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

part 2
parts 9 to 13 of the mental health (care and treatement) (scotland) act 2003

chapter 1 compulsion orders

Introduction

This chapter examines the procedures surrounding a compulsion order (" CO") as laid out in Part 9 of the Mental Health (Care and Treatment) (Scotland) Act 2003. These procedures are very similar to those for a compulsory treatment order (" CTO") in relation to patients subject to civil proceedings under Part 7 of that Act. Rather than duplicating the information contained in Chapters 4, 5, 6, and 9 of Volume 2 of the Code of Practice which cover these procedures with respect to a CTO, this chapter simply points out where the procedures are different. Therefore the aforementioned chapters in Volume 2 should be followed taking into account the differences outlined in this chapter.

The chapter begins by setting out an overview of the differences in the procedures.

It then outlines the RMO's duty to prepare a care plan, followed by the processes associated with the formal reviews of a CO where they differ from those for a CTO.

Finally the chapter includes a table which sets out the analogous procedures for a CO and a CTO and the corresponding sections of the Act and Volume 2 of the Code of Practice which covers Part 7 of the Act.

All section numbers in this chapter refer to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Act") unless stated otherwise. It should be noted throughout this chapter that the term " CO" refers to a compulsion order and the term " CTO" refers to a compulsory treatment order.

Overview

01 A CO may be imposed by a court under section 57A of the Criminal Procedure (Scotland) Act ("the 1995 Act") where a mentally disordered person is convicted of an offence which is punishable by imprisonment. The order may authorise compulsory measures either in hospital or in the community for a period of 6 or 12 months depending on if, and when, it is being renewed. For information and guidance on the procedures prior to the imposition of a CO refer to Part 1, Chapter 5 of this Volume of the Code of Practice.

The compulsion order in operation

02 The processes that should be followed in the immediate aftermath of CO having been imposed are very similar to those for a CTO in relation to patients subject to civil proceedings under Part 7 of the Act. Therefore Volume 2, Chapter 4 of the Code of Practice which covers the operation of a CTO should be followed, taking into account the differences in procedure which are outlined in paragraphs 4 to 6.

The imposition of the order

03 A CTO is granted by the Tribunal under section 64(4)(a) following the submission of an application, a mental health officer's report and a proposed care plan by the designated MHO, and mental health reports by two medical practitioners. A CO is imposed by a criminal court under section 57A(2) of the 1995 Act following recommendations by two medical practitioners and an MHO report prepared in accordance with section 57C of the 1995 Act.

The care plan

04 As soon as practicable after a CTO has been imposed, the patient's RMO is under a duty to prepare a care plan in accordance with section 76(1). Following the imposition of a CO the patient's RMO must prepare a Part 9 care plan in accordance with section 137(2). There is no statutory provision for a proposed care plan to have been submitted to the court by the designated MHO prior to the imposition of the CO although the order must specify the measures that the court authorises and these will cover the patient's health and social care requirements.

05 In general terms the care plan prepared after a CTO has been imposed sets out the forms of care and treatment for mental disorder which it is proposed to give to the patient for the duration of the CTO and which are currently being given to the patient. The Part 9 care plan contains the same core information as the care plan for a CTO but also includes other information to take account of the status of the patient as a mentally disordered offender. For further information refer to paragraphs 18 to 29 below.

Recorded matters

06 A CTO can specify "recorded matters" (section 64(4)(a)(ii)). These are particular types of medical treatment, community care services, relevant services or any other form of treatment, care or service which the Tribunal wishes to mark out as being essential to the care package for the patient. There is no provision in the Act for a CO to specify recorded matters. Best practice would suggest however that where any treatment, care or service(s) is regarded as being essential for the care package of a patient subject to a CO, this should be described as such in the patient's Part 9 care plan. For further information about the Part 9 care plan refer to paragraphs 18 to 29 below

Review criteria

07 The criteria considered in the imposition of, or the review of a CO, are identical to those for the granting of a CTO, except that for a CO the criterion set down in section 64(5)(d) does not apply. Quoting from section 64(5), this criterion is:

that because of the mental disorder the patient's ability to make decisions about the provision of such medical treatment is significantly impaired; and

08 There is therefore no requirement to assess the ability of a patient to make decisions about the provision of his/her medical treatment when reviewing a CO. (It should be noted that the patient's 'decision-making' ability with respect to medical treatments covered by Part 16 of the Act will be relevant when considering specific medical treatments but not for the renewal of the CO itself).

