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

chapter 6 over-arching issues

Introduction

This chapter provides information and guidance on issues that are common to many of the mental health orders in the previous chapters.

It also describes the procedures associated with the urgent detention of a person who has been acquitted under section 60C

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

Situations where the criminal justice process ends unexpectedly or prematurely

Introduction

01 Much of the information in Part 1 of this volume of the Code of Practice is contingent on the continuation of the criminal justice process through its various stages. However in some cases the criminal justice process may terminate, perhaps unexpectedly or prematurely, and therefore the current mental health order may end ( e.g. an assessment order ends if a case is deserted simpliciter (the case is deserted forever)) or the proposed mental health order may not be made ( e.g. in a case where a compulsion order has been recommended, if a person is acquitted, other than on account of insanity, then this recommendation may not be acted upon). In some cases a court may decide not to act on a recommendation for a specific mental health disposal.

02 The reason for the termination of proceedings will be based on criminal justice grounds (such as lack of evidence or prosecution not being in the public interest). In some circumstances, through liaison between the prosecutor and/or court and mental health services it may be appropriate for this to happen in a planned way, with care and treatment being put in place either informally or through compulsion under civil procedure (section 36, 44 or 65 of the 2003 Act). However there are circumstances where a termination in the criminal justice process is unexpected and does not allow the recommended disposal to be made, but with no contingency arrangements in place.

03 Examples of relevant situations are:

Pre-trial

• the police decide not to report an offence to the prosecutor;
• the prosecutor decides not to initiate a prosecution;
• after initiating a prosecution the prosecutor may decide to desert proceedings;

Trial:

• the person may be acquitted (other than on account of insanity);

Post-conviction

• the court decides not to follow a mental health disposal recommendation.

04 There is specific statutory provision under section 60C to deal with such situations but this is only available where a person is acquitted and the court had received evidence from two medical practitioners that the person met the relevant criteria.

Expected or planned termination of criminal justice process

05 In circumstances where it is expected and/or agreed (between the police/prosecutor/court and mental health services) that the criminal justice process will end, consideration should be given to the most appropriate care plan for the person. This may involve compulsory measures under civil procedure and/or informal measures. It is important in such circumstances that the necessary measures and services are put in place before the criminal justice process terminates.

Unexpected termination of criminal justice process

06 Such circumstances would be expected to be rare because in most cases there should be time for communication between criminal justice agencies and mental health services to pre-empt such a situation. Where the situation is that a person has been unexpectedly acquitted, which is the most likely scenario where this issue will arise, then section 60C allows for a medical examination with a view to potential emergency or short-term detention under civil procedures (see sections 36 and 44 of the 2003 Act).

Measures to be put in place

07 The measures to be put in place would usually be similar to those that had been in place or proposed during the criminal justice process. However with the more stringent criteria for compulsory powers under civil procedure as compared to that through criminal procedure it may not be possible to put very closely similar measures in place. (The criteria for compulsory powers under civil procedures include an additional criterion to those under criminal justice proceedings in that the person's ability to make decisions about medical treatment for mental disorder requires to be significantly impaired as a result of his/her mental disorder (see sections 36(4)(b) and 44(4)(b) of the 2003 Act). The measures to be put in place will depend on the needs of the person and the risk he/she may pose to him/herself or others. Each case will require to be considered on its facts.

Urgent detention of acquitted persons under section 60C

Background

08 Section 134 of the 2003 Act inserts section 60C into the 1995 Act, which allows for the removal to, and detention in a place of safety of a person acquitted of an offence so that a medical examination can be carried out. The court must be satisfied on the evidence of two medical practitioners that the person meets the criteria set down in section 60C(3) and that it is not possible to arrange an immediate examination of the person by a medical practitioner.

09 It would be expected that an order under section 60C would be made where the court had received recommendations from two medical practitioners for a mental health disposal which cannot be acted on by the court because the person was not convicted.

Purpose and overview

10 The purpose of section 60C is to allow a person to be held in a place of safety for up to 6 hours following an acquittal (beginning with the time at which the order under section 60C was made), provided that there have been medical recommendations available to the court which recommended a hospital disposal. This period of detention is to allow for an examination by a medical practitioner to ascertain whether emergency detention or short-term detention under the 2003 Act is warranted.

General: section 60C

Criteria for urgent detention of acquitted person

11 For the detention of a person under section 60C:

• the person must have been acquitted of an offence (section 60C(1));
• there must be medical evidence from two medical practitioners (one of whom is approved under section 22 of the 2003 Act) satisfying the court that:
  - the person has a mental disorder;
  - 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; and
  - 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 60C(2)(a) and (3)).
• the court must be satisfied that it is not practicable to secure the immediate examination of the person by a medical practitioner (section 60C(2)(b)).

Which orders may have been recommended by medical practitioners to warrant the use of section 60C?

12 The criteria for detention under section 60C are such that two medical recommendations for the following orders may allow a court to detain a person under this section if he/she is acquitted. These are:

• treatment order (section 52D);
• interim compulsion order (in some circumstances - see paragraph 13 below) (section 53);
• compulsion order (section 57A);
• hospital direction (section 59A).

13 The criteria for an interim compulsion order are such that there only needs to be reasonable grounds for believing that:

• medical treatment 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; and
• 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.

Removal to a place of safety

14 The order authorises the removal of the person to a place of safety by a constable or a person specified by the court; and his/her detention in a place of safety for a period of up to 6 hours beginning with the time that the order is made by the court (section 60C(4)). In keeping with the principles in section 1 of the 2003 Act the most appropriate place of safety in these circumstances would be a hospital, preferably the one where the person was due to be admitted although 6 hours may be too short a time period for this. It would be expected that only in exceptional circumstances would the court holding cells be used.

The medical examination during detention under section 60C

15 The medical practitioner carrying out the medical examination under section 60C should follow the information in Chapters 2 and 7 of Volume 2 of this Code of Practice about examinations in relation to emergency and/or short-term detention. Ideally the medical practitioner assessing the person should be one of the practitioners who had made a recommendation for disposal if the person had been convicted. However under certain circumstances this may not be practical within the available time-scale. Under such circumstances the medical practitioner carrying out the medical examination should where practicable consult one or both of the medical practitioners who had made the initial recommendations. The designated MHO who may have prepared an SCR in terms of section 231 of the 2003 Act should also be consulted.

