unless he/she records why this would serve little or no practical purpose. A copy of the SCR must be sent to the RMO and the Mental Welfare Commission within 21 days of the order being made.

81 The medical records office of the hospital to which the person is admitted should ensure that the Chief Social Work Officer of the relevant local authority is notified and sent a copy of the order. Hospital managers should ensure that this is done speedily and, if possible, within 2 working days of admission. Best practice would suggest that the relevant local authority should designate an MHO responsible for the person's case within 2 working days of receiving notification. It would be expected that protocols would be developed to ensure that there is no undue delay in this process.

Effect of an Assessment Order

Removal to a place of safety pending admission to hospital (section 52D(9))

82 An assessment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and the detention of the person in, a place of safety pending the person's admission to a specified hospital in terms of section 52D(9). In terms of section 307 of the 1995 Act this place of safety may be the detention area at the court, a police station, a prison, a young offenders' institution or a hospital. However best practice would suggest that, in keeping with the principles set down in section 1 of the 2003 Act, the most appropriate place of safety in these circumstances would be a hospital. It would be expected that only in exceptional circumstances would the alternatives listed in section 307 of the 1995 Act be used as a place of safety.

83 The person should be conveyed from the place of safety to the specified hospital as soon as practicably possible by a person listed in section 52D(6)(a).

Measures which may be authorised under an assessment order (section 52D(6))

84 The measures which may be authorised by an assessment order are:

• within 7 days of the making of the order the removal of the person 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 hospital managers of that hospital to remove persons to hospital for the purposes of section 52D(6)(a); or another specified person;
• the detention of the person in the specified hospital for 28 days beginning with the day on which the order is made; and
• during that 28 day period, the giving to the person of medical treatment in accordance with Part 16 of the 2003 Act (see paragraph 86 below).

Giving medical treatment under Part 16 of the 2003 Act

85 An assessment order may be made on the basis of evidence from one registered medical practitioner in terms of section 52D(2)(a).

86 Before medical treatment (which includes medication, psychological and social interventions) may be given under Part 16 of the 2003 Act to a person who is subject to an assessment order, certain requirements must be satisfied as set out in section 242(5) of the 2003 Act. An opinion must be sought from an AMP who is not the patient's RMO. If this AMP determines treatment to be in the best interests of the patient, and this determination is recorded in writing (section 242(5)(e) of the 2003 Act) then such treatment may be given. This AMP might be another doctor employed in the same hospital, but not working in the team responsible for the person's care.

Advance Statement

87 Sections 275 and 276 of the 2003 Act enable a person to make an "advance statement". This is a written statement setting out how the person would wish to be treated, or wish not to be treated for mental disorder should he/she become mentally disordered in the future and his/her ability to make decisions about that treatment becomes significantly impaired. Where any person is giving medical treatment under the 2003 Act to a person with mental disorder who is subject to the 1995 Act , that person must have regard to any advance statement (which complies with the 2003 Act) made by the person and not withdrawn.

88For further information on advance statements refer to sections 275 and 276 of the 2003 Act and Chapter 6 of Volume 1 of this Code of Practice.

What should happen during an assessment order?

89 As soon as practicable after the patient's admission to hospital the hospital managers have a duty under section 260(5)(a) of the 2003 Act 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) of that Act, and also informed of the availability of independent advocacy services under section 259. For further information on these procedures refer to Chapter 4 of Volume 1 of this Code of Practice.

90 An RMO and MHO must be allocated for the person under sections 230 and 229 of the 2003 Act respectively. A multi-disciplinary assessment should be undertaken to address the issues set out in paragraph 101 under 'Review of an Assessment Order'.

91 The designated MHO will prepare a Social Circumstances Report (" SCR") in terms of section 231 of the 2003 Act (unless he/she considers that to do so would serve little or no purpose) and send a copy to the RMO and the Mental Welfare Commission. However, even where the MHO considers that an SCR would serve little or no purpose, the MHO will still require to comply with the duties in section 231(2)(b of the 2003 Act. For further information see Part 1, Chapter 6 of this Volume of the Code of Practice and Chapter 11 of Volume 1.

