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

chapter 5 final disposal

Introduction

This chapter begins with an overview of the final disposals available to the court in relation to mentally disordered offenders.

The chapter goes on to describe the procedures surrounding the imposition of a compulsion order under section 57A and provides detailed information on the relevant sections of the 1995 Act.

The chapter then provides similar guidance and information in relation to the restriction order (section 59) and the hospital direction (section 59A).

The chapter also provides a brief overview of the application of the Adults with Incapacity (Scotland) Act 2000 to mentally disordered offenders with respect to intervention orders (section 60B) and guardianship orders (sections 57(2)(c) or 58(1A)).

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

Introduction

Overview

01 Most mentally disordered offenders do not plead insanity and, if convicted of an offence, are given the relevant disposal on sentence. A few are found insane in bar of trial or acquitted on account of insanity. ( For further information refer to Part 1, Chapter 3 of this Volume of the Code of Practice). Following conviction there is a range of disposals available to the court depending on the nature of the person's mental disorder, needs and risk.

Sentencing

02 Sentencing is the responsibility of the sheriff in the sheriff court, or judge in the High Court. In cases where offenders are mentally disordered, medical practitioners usually provide opinions and recommendations by written reports or sometimes oral evidence. The court may request that a Social Enquiry Report is prepared by a criminal justice social worker to provide information about the offender to assist sentencing. (For further information refer to Part 1, Chapter 6 of this Volume of the Code of Practice.) Where a compulsion order is under consideration, the court may request a report from an MHO (see paragraphs 32 to 44 below).

03 The court may follow recommendations for mental health disposals, however in some cases it may not; for example, where there is conflicting medical evidence or where the court considers that other issues, such as public safety or the requirement for punishment, override the medical recommendation.

Assessment prior to making a mental health disposal

04 It would be expected that appropriate multi-disciplinary assessment would be undertaken in all cases where a medical recommendation for a mental health disposal is under consideration (except for probation orders with a condition of psychiatric treatment under section 230). Where it is anticipated that the proposed mental health disposal will involve psychological interventions as a major aspect of treatment, a psychologist or other appropriately qualified person making that psychological intervention should be consulted as part of the assessment.

05 In most cases where a hospital disposal is being considered, it would be expected that a multi-disciplinary in-patient assessment before and/or after conviction would have been undertaken. Any issues regarding the diagnosis of the person, likely response to treatment, interaction between the mental disorder and the current and previous offences or risk which remain unclear, should be clarified through a period of assessment (on an assessment order under section 52D, a treatment order under section 52M or an interim compulsion order under section 53 - for further information refer to Part 1, Chapter 4 of this Volume of the Code of Practice).

06 Where serious offences have been committed and/or the person appears to pose a considerable risk to others, it would be expected that there would be a period of in-patient assessment on an interim compulsion order before a hospital direction or a compulsion order with a restriction order is imposed, unless there is a good reason to do otherwise.

Mental health disposals available to the court

07 The court has the following mental health options in relation to making a disposal:

If further assessment and/or treatment is required prior to a final disposal being made:

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

Final mental health disposals available are:

• Hospital disposals:
  - compulsion order (section 57A);
  - compulsion order and a restriction order (sections 57A and 59);
  - hospital direction (section 59A).
• Community disposals:
  - compulsion order (section 57A);
  - guardianship order (section 58(1A));
  - treatment as a condition of probation (section 230);
  - voluntary treatment.

In some cases courts may impose non-mental health disposals, such as:

• prison sentence;
• probation order;
• community service order;
• fine;
• deferred sentence.

In some cases offenders may be admonished.

08 The 2003 Act makes no change to the guardianship order under section 58(1A). A general summary of this order is included at paragraphs 133 to 139 below.

09 The 2003 Act makes two minor changes to the probation order requiring treatment for mental condition under section 230 which are detailed below. The two changes are:

• the 12 month time limit is removed so that the potential maximum duration of this order is the full 3 years for which any probation order may apply (section 230(1)); and
• before making the order the court must be satisfied on the evidence of the medical practitioner or chartered psychologist under whom the treatment will be given that the relevant services are available and appropriate (section 230(3)).

No further guidance about an order made under section 230 is included in this Code of Practice.

10 The diagram on page 125 illustrates the range of final disposals that the court can make after conviction.

Recommendations for final disposal

11 A statutory requirement for most disposals is that one recommendation for the final disposal should be prepared by a medical practitioner working at the hospital or clinic where treatment is to be provided (section 61(1A)).

12 The following issues should be considered by a medical practitioner when making a recommendation for a final mental health disposal:

