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

chapter 4 post conviction, pre-disposal

Introduction

This chapter begins with an overview of the orders that are available post-conviction which allow for the assessment and/or treatment of a mentally disordered offender before a final disposal is made.

It then describes the procedures surrounding the imposition of an interim compulsion order under section 53 and the effect of this order.

The chapter goes on to provide detailed information about assessment orders and treatment orders made post-conviction.

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

Overview

01 Orders are available post-conviction to allow for the assessment and/or treatment of a mentally disordered offender before a final disposal is made. These orders are:

• interim compulsion order (section 53);
• assessment order (section 52D);
• treatment order (section 52M);
• committal to hospital (section 200).

02 The diagram on page 104 illustrates the range of orders.

03 It would be expected that further assessment at the post-conviction stage may help to clarify:

• diagnosis;
• the relationship between the mental disorder and the offence (although legal responsibility will no longer be an issue because the person has been convicted);
• the response of the mental disorder to treatment;
• the risk that the person poses and the contribution made to this risk by mental disorder;
• ongoing mental health and care needs and how these might best be met.

04 Clarification of these issues will inform the ultimate disposal of the case. (For further information see Part 1, Chapter 5 of this Volume of the Code of Practice.)

05 In cases where offences are minor and offenders are clearly mentally disordered a prolonged period of in-patient assessment may be neither necessary nor appropriate. In some cases there may have already been a period of in-patient assessment at the pre-trial stage under an assessment order, and further assessment may not be necessary. In other cases the issues listed above may need further clarification or there may not have been a period of in-patient assessment already.

06 In all serious cases (certainly all cases under solemn procedure) it would be expected that there would be a period of in-patient assessment (before and/or after trial) to clarify the issues in paragraph 3 before a final disposal is made.

07 In all of the most serious cases, where a restriction order added to a compulsion order or hospital direction is being considered, it would be expected that there would be a period of assessment and treatment on an interim compulsion order, unless there are good reasons for this not being the case. The interim compulsion order cannot be used unless either of these disposals is being considered.

08 Assessment orders and treatment orders are available at this stage as well as at the pre-trial stage, in contrast to previously when orders under section 52 only applied pre-trial. Where an assessment order or a treatment order has been made pre-trial, these orders may also be made post-trial. It would be expected therefore that an order under section 200 which allows for a person to be remanded for inquiry into his/her mental or physical condition would only be used in exceptional circumstances to remand a person to hospital for reports.

09 Section 200 is changed very little by the 2003 Act other than to amend subsection (9) with the effect that:

• a person remanded under this section has a right of appeal against the court's refusal to grant bail or against the conditions imposed by the court within the first 24 hours of his/her remand; and
• a person committed to hospital under this section may appeal against the order of committal and against its renewal at any time while the order (including where it has been renewed) is in force.

Post conviction assessment and/or treatment

Interim Compulsion Order

Background

10 The interim compulsion order replaces the interim hospital order under section 53 of the 1995 Act. The main changes to the legislation are:

• the order may be renewed for up to 12 weeks at a time rather than 28 days;
• the order may be used even if it is not considered likely that the person will require to be detained in a state hospital (previously, except under special circumstances, a state hospital had to be the hospital specified for detention under an interim hospital order; this is no longer the case);
• rather than the order being linked to a state hospital disposal, it is now specified as being only for cases where the final disposals being considered are a compulsion order with a restriction order or a hospital direction;
• it would be expected that a compulsion order with a restriction order or a hospital direction would not be made unless the person has been on an interim compulsion order first, except in exceptional cases;
• in line with other orders the criteria for making the order have been brought in line with the criteria for compulsory powers under the 2003 Act.

Purpose

11 The purpose of the interim compulsion order in general terms is to allow a prolonged period of in-patient assessment before a final disposal is made with respect to mentally disordered offenders who have been convicted of serious offences and/or appear to pose a considerable risk to themselves or others. It would be expected that this would enable the court to make the most appropriate final disposal. All members of the multi-disciplinary team should participate in the assessment process where relevant and appropriate.

Overview

12 An interim compulsion order may only be made where a compulsion order with a restriction order or a hospital direction is being considered as a final disposal.

13 Two medical recommendations are required and the criteria for making the order are similar to, but less stringent than, those for a compulsion order.

14 Unlike a compulsion order, an interim compulsion order only allows compulsion and treatment in hospital, not in the community. The order allows detention in hospital for assessment and treatment for up to 12 weeks, which may be renewed every 12 weeks up to a total of 12 months. At the end of an interim compulsion order the court may make any disposal it sees fit (mental health or penal).