Suspension of detention (sections 221 to 223 of the 2003 Act)

92 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 an assessment order specifying detention of the person. For further information on these procedures refer to sections 221 to 223 of the 2003 Act and Part 1, Chapter 6 of this Volume of the Code of Practice.

Absconding

93 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.

Variation of an Assessment Order

Change of hospital prior to admission and within 7 days of order being made (section 52F )

94 If within 7 days of the assessment order being made it is apparent that the hospital specified in the assessment order is unable to admit the person, or it is inappropriate to do so, then the court or, if the person was remanded in custody, the Scottish Ministers, should be notified. This would usually be done by the medical practitioner who recommended the assessment order or the prospective RMO, but may be another medical practitioner or someone else ( e.g. hospital manager) depending on the circumstances.

95 The court or the Scottish Ministers may then direct in terms of section 52F that the person be admitted to an alternative hospital specified in the direction. Examples of situations where this may arise are:

• where there is a deterioration in the mental condition of the person such that the specified hospital would no longer be an appropriate placement;
• a bed being unavailable in the specified hospital due to emergency circumstances.

96 When such change of circumstance is intimated to the court or the Scottish Ministers, a medical practitioner should make a recommendation for an alternative hospital after making arrangements with this hospital for the person to be admitted there. The medical practitioner would usually be the one who had recommended the assessment order, or the doctor who would have been the RMO, or a doctor from the alternative hospital, but may be another AMP depending on the circumstances.

Variation of an assessment order after admission to hospital (section 52G(9))

97 If at any point during the assessment order the RMO is satisfied that there has been a change of circumstances which justifies a variation of the order he/she must submit a report to the court. An example might be where it has become apparent that the risk which the person poses is such that he/she requires a higher or lower level of security than that provided at the hospital where the person is currently detained.

98 It would be expected that where the RMO is thinking of making a recommendation for the variation of the order in the report, he/she should consult with the designated MHO who may have obtained information that could have a bearing on the matter.

99 In his/her report to the court, the RMO should set out the grounds for requesting a variation of the assessment order, and specify any variation. If admission to a different hospital is proposed, then although it is not a statutory duty, it would be expected that the RMO would seek the consent of the Scottish Ministers prior to the submission of the report. Arrangements should then be made with that hospital for the person to be admitted there following the variation of the assessment order by the court.

100 The court may in terms of section 52G(10) confirm, vary or revoke the assessment order.

Review of an Assessment Order

101 Before the expiry of the assessment order (that is within 28 days) the RMO must submit a written report to the court in accordance with section 52G addressing:

• whether the conditions set out in section 52D(7) (which are the same criteria for a treatment order) are met;
• any other matters that may have been specified by the court as requiring to be included in the report when it made the assessment order; or,
• whether a further 7 days is required to complete the assessment (section 52G(4)).

102 The RMO must produce a report for the court before the expiry of the assessment order to address whether a treatment order should be made and to address any other issues specified by the court under section 52D(2). It would be expected that the RMO would consult with the designated MHO and the other members of the multi-disciplinary team where relevant and appropriate in the preparation of the report.

103 In most cases medical evidence will also be necessary to address issues relevant to the trial (if pre-trial) or disposal (if pre-sentence), which would be requested by the prosecutor or court. In some cases this may be requested as 'any other issues' to be considered in the report under section 52D(2). In other cases a separate report may be requested.

104 In some cases the two areas (issues to be dealt with in report under section 52D(2) and issues relating to trial or disposal) may be dealt with together in one report. For example, given that where a person is detained pre-trial in summary cases the trial must be commenced within 40 days from the date of the remand, and an assessment order may last for a period of up to 28 days, it would make sense to combine the two.

105 This also applies where the assessment order is post-conviction given that disposal will occur directly or soon after the end of the assessment order. In other cases the two issues may be dealt with in separate reports. For example, in solemn cases pre-trial at the Sheriff Court, because the trial must be held within 110 days of the detention on full committal, or at the High Court, within 140 days of the detention on full committal, it may not make sense to combine the two as the end of the assessment order may be approximately 3 months before the trial.