• has the necessary multi-disciplinary assessment been completed? Are there issues that still remain uncertain which may be important in determining whether a particular disposal is made? If so, consideration should be given to further assessment, perhaps as an in-patient before a final disposal is recommended. (For further information refer to Part 1, Chapter 4 of this Volume of the Code of Practice.)
• a report recommending a final mental health disposal should give explicit consideration to the legal criteria relating to the medical evidence required for that disposal. The reasons for reaching the opinion leading to the recommendations regarding disposal should be set out clearly. The following outline best practice with respect to the preparation of reports:
  - in cases where the person is already under the care of a RMO (for example he/she has been detained in hospital on an assessment order, a treatment order, an interim compulsion order, or perhaps under civil proceedings (section 36 or 44 of the 2003 Act), then one of the reports should be prepared by this RMO or, in consultation with the RMO, by another AMP working at the same hospital.
  - where more than one report is required or is being prepared, the medical practitioners preparing the reports should consult each other regarding the appropriate disposal.
  - the medical practitioners preparing reports in a particular case should always consult the MHO who may also be preparing a report for the court for that case under secion 57C or 59B and take account of the information contained in the SCR, where provided.
  - where a final disposal to a state hospital is recommended, one of the reports should be prepared by a medical practitioner from the state hospital, and the other by a medical practitioner working for mental health services in the area where the offender resided or is likely to reside on discharge from the state hospital.
• the disposal recommended should be the least restrictive option necessary in the circumstances:
  - a hospital disposal should only be recommended where a community disposal is not appropriate due to the significant risk the person poses to his/her own health, safety or welfare or to others.
  - a hospital disposal should be to a hospital or unit of no higher security than is necessary considering the risk the person poses to him/herself or others.
• does the recommendation comply with the principles set out in section 1 of the 2003 Act?

Compulsion Order

Background

13 The compulsion order under sections 57A to C replaces the hospital order. The changes mirror those for civil detention ( i.e. the change from the previous long-term detention under section 18 of the 1984 Act to the compulsory treatment order under section 64 of the 2003 Act), in particular a compulsion order may authorise compulsory treatment either in hospital or the community, unlike its predecessor the hospital order.

Purpose

14 In general terms the purpose of the compulsion order (" CO") is to provide a disposal that is almost identical to a compulsory treatment order (" CTO") already described above where a person has been convicted of an offence but has a mental disorder. The court can authorise a range of measures in a CO including detention in hospital or treatment and care in the community. For the avoidance of doubt under no circumstances should compulsory treatment for mental disorder by way of a CO (or a CTO) which authorises compulsory measures in the community be appropriate whilst a person is serving a sentence in prison.

Overview

15 A CO may be imposed by the court in accordance with section 57A(2) following consideration of oral or written evidence from two medical practitioners, (one of whom must be approved under section 22 of the 2003 Act), and after having regard to the matters mentioned in section 57A(4). The medical criteria to be considered and which are set down in section 57A(3) are:

that the offender has a mental disorder; that medical treatment which would be likely to prevent the mental disorder worsening or alleviate any of the symptoms, or effects, of the disorder is available for the offender; that if the offender were not provided with such treatment there would be a significant risk to the health, safety or welfare of the person or to the safety of any other person; and that the making of the compulsion order in respect of the offender is necessary.

16 The matters which the court must have regard to in accordance with section 57A(2)(b) and which are set down in sections 57A(4) are:

the MHO report prepared in accordance with section 57C all the circumstances of the case, including: - the nature of the offence of which the offender was convicted - the antecedents of the offender, and any alternative means of dealing with the offender.

17 The main differences in general terms between the criteria for a CO and those for a CTO are that for a CO there is no criterion relating to the person's ability to make decisions about medical treatment (see section 64(5)(d) of the 2003 Act in relation to a CTO), the person needs to have been convicted of an offence punishable by imprisonment other than murder, and the sentencing court must be satisfied that a CO is necessary taking into consideration the circumstances of the case ( i.e. the nature of the offence and the antecedents of the offender) and the other sentencing options available.

18 In certain cases the CO may authorise detention at a state hospital or other secure psychiatric hospital facility and may have a restriction order added to it. A CO allows a person to be given medical treatment under Part 16 of the 2003 Act (which includes medication, psychological and social interventions) and may authorise detention in hospital or compulsory measures in the community.

19 The order may be renewed after the first 6 months for a further 6 months and annually thereafter (as set out in Part 9 of the 2003 Act - for further information about the renewal procedures refer to Part 2, Chapter 1 of this Volume of the Code of Practice).

20 The person has a right of appeal to the court under section 60 against the order initially being made and then he/she may appeal to the Tribunal against it subsequently being renewed or varied in any way (see Part 9 of the 2003 Act).

General: Sections 57A to D

Criteria for making a compulsion order

21 A court may make a CO under section 57A(1) where a person:

• is convicted in the High Court or the sheriff court of an offence punishable by imprisonment (other than an offence the sentence for which is fixed by law, i.e. murder); or
• is remitted to the High Court by the sheriff under any enactment for sentence for such an offence.

22 There must be medical evidence from two medical practitioners (one of whom is approved in terms of section 22 of the 2003 Act) satisfying the court that:

• the person has a mental disorder as defined by section 328 of the 2003 Act (section 57A(3)(a));
• medical treatment which would be likely to
  - prevent the mental disorder worsening; or
  - alleviate any of the symptoms, or effects, of the disorder is available for the person (section 57A(3)(b));
• in a case where detention in hospital is to be authorised:
  - the hospital proposed is suitable for the giving of medical treatment and it has a bed available for the person within 7 days of the order being made (section 57A(5)). (This seven 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 such treatment were not provided there would be a significant risk
  - to the health, safety or welfare of the person; or
  - to the safety of any other person (section 57A(3)(c));
• the making of a CO is necessary (section 57A(3)(d));
• in a case where detention at a state hospital is to be authorised:
  - the person requires to be detained in hospital under conditions of special security; and
  - such conditions of special security can be provided only in a state hospital (section 57(3)(6)). (When considering whether conditions of special security are required it would be expected that reference would be made to section 102(1) of the National Health Service (Scotland) Act 1978).