16 In general, the hospital in which the person should be detained under the emergency or short-term detention order, should be the same as the one where he/she would have been admitted if convicted. Exceptions to this would be cases where the acquittal changes the assessment of risk to the extent that it is considered that the person does not require the same level of security.

17 Medical examinations in these circumstances must follow the information and guidance in Chapters 2 and 7 of Volume 2, of the Code of Practice in relation to emergency and short-term detention procedures. It would be expected that the assessment of the person would require the involvement of an MHO from the local authority for the area where the patient is being held in a place of safety. Given the short timescale the MHO should be contacted at the earliest opportunity where it is anticipated that detention under section 60C is likely.

Medical treatment

18 Medical treatment under Part 16 of the 2003 Act cannot be given during the 6 hour period because the person is not detained in hospital (but in a place of safety, which may happen to be a hospital). Similarly urgent treatment cannot be given under section 243 of the 2003 Act. If a person does require emergency treatment for mental disorder during detention under section 60C then this may be given under common law.

Transporting persons subject to these provisions between prison, court and hospital

19 Prior to conviction, the prosecutor would be expected to arrange for an accused person to be transported from prison or hospital to court, or from court to prison or hospital. After conviction, the court would be expected to arrange for the transport of the person to hospital. The transporting of the person, whether before or after conviction, would usually be carried out by the Prisoner Escort and Court Custody Service.

20 Only after a person has been admitted to hospital following the imposition of a final disposal by the court would the hospital be expected to have responsibility for arranging any future transport of the person.

Suspension of Detention

Overview

21 Suspension of detention was generally referred to as 'leave of absence' under the 1984 Act. Part 13 of the 2003 Act sets out the statutory procedures for the temporary suspension of the measure in the order or direction specifying detention of a person who is subject to:

(i) an assessment order (section 52D of the 1995 Act);
(ii) a treatment order (section 52M of the 1995 Act);
(iii) an interim compulsion order (section 53 of the 1995 Act);
(iv) a compulsion order and a restriction order (sections 57A and 59 of the 1995 Act);
(v) a hospital direction (section 59A of the 1995 Act);
(vi) a transfer for treatment direction (section 136 of the 2003 Act).

22 Paragraphs 24 to 27 below outline the procedures for suspending the detention of a patient who is subject to an order or direction listed in paragraph 21. All section numbers in these paragraphs refer to the 2003 Act unless stated otherwise.

23 Section 179 of the 2003 Act sets out the procedures for suspending the detention of a patient who is subject to a compulsion order without a restriction order. It applies, with certain modifications, the relevant sections of the 2003 Act which set out the statutory procedures for the suspension of detention of a compulsory treatment order. For further information about these procedures refer to section 179 and Chapter 4 of Volume 2 of this Code of Practice. It should be noted that The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modifications of Enactments) Order 2005 amended section 179 so that the suspension of detention provisions also apply where an interim order has been made by the Tribunal with respect to a compulsion order in accordance with section 168 or 169 of the 2003 Act.

24 Suspension of detention allows for the hospital detention requirement in the order or direction to which the person is subject to be suspended for a limited period of time (and thereby suspend the person's detention in hospital) without the order or direction being revoked in its entirety. Suspension of detention may be granted for a number of reasons, such as:

• rehabilitation including pre-transfer visits to another hospital;
• quality of life;
• compassionate visits;
• scheduled treatment in hospital;
• emergency treatment in hospital;
• attendance at court;
• attendance at Tribunal hearings which are held outwith the hospital grounds.

25 In general terms, during the period where his/her detention is suspended, the patient is allowed to leave the hospital to travel to, take part in and return from the specified activity, and he/she must comply with any conditions that are set out in the certificate issued by the RMO granting the period of suspension.

26 It would be expected that any proposed suspension of detention would generally form part of an agreed care plan and so should be a matter of consultation between the RMO, the MHO and the rest of the multi-disciplinary team where relevant and appropriate, as part of the care planning process. There may be circumstances however in which such consultation may not be realistic or necessary, for example, where the period of suspension is for a short escorted trip to attend another hospital or for emergency treatment. In these circumstances the RMO should ensure that he/she takes into account any relevant victim issues, possible community concerns related to the index offence and any child protection matters.

27 The MHO would be expected to consult, and consider the implications for, the patient, the primary carer, the named person or care provider, and any significant care provider that may be supporting or supervising the patient during the period of suspension. The MHO should also take into account any relevant victim issues or community concerns related to the index offence. Any child protection matters should be considered. The MHO should take into account any notification requirements which may be imposed on the patient under Part 2 of the Sexual Offences Act 2003 (or "sex offender registration" as the requirements are commonly known), and what, if any, impact the need to comply with these requirements may have on him/her.

28 At the time of writing it is anticipated that regulations may be made under section 96 of the Sexual Offences Act 2003 placing a duty on hospital managers to notify other parties of certain information relating to the release from detention for a period of 3 days or more of a patient who is subject to the notification requirements under Part 2 of that Act. These are not yet in force but when they do become operational hospital managers must check their responsibilities in this area and comply with any duties imposed.

Granting the certificate (sections 221(3) and 224(2))

Consent of the Scottish Ministers

29 The RMO may grant a certificate suspending for a period the measure in the order or direction which authorises detention after having obtained the consent of the Scottish Ministers in accordance with section 224(3). This applies to both escorted and unescorted periods of suspension. Where the person is subject to one of the orders or directions listed in paragraph 21(ii) to (vi) above this period must not exceed 3 months.

30 Best practice would suggest that the Scottish Ministers' consent should be sought in good time before any proposed period of suspension to allow for any potential concerns to be identified and resolved. For example, where consideration is being given to a patient being granted a period of suspension for the first time to allow a compassionate visit to the home of family members or friends, the Scottish Ministers will require to be assured that all relevant matters have been identified and taken into account in the planning for the visit.