09 The procedures which should be followed in the review, variation and extension of a CO are almost identical to those for a CTO. For information and guidance on the procedures relating to a CTO refer to Chapter 5 of Volume 2 of the Code of Practice taking into account the differences outlined in paragraphs 10 to 15 and 30 to 37 below.

First mandatory review

10 At the first mandatory review of a CTO, if the RMO concludes that the order should be extended for a further 6 months (where no variation to any of the measures or recorded matters specified in the order is required), he/she may make a determination under section 86(1) to extend the order without any recourse to the Tribunal. However at the first mandatory review of a CO under section 139, if the RMO concludes that the order should be extended for a further 6 months (regardless of whether a variation to any of the measures specified in the order is required), he/she must apply to the Tribunal in terms of section 148(3) as read with section 149. This is because, unlike a CTO, the Tribunal did not review the patient's case at the time of the imposition of the order given that the order was imposed by a criminal court.

11 However, as for a CTO, all further extensions (where no variation is proposed) must be made by the RMO making a determination, without recourse to the Tribunal (section 152(2)).

Documents to accompany applications made by the RMO to the Tribunal

12 The documents which must be submitted to the Tribunal by the RMO where he/she is making an application with respect to a CTO are set out in The Mental Health (Compulsory treatment orders - documents and reports to be submitted to the Tribunal) (Scotland) Regulations 2005 ( SSI No.366). The equivalent regulations made with respect to CO applications are set out in The Mental Health (Compulsion orders - documents and reports to be submitted to the Tribunal) (Scotland) Regulations 2005 ( SSI No.365). The provisions of both sets of regulations are on the whole the same but there are a few specific differences as detailed in paragraphs 34 and 36 below. Where any application is being made to the Tribunal with respect to a CO, the RMO and the MHO should refer to these regulations if unfamiliar with the processes involved.

13 It should be noted that the regulations referred to in paragraph 12 above also allow for the Tribunal to request further information from the RMO and the MHO in the form of reports where the Tribunal is not satisfied that is has sufficient information to make a decision with respect to:

• an application by the RMO to extend the CO following first review (section 149);
• an application by the RMO to extend and vary the CO (section 158);
• an application by the RMO to vary the CO (section 161);
• an application by the patient or the named person for the revocation of the RMO's determination to extend the CO under section 152 (section 163);
• an application by the patient or named person for the revocation or variation of the CO (section 164);
• a review by the Tribunal of a determination to extend the CO under section 152 (section 165).

For information on the content of the reports reference should be made to the regulations.

RMO's application to extend and vary a CO

14 It should be noted that The Mental Health (Care and Treatment) (Scotland) Act 2003 Modification Order 2004 ( SSI No.533) amended section 158 of the Act which sets out the information that must be included in the RMO's application to the Tribunal where he/she is making an application for a CO to be extended and varied. The effect of the amendment is that where the MHO disagrees with the application being made the RMO must include the MHO's reasons for doing so in his/her application.

Duty on the MHO with respect to an application to vary a CO

15 It should be noted that The Mental Health (Care and Treatment) (Scotland) Act 2003 Modification Order 2004 ( SSI No.533) also amended sections 159 and 161 of the Act which set out the statutory procedures for the RMO where he/she is making an application to the Tribunal for a CO to be varied. In general terms the amendments place a duty on the MHO which is almost identical to that under section 155 where an application to extend and vary the CO is being proposed, and a duty on the RMO with respect to the content of the application to the Tribunal which is almost identical to that under section 158 where an application to extend and vary the CO is being made. These new duties are also mirrored in civil proceedings with respect to CTOs. For further information refer to the regulations.

Absconding

16 The statutory procedures with respect to absconding by a patient subject to a CTO are set out in sections 301 to 307 of the Act. However the statutory procedures in relation to absconding by mentally disordered offenders are set out in The Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005. These mirror the procedures set out for CTOs in sections 301 to 307 of the Act. For further information about the procedures relating to a CO refer to the regulations and to Part 1, Chapter 6 of this Volume of the Code of Practice.

Forms

17 There are no prescribed forms for applications to the Tribunal, determinations, suspension of detention certificates etc. in relation to COs but pro-formas may be found on the Scottish Executive website www.scotland.gov.uk/health/mentalhealthlaw. Refer to Part 2, Chapter 11 of this Volume of the Code of Practice for a detailed list.