23 These issues should be addressed in the same way as they would be addressed in determining the appropriateness of a CTO under civil procedure. (For more information see Chapter 3 of Volume 2 of this Code of Practice.)

24 In accordance with section 57A(4) before making the order the court must have regard to:

• the MHO report prepared in accordance with section 57C;
• all the circumstances of the case, including:
  - the nature of the offence of which the person was convicted
  - the antecedents of the person, and
• any alternative means of dealing with the person.

Medical Evidence (section 57A(2) and (3))

25 It would be expected that in the majority of cases the medical evidence would be in the form of written reports; oral evidence without the preparation of a written report as the basis for making a CO should be rare.

26 At least one of the two medical practitioners must be approved under section 22 of the 2003 Act (section 61(1)).

27 Both medical practitioners must agree that the person suffers from the same category of mental disorder (section 57A(14)(a)(i)).

28 The medical practitioners should set out in their evidence the compulsory measures in terms of section 57(8) which they consider should be authorised by the order (see paragraph 51 below).

29 If detention in hospital is recommended the medical practitioners should provide the court with reasons as to why compulsory powers in the community are not appropriate.

30 The level of security of the hospital or unit should be no more than is necessary to manage the risk the person poses to him/herself or others, and the reports should contain a statement that an appropriate bed is available for the person in a specified hospital (usually also specifying the ward or unit where the person will be admitted).

31 Best practice would suggest that where a CO authorising compulsory measures in the community is being recommended, this will have been a matter of close consultation between the RMO, the designated MHO and other relevant care workers, well in advance of the psychiatric reports being submitted to the court. It would be expected that the RMO would be required to confirm to the court that arrangements are in place for the provision of the necessary personnel and services by the relevant health authority.

Mental Health Officer's report (section 57C)

Overview

32 One of the matters which the court must have regard to prior to imposing a CO is the MHO's report prepared in accordance with section 57C.

33 In general terms it would be expected that the MHO's report would assist the court in considering whether a CO is an appropriate and necessary disposal for the person. It may be that, prior to a recommendation for a CO being made the person will have been subject to a period of psychiatric assessment, under one of the following:

• short term detention (section 44 of the 2003 Act);
• assessment order (section 52D);
• treatment order (section 52M);
• interim compulsion order (section 53).

34 In all of the scenarios mentioned in the paragraph above a local authority will have previously designated an MHO as responsible for the person's case. Generally it would be expected that the designated MHO will remain the same person and will provide the MHO report for the court under section 57C. For further information on the designation of an MHO see Chapter 9 of Volume 1 of this Code of Practice.

35 As mentioned in paragraph 31 above, for the MHO to be able to fulfil the requirements of a report under section 57C, the RMO and the MHO should consult closely and effectively, well in advance of any medical recommendations for a CO being submitted to the court. To aid this communication it is therefore important that at whatever stage in the process of hospital detention the MHO is designated, the MHO should make him/herself known to the RMO.

36 In terms of section 57C(2), the MHO must interview the person (unless he/she considers this impracticable (section 57C(3)) and prepare a report which must state (section 57C(4)):

• the name and address of the person;
• the name and address of the person's primary carer, if known;
• details of the personal circumstances of the person, relevant to the psychiatric recommendations for a CO;
• any other information that the MHO considers relevant to the recommendations for a CO.

37 The MHO should also set out in his/her report under section 57C the compulsory measures in terms of section 57(8) which he/she considers should be authorised by the order (see paragraph 51 below).

38 Best practice would suggest that the MHO's report should also consider the following matters:

• the personal circumstances of the person relevant to the recommendation for CO (see paragraphs 41 to 44 below);
• the relevant views of the primary carer and named person where known;
• the MHO's opinion on the appropriateness and feasibility of the powers being sought under the CO;
• a description of the proposed plan of care as agreed by the multi-disciplinary team;
• where the recommendation is for a CO which authorises hospital detention, the appropriateness of the level of security being recommended;
• where the recommendation is for a CO which authorises compulsory powers in the community, the feasibility of the proposed community care services and confirmation that arrangements are in place for their provision by the relevant local authority;
• whether any MHO duties to be specified in the order are appropriate and can be fulfilled;
• a description of any alternative mental health disposals that in all the circumstances of the case could be considered by the court;
• where a restriction order is being sought, an opinion on the suitability and viability of the recommendation for restriction, with particular reference to any implications associated with social work supervision in the community, in the future and possible implications for the person (refer to paragraphs 88 to 92 below for further information about the report where a restriction order is being recommended);
• if the MHO does not consider that a CO is the appropriate mental health disposal he/she should draw the court's attention to any alternative considered feasible. The MHO may suggest that consideration is given by the court to request a Social Enquiry Report to further inform the suitability and viability of other alternatives. (For further information about these reports refer to Part 1, Chapter 6 of this Volume of the Code of Practice.)

39 There may be an overlap in the information contained in the recommendations made by the two medical practitioners and the information contained in the MHO report.

40 Where a CO which authorises compulsory powers in the community is being recommended there should be close consultation between the MHO and the RMO well in advance of such a recommendation being made to the court to ensure that there is no delay in the court being in a position to make a disposal in the case.