31 It would be expected that the Scottish Ministers' consent would be sought by way of an application which would address the matters set down in sections 221(2) to (6) with respect to an assessment order and sections 224(4) to (7) with respect to the orders or directions listed in paragraph 21(ii) to (vi) above. However there may also be other non-statutory issues that the Scottish Ministers would require to be covered. Best practice would suggest that, where the RMO is unfamiliar with the process and the administrative procedures involved he/she should contact the Health Department of the Scottish Executive for further information prior to making the application.

The certificate

32 Having obtained the approval of the Scottish Ministers the RMO may grant a certificate specifying a period during which the relevant order or direction does not authorise detention in hospital. In terms of sections 221(4) or 224(5) the period specified may be expressed as

• the duration of an event; or a series of events; or
• the duration of an event; or a series of events; and any associated travel.

33 Where the patient is subject to an order or direction listed in paragraph 22(ii) to (vi) above the total duration of the period specified in the certificate must not exceed 3 months and the total amount of leave during any 12 month period (ending with the expiry of the certificate currently being granted) must, in terms of section 224(4), not exceed 9 months. This is to prevent a patient being subject to suspension certificates for unnecessarily long periods of time. The expiry date of the certificate must not go beyond the expiry date (where applicable) of the order or direction to which the patient is subject.

34 Conditions may be included in the certificate where the RMO considers it necessary in the interests of the patient, or for the protection of any other persons (sections 221(5) or 224(6)). These conditions may include that the patient be kept in the charge of a person authorised in writing by the RMO in terms of sections 221(6)(a) or 224(7)(a) (such as a nurse or family member) or other conditions as may be specified by the RMO in terms of sections 221(6)(b) or 224(7)(b).

35 It would be best practice for the RMO to ensure that the designated MHO and other members of the multi-disciplinary team are informed of any conditions attached to the suspension certificate, and to ensure that procedures and contingency plans are put in place for any occasion where the conditions are not complied with.

36 The patient's RMO should give full consideration to the need for a multi-disciplinary assessment of the impact on the health and welfare of the patient and others of a proposed stay in the community. Any proposed suspension of detention and its objectives should concord fully with the patient's agreed care plan and its objectives. In coming to a conclusion on the appropriateness of the proposed suspension certificate, it will be important that the RMO involve fully the designated MHO and other members of the multi-disciplinary team. Practitioners involved in this process should also have regard to the principles of the 2003 Act, as laid out in sections 1 to 3, when deciding whether or not to grant a suspension certificate. Particularly important among these principles in this connection will be that stated at section 1(4) of the 2003 Act which provides for any person discharging a function under that Act to discharge that function in a manner which "involves the minimum restriction on the freedom of the patient that is necessary in the circumstances".

37 It would be expected that the patient and his/her named person would be as fully involved with the planning process preceding the decision to grant a suspension certificate as is practicable, bearing in mind that the patient's expectations should not be raised prior to the Scottish Ministers' consent having been obtained. Subject to the patient's consent, detailed prior consultation will also need to take place with any appropriate relatives or friends of the patient (particularly where the patient is to reside with them once no longer detained in hospital) and with relevant community service providers. It would not be best practice to grant a suspension certificate where the patient does not consent to relatives or friends being consulted where they are to be involved in his/her care once no longer in hospital.

38 While the patient is subject to a suspension certificate the RMO remains responsible for his/her care and treatment. The RMO must therefore ensure that appropriate arrangements are made for the patient's care and treatment while not in hospital.

Notification

39 Where the RMO proposes to grant a certificate for a period of more than 28 days; or less than 28 days but for a period which, when added to any previous period granted during the last 12 months, takes the total over 28 days, the RMO must notify the patient, the patient's named person, the patient's general medical practitioner and the MHO before granting the certificate (section 224(8)). It would be expected that this would allow for the arrangement of any necessary services.

40 Where the certificate specifies a period of more than 28 days the RMO must also notify the MWC within 14 days of the granting of the certificate in accordance with section 224(10).

The circumstances in which a certificate may be revoked

41 A certificate granted with respect to an assessment order may be revoked by the RMO under section 222(2) or by the Scottish Ministers under section 223(2) if either is satisfied that it is necessary in the interests of the patient, or for the protection of any other person.

42 Similarly a certificate granted with respect to an order or direction listed in paragraph 21(ii) to (vi) above may be revoked by the RMO under section 225(2) or by the Scottish Ministers under section 226(2) if either is satisfied that it is necessary in the interests of the patient, or for the protection of any other person. Revocation of the certificate authorises the immediate conveyance of the patient back to hospital.

Notification by the RMO

43 Where the RMO revokes a certificate which was granted with respect to an assessment order he/she must, as soon as practicable after doing so, inform the patient, any person in whose charge he/she may have been in terms of section 221(6)(a) and the Scottish Ministers (section 222(3)).

44 Where the RMO revokes a certificate which was granted with respect to an order or direction listed in paragraph 21(ii) to (vi) above he/she must, as soon as practicable after doing so, inform the patient, the patient's named person, the patient's general medical practitioner (if the period of suspension was for more than 28 days), any person in whose charge the patient may have been in terms of section 224(7)(a), the MHO and the Scottish Ministers (section 225(3)).

Notification by the Scottish Ministers

45 Where the Scottish Ministers revoke a certificate which was granted with respect to an assessment order they must, as soon as practicable after doing so, inform the patient, the patient's RMO and any person in whose charge the patient may have been in terms of section 221(6)(a) and the RMO (section 223(3)).

46 Where the Scottish Ministers revoke a certificate which was granted with respect to an order or direction listed in paragraph 21(ii) to (vi) above they must, as soon as practicable after doing so, inform the patient, the patient's named person, the patient's general medical practitioner (if the period of suspension was for more than 28 days), any person in whose charge the patient may have been in terms of section 224(7)(a) the RMO and the MHO (section 226(3)).

47 If the certificate had granted a period of suspension of more than 28 days the RMO and the Scottish Ministers are under a duty in terms of sections 225(4) and 226(4) respectively to notify the Mental Welfare Commission within 14 days of that certificate being revoked.

Absconding

Introduction

48 The Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005 ("the regulations") set out the procedures to be followed when persons who are subject to one of the following orders or directions abscond:

(a) assessment order (section 52D);
(b) treatment order (section 52M);
(c) temporary compulsion order (section 54(1)(c));
(d) interim compulsion order (section 53);
(e) compulsion order (section 57A);
(f) compulsion order and a restriction order (sections 57A and 59);
(g) hospital direction (section 59A);
(h) transfer for treatment direction (section 136 of the 2003 Act).