The Part 9 Care Plan

Before a CO is imposed

18 Although the procedures prior to the imposition of a CO by a court do not include a statutory requirement for the preparation of a proposed care plan (as they do for a CTO under section 62 of the Act), it would be expected that a patient's future Part 9 care plan would be considered by the RMO and the MHO and drawn up prior to a recommendation for a CO being made to the court. Indeed aspects of the future Part 9 care plan, such as the consideration of, and recommendations for, compulsory measures to be applied, form part of the medical reports under section 57A(2)(a) of the 1995 Act and the MHO report prepared for the court in accordance with section 57C of the 1995 Act. For further information on the procedure prior to the imposition of a CO refer to Part 1, Chapter 5 of this Volume of the Code of Practice.

After a CO is imposed

19 The patient's RMO must, in accordance with section 137, prepare a Part 9 care plan setting out the forms of care and medical treatment for the mental disorder which it is proposed to give to the patient for the duration of the CO and which are currently being given to the patient.

20 Best practice would suggest that, in most cases, there would have been a multi-disciplinary assessment, involving the RMO, the MHO, a suitably qualified chartered psychologist where appropriate, (for example where the patient has learning disability or a personality disorder), and the other members of the multi-disciplinary team, prior to the recommendation for a CO being made to the court. It would be expected that the 'future' Part 9 care plan would therefore already have been considered in detail and the RMO should be in a position to prepare it under section 137 soon after the CO has been imposed.

21 If this is not the case, there should be a multi-disciplinary review as soon as practicable after the imposition of the CO, involving the RMO, the MHO and the other memebers of the multi-disciplinary team so that the details of the Part 9 care plan may be agreed and set out.

22 The Mental Health (Content and amendment of Part 9 care plans) (Scotland) Regulations 2005 ( SSI No.312) provide for the following additional information to that mentioned in paragraph 19 above to be recorded in the Part 9 care plan:

(a) the full details of the CO and the day on which the order was made;
(b) the objectives of the medical treatment which it is proposed to give, and which is being given to the patient;
(c) details of any community care services or other relevant services and the objectives of those services which it is proposed to give, and which are being given to the patient;
(d) details of any other treatment, care or service (other than that described in section 137(3)(a) or in paragraph (c) above) and the objectives of that treatment, care or service which it is proposed to give; and which is being given,to the patient;
(e) the name and other appropriate contact details of the patient's responsible medical officer;
(f) the name and other appropriate contact details of the patient's mental health officer;
(g) details of the two month period during which the statutory reviews under sections 139(2) or 140(2) are required to take place
(h) the actual dates on which the statutory reviews took place;
(i) the date of the patient's conviction
(j) the offence of which the patient was convicted;
(k) if the patient is subject to:
(i) the notification requirements in Part 2 of the Sexual Offences Act 2003;
(ii) a sexual offences prevention order (section 105 of the Sexual Offences Act 2003),

and if so, the notification period referred to in (i) or the period specified in the sexual offences prevention order.

23 The full details of the CO as referred to in paragraph 22(a) above would include the measures authorised by the order.

24 With respect to the matters referred to in paragraphs 22(g) and (h) above this simply means that when the Part 9 care plan is first prepared under section 139 the RMO must detail in it the 2 month period during which the first statutory review must be carried out. When the first review has been carried out and the RMO is updating it as described in paragraph 26 below he/she must include the date on which the review took place and then detail the 2 month period during which the next statutory review must be carried out and so on.

25 Although most mentally disordered offenders are not subject to the provisions of the Sexual Offenders Act 2003, in the minority of cases where a patient who is subject to a CO is also subject to the notification requirements in Part 2 of the Sexual Offences Act 2003 or to a sexual offences prevention order (" SOPO") under section 105 of that Act, this information must be recorded in the Part 9 care plan given that there may be resultant issues that will require to be addressed upon the release or transfer of the patient. For example, if the patient is subject to a SOPO he/she may be prohibited from visiting a particular geographical area.

26 The regulations also specify the circumstances in which the RMO must amend the Part 9 care plan. In general terms these are where:

• the Tribunal has made an order with respect to the CO;
• the RMO has:
  - made a determination extending the CO under section 152(2);
  - granted a certificate under:
  (i) section 127(1)(b) (as applied by section 179(1)) which suspends the measure of detention in the CO;
  (ii) under section 128(1)(b) (as applied by section 179(2)) which suspends other measures in the CO;

which specifies a period exceeding 28 days during which the patient's CO shall not authorise the measure or measures specified in the certificate;

• revoked under section 129(2) (as applied by section 179(3)), a certificate granted under any of the powers referred to in the bullet point above; or
• carried out any further mandatory reviews of the CO under section 140(2);
• the patient ceases to be subject to a notification requirement under Part 2 of the Sexual Offences Act 2003 (if applicable);
• the patient is subject to a SOPO which is varied, renewed or discharged (if applicable).