Personal Circumstances

41 Although many mentally disordered offenders may be diagnosed as having more than one psychiatric condition it is often the combination of medical and social factors which leads to their offending behaviour.

42 In considering the matter of personal circumstances the MHO should identify any relevant issues in the person's personal and family history that may be significant in relation to his/her mental health and/or offending behaviour. These might include by way of example disrupted childhood; lack of parenting; experiences of 'being cared for'; pattern of relationships and significant life events.

43 Particular attention should be given to drug/alcohol use and previous offending. Comment should also be made on the person's history of compliance/non compliance with previous care and treatment plans or statutory supervision.

44 The report should describe the person's current social circumstances, including housing, sources of income, employment, relevant activities, social and support network and comment on any associated implications there may be in the making of a CO.

Effect of a Compulsion Order

Removal to a place of safety (section 57A(14)(b))

45 A 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 the hospital specified in terms of section 57A(8)(a) or, as the case may be, specified place in terms of section 57A(8)(e). 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.

46 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 57B.

Change of hospital prior to admission and within 7 days of order being made (section 57D)

47 If within 7 days of the CO being made it is apparent that the hospital specified in the 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.

48 It would usually be the medical practitioner who had recommended the CO, 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 medical practitioner or someone else ( e.g. hospital manager) depending on the circumstances.

49 This alternative should only be made because of emergency or other special circumstances. Examples of these circumstances might include:

• where there has been 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.

50 Where 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.

Measures which may be authorised under a compulsion order (section 57A(8))

51 Section 57A(8)sets down the measures which may be specified in a CO. Quoting from that subsection of the 1995 Act, these are:

(a) the detention of the offender in the specified hospital; (b) the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 Act (asp13), of medical treatment; (c) the imposition of a requirement on the offender to attend- (i) on specific or directed dates; or (ii) at specified or directed intervals, specified or directed places with a view to receiving medical treatment; (d) the imposition of a requirement on the offender to attend- (i) on specified or directed dates; or (ii) at specified or directed intervals, specified or directed places with a view to receiving community care services, relevant services or any treatment, care or service; (e) subject to subsection (9) below, the imposition of a requirement on the offender to reside at a specified place; (f) the imposition of a requirement on the offender to allow- (i) the mental health officer; (ii) the offender's responsible medical officer; or (iii) any person responsible for providing medical treatment, community care services, relevant services or any treatment, care or service to the offender who is authorised for the purposes of this paragraph by the offender's responsible medical officer, to visit the offender in the place where the offender resides; (g) the imposition of a requirement on the offender to obtain the approval of the mental health officer to any change of address; and (h) the imposition of a requirement on the offender to inform the mental health officer of any change of address before the change takes effect.

52 In relation to section 57A(8)(e), if the specified place is a care home service then the court must be satisfied in terms of section 57A(9) that the person providing the care home service is willing to receive the person.

53 A CO allows the court, within 7 days of the making of the order, to remove the person to the hospital or place specified in the order 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 to hospital for the purposes of section 57B, or a specified person (section 57B(2)).

54 The order may authorise any of the measures set down in section 57(8) which includes the giving of medical treatment to the person in accordance with Part 16 of the 203 Act (which includes medication, psychological and social interventions), either in hospital or in the community, for a period of 6 months beginning on the day on which the order was made (section 57A(2)).

55 If a restriction order is imposed in addition to the order then the measures specified in the order are authorised without limit of time (section 57A(7)).

56 The measures that may be authorised by a CO mirror those available under civil procedure for CTOs - for further information refer to Chapter 3 of Volume 2 of this Code of Practice.

57For information about the statutory procedures to be followed in the review, variation, extension and revocation of a CO as laid out in Part 9 of the 2003 Act refer to Part 2, Chapter 1 of this Volume of the Code of Practice.

Mentally disordered offenders who may pose a risk of serious harm to the public

58 Where a compulsion order authorising detention in hospital is made in respect of a person and it appears to the court that -

(a) having regard to the nature of the offence with which the person is charged;
(b) the antecedents of the person; and
(c) the risk that as a result of his mental disorder the person would commit offences if set at large,

that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of section 59, further order that the person shall be subject to the special restrictions set out in Part 10 of the 2003 Act, without limit of time.

59 Where a restriction order is under consideration, it is very important that there is a thorough assessment of risk, mental disorder and their relationships to the offence. For a restriction order to be recommended to the court it would be expected that there would be a significant link between the specified mental disorder and the offence and/or the future risk posed. Where this link is absent or small it would be expected that the appropriate recommendation would be for a hospital direction under section 59A.

60 In any case where a mentally disordered offender appears to pose a significant risk to others such that consideration is being given to recommending a restriction order with a compulsion order or a hospital direction, it would be expected that an interim compulsion order would be recommended first (unless there is a good reason for not doing so) to allow thorough assessment of:

• the risk the person poses;
• the nature of the mental disorder, its prognosis and the likelihood that it would benefit from treatment;
• the relationship between the mental disorder and current and previous offences;
• the relationship between the mental disorder and the risk the person poses to others.

61 The conclusion of the risk assessment should consider the nature of the risk that the person might pose in the future and the circumstances that might exacerbate or mitigate that risk. This should be placed within the context of the future management that may address this risk and the role of special restrictions in facilitating this future management. For further information and best practice points in relation to risk assessment refer to paragraphs 64 to 72 below.