106 In most cases the main consideration during the assessment order will be whether a treatment order should be made. However, the RMO should consider other mental health issues and disposals depending on the stage of the case through the criminal justice process.

107 Where the RMO is considering recommending a mental health disposal, he/she should consult with the designated MHO (in the case of a proposed compulsion order, hospital direction or guardianship), or the proposed supervising officer (in the case of a probation order with a requirement for treatment of mental condition), well in advance of making such a recommendation to ensure that the MHO, or proposed supervising officer supports the recommendation and that any necessary services will be made available by the local authority.

108 This is of particular relevance where the RMO is considering making a recommendation for a compulsion order (with or without a restriction order) because the court may request a report from the MHO under section 57C, the purpose of which is to assist the court in considering whether a compulsion order is an appropriate and feasible disposal. Late or ineffective consultation between the RMO and MHO may result in undue delay in disposal, or contradictory recommendations being presented to the court. For information about the imposition of a compulsion order refer to Part 1, Chapter 5 of this Volume of the Code of Practice.

109 Similarly, where the RMO is considering making a recommendation for the revocation of the assessment order it would be expected that he/she would consult with the designated MHO given that this may have consequences for the need to provide community care services, criminal justice social work services, the provision of local authority services in general or there may be matters that have implications for community or public safety.

110 Other issues which may require to be considered in the report if the assessment order is at the pre-trial stage are:

• insanity in bar of trial (see Part 1, Chapter 3 of this Volume);
• insanity at the time of the offence (see Part 1, Chapter 3);
• diminished responsibility (where the charge is murder) (see Part 1, Chapter 3);
• the appropriate disposal if the person is found to have been insane at the time of the offence (see Part 1, Chapter 3);
• the appropriate disposal if the person is convicted (see Part 1, Chapters 4 and 5).

111 Other issues which may require to be considered in the report if the assessment order is at the post-conviction stage are:

• whether an interim compulsion order should be made (this should be made in almost all cases where a hospital direction or compulsion order with a restriction order is being considered) (see Part 1, Chapter 4);
• whether a final mental health disposal should be made (see Part 1, Chapter 5):
  - compulsion order;
  - compulsion order and a restriction order;
  - hospital direction;
  - guardianship or intervention order;
  - probation order with a requirement for treatment.

112 The RMO must send a copy of the report to the person subject to the assessment order, his/her solicitor, the prosecutor (prior to conviction or a plea of guilty) and the Scottish Ministers. It would be expected that the RMO would also send a copy to the designated MHO.

113 On receiving the report the court may, in terms of section 52G(3):

• make a treatment order;
• commit the person to prison or another institution to which the person might have been committed had the assessment order not been made or deal with the person in any other way it considers appropriate;
• extend the assessment order for a period not exceeding 7 days on one occasion only.

Extension of an assessment order (section 52G(4))

114 An assessment order may be extended once only for a period not exceeding 7 days. This should be recommended if it remains unclear whether the criteria for a treatment order are met and there is good reason to believe that such an extension will enable a clear recommendation, or if the necessary evidence for a treatment order is not available. An extension of the order should not be sought solely for administrative convenience. A 7 day extension to an assessment order authorises the same measures as the initial assessment order.

End of assessment order (section 52H)

115 In terms of section 52H(2)(a) and (b), if the person is on an assessment order pre-trial, the order ends if:

• a treatment order is made;
• he/she is liberated in due course of law;
• summary proceedings are deserted pro loco et tempore (ended for the moment) or simpliciter (ended completely);
• solemn proceedings are deserted simpliciter (but not pro loco et tempore);
• he/she is acquitted;
• he/she is convicted;
• he/she is found insane in bar of trial (an assessment order is not available in cases of insanity, a temporary compulsion order in terms of section 54(1)(c) may be used).
• In terms of section 52H(2)(a) and (c) and subsection (3), if the person is on an assessment order post-conviction but pre-sentence, the order ends if:
• a treatment order is made;
• sentence is deferred;
• a sentence is imposed;
• one of the following mental health disposals is made:
  - interim compulsion order;
  - compulsion order;
  - guardianship;
  - hospital direction;
  - any disposal under section 57;
  - probation order with a requirement of treatment.