What constitutes "absconding"?

49 In general terms, the circumstances in which a person who is subject to one of the orders or directions listed in paragraph 48 above is deemed to have absconded are where the person:

• absconds from any place where he/she is being kept pending removal to hospital under the order or direction;
• absconds while being removed to hospital under the order or direction;
• absconds from the hospital in which he/she is being detained under the order or direction;
• is subject to a suspension of detention certificate under sections 127(1) as applied by section 179(1), 221(2) or 224(2) of the 2003 Act:
  - which requires the person to be kept in the charge of someone authorised by the RMO and he/she absconds from that charge;
  - which requires the person to reside continuously or for a specified time at a specified place and he/she fails to comply with that condition;
  - and the person absconds following the expiry of a specified period, or after the occurrence of a specified event, or on the revocation of the certificate.
• is subject to a compulsion order and breaches a requirement in terms of section 57A(8)(e) which requires the person to reside at a specified place;
• absconds while being transferred from one hospital to another, including where the person is being transferred out of Scotland;
• has been conditionally discharged and absconds following being recalled to hospital by the Scottish Ministers under section 202;
• absconds while being transported to a prison, institution or other place following the hospital direction or transfer for treatment direction to which the person is subject having been revoked by the Scottish Ministers;
• absconds from custody.

What should happen once a patient has absconded?

50 Where a patient has absconded he/she is liable to be taken into custody and dealt with in accordance with the regulations. For further information refer to the regulations and to paragraphs 54 to 59 below.

51 It would be expected that the decision as to whether the patient has absconded and is liable to be taken into custody is recorded in his/her medical notes with respect to issues such as who took the decision; who was consulted before the decision was taken; and on what evidence the decision was taken. It would usually be best practice for the patient's multi-disciplinary team to be the forum in which such a decision would be taken but time may not allow for this in the case of a patient who is subject to an assessment order, a treatment order, an interim compulsion order, a compulsion order and a restriction order (" CORO"), a hospital or a transfer for treatment direction given that he/she has "restricted" status and so action should be taken immediately.

52 This transparency around the decision-making process will be particularly important where the patient was subject to a compulsion order (" CO") which authorises compulsory measures in the community when he/she was deemed to have been liable to be taken into custody. In such cases, the patient should be afforded as full an opportunity as possible to explain why, for example, he/she failed to comply with a requirement to reside at a specified place in terms of section 57A(8)(e) of the 1995 Act before the decision is taken that he/she is liable to be taken into custody. It will also be important in such circumstances to have regard to the principles and other matters set out in sections 1 to 3 of the 2003 Act, and in particular the principle stated at section 1(4) with respect to discharging functions under that Act in a manner "that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances".

53 It may appear that there is an overlap between the regulations and the provisions in sections 112 and 113 of the 2003 Act (as applied by section 177) which relate to a patient's non-compliance with a CO which authorises compulsory powers in the community. This is mirrored in the civil procedures with respect to a compulsory treatment order. For further information about which provisions should be used in which circumstances, see Chapter 6 of Volume 2 of this Code of Practice.

Action to be taken following the absconding

Duties on the RMO

54 The regulations place a duty on the RMO to notify certain parties when he/she becomes aware that an absconding has taken place. It is important therefore that where it appears that this may be the case the RMO is informed immediately of the situation. The parties which the RMO must notify are:

• the Scottish Ministers;
• the court which imposed the order to which the person is subject;
• the Mental Welfare Commission;
• the prosecutor (where the person is subject to an assessment order or a treatment order which were imposed prior to conviction, or a temporary compulsion order).

The Scottish Ministers should be informed immediately upon the RMO becoming aware that an absconding has taken place, as should the local constabulary in the area in which the absconding took place. The RMO should also inform the designated MHO.

Taking into custody and returning of a patient who has absconded

55 Once the patient has absconded the following actions may be taken:

• the absconding patient may be taken into custody;
• the absconding patient may be returned or taken to the hospital in which he/she was detained or due to be detained. If this is not appropriate or practicable, he/she may alternatively be taken to any other place which is considered appropriate by the RMO;
• the absconding patient may be returned or taken to any other place which he/she absconded from or where he/she failed to reside. If this is not appropriate or practicable, the patient may alternatively be taken to any other place which the RMO considers appropriate.

56 The persons who are allowed to carry out the actions described in paragraph 55 above are:

• a mental health officer;
• a police constable;
• a member of staff of any hospital;
• any other person who has been authorised to carry out any of the actions in paragraph 55 by the RMO.

57 With respect to the final bullet point in paragraph 56, it would always be expected that this power would only be authorised with respect to an appropriately trained and qualified individual.

58 In the situation where the patient is subject to a suspension certificate granted under sections 127(1) as applied by section 179(1), 221(2) or 224(2) of the 2003 Act, and the certificate contains a condition that he/she must be kept in the charge of an authorised person, that authorised person may carry out certain actions separately from those persons listed in paragraph 56 above. These actions are:

• take the patient into custody;
• resume charge of the patient. If this is not appropriate or practicable, he/she may take the patient to any place considered appropriate by the patient's RMO.

59 The regulations allow the use of reasonable force where the actions described in paragraphs 55 and 58 are being carried out. However it would be expected that reasonable force would be used as a last resort where all other appropriate approaches not involving force have been exhausted. It is important that practitioners have regard to the principle set out at section 1(4) of the 2003 Act with respect to discharging functions under that Act in a manner which "involves the minimum restriction on the freedom of the patient that is necessary in the circumstances".

Effect of the period of unauthorised absence on certain orders

60 Where the patient is subject to an assessment order or an interim compulsion order, both of which are of a limited duration, the duration of the order is suspended during the period of the unauthorised absence until the day on which the patient is again taken into custody.