62 It would be expected that the interim compulsion order would be renewed (up to the maximum duration of 12 months) until the above issues are clarified.

63 In certain cases the imposition of an interim compulsion order prior to final disposal may be unnecessary. For example where there has already been a thorough assessment carried out under an assessment order and/or a treatment order, and it is clear that the risk that the person poses of further harm to others is entirely or largely attributable to the presence of a treatable mental disorder. In such cases it would be expected that a compulsion order and a restriction order may be recommended without detention under an interim compulsion order.

Risk Assessment

64 There are two statutory definitions of risk criteria that may need to be considered in any particular case.

65 The criterion under civil detention procedures in terms of section 64(5) of the 2003 Act is one of the criteria which must be met before a compulsory treatment order is applied for. This risk criterion is concerned with the risk to self and others: "… significant risk to the health, safety or welfare of the offender; or to the safety of any other person;… " This would be expected to be interpreted in an identical way to civil procedures under section 36(5)(b) or 44(4)(d) or 64(5)(c) of the 2003 Act. For further information refer to Chapter 3 of Volume 2 of this Code of Practice.

66 The criteria for a restriction order are set down in section 59(1). This criterion is concerned only with risk to others: "…risk that as a result of his mental disorder he would commit offences if set at large,…" Where a restriction order is under consideration there would be expected to be detailed consideration of the background history (including history of violence and offending; history of mental disorder and psychiatric treatment; and history of alcohol or drug misuse; along with other relevant factors) and the current index offence and its circumstances.

67 At the time of writing it is anticipated that 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 and a risk assessment is being carried out with respect to a person who has been convicted of such an offence practitioners should have regard to these provisions, and in particular to the risk criteria set out in section 210E which may have implications for the final disposal. For further information about these provisions contact the Risk Management Authority.

Best practice points

68 Risk assessments may be carried out using protocols or assessment tools that have proven validity for the category of people that the assessed person falls into ( e.g. mentally disordered offenders, prisoners, sex offenders).

69 In most cases where mental disorder is also an issue, the assessment should consider not just statistical (or actuarial) assessment but attempt to place the risk the person presents in the context of his/her past history and current offending (clinical risk assessment). More specifically this means:

• personal and family history;
• criminal history and history of violence;
• substance misuse;
• psychiatric history;
• assessment of personality;
• other relevant risk factors for the population group which the person falls into ( e.g. sex offender risk factors).

70 Wherever possible, risk assessment should be based on information from as many sources as possible. Practitioners should be aware of large volumes of notes which simply reiterate self-report from interviews with others. Strenuous attempts should therefore be made to source collateral information from family members, police reports, criminal records and contemporary accounts of previous violent incidents that may be contained in other records ( e.g. nursing notes of past violent incidents).

71 A good assessment of risk should never define a person simply in terms of high/medium or low risk. Although these terms may reasonably be used, such assessment should also include an attempt to characterise the nature of the violence the person may perpetrate in the future. For example this would include:

• the kind(s) of violence the person is capable of perpetrating;
• the likely level of physical or psychological harm;
• the situation(s) in which the person is most likely to be violent;
• the likely victim(s) of that violence;
• the warning signs that the person may be at risk of being violent;
• the management strategies that need to be put in place to manage the risk of violence in the short term;
• the least restrictive environment in which the person's violence can be easily be managed;
• the psychological, psychiatric or social treatments that may be given to help decrease the person's risk of violence in the long-term.

72 Such an assessment should involve the multi-disciplinary team and once formal assessments have been carried out by the professionals involved in the multi-disciplinary team, the RMO and the MHO should hold regular risk management meetings to consider the risk that the person poses. These meetings should form a formal part of any care planning process.

Restriction Order

Background

73 The 2003 Act makes very little change to section 59 of the 1995 Act which allows a court to impose a restriction order with respect to a person who has been made subject to a CO.

Purpose

74 In general terms a restriction order allows additional scrutiny of a mentally disordered offender who may potentially pose a risk of serious harm to others, as he/she progresses through rehabilitation, so as to protect the public from this risk.

Overview

75 To make a restriction order the court must hear oral evidence from one of the medical practitioners recommending the accompanying CO.

76 If the person has not previously undergone a period of assessment on an interim compulsion order, then the court may make a restriction order only if satisfied that in all the circumstances it was not appropriate to make an interim compulsion order in respect of the person.

77 The court must be satisfied that the criteria for making a restriction order as set out in section 59(1) are met.

78 For a restriction order to be recommended to the court it would be expected that there would be a significant link between the mental disorder specified in the CO and the offence and/or the future risk posed.

79 A compulsion order with a restriction order (" CORO") authorises the detention of the person in hospital (a restriction order cannot be made with a CO which authorises compulsory powers in the community) and the duration of compulsion is indefinite. A restriction order cannot be made for a time limited period.

General: Sections 59 and 57C

Criteria for making a restriction order

80 For a restriction order to be added to a CO which authorises the detention of a person in hospital it must appear to the court in terms of section 59(1):

(a) having regard to the nature of the offence with which he is charged; (b) the antecedents of the person; and (c) the risk that as a result of his mental disorder he would commit offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of section 59, further order that the person shall be subject to the special restrictions set out in Part 10 of the 2003 Act, without limit of time.