Prevention of delay in trials: assessment orders and treatment orders (section 52T)

117 It should be noted that The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 made amendments to section 52T to take account of the relevant provisions of the Criminal Procedure (Amendment) (Scotland) Act 2004.

Treatment Order

General: sections 52K - U

Procedure prior to the making of a treatment order

118 Prior to conviction, the prosecutor (section 52K), or if the person is in custody awaiting trial or sentence, the Scottish Ministers (section 52L) may apply to the court for a treatment order to be made. The court may also make a treatment order on its own initiative (section 52N).

Application by prosecutor for treatment order (section 52K)

119 The prosecutor will apply for a treatment order having been alerted that a person may be suffering from mental disorder by a medical practitioner who has previously examined the person, or because of the person's conduct in court. A report must be available to the prosecutor recommending a treatment order as set out in section 52M. If alerted that a person may be suffering from a mental disorder perhaps by the police or because of the person's conduct in court, the prosecutor would first instruct that the required assessments are carried out by medical practitioners.

Application by Scottish Ministers where person has been remanded in custody (section 52L)

120 If a medical practitioner examines a person remanded in custody and is of the opinion that the person should be transferred to hospital for treatment, then that medical practitioner should arrange for two reports recommending a treatment order (as set out in section 52M) to be prepared. One of the reports must be prepared by a medical practitioner employed in the hospital where it is proposed that the person should be admitted (section 61(1A)). It would be expected that the process would usually be initiated by the medical practitioner visiting the prison who would arrange for the other assessment/recommendation.

121 These reports should be sent to the prison governor or his representative. The prison governor or his representative should then notify the Scottish Ministers and an application may be made to the court for a treatment order using the supporting recommendations from the medical practitioners. The application should be sent to the court which remanded the person, not to the court within which jurisdiction the prison or hospital is situated. As soon as reasonably practicable after the application is made the Scottish Ministers must inform:

• the person in respect of whom the application is made;
• any solicitor acting for that person; and
• where a "relevant disposal" in terms of section 52B has not been made, the prosecutor.

Making of treatment order by court on its own initiative (section 52N)

122 Should the court have evidence available from two medical practitioners recommending a treatment order (as set out in section 52M) it may make a treatment order under section 52N(1). If the court suspects that a person appearing before it suffers from mental disorder without having the necessary evidence available the court would instruct that the required assessments are carried out by medical practitioners.

The role of the court (section 52M(2) and (4))

123 For the court to impose a treatment order it must be satisfied:

• on the written or oral evidence of two medical practitioner as to the matters mentioned in subsection 52M(3); and
• that having regard to all the circumstances (including the nature of the offence with which the person is charged or, as the case may be, convicted) and any alternative means of dealing with the person, it is appropriate.

Criteria for making a treatment order (section 52M)

124 The criteria for making a treatment order are set out under section 52M(1) to (5). When a medical practitioner is assessing a person with a view to recommending a treatment order specific consideration should be given to the following matters:

• the conditions set out in section 52D(7):
  - does the person have a mental disorder?
  - would medical treatment be likely to alleviate any of the symptoms or effects of the disorder, or to prevent a worsening of the mental disorder?
  - would there be a significant risk to the health, safety or welfare of the person, or to the safety of others, if this treatment were not provided?
• is a suitable hospital placement available which will be able to admit the person within 7 days of the order being made? (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). One of the medical practitioners should make arrangements with a specific hospital unit taking into consideration the nature of the person's mental condition and the risk he/she may pose. Both medical practitioners should agree this and specify the hospital to which the person will be admitted. It would be expected that one of the medical practitioners would also inform the designated MHO.
• is there a reasonable alternative to enable the giving of medical treatment (which includes medication, psychological and social interventions) to the person? It would be expected that an MHO opinion would be sought to inform the consideration of alternatives.