61 The effect of a period of unauthorised absence on a CO varies depending on the length of the period and when in relation to the expiry date of the compulsion order the patient is taken into custody:

• if the period of unauthorised absence continues for more than 3 months, the CO to which the patient was subject ceases to have effect;
• if the period of unauthorised absence continues for more than 28 consecutive days but ceases at least 14 days before the expiry date of the CO, the CO ceases to have effect 14 days after the patient's period of unauthorised absence ends;
• if the period of unauthorised absence ends either on the day on which the CO was due to expire or within 14 days prior to that day, the CO continues for 14 days from the point at which the patient's period of unauthorised absence ended;
• if the period of unauthorised absence continues for less than 3 months but ceases after the day on which the CO was due to expire, the CO is treated as having continuing effect even after its expiry date and continues to have effect for a period of 14 days from the point where the patient's unauthorised absence ended.

62 Where the patient is subject to a hospital direction or a transfer for treatment direction the period of unauthorised absence does not count as time served with respect to his/her sentence.

Review of the order or direction

63 The regulations provide for the review of the order or direction by the RMO once the patient has been taken into custody. It would be expected that the MHO and the other members of the multi-disciplinary team where relevant and appropriate would contribute to this review.

Review of an assessment order, a treatment order, a temporary compulsion order or an interim compulsion order

64 Where the patient is subject to an assessment order, a treatment order, a temporary compulsion order or an interim compulsion order the RMO must as soon as reasonably practicable after becoming aware that he/she has been taken into custody, review the order. It would be expected that it may not be reasonably practicable to carry out such a review if as a result of the patient's further progression to the next stage of the criminal justice process time does not allow for this.

65 Where the RMO has carried out a review and as a result considers that the measures in the order require to be varied he/she must apply to the court for this variation. For example, he/she may consider that the patient requires to be detained in a hospital which provides a higher level of security than the one from where he/she absconded.

Review of a compulsion order

66 In general terms, where the patient is subject to a compulsion order the RMO must carry out a review of the order in terms of section 139(3) of the 2003 Act within 14 days of the order continuing in effect following the patient having been taken into custody. If following the review the RMO considers that the compulsion order requires to be varied he must apply to the Tribunal in the usual way. For further information about these application procedures refer to Part 2, Chapter 1 of this Volume of the Code of Practice.

67 If the patient is subject to a compulsion order which authorises detention in hospital and the RMO considers that as a result of his//her absconding the patient requires to be transferred to another hospital this should be arranged in accordance with section 124 of the 2003 Act as applied by section 178.

68 It should be noted that where the patient is subject to a compulsion order which authorises compulsory measures in the community, section 113 of the 2003 Act as applied by section 177(1) allows the RMO in certain circumstances to detain the patient in hospital for a period of 72 hours so that a medical examination may be carried out. Section 114 of the 2003 Act as applied by section 177(2) further allows him/her in certain circumstances to grant a certificate authorising the continued detention of the person in hospital for 28 days. For further information about these provisions see Chapter 6 of Volume 2 of the Code of Practice.

Review of a CORO, a hospital direction or a transfer for treatment direction

69 In general terms, where the patient is subject to a CORO, a hospital direction or a transfer for treatment direction the RMO must, within 14 days of the patient having been taken into custody, carry out a review of the orders or direction in terms of sections 182(3) (with respect to a CORO) or 206(3) (with respect to a hospital direction or a transfer for treatment direction) of the 2003 Act. If following the review the RMO considers that the patient should be transferred to a hospital which provides a higher level of security than the one from where he/she absconded then this should be arranged in accordance with section 218 of the 2003 Act.

Suspension of detention - revocation of certificate

70 Where the patient has absconded or has been taken into custody after having absconded while being subject to a suspension of detention certificate granted under section 127(1) as applied by section 179(1), or sections 221(2) or 224(2) of the 2003 Act, the RMO may revoke that certificate. It would be expected that this would be considered where the certificate authorises further periods of leave.

71 For further information about these provisions refer to The Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005.

Medical treatment (which includes medication, psychological and social interventions)

72 Procedures related to the giving of medical treatment to patients subject to certain orders under the 1995 Act are set out in Part 16 of the 2003 Act. The following sets out the applicability of Part 16 of that Act to the various provisions for mentally disordered persons involved in criminal justice proceedings.

73 In general terms only orders that require two medical recommendations, one of which is by an approved medical practitioner, allow treatment under Part 16 of the 2003 Act; but any order allowing detention in hospital permits emergency treatment under section 243 of that Act. It would be expected that any primary treatment to be given under Part 16 of the 2003 Act other than medication would be a matter for discussion with the relevant multi-disciplinary team members.

Assessment order (section 52D)
Medical treatment under Part 16 of the 2003 Act may be given if this is determined to be in the patient's best interests by an approved medical practitioner who is not the patient's RMO and this determination is recorded in writing (see section 242(5)(b) of the 2003 Act). This determination should be recorded in the patient's medical records.

Treatment order (section 52M)
Medical treatment may be given in accordance with Part 16 of the 2003 Act.

Committal to hospital under section 200
The giving of medical treatment under Part 16 of the 2003 Act is not authorised. Section 243 of the 2003 Act (urgent medical treatment) does apply. If non-urgent compulsory medical treatment is necessary best practice would suggest that the same procedure as outlined above for assessment orders should be followed.

Interim compulsion order (section 53)
Medical treatment may be given in accordance with Part 16 of the 2003 Act.

Compulsion order (section 57A)
Medical treatment may be given in accordance with Part 16 of the 2003 Act where this measure is specified in the compulsion order in terms of section 57A(8).

Restriction order (section 59)
Medical treatment may be given in accordance with Part 16 of the 2003 Act under the compulsion order attached to the restriction order where this measure is specified in the order in terms of section 57A(8).

Hospital direction (section 59A)
Medical treatment may be given in accordance with Part 16 of the 2003 Act.

Guardianship order (section 58(1A))
The Adults with Incapacity (Scotland) Act 2000 rather than the 2003 Act applies. Part 16 of the 2003 Act does not apply; compulsory medical treatment for mental disorder cannot be authorised under a guardianship order.

Intervention order (section 60B)
The Adults with Incapacity (Scotland) Act 2000 rather than the 2003 Act applies. Part 16 of the 2003 Act does not apply; compulsory medical treatment for mental disorder cannot be authorised under an intervention order.

Probation order with a requirement of treatment for mental condition (section 230)
Part 16 of the 2003 Act does not apply. Medical treatment may only be given with the patient's consent.