81 In most cases a restriction order would usually be made following recommendations by the medical practitioners giving evidence, but a court may impose a restriction order if satisfied that these criteria are met even if oral medical evidence does not support a restriction order.

82 For the recommendation of a restriction order to be made to the court, the assessment of the risk posed by the person would indicate that the restriction order is necessary to protect the public from serious harm as a result of mental disorder. The mental disorder should play a substantial part in determining risk to others, and it would be expected that the added scrutiny of the rehabilitation process along with the stricter conditions that can be placed on a person subject to a restriction order would be necessary to reduce the risk that the person may pose.

83 Therefore, before a CORO may be imposed it would be expected that the court would consider the following matters:

• has the risk which the person poses been thoroughly assessed during an interim compulsion order? If not, is adequate information available to address the following questions so that an interim compulsion order is unnecessary?
• if a restriction order is not imposed may there be a risk of serious harm to others in the future?
• does the person's specified mental disorder play a substantial part in determining this risk?

84 If the person appears to pose a significant risk, but the specified mental disorder is not a major factor determining this risk, or where treating the specified mental disorder is unlikely to significantly reduce this risk, then it would be expected that a hospital direction (under section 59A) would be a more appropriate recommendation to make to the court. Consideration of these matters should be characterised by multi-disciplinary working between the medical practitioners, the MHO and other relevant parties where appropriate.

Medical Evidence

85 Oral evidence is required from an AMP whose evidence has been the basis for the accompanying compulsion order (section 59(2)).

86 In all but exceptional cases, a recommendation for a CORO would be expected to follow a prolonged period of multi-disciplinary in-patient assessment under an interim compulsion order. If it then appears to the reporting medical practitioners that a CORO should be made, this recommendation should be made in the final reports with evidence as to why this conclusion has been reached, addressing the matters set out in section 59(1).

87 It would be expected that the SCR where previously prepared by the designated MHO under section 231 of the 2003 Act following the making of the interim compulsion order would contribute to the consideration of the level of risk posed by the person and the relationship between this risk and the mental disorder.

Mental Health Officer's report for the court under section 57C where a restriction order is under consideration

88 Reference should be made to " MHO's report to the court under section 57C" in relation to a compulsion order without a restriction order in paragraphs 32 to 44 above.

89 In addition, where a restriction order is being considered, the MHO's report for the court should consider and reflect upon the merits or otherwise of a restriction order given the circumstances of the case. The MHO should therefore have regard to the implications of such powers of restriction for the person's future, including his/her care and treatment and matters relating to public safety, and be satisfied that conditions of restriction provide the most appropriate and effective way of managing the person's on-going care and treatment for mental disorder.

90 The MHO should also consider if there are less restrictive alternatives which might be applied safely. Matters such as how the powers of restriction may support the need for and compliance with community services, and risk management requirements in the longer term should be considered.

91 In assessing whether a restriction order is necessary and appropriate, the MHO should bear in mind the broad range of powers that are available under a compulsion order without a restriction order, including powers to require treatment in the community, determination of residence, and powers of access for the purposes of supervision and treatment.

92 The MHO should consider the nature and gravity of the offence and the risks of re-offending that may be directly linked to the person's mental health and social circumstances. In particular it would be expected that the MHO's report would contribute to the consideration of matters detailed in b) and c) of the criteria for making a restriction order mentioned in paragraph 80 above.

Effect of a Restriction Order

93 A restriction order is made in conjunction with a compulsion order at the time of disposal and it allows the person to be detained in hospital without limit of time (section 57A(7)).

94 None of the provisions in Part 9 of the 2003 Act relating to the duration and renewal of the compulsion order apply; the person is detained in hospital until he/she is conditionally or absolutely discharged upon the direction of the Tribunal under section 193 of the 2003 Act.

95 The approval of the Scottish Ministers is required before the person may be granted a period of suspension of detention (section 224 of the 2003 Act) or transferred to another hospital (section 218 of the 2003 Act). This applies whether or not the person is detained in a state hospital.

96For information about the statutory procedures to be followed in the review of a CORO, and in the discharge of a person who is subject to a CORO as laid out in Part 10 of the 2003 Act refer to Part 2, Chapters 2 to 4 of this Volume of the Code of Practice.

Hospital Direction

Background

97 The hospital direction was inserted as section 59A into the 1995 Act by amendments made by the Crime and Punishment (Scotland) Act 1997. It allows for a convicted mentally disordered offender to be given a hospital disposal along with a prison sentence.

Purpose

98 In general terms the hospital direction allows the person to receive the appropriate medical treatment for mental disorder in hospital in accordance with Part 16 of the 2003 Act (which includes medication, psychological and social interventions), and then to be transferred to prison to complete the prison sentence imposed at the time of the making of the hospital direction. The period during which the person is subject to the direction counts as time served in relation to the sentence.