27 The procedures associated with the preparation of the Part 9 care plan are identical to those for the preparation of a care plan of a patient who is subject to a CTO. However, unlike the care plan for a CTO, a Part 9 care plan is also likely to include treatments for offending behaviour.

28 Where a Part 9 care plan is proposing psychological interventions, a psychologist or other person making that psychological intervention should have been consulted and involved in the assessment process. Such involvement is particularly important where the psychological interventions being implemented are without the patient's consent e.g. behaviour modification programmes.

29 Any psychological treatment that a failure to have or participate in would be likely to result in an ongoing need for secure care should be identified in the Part 9 care plan. An example of such treatment might be a substance abuse programme. It may be that a patient cannot be 'compelled' to participate in this like many other psychological treatments, but a failure to participate would be likely to have consequences in terms of limiting his/her clinical progress towards the least restrictive environment possible, influencing the patient's assessed level of risk and increasing his/her need for ongoing secure care.

First Mandatory Review

Renewal of a CO

30 The procedures to be followed by the RMO and MHO at the first mandatory review of a CO (section 139) are identical to those for a CTO (section 77), as detailed in Chapter 5 of Volume 2 of the Code of Practice. Where the procedures differ is where the RMO concludes that the CO should be renewed; rather than renewing it at his/her own initiative by issuing a determination (as the RMO would do with respect to a CTO under section 86), the RMO must make an application to the Tribunal seeking an extension of the CO under section 149.

31 The RMO may make the application to the Tribunal (section 149) for an order extending the CO (section 167) only when he/she has complied with the following duties in accordance with section 148:

• he/she has notified the designated MHO of the intention to make the application to the Tribunal to extend the CO (section 146(2)) and has had regard to the views of the MHO with regard to the proposed application (section 148(2)(b));
• he/she has had regard to the views of any other persons involved in providing treatment, care or other services to the patient whom the MHO has consulted under section 139(5) with regard to the proposed application (sections 148(2)(a));
• he/she is satisfied that it continues to be necessary for the patient to be subject to a CO and that the order should not be varied (section 146(2)(a) and(b)).

32 Best practice would suggest that the RMO should make this application as soon as practicable after the need to make the application arises and after full consultation with the MHO and the other members of the multi-disciplinary team where relevant and appropriate.

33 An application made under section 149 must state the following points:

• the patient's name and address;
• the named person's name and address;
• whether the patient's MHO agrees or disagrees with the RMO's application to extend the order or has failed to comply with the duty to inform the RMO of his/her opinion.

34 In terms of The Mental Health (Compulsion orders - documents and reports to be submitted to the Tribunal) (Scotland) Regulations 2005 ( SSI No.365), the documents which the RMO must submit with the application are:

• a copy of the patient's Part 9 care plan as first prepared under section 137(2)(a);
• a copy of the Part 9 care plan as amended following the first review;
• a copy of any written evidence submitted to the court by the medical practitioners under section 57A(2)(a) of the 1995 Act; and
• a copy of any report prepared for the court by the mental health officer in accordance with section 57C(2)(b) of the 1995 Act.

35 When considering the application the Tribunal may request reports from the RMO and the MHO under section 173 if it is not satisfied that it has sufficient information to make a decision with respect to the application. For further information on the content of these reports refer to the regulations mentioned in paragraph 34.

Renewal and variation of a CO

36 If following the first review the RMO is seeking to vary the original compulsory measures in the CO in addition to extending the order he/she must apply to the Tribunal in accordance with section 158, not section 149 as stated in paragraph 30 above. Aside from the documents which must be submitted with the application this procedure mirrors that for the extension and variation of a CTO so the information contained in Chapter 4 of Volume 2 of the Code of Practice applies. The documents which the RMO must submit with an application under section 158 in these circumstances are the same as those mentioned in paragraph 34 above.

37 As with an application to extend the CO under section 149, if when considering the application the Tribunal is not satisfied that it has sufficient information to make a decision it may request reports from the RMO and the MHO in terms of the regulations made under section 173, The Mental Health (Compulsion orders - documents to be submitted to the Tribunal) (Scotland) Regulations 2005) ( SSI No.365). For further information on the content of these reports refer to these regulations.