Supervision and treatment order (section 57(2)(d) and Schedule 4)
Part 16 of the 2003 Act does not apply. Medical treatment may only be given with the patient's consent.

Urgent detention of acquitted person (section 60C)
Part 16 of the 2003 Act does not apply. Medical treatment may only be given with the patient's consent.

Transfer for treatment direction (section 136 of the 2003 Act)
Medical treatment may be given in accordance with Part 16 of the 2003 Act.

Appeals

74 A person who is made subject to:

• an interim compulsion order (section 53);
• a compulsion order (section 57A);
• a guardianship order (section 58(1A));
• a restriction order (section 59);
• a hospital direction (section 59A).

has a right of appeal to the court under section 60 against its initial imposition in the same manner as an appeal against sentence.

75 There is no specific appeal procedure available against the making of an order, or the failure to make an order, under the following provisions:

• section 52D (assessment order);
• section 52M (treatment order);
• section 54(1) (temporary compulsion order).

76 In cases involving insanity, a person who is made subject to:

• a finding made under section 54(1) that he/she is insane so that his/her trial cannot proceed or continue, or the refusal of the court to make such a finding;
• a finding under section 55(2) that he/she did the act or made the omission constituting the offence and that there are no grounds for acquitting him/her;
• an insanity disposal in terms of section 57(2)

has a right of appeal under section 62. This right is without prejudice to the person's right of appeal under section 74 against any decision made at a first or preliminary diet. However in relation to insanity disposals in terms of section 57(2), the right of appeal here supersedes the general right of appeal under section 60 as detailed in paragraph 74 above.

Medical evidence

77 Section 61 sets out the requirements as to the medical evidence on which courts should base their decisions as to the making of orders. For some orders these requirements are set out under the sections dealing with the making of the specific order ( i.e. a supervision and treatment order (section 57(2)(d) and Schedule 4)) and a probation order with a requirement of treatment for mental condition (section 230)).

78 In some cases the legal process may require urgent opinion from medical practitioners and MHOs. However, as a rule this process should be characterised by multi-disciplinary working between the medical practitioners, the MHO and as many other relevant parties in the application process as are relevant and appropriate. Other members of the multi-disciplinary team may be able to provide additional assessment information and those who may be providing care and treatment to the patient (such as psychologists, CPNs, relatives/carers/significant other) should be consulted before the decision to initiate an application or submit a recommendation is made.

Do the medical practitioners need to be approved under section 22 of the 2003 Act?

79 At least one of the two medical practitioners giving evidence to be taken into account for finding or making the following must be approved:

• treatment order (section 52M);
• interim compulsion order (section 53);
• insanity in bar of trial (section 54(1));
• temporary compulsion order (section 54(1)(c));
• compulsion order (section 57A);
• guardianship order (section 58(1A);
• hospital direction (section 59A);
• an order authorizing detention of an acquitted person for medical examination (section 60C).

80 For the making of the following order both medical practitioners giving evidence must be approved:

• a supervision and treatment order (section 57(2)(d), paragraph 2(1)(b) of Schedule 4)

81 For the making of the following orders medical evidence is only required from one medical practitioner who does not require to be approved:

• assessment order (section 52D);
• committal to hospital following conviction for inquiry into mental condition (section 200).

82 For the making of the following order medical evidence is required from one approved medical practitioner:

• probation order with a requirement of treatment for a mental condition (section 230)

Must there be evidence from the medical practitioner or psychologist who will be responsible for the assessment or treatment of the patient if the order is made?

83 This is good practice in all cases. However where the medical practitioner who will be responsible for the patient's care or his/her representative ( i.e. a medical practitioner working at the same hospital or for the same Health Board) does not give evidence, the medical practitioners making recommendations should consult him/her or his/her representative to:

• seek his/her agreement to accepting the patient under his/her care; and
• ascertain that arrangements have been made for the patient to be received under the relevant order.

84 Section 61(1A) sets out that before making one of the following orders or directions one of the medical practitioners giving evidence must be employed by the hospital which is to be specified in the order or direction:

• treatment order (section 52M);
• interim compulsion order (section 53);
• temporary compulsion order (section 54(1)(c));
• compulsion order (section 57A);
• hospital direction (section 59A).

85 In most circumstances it would be expected that this would be the medical practitioner who would be appointed as the patient's RMO in terms of section 230 of the 2003 Act. In relation to a patient who is subject to a temporary compulsion order (where there is no statutory duty on the hospital managers to appoint an RMO) the medical practitioner would be expected to be the one under whose care the patient will be treated.

86 For the making of a probation order with a requirement for treatment for a mental condition under section 230, where the treatment is not going to be given by or under the supervision of that medical practitioner, then there must also be evidence from the registered medical practitioner or the chartered psychologist by or under whom the treatment will be given that the treatment is appropriate (section 230(3)(a)).

Collaboration with other professionals

87 It would be expected that the views and opinions of other relevant parties who currently provide or are likely to provide care and treatment to the patient in the future should be sought whenever possible while respecting issues of patient confidentiality. A multi-disciplinary assessment should be carried out with specialist assessments being sought where relevant and appropriate to assist in the decision making process. For example:

• a medical practitioner may seek input specifically from a suitably qualified psychologist in relation to a complex assessment of capacity or in cases where the person has a significant learning disability, or personality disorder;
• a medical practitioner should seek input from the appropriately qualified party (psychologist or other) who will be likely to be providing a complex psychological intervention. This is required because only they will be able to assess the person's suitability for their particular intervention and be able to plan for it. This is particularly important in cases where it is anticipated that a psychological intervention may be implemented without a patient's consent e.g. a behaviour modification programme.
• a medical practitioner should seek input from other appropriately qualified professionals, such as speech and language therapists or occupational therapists, where they would be able to usefully contribute from their own areas of expertise during the assessment process.

Oral or written evidence?

88 For the making of all the relevant orders the evidence given by medical practitioners may be written or oral. In the majority of cases the evidence would be expected to be in the form of a written report. In certain cases oral evidence may be given where a written report has not been submitted. For example where a medical practitioner has carried out an urgent assessment of a person immediately prior to the court appearance. However in such circumstances written reports would also be submitted as soon as practicable.