15 It should be noted that although there is the option to detain the person in any hospital which is suitable in terms of section 53(3)(b) and not just in a state hospital, there is no provision to transfer the patient to a different hospital once he/she is admitted to the one specified in the order. This also applies where the order is extended by the court under section 53B(4).

16 Compulsory medical treatment in terms of Part 16 of the 2003 Act may be given under this order (which includes medication, psychological and social interventions).

17 It should be noted that a person who is subject to an interim compulsion 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.)

General: Sections 53 and 53A to D

Criteria for making an interim compulsion order

18 For an interim compulsion order to be made:

• a person must have been convicted of an offence punishable by imprisonment, (section 53(1)), (excluding an offence where the sentence is fixed by law, i.e. murder);
• the court must be satisfied in terms of section 53(2) that it is appropriate to make an interim compulsion order, having regard to all the circumstances (including the nature of the offence) and any alternative disposal available (section 53(4));
• there must be written or oral evidence from two medical practitioners (section 53(2)(a)), one of whom is approved under section 22 of the 2003 Act (section 61), satisfying the court that:
  - the offender has a mental disorder (section 53(2)(a)(i));
  - there are reasonable grounds for believing that it is likely that:
  - medical treatment which would be likely to prevent the mental disorder deteriorating, or which would be likely to alleviate any of the symptoms or effects of the disorder ("the treatability criteria") is available for the offender (sections 53(3)(a)(i) and 53(5)(a));
  - if the offender were not provided with such treatment there would be a significant risk to the offender's health, safety or welfare; or to the safety of any other person ("the risk criteria") (sections 53(3)(a)(i) and 53)(5)(b));
  - the making of an interim compulsion order is necessary (sections 53(3)(a)(i) and 53(5)(c));
  - there are reasonable grounds for believing that the person's mental disorder is such that it would be appropriate to make one of the following final disposals in relation to the offender:
  - a compulsion order and a restriction order
  - a hospital direction (sections 53(3)(a)(ii) and 53(6));
  - to assess these issues a suitable, specified hospital placement is available within 7 days (sections 53(3)(b) and 53(3)(c)). A state hospital may be specified if the offender requires conditions of special security that can only be provided by a state hospital (section 53(7)).

Medical evidence (sections 53(2) and (3))

19 The medical recommendations must address the issues set out above in paragraph 18:

• does the offender suffer from mental disorder?
• are there reasonable grounds for believing it is likely that:
  - the treatability criteria are met? (see paragraph 18)
  - the risk criteria are met? (see paragraph 18) (Note: the criteria for the above two issues are as for compulsion under civil procedures, but rather than being certain about their being met, the medical practitioners must be of the opinion that there are reasonable grounds for believing it is likely that these criteria are satisfied)
• is the final mental health disposal, if one is made, likely to be a compulsion order with a restriction order or a hospital direction? This would be expected to be the case if the offender poses a significant risk to his/her own health, safety or welfare or to the safety of any other person (the 'risk criteria' for a hospital direction) or as a result of his/her mental disorder he/she poses a risk of serious harm to the public if set at large (the 'risk criteria' for a restriction order); consideration should be given to the nature of the index offence, the nature of previous offences, the background of the offender, and the nature of the mental disorder.
• is a suitable hospital placement available 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). 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. (One of the recommendations for an interim compulsion order must be made by a medical practitioner working at the specified hospital (section 61(1A)). When considering whether the person requires conditions of special security that can only be provided by a state hospital, it would be expected that reference would be made to section 102(1) of the National Health Service (Scotland) Act 1978.
• is there a reasonable alternative to enable the assessment to be undertaken rather than by making an interim compulsion order?

20 If the person had previously been subject to an assessment order or a treatment order the MHO designated under section 229 of the 2003 Act may be able to provide useful information about the person and the medical practitioner should contact him/her to assist in the assessment and decision making process. If a Social Circumstances Report (" SCR") had previously been prepared in terms of section 231 of the 2003 Act this should provide information that will contribute to this area of assessment, as it should address aspects of personal history, (including social work records), family or carer accounts, and circumstances leading up to the event. Every effort should also be made to take account of the relevant sources that may be accessible such as a relative, significant other, carer and named person. (For 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.)

Attendance at court

21 The person should usually attend the court hearing at which the court decides whether to make an interim compulsion order. However, if a person's mental condition is such that it may be detrimental to his/her health to appear in court, or he/she may pose a significant risk in court, then the medical practitioner should inform the court, giving reasons for this opinion. The court may then, if it is satisfied that it is inappropriate or impractical for the person to be brought before it, make an interim compulsion order in the absence of the person (section 53(10)). Under such circumstances the person's legal representative must be present and have an opportunity to be heard.