Overview

99 A hospital direction may be imposed by the court in accordance with section 59A(2) following consideration of the oral or written evidence from two medical practitioners (one of whom is approved under section 22 of the 2003 Act) and after having regard to the matters mentioned in section 59A(5). The medical criteria to be considered and which are set down in section 59A(3) are:

that the offender has a mental disorder; that medical treatment which would be likely to prevent the mental disorder worsening or alleviate any of the symptoms, or effects, of the disorder is available for the offender; that if the offender were not provided with such treatment there would be a significant risk to the health, safety or welfare of the offender or to the safety of any other person; and that the making of the hospital direction in respect of the offender is necessary

100 The matters which the court must have regard to in accordance with section 59A(2)(b) and which are set down in section 59A(5) are:

• the MHO report prepared in accordance with section 59B in respect of the offender
• all the circumstances of the case, including:
  - the nature of the offence of which the offender was convicted; and
  - the antecedents of the offender; and
• any alternative means of dealing with the offender

101 The court must be satisfied that a hospital direction is appropriate taking into consideration the mental health officer's report prepared in accordance with section 59B, all the circumstances of the case and the alternative sentencing options available.

102 As with restriction orders, assessment of the person prior to the making of a hospital direction should be undertaken during an interim compulsion order except where this is clearly not appropriate.

103 It would be expected that a recommendation for a hospital direction would be made to the court in cases where persons convicted on indictment meet the criteria for a CO but where there is little relationship between the specified mental disorder and the index offence or where treating the specified mental disorder is unlikely to significantly reduce the risk that the person poses to the public as a result of mental disorder.

General: sections 59A to C

Criteria for making a hospital direction

104 A court may impose a hospital direction where a person is convicted on indictment in the High Court or the sheriff court of an offence punishable by imprisonment (section 59A(1)).

105 Unlike a compulsion order, there is no requirement that the offence is one for which the sentence is not fixed by law. Therefore the order is available where a person has been convicted of murder.

106 There must be medical evidence from two medical practitioners (one of whom is approved (section 61(1)) satisfying the court that:

• the person suffers from mental disorder (section 59A(3)(a));
• medical treatment which would be likely to
  - prevent the mental disorder worsening; or
  - alleviate any of the symptoms, or effects, of the disorder is available for the person (section 59A(3)(b));
• if such treatment were not provided to the person there would be a significant risk
  - to the health, safety or welfare of the person; or
  - to the safety of any other person (section 59A(3)(c));
• the hospital proposed is suitable for the giving of medical treatment and it has a bed available for the person within 7 days of the direction being made (section 59A(4)) (This seven day period commences with the day on which the direction is made. For example, if the direction were imposed on a Tuesday a bed in the specified hospital would require to be available to the person by the following Monday if not before).
• the making of a hospital direction is necessary (section 59A(3)(d));
• in a case where detention at a state hospital is to be authorised:
  - the person requires to be detained in hospital under conditions of special security; and
  - such conditions of special security can be provided only in a state hospital (section 59A(6)). (When considering whether conditions of special security are required, it would be expected that reference would be made to section 102(1) of the National Health Service (Scotland) Act 1978).

107 Before making the hospital direction under section 59A(2) the court must have regard to:

• the MHO report prepared in accordance with section 59B (section 59A(5)(a));
• all the circumstances of the case, including:
  - the nature of the offence;
  - the antecedents of the person (section 59A(5)(b));
• any alternative disposals available (section 59(5)(c)).

108 Before imposing a hospital direction in terms of section 59A(2) it would be expected that the court would consider:

• has the risk the person poses been thoroughly assessed? If not, is adequate information available to address the following question so that an interim compulsion order is unnecessary?
• does the person's mental disorder play a substantial part in determining this risk?

Medical Evidence (section 59A(2) and (3))

109 The statutory criteria regarding the medical evidence necessary for a court to make a hospital direction are identical to those for a CO which authorises detention in hospital and should be addressed in an identical way (see paragraphs 25 to 31 above). However three additional factors should also be considered in such cases:

• as with a CORO, it would be expected that an interim compulsion order would be recommended first unless there are good reasons not to do this;
• it would be expected that the nature of the offence and the background of the person should be such that if a CO were being considered, a recommendation for a restriction order would also be likely;
• in contrast to the CO it would be expected that the link between the specified mental disorder and the index offence and/or the risk of further serious harm to the public would be weak.

In considering these matters the RMO and the MHO should consult closely before a recommendation for a hospital direction is made to the court.

110 In most cases it would be expected that the medical evidence would be in the form of written reports; oral evidence in the absence of a written report as the basis for making a hospital direction should be rare.

111 At least one of the two medical practitioners must be approved under section 22 of the 2003 Act (section 61(1)). The medical evidence must address the matters set out above in paragraphs 106 and 108.

112 Both medical practitioners must agree that the person suffers from the same category of mental disorder (section 59A(9)(a)). There should be a statement in the reports to the effect that an appropriate bed will be available for the person in a specified hospital (usually also specifying the ward or unit where the person will be admitted).

113 In all but exceptional cases, or cases where the person has been convicted of murder, it would be expected that a recommendation for a hospital direction would follow a prolonged period of multi-disciplinary in-patient assessment whilst the person is detained under an interim compulsion order.

114 If, following this period, it appears to the reporting medical practitioners that a hospital direction is the appropriate disposal, then this recommendation may be made in the final reports with evidence as to why this conclusion has been reached addressing the matters set out in section 59A(2)(a).

115 It would be expected that the key issue in a case where a hospital direction is under consideration is the extent of the link between the specified mental disorder and the index offence and/or the risk of further offending. If the person appears to pose a substantial risk, but the specified mental disorder is not a major factor determining this risk, or where treating the specified mental disorder is unlikely to significantly reduce this risk, then it would be expected that a hospital direction would be the appropriate recommendation to make to the court. Consideration of these matters should be characterised by multi-disciplinary working between the medical practitioners, the MHO and other relevant parties where relevant and appropriate.