89 Under some circumstances oral evidence may need to be given in addition to submitting a written report. For example:

• if the court wishes to make a restriction order it must hear oral evidence from the approved medical practitioner whose evidence has been taken into account in making the accompanying compulsion order (section 59(2));
• if the court requires clarification about any aspect of a report;
• if there are differing opinions expressed by different medical practitioners;
• under section 61(4)(c) the accused person may require that a medical practitioner who has prepared a report is called to give oral evidence, and evidence to rebut the evidence in the report may be called by or on behalf of the accused person.

How should a second report be commissioned where this is necessary?

90 Under some circumstances a second report by a medical practitioner may be required so that the court can act on a recommendation. The medical practitioner preparing the first report may be in a position to identify a medical practitioner who would be able to prepare this second report. The prosecutor or court may then be contacted so that a formal written request can be made for this medical practitioner to prepare the second report.

Where two or more reports are required should there be consultation between the report writers?

91 Where more than one report is required or is being prepared in a particular case then it would be expected that the medical practitioners preparing the reports would consult each other regarding the appropriate disposal to recommend. This would prevent a situation arising where a court cannot act on the recommendations as there are not two appropriate medical recommendations.

Is it acceptable for the two reports to be prepared by medical practitioners working in the same unit or hospital?

92 It would usually be preferable for the two reports to be prepared by medical practitioners working in different units. If the order being recommended is for detention at a state hospital or another hospital outwith the patient's area of residence, it would be expected, if practicable, that one report should be prepared by a medical practitioner from the admitting hospital and the other by a medical practitioner from the person's area of residence. However, this may not be practicable in all cases, so in some cases reports may be prepared by medical practitioners from the same unit or hospital.

What should a medical practitioner do when assessing a person involved in criminal proceedings?

93 The request for the assessment, whether from the prosecutor, the court or on behalf of the accused, would be expected to allow enough time for arrangements to be made to interview the person, examine relevant documents and prepare a written report. Where there is not enough time for this process to be undertaken thoroughly then this may affect the quality of the report produced. Therefore urgent requests for reports which do not allow enough time for a thorough assessment would only be expected to be made where there are good reasons for this, and this would usually be discussed directly between the person commissioning the report and the medical practitioner.

94 The medical practitioner should arrange to interview the person, whether this is in hospital, prison or the community. The medical practitioner should explain to the person:

• who has instructed the report;
• the nature of the interview;
• the purpose of the interview;
• the limits of confidentiality.

95 The medical practitioner should seek the person's consent to:

• carry out the interview;
• to prepare the report;
• to contact any other person for further information;
• to access relevant documents or records.

The medical practitioner should then prepare a written report as set out below. Even if the medical practitioner is to give oral evidence, a written report should be submitted.

What should the medical practitioner do if the person refuses to be examined and/or does not have capacity to consent to be examined?

96 If the person refuses to be examined the medical practitioner should attempt to ascertain whether the person has capacity to refuse. This may be assessed from the person's presentation when attempts are made to speak to him/her, from background information from hospital staff, prison staff or others who know the person well. In most circumstances the person will usually have capacity to refuse. In such circumstances the medical practitioner should inform the court that the person refused to be examined, and should not give any further information about the person.

97 If the person appears to have a mental disorder such as to make him/her incapable of refusing to allow an assessment to be undertaken and reported, then the medical practitioner should carry out an assessment based on:

• any contact that is possible with the person;
• information from staff or others who know the person's background or recent circumstances;
• information from relevant documents.

98 When reporting such an assessment the medical practitioner should state in his/her report that the person refused to be examined but appeared to have incapacity in relation to this decision.

99 If the person does not refuse to be assessed, but nevertheless appears to have a mental disorder such as to make him/her incapable of consenting to the assessment to be undertaken and reported, the medical practitioner should undertake the necessary assessment and state in his/her report that the person was incapable of consenting to the assessment.

What may be covered in the report?

100 Reports should state the circumstances of the assessment, lay out the information on which the conclusions in the report are based, state the conclusions of the medical practitioner by way of an opinion and recommendation and mention the status of the medical practitioner.

101 The following sets out a comprehensive list of non-statutory matters that may be included in a psychiatric report on a person involved in criminal proceedings. Not all of the issues may be relevant in every case. For example:

• where there is little information available and the recommendation is for an assessment order the report may be relatively brief, focusing on the issues of relevance to the making of the order;
• where the person has been convicted, consideration of insanity in bar of trial, insanity at the time of the offence and diminished responsibility (in murder cases) is irrelevant;
• where a report is updating a previous report prepared in the same case relating to the same offence (or alleged offence), or is recommending the extension of an order (such as an interim compulsion order or an assessment order) the report may be relatively brief, as long as it addresses whether the person fulfils the criteria for that order and why extension is necessary.

Matters that would be expected to be addressed in a psychiatric report

102Preliminary information:

• at whose request the assessment was undertaken, circumstances of assessment (place, time, any constraints on assessment such as inadequate time to complete assessment due to prison routine);
• sources of information used (interview with the person, interviews with others, documents examined);
• the person's capacity to take part or refuse to take part and understanding of the limits of confidentiality;
• • if any important sources of information could not be used, there should be a statement as to why this was the case.

Background history:

• family history;
• personal history;
• medical history;
• psychiatric history;
• recent social circumstances;
• personality;
• forensic history.

Circumstances of offence or alleged offence

Progress since offence or alleged offence

Current mental state

Opinion: would cover all or some of the following matters:

• fitness to plead;
• presence of mental disorder currently and whether the criteria for the relevant order are met;
• presence of mental disorder at the time of the offence:
  - the relationship between any mental disorder and the offence (this is still relevant even if the person has been convicted as it may affect the choice of disposal);
  - whether the person was insane at the time of the offence;
  - in murder cases, whether there are grounds for diminished responsibility.
• assessment of risk in the presence of mental disorder:
  - the risk of harm to self or others;
  - the risk that the person might pose of re-offending;
  - the relationship between this risk and any mental disorder present;
  - does the person require to be managed in a secure setting, and if so should this be at a state hospital?
• what assessment or treatment does the person require?
  - does the person need further assessment?
  - where should this take place, does the person need a period of in-patient assessment and what level of security would be required?
  - why, which issues remain to be clarified?
• does the person require treatment for a mental disorder or condition?
  - what treatment does he/she need and where should this be given?
• state any matters that are currently uncertain and the reasons they remain uncertain

Recommendation:

• should the court consider using any particular order?
• if so what arrangements have been made for the person to be received in hospital or elsewhere under this order?
• whose care will the person be under?
• consider whether an alternative order may be appropriate if circumstances change so that the order recommended above cannot be acted on. For example:
  - if the person is or is not found to be insane;
  - if the person is or is not convicted.