125 The designated MHO and other members of the multi-disciplinary team where relevant and appropriate should contribute to this assessment to inform the decision making process.

Medical evidence (section 52M(2)(a) and (3))

126 The person must be assessed by two medical practitioners, one of whom must be an AMP. If the medical practitioners are satisfied, having considered the points detailed in paragraph 124 that it is appropriate, then a treatment order should be recommended. One of the recommendations must be made by a medical practitioner from the hospital where it is proposed that the person be admitted (section 61(1A)). The medical practitioners will usually submit their opinions and recommendations in the form of written reports, but oral evidence alone may be given.

Attendance at court

127 The person should usually attend the court hearing at which the court decides whether to make a treatment order. However, if a person's mental condition is such that it may be detrimental to his/her health to appear in court or may pose a significant risk to him/herself or others if appearing in court then the medical practitioner should inform the prosecutor or the court of this, giving reasons for this opinion. The court may then make a treatment order in the absence of the person (section 52M(7)).

128 Under such circumstances the person's legal representative must be present and have an opportunity to be heard. Further, the court must be satisfied that it is impracticable or inappropriate for the person in respect of whom the order is being made to be brought before it.

Notification by the court of the order being made (section 52M(9))

129 As soon as practicable after a treatment order has been made, the court must inform the following parties of the making of the order:

• the person subject to the order;
• any solicitor acting for that person;
• where the person has been charged with an offence and a relevant disposal as defined in section 52B(4) has not been made, the prosecutor;
• where immediately before the order was made the person was remanded in custody, the Scottish Ministers;
• the Mental Welfare Commission.

Duty of a local authority to appoint an MHO (section 229 of the 2003 Act)

130 A local authority has a duty to designate an MHO to be responsible for the person's case as soon as is reasonably practicable after a treatment order has been made. The designated MHO must complete an SCR in relation to the person in terms of section 231 of the 2003 Act unless he/she records why this would serve little or no practical purpose.
A copy of the SCR must be sent to the RMO and the Mental Welfare Commission within 21 days of the order being made.

131 The medical records office of the hospital to which the person is admitted should ensure that the Chief Social Work Officer for the relevant local authority is notified and sent a copy of the order. Hospital managers should ensure that this is done speedily and, if possible, within 2 working days of admission. Best practice would suggest that the relevant local authority should designate an MHO responsible for the person's case within 2 working days of receiving notification. It would be expected that protocols would be developed to ensure that there is no undue delay in this process.

Effect of a Treatment Order

Removal to a place of safety pending admission to hospital (section 52M(8))

132 A treatment order may include such directions as the court thinks fit for the removal of the person subject to the order to, and the detention of the person in, a place of safety pending admission to a specified hospital. In terms of section 307 of the 1995 Act this place of safety may be the detention area at the court, a police station, a prison, a young offenders' institution or a hospital. However, best practice would suggest that, in keeping with the principles set down in section 1 of the 2003 Act, the most appropriate place of safety in these circumstances would be a hospital. It would be expected that only in exceptional circumstances would the alternatives listed in section 307 of the 1995 Act be used as a place of safety.

133 The person should be conveyed from the place of safety to the specified hospital as soon as practicably possible by a person listed in section 52M(6)(a).

Measures which may be authorised under a treatment order (section 52M(6))

134 The measures that may be authorised by a treatment order are:

• within 7 days of the making of the order, the removal of the person 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 hospital managers of that hospital to remove persons to hospital for the purposes of section 52M(6)(a); or another specified person;
• the detention of the person in the specified hospital; and
• the giving to the person of medical treatment in accordance with Part 16 of the 2003 Act (which includes medication, psychological and social interventions).

Advance Statement

135 Where any person is giving medical treatment under the 2003 Act to a person with mental disorder who is subject to the 1995 Act, that person must have regard to any advance statement (which complies with the 2003 Act) made by the person and not withdrawn. For further information on advance statements refer to sections 275 and 276 of the 2003 Act and Chapter 6 of Volume 1 of this Code of Practice.

What should happen during a treatment order?