The CO and CTO analogous procedures

38 Apart from the matters outlined in this chapter, procedures relating to the CO mirror those relating to the CTO. For information on these procedures refer to Chapters 4, 5, 6 and 9 of Volume 2 of the Code of Practice, bearing in mind the differences outlined in this chapter.

39 The table opposite sets out the analogous sections and the corresponding information in Volume 2 of the Code of Practice.

Procedure	CO section no	CTO section no	Code of Practice Part 7		Comments
	2003 Act	2003 Act	Chap	Para
Part 9 care plan	137	76	3 4	64-73 14-20 25-26	The proposed care plan (section 62) and the care plan (section 76) for a CTO is relevant to the Part 9 care plan bearing in mind the differences noted in paragraphs 4-5 and 18-29 of this chapter
Local authority's duty to designate an MHO	229	229	4	21-23
MHO's duties subsequent to a CO being imposed	138 231	59 231	4	24
First review of CO	139	77	5	7-11	Different review criteria for a CO as noted in paragraphs 7-8 of this chapter
Further reviews of CO	140	78	5	7-15	As for first review
RMO's duty to revoke CO: mandatory reviews	141	79	5	18-19
Revocation of CO: RMO's duty to keep under review	142	80	5	18-19
MWC's power to revoke CO	143	81	5	22-24
Revocation of CO: notification	144	82	5	20-21
Mandatory reviews: further steps to be taken where CO not revoked	145	83	5	25-29
First review: RMO's duty where extension proposed	146	84	5	31-35	No recorded matters in a CO
Proposed extension on first review: MHO's duties	147	85	5	31-35
First review RMO's duty to apply for extension of CO	148	N/A	N/A	N/A	No equivalent for CTO as there is no automatic application to the Tribunal on first renewal
Application to Tribunal for extension of order following first review	149	N/A	N/A	N/A
Further review: RMO's duty where extension proposed	150	84	5	31-35	No recorded matters in a CO
Proposed extension of order on further review: MHO duties	151	85	5	31-35
Further reviews: RMO's duty to extend CO	152	86	5	31-35
Determination extending CO: notification	153	87	5	36-43
RMO's duty where extension and variation proposed	154	88	5	49-53
MHO's duties: extension and variation of CO	155	89	5	54-56	No recorded matters in a CO
RMO's duty to apply for extension and variation of CO	156	90	5	59-65	No recorded matters in a CO
Application for extension and variation of CO: notification	157	91	5	57-58
Application to Tribunal for extension and variation of CO	158	92	5	59-65	No recorded matters in a CO. Amendment to section 158 as noted in paragraph 14 of this chapter
RMO's duties: variation of CO	159	93	5	70-73	No recorded matters in a CO. Amendment to section 159 as noted in paragraph 15 of this chapter
Application for variation of CO: notification	160	94	5	74-75
Application to Tribunal by RMO	161	95	5	76	Amendment to section 161 as noted in paragraph 15 of this chapter
Commission's power to make reference to Tribunal	162	98	5	98-100
Application to Tribunal by patient etc. for revocation of determination extending CO	163	99	5	104-108
Application to Tribunal by patient etc. for revocation or variation of CO	164	100	5	104-108	No recorded matters in a CO
Tribunal's duty to review determination under section 152	165	101	5	44-48
Powers of Tribunal on review under section 165	166	102	5	47-48
Powers of Tribunal on application under section 149, 158, 161, 163 or 164	167	103	5	66-67	No recorded matters in a CO
Interim extension etc. of order: application under section 149	168	105	5	68	No recorded matters in a CO
Interim variation of order following application, reference or review under Chapter	169	106	5	68	No recorded matters in a CO
Limit on power of Tribunal to make interim order	170	107	5	68
Powers of Tribunal on reference under section 162	171	104	5	96-97 102-103	No recorded matters in a CO
Tribunal's order varying CO	172	108	5	85	No recorded matters in a CO
Applications to Tribunal: ancillary powers	173	109	5	-
Effect of interim orders: calculation of time periods in Chapter	173	109	5	84
Meaning of "modify"	175	111	5	-	No recorded matters in a CO
Medical treatment: failure to attend	176	112	6	30-33	Rather than repeating procedures from Part 7 in Part 9 of the Act these sections set out that the relevant procedures for CTOs apply in an identical way to COs
Non-compliance generally with CO	177(1)	113	6	1-14
Detention pending review or application for variation and certificate granted	177(2) and 177(3)	114, 116, 117, 119, 120, 121, 122	6	15-29
Transfers	178	124-126	9	1-18
Suspension of measures	179	127-129	4	27-61
Interpretation of Part	180	N/A