22 When an interim compulsion order is extended under section 53B(5) it would be expected that the person would attend court, unless the court is satisfied in terms of section 53B(6) that it is impracticable or inappropriate for the person to be brought before it. In these circumstances the person must be represented by counsel or a solicitor who must be given the opportunity of being heard.

Notification by the court of the order being made (section 53(11)

23 As soon as is reasonably practicable after imposing an interim compulsion 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;
• the Scottish Ministers; and
• the Mental Welfare Commission.

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

24 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 interim compulsion order has been made. The designated MHO must complete a Social Circumstances Report (" SCR") in relation to the person in terms of section 231 of the 2003 Act unless the MHO 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.

25 The medical records office of the hospital to which the person is admitted should therefore ensure that the Chief Social Worker 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 an Interim Compulsion Order

Removal to a place of safety (section 53(9))

26 An interim compulsion order may include such directions as the court thinks fit for the removal of the person 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 53(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.

27 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 53(8)(a).

Measures which may be authorised under an interim compulsion order (section 53(8))

28 The measures that can be authorised by the interim compulsion 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 managers of that hospital to remove persons for the purpose of section 53; or a specified person;
• the detention of the person in the specified hospital for up to 12 weeks initially;
• during that 12 week period 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

29 Where any person is giving medical treatment under the 2003 Act to a mentally disordered person 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 an interim compulsion order?

30 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.

31 An RMO and an MHO must be allocated as responsible for the person's case by the hospital managers and the local authority respectively, if this has not already been done (sections 230 and 229 of the 2003 Act). The patient should receive appropriate treatment for the mental disorder in terms of Part 16 of the 2003 Act which includes medication, psychological and social interventions (section 329 of the 2003 Act). A multi-disciplinary assessment should be undertaken to address the issues set out in paragraph 33 below and inform the RMO's report to the court under section 53B(1).

32 The designated MHO should work in close collaboration with the RMO and other members of the multi-disciplinary team where relevant and appropriate, and inform and assist in the assessment. The MHO must prepare an SCR in accordance with section 231 (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 within 21 days of the order being made. 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). For further information refer to Part 1, Chapter 6 of this Volume of the Code of Practice and Chapter 4 of Volume 1.

Assessment during an interim compulsion order

33 Assessment of the person must be undertaken so that a written report can be prepared for the court by the RMO before the expiry of the order (section 53B(1)). Issues to be addressed in the assessment will vary from case to case but would usually be expected to include some or all of the following:

• what is the nature of the person's mental disorder?
• what is the prognosis of the mental disorder and the likely response to treatment?
• what is the relationship between the mental disorder and the offence?
• what risk does the person pose and what is the contribution to this risk of mental disorder?
• what are the person's social circumstances and personal history, relevant to understanding his/her mental health and social care needs and the assessment of risk?

34 At the time of writing it is anticipated that section 1 of the Criminal Justice (Scotland) Act 2003 will insert new provisions into section 210 of the 1995 Act in relation to persons who have been convicted of a serious violent or sexual offence. These are not yet in force but when they do become operational, where the person has been convicted of a such an offence the medical practitioner should have regard to these provisions and in particular to the risk criteria in section 210E which may have implications for the final disposal. For further information about these provisions contact the Risk Management Authority.

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

35 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 interim compulsion order specifying detention of the person. For further information refer to Part 1, Chapter 6 of this Volume of the Code of Practice.

Absconding

36 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 Interim Compulsion Order

Change to the hospital specified in the order within 7 days of the order being imposed (section 53A)

37 Under section 53A, if within 7 days of the interim compulsion order being made it is apparent that the hospital specified in the interim compulsion order is unable to admit or inappropriate for the person, then this should be notified to the court or the Scottish Ministers, and they may direct that the person be admitted to an alternative hospital.

38 It would usually be the medical practitioner who recommended the interim compulsion order, or the prospective RMO, who would inform the court or the Scottish Ministers that another hospital needs to be specified but it may be another doctor or someone else (e,g, hospital manager) depending on the circumstances.

39 This alternative should only be made because of emergency or other special circumstances. Examples of situations where this may arise are:

• their 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.

40 When such circumstances are alerted to the court or the Scottish Ministers, a medical practitioner should make a recommendation as to the alternative hospital after making arrangements with this hospital for the person to be admitted there. As soon as reasonably practicable after making a direction under section 53A(1) the Scottish Ministers must notify the court and any person having custody of the person. It would be expected that they would also inform the prosecutor.

41 It should be noted that other than the specific circumstance set out in The Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005 with respect to a person subject to an interim compulsion order who has absconded, there is no provision for an interim compulsion order to be varied once the person is admitted to the hospital specified in the order. This also applies where the order is extended by the court under section 53B(4).