136 As soon as practicable after the patient's admission to hospital, the hospital managers have a duty under section 260(5)(a) of the 2003 Act 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) of that Act, and also informed of the availability of independent advocacy services in accordance with section 259 of the 2003 Act. For further information on these procedures see Chapter 4 of Volume 1 of this Code of Practice.

137 Where an RMO and MHO have not previously been allocated responsibility for the patient's case under sections 230 and 229 of the 2003 Act respectively this should now be done. A multi-disciplinary assessment should be undertaken to address the issues set out in section 52Q(1).

138 The designated MHO should work in close collaboration with the RMO and other members of the multi-disciplinary team where relevant and appropriate. He/she must prepare an SCR in terms of section 231 of the 2003 Act (unless he/she considers that to do so would serve little or no purpose) and send a copy to the RMO and Mental Welfare Commission. However, even where the MHO considers that an SCR would serve little or no purpose, he/she will still require to comply with the duties in section 231(2)(b) of the 2003 Act. For further information about Social Circumstance Reports see Part 1, Chapter 6 of this Volume of the Code of Practice and Chapter 11 of Volume 1.

139 In most cases, whether at the pre-trial or post-conviction stage, it would be expected that the RMO, the designated MHO, and the multi-disciplinary team should consider during the treatment order which recommendation should be made following conviction or at sentencing. At the post-conviction stage a Social Enquiry Report (" SER") in terms of section 204(2) of the 1995 Act may be available which may provide useful information. For further information about SERs refer to Part 1, Chapter 6 of this Volume of the Code of Practice.

140 Thus during the treatment order the RMO, in consultation with the designated MHO, will usually be responsible for assessing the relevant issues and preparing a report at the request of the prosecutor or the court which would address statutory issues relating to the various orders that are available at that stage.

141 Issues that would be expected to be considered in this report if the treatment order is at the pre-trial stage are:

• insanity in bar of trial (see Part 1, Chapter 3);
• insanity at the time of the offence (see Part 1, Chapter 3);
• diminished responsibility (where the charge is murder) (see Part 1, Chapter 3);
• the appropriate disposal if the person is found to have been insane at the time of the offence (see Part 1, Chapter 3);
• the appropriate disposal if the person is convicted (see Part 1, Chapters 4 and 5).

142 Other issues that may require to be considered in the report if the treatment order is at the post-conviction stage are:

• whether an interim compulsion order should be made (this would be expected to be made in almost all cases where a hospital direction or compulsion order with a restriction order is being considered; see Part 1, Chapter 4)
• whether a final mental health disposal should be made (see Part 1, Chapter 5):
  - compulsion order;
  - compulsion order and a restriction order;
  - hospital direction;
  - guardianship order;
  - probation order with a requirement for treatment.

143 Where the RMO is considering recommending a final mental health disposal, he/she should consult the designated MHO (in the case of a proposed compulsion order, hospital direction or guardianship) or potential supervising officer (in the case of a proposed probation order with a requirement for treatment of mental condition), well in advance of making such a recommendation to ensure that the MHO or proposed supervising officer supports the recommendation and that any necessary services will be made available by the local authority.

144 This is of particular relevance where the RMO is considering making a recommendation for a compulsion order (with or without a restriction order) because the court may request a report from the MHO under section 57C, the purpose of which is to assist the court in considering whether a compulsion order is an appropriate and feasible disposal. Late or ineffective consultation between the RMO and MHO may result in undue delay in disposal, or contradictory recommendations being presented to the court. For further information on the imposition of a compulsion order see Part 1, Chapter 5 of this Volume of the Code of Practice.

Suspension of detention (sections 224 to 226 of the 2003 Act)

145 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 treatment order specifying detention of the person. For further information on these procedures refer to Part 1, Chapter 6 of this Volume of the Code of Practice.

Absconding

146 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.