Medical practitioner's qualifications etc:

• name;
• current post;
• current employer;
• qualifications;
• fully registered with the General Medical Council;
• approved under section 22 of the 2003 Act and with which health board;
• a statement that the report is given on soul and conscience;
• a statement as to whether the medical practitioner is related to the person;
• a statement as to whether the medical practitioner has any pecuniary interest in the person's admission to hospital or placement on any community-based order;
• the medical practitioner should sign the report.

The Social Circumstances Report

103 In accordance with section 231 of the 2003 Act the MHO designated in terms of section 229 of that Act must provide the RMO and the Mental Welfare Commission with a report on the social circumstances of a person who is made subject to one of the following orders:

• assessment order (section 52D);
• treatment order (section 52M);
• interim compulsion order (section 53);
• compulsion order (section 57A);
• hospital direction (section 59A);
• transfer for treatment direction (section 136 of the 2003 Act).

104 The MHO must prepare the Social Circumstances Report (" SCR") and send a copy to the patient's RMO and the Mental Welfare Commission within 21 days of the order, or as the case may be, direction being made. (There is no form prescribed for this report but a pro-forma, SCR1, may be found on the Scottish Executive website at www.scotland.gov.uk/health/mentalhealthlaw .) The exception to this is where the MHO considers that the report would serve little or no purpose. This might be because the MHO has already recently prepared an SCR in relation to a previous order. For example where an SCR has been prepared in relation to an assessment order, it may be unnecessary to provide a further one if the person is subsequently made subject to a treatment order.

105 Where the MHO has decided not to prepare a report he/she must record his/her reasons for reaching this decision and send a statement of those reasons to the RMO and the Mental Welfare Commission in accordance with section 231(2) of the 2003 Act. For further information about SCRs refer to The Mental Health (Social Circumstances Reports) (Scotland) Regulations 2005 ( SSI No. 310) and Chapter 11 of Volume 1 of the Code of Practice .

106 With respect to mentally disordered offenders in particular, when preparing the SCR, some additional specific issues that the MHO should consider in relation to the following orders are:

Assessment Order (section 52D)

• identify if a treatment order may be required.

Treatment Order (section 52M)

• what are the elements of any required on-going care and treatment plan?
• are appropriate services available?
• are compulsory powers required and appropriate?
• identify and detail the compulsory powers required

Interim Compulsion Order (section 53)

• do the circumstances of the case require consideration of a restriction order?
• do the circumstances of the case require consideration of a hospital direction?

Compulsion Order (section 57A)

• the requirements of this SCR should mirror those for a CTO.

107 In circumstances where an MHO report has been prepared under section 57C (where a compulsion order is under consideration by the court) or 59B (where a hospital direction is under consideration by the court), best practice would suggest that the SCR would refer to the content and the recommendations of that report, particularly with regard to the proposed plan of care and the intended use of compulsory powers.

How does the Social Circumstances Report interact with the Social Enquiry Report?

108 The SCR is prepared by the designated MHO for the RMO in accordance with section 231 of the 2003 Act to inform the mental health assessment and in certain circumstances, the consideration of possible mental health disposals in the case.

109 The Social Enquiry Report (" SER") is prepared for the court to inform sentencing (see paragraphs 111 to 112 below). Where SCRs are being prepared pre-trial it can be rare for an SER to be requested.

110 Where an SCR is being prepared post-conviction and pre-sentence an SER may have also been requested by the court to assist in the eventual consideration of sentencing options. In general the author of the SER should always consult closely with the designated MHO for the case. It would be expected that consideration would be given to the development of protocols to support appropriate information sharing in such cases, including mutual access to the respective reports subject to any necessary consent requirements.

Social Enquiry Report

111 The term "Social Enquiry Report" does not exist in law but is used to describe reports which local authority social workers prepare and submit to the courts in carrying out their duties under section 27(1)(a) of the Social Work (Scotland) Act 1968. The 1995 Act:

• empowers the court to adjourn a case before sentence "for the purpose of enabling enquiries to be made or of determining the most suitable method of dealing with his case" (section 201(1));
• requires the court to obtain such information as it has been able to obtain about the offender's circumstances; and it shall also take into account any information before it concerning his character and physical and mental condition before imposing a first sentence of imprisonment on any offender aged 21 or over. A sentence may be imposed only if the court is of the opinion that no other method of dealing with the offender is appropriate. (section 204(2A)(a)).
• requires the court to obtain a report regarding the circumstances and character of the offender and arrangements for supervision before making a Probation Order (section 228(1)(b)) and (2);
• requires a report about the offender and his circumstance, and his suitability to perform work under the order before making a Community Service Order (section 238(2)(c));
• requires the court to obtain a report about the offender and his circumstances before making a Supervised Release Order (section 209(2);
• requires the court to obtain a report about the offender and his circumstances before passing an Extended Sentence (section 210A(4));
• requires the court (except District Courts), where a person specified in section 27(1)(b)(i) to (vi) of the Social Work (Scotland) Act 1968 commits an offence, to obtain a report as to the circumstances of the offence; and the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him (section 203).

112 The purpose of the report is to provide the court with information and advice which will assist sentencing. The report provides information about the offender and his/her personal and social circumstances. On the basis of a risk and needs assessment the report also advises the court on the suitability of an offender for a community-based disposal, particularly those which local authorities supervise on behalf of the courts. The compilation of this report would normally involve obtaining the views and opinions of other relevant parties who currently provide or are likely to provide care and treatment to the person in the future; these should be sought wherever possible while respecting issues of patient confidentiality. Specialist assessments should also be sought where these are of particular relevance to the decision making process.