Review, extension and revocation of an Interim Compulsion Order

Review and extension of an interim compulsion order (section 53B)

42 Before the expiry of the interim compulsion order the RMO must submit a written report under section 53B(1) to the court addressing:

• whether the conditions mentioned in section 53(5) are met in respect of the person;
• the type (or types) of mental disorder that the person has;
• whether it is necessary to extend the interim compulsion order to allow further time for the assessment mentioned in section 53(3)(b) of the Act; and
• any other matters that may have been specified by the court under section 53(2) as requiring to be included in the report.

43 However, the report should also address the issues outlined in 'Assessment during an interim compulsion order' in paragraphs 33 to 34 above, particularly if it is not recommending an extension to the interim compulsion order and is therefore the final report whilst the person is detained under the interim compulsion order.

44 In addition, the recommendations in the report should address the specific issues relevant to appropriate disposal at the end of the interim compulsion order (see paragraph 51 below).

45 The RMO should consult with the designated MHO and other members of the multi-disciplinary team where appropriate and relevant to inform the assessment and decision making process.

46 If no mental health disposal or extension of the interim compulsion order is recommended, then one report would be expected to be provided by the RMO. If a compulsion order and a restriction order, or a hospital direction is being recommended, two reports should be provided, as is the requirement under sections 57A(2)(a) or 59A(2)(a) respectively.

47 The RMO must send a copy of his/her report to the person and to the person's solicitor (section 53B(3)). It would be expected that a copy would also be sent to the designated MHO.

Revocation of an interim compulsion order

48 Before the expiry of the interim compulsion order the RMO may submit a report to the court under section 53B(1) seeking to have the order revoked. Where the RMO is considering making such a recommendation to the court, he/she should consult with the designated MHO, and take into consideration the SCR which may have been provided under section 231 of the 2003 Act.

49 An example of where such a report would be submitted would be where it has become clear during the interim compulsion order that the person no longer has a mental disorder.

50 Section 53B(1) sets out the matters that must be addressed in the RMO's report to the court.

Options for disposal at the end of an interim compulsion order (section 53C)

51 These are:

• an extension to the interim compulsion order (by 12 weeks at a time up to a maximum of 12 months) (sections 53B(4) and (5)). An extension should be recommended if there has been insufficient time to address the relevant issues;
• a compulsion order and a restriction order (sections 57A and 59);
• a hospital direction (section 59A);
• another mental health disposal (although the interim compulsion order is for cases where a compulsion order with a restriction order or a hospital direction is seen as the most appropriate ultimate disposal, in some cases it may become apparent that although a mental health disposal is appropriate, the risk posed is such that neither of these measures is warranted);
• a non-mental health disposal, which may be a prison sentence. (Medical practitioners should not recommend that a person be made subject to a prison sentence).

For further information regarding the various mental health disposals available at sentencing refer to Part 1, Chapter 5 of this Volume of the Code of Practice.

End of interim compulsion order (section 53C)

52 An interim compulsion order ends when the court makes:

• a compulsion order (with or without a restriction order);
• a hospital direction;
• any other final mental health disposal;
• any penal disposal (including imprisonment).

Assessment Orders and Treatment Orders post conviction

53 Assessment orders (section 52D) and treatment orders (section 52M) at the pre-trial stage are described in detail in Part 1, Chapter 2 of this volume of the Code of Practice. These orders may also be applied post conviction in the same way, with exceptions as stated below:

• as the prosecutor is no longer involved, the prosecutor cannot apply for an assessment order or a treatment order post conviction. Sections 52B and 52K do not therefore apply at this stage. The applications must be made by the Scottish Ministers (if the person has been remanded in custody) under section 52C or 52L, or at the initiative of the court under section 52E or 52N.
• an assessment order may continue for a period of 28 days and may be extended further by 7 days on one occasion (sections 52G(1) and 52G(4)); a treatment order has no specified duration, as is the case at the pre-trial stage. Either type of order ends when one of the following disposals is made:
  - deferral of sentence by the court under section 202(1);
  - the imposition of any sentence (whether in prison or the community);
  - the making of one of the following mental health disposals:
  - interim compulsion order (section 53);
  - compulsion order (section 57A);
  - gurdianship order (section 58(1A));
  - hospital direction (section 59A);
  - probation order with requirement of treatment (section 230).

54 An assessment order or a treatment order may still be made post conviction in cases where either or both of these orders has already been applied pre-conviction.

55For further information about assessment orders and treatment orders refer to Part 1, Chapter 2 of this Volume of the Code of Practice.