Variation of a Treatment Order

Change of hospital prior to admission and within 7 days of order being made (section 52P)

147 If within 7 days of the treatment order being made it is apparent that the hospital specified in the treatment order is unable to admit the person or it is inappropriate to do so, then the court or, if the person was remanded in custody, the Scottish Ministers, should be notified. This would usually be done by the medical practitioner who recommended the treatment order or the prospective RMO, but may be another medical practitioner or someone else ( e.g. hospital manager) depending on the circumstances.

148 The court or the Scottish Ministers may then direct in terms of section 52P that the person be admitted to an alternative hospital. Examples of situations where this may arise are:

• there is a deterioration in the mental condition of the person such that the specified hospital would no longer be an appropriate placement;
• a bed being unavailable in the specified hospital due to emergency circumstances.

149 When such change of circumstances is intimated to the court or the Scottish Ministers, a medical practitioner should make a recommendation for an alternative hospital after making arrangements with this hospital for the person to be admitted there. The medical practitioner would usually be one of the medical practitioners who had recommended the treatment order, or the doctor who would have been the RMO, or a doctor from the alternative hospital, but may be another AMP depending on the circumstances.

Variation of a treatment order after admission to hospital (section 52Q(1))

150 If at any point during the treatment order the RMO is satisfied that there has been a change of circumstances which makes the continued detention of the person in the specified hospital inappropriate he/she must submit a report to the court. An example might be where it has become apparent that the risk which the person poses is such that he/she requires a higher or lower level of security than that provided at the hospital where the person is currently detained.

151 It would be expected that where the RMO is thinking of making a recommendation for the variation of the order in the report, he/she should consult with the designated MHO who may have obtained information that could have a bearing on the matter.

152 In his/her report to the court, the RMO should set out the grounds for requesting a variation of the treatment order, and specify any variation.

If admission to a different hospital is proposed then, although it is not a statutory duty, it would be expected that the RMO would seek the consent of the Scottish Ministers prior to the submission of the report. Arrangements should then be made with that hospital for the person to be admitted there following the variation of the treatment order by the court. This would be done by the RMO who should contact the other hospital and receive an agreement from an RMO there to admit the patient.

153 The court may in terms of section 52Q(2) confirm, vary or revoke the treatment order.

Revocation of a Treatment Order

154 If at any point during the treatment order the RMO is satisfied that any of the conditions mentioned in section 52D(7) are no longer met he/she must submit a report to the court in accordance with section 52Q(1). Examples of circumstances in which such a report may be submitted might include where it has become clear during the treatment order that:

• the person does not have a mental disorder;
• treatment in hospital is unlikely to alleviate or prevent a worsening in the mental disorder;
• there would not be a significant risk to the person's health, safety or welfare, or to the safety of another person if they were not treated in hospital.

155 It would be expected that where the RMO is considering making a recommendation for the revocation of the treatment order in the report, he/she should consult with the designated MHO because such a recommendation may have consequences for the need to provide community care services, criminal justice social work services, or the provision of local authority services in general, or have implications for matters of community or public safety.

156 In his/her report the RMO should set out the grounds for requesting the revocation of the treatment order.

157 The court may in terms of section 52Q(2) confirm, vary or revoke the treatment order.

End of a treatment order (section 52R)

158 If the person is on a treatment order pre-trial, the order ends if:

• he/she is liberated in due course of law;
• summary proceedings are deserted;
• solemn proceedings are deserted simpliciter (ended completely) (but not pro loco et tempore (ended for the moment));
• he/she is acquitted;
• he/she is convicted;
• he/she is found insane in bar of trial (a treatment order is not available in cases of insanity, a temporary compulsion order in terms of section 54(1)(c) may be used).

159 If the person is on a treatment order post-conviction but pre-sentence, the order ends if:

• sentence is deferred;
• a sentence is imposed;
• one of the following mental health disposals is made:
  - interim compulsion order;
  - compulsion order;
  - guardianship order;
  - hospital direction;
  - any disposal under section 57;
  - probation order with a requirement of treatment.

Prevention of delay in trials: assessment orders and treatment orders (section 52T)

160 It should be noted that The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 made amendments to section 52T to take account of the relevant provisions of the Criminal Procedure (Amendment) (Scotland) Act 2004.