Mental Health Officer's report for the court (section 59B)

116 One of the matters which the court must have regard to prior to imposing a hospital direction is the MHO's report prepared in accordance with section 59B .

117 Reference should be made to paragraphs 32 to 44 ("Mental Health Officer's report (section 57C)") and paragraphs 88 to 92 ("Mental Health Officer's report for the court under section 57C where a restriction order is under consideration").

118 However, unlike COs there is no scope for statutory mental health powers in the community under a hospital direction; the direction allows for a convicted mentally disordered offender to be given a hospital disposal along with a prison sentence.

119 In considering whether a hospital direction may constitute an appropriate disposal, the MHO will wish to be satisfied that there is no other appropriate mental health disposal and that the person's circumstances and mental health needs are not more appropriately served by a CORO. This will involve consulting with multi-disciplinary colleagues and communicating with potential providers of treatment for the person as appropriate.

120 Alternatively the MHO will wish to be satisfied that the person's circumstances do merit detention and treatment in hospital at the point of disposal.

121 Given that the person has mental health needs the MHO would be expected to consider the implications of these needs and any potential aspects of vulnerability that should be highlighted in the report in the context of the person undertaking a custodial sentence.

Effect of a Hospital Direction

Removal to a place of safety (section 59A(9)(b))

122 A hospital direction 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 the hospital specified in terms of section 59A(7)(b). 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.

123 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 59A(7)(a)).

Change of hospital prior to admission and within 7 days of order being made

124 Under section 59C, if within 7 days of the hospital direction being imposed it is apparent that the hospital specified in the direction 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.

125 It would usually be the medical practitioner who had recommended the hospital direction, 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.

126 This alternative should only be made because of emergency or other special circumstances. Examples of these circumstances might include:

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

127 Where 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.

Measures which may be authorised under a hospital direction

128 Section 59A(7) sets down the measures which may be specified in a hospital direction. Quoting from that subsection of the 1995 Act, these are:

(a) in the case of an offender who, when the hospital direction is made, has not been admitted to the specified hospital, the removal, before the expiry of 7 days beginning with the day on which the direction is made, of the offender to the specified hospital by- (i) a constable; (ii) 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 to hospital for the purposes of this section; or (iii) a specified person; (b) the detention of the offender in the specified hospital; and (c) the giving to the offender, in accordance with Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 Act (asp13), of medical treatment.

129 A hospital direction allows the court, within 7 days of the imposition of the direction, to remove a person to the hospital specified in the direction 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 to hospital for the purposes of section 59A, or a specified person (section 59A(7)).

130 It allows a person to be given compulsory treatment for mental disorder in hospital in accordance with Part 16 of the 2003 Act (which includes medication, psychological and social interventions).

131 A hospital direction ceases to have effect upon the release of the person under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (section 217 of the 2003 Act).

132For information about the statutory procedures to be followed after a hospital direction has been imposed, in the review of a hospital direction, and in the discharge of a person who is subject to such a direction as laid out in Part 11 of the 2003 Act refer to Part 2, Chapters 6 to 8 of this Volume of the Code of Practice.

Intervention Orders and Guardianship Orders under the Adults with Incapacity (Scotland) Act 2000 as applied to mentally disordered offenders

Background

133 Previously under the 1995 Act, the measure that could be applied for was guardianship under the 1984 Act. This could be applied for in cases where a person had been found insane (either in bar of trial or at the time of the offence) under section 57(2)(c) of the 1995 Act or where a mentally disordered person had been convicted (section 58 of the 1995 Act).

134 Guardianship under the 1984 Act was replaced by measures set out in the Adults with Incapacity (Scotland) Act 2000, ("the 2000 Act"). The 2003 Act makes little change in this area, the major changes having been made to the 1995 Act by the 2000 Act. The court may use section 60B of the 1995 Act to make an intervention order or either of sections 57(2)(c) or 58(1A) of that Act to make a guardianship order.

Purpose

135 In general terms, the purpose of an intervention order in these circumstances is to allow for specific one off measures relating to matters such as personal welfare to be authorised for a mentally disordered person, who has been found insane or convicted of an offence, and who has incapacity in relation to taking the relevant action or decision.

136 In general terms, a guardianship order is a longer-term measure. It allows for a welfare guardian to be appointed for a mentally disordered person, who has been found insane or convicted of an offence, and who has incapacity in relation to making decisions relating to personal welfare. The guardian's role is to safeguard the person's interests in this regard.

Overview

137 The requirements for medical and MHO evidence are similar to those for these orders under civil proceedings.

138 Guardianship and intervention orders made through criminal proceedings may be made in relation to matters of personal welfare. Orders in relation to property and financial matters may be made through an application under the 2000 Act.

139 It would be expected that the process of comprehensive assessment and very full consultation that is required as part of the consideration of whether powers under the 2000 Act are appropriate, is likely to take significant time. Early consultation between the RMO and MHO would therefore be expected in order to avoid unnecessary delay to the court in making a disposal.

For information about these orders refer to the Adult with Incapacity (Scotland) Act 2000 and its Code of Practice.