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

chapter 2 the compulsion order and restriction order in operation

Introduction

This chapter begins by setting down the statutory criteria that is considered by a court under section 59(1) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") when a restriction order is imposed. It then outlines the effect of a restriction order on a compulsion order and describes how this differs from a hospital order and a restriction order under the Mental Health (Scotland) Act 1984 ("the 1984 Act").

The chapter goes on to describe the processes which should be followed in the immediate aftermath of a compulsion order and restriction order (" CORO") being imposed, including the preparation of a care plan by the RMO and the provision of information to the patient in terms of section 260. It also describes what would be expected of the designated MHO.

All section numbers in this chapter refer to the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the Act") unless stated otherwise.

Overview

01 Part 10 of the Act governs the effect of a compulsion order when combined with a restriction order and sets out the procedures for the review and conditional discharge of the patient. Section 59(1) of the 1995 Act sets down the circumstances in which a court may add a restriction order to a compulsion order.

Section 59(1) of the 1995 Act states:

Where a compulsion order authorising the detention of a person in a hospital by virtue of paragraph (a) of section 57A(8) of this Act, is made in respect of a person, and it appears to the court-
(a) having regard to the nature of the offence with which he is charged;
(b) the antecedents of the person; and
(c) the risk that as a result of his mental disorder he would commit offences if set at large,

that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp13), without limit of time.

02For guidance on the imposition of a restriction order refer to Part 1, Chapter 4 of this Volume of the Code of Practice.

What effect does a restriction order have on a compulsion order?

03 Where a restriction order is added to a compulsion order:

• the patient must be detained in hospital on disposal; there is no option for initial compulsory measures to be imposed in the community;
• the compulsion order is not time-limited and therefore does not require to be renewed;
• neither the RMO nor the MWC has the power to revoke the orders;
• suspension of detention and transfer to another hospital (irrespective of the levels of security) must be authorised by the Scottish Ministers;
• only the Tribunal has the power to authorise the lifting of the compulsion order and restriction order and discharge (both conditional and absolute);
• patients may be conditionally discharged for an indefinite period, and are subject to recall to hospital by the Scottish Ministers during this period.

How does this differ from the 'old' Hospital Order with a Restriction Order under the 1984 Act?

04 Although the Scottish Ministers keep their role of monitoring the progress of patients, authorising suspension of the measure of detention (section 224(3)), authorising transfer to another hospital (section 218(3)(b)) and varying the conditions imposed by the Tribunal on conditionally discharged patients (section 200(2)), they no longer have the power to authorise the revocation of a restriction order or a patient's discharge (either conditional or absolute).

05 Only the Tribunal has the power to instruct the revocation of a restriction order (section 193(5)) and the discharge of the patient (conditional discharge under section 193(7); absolute discharge under sections 193(3) and 193(4)).

06 The Scottish Ministers are under a statutory duty in certain circumstances to refer the patient's case to the Tribunal (sections 185, 186 and 189). The Scottish Ministers may also make their own applications to the Tribunal under section 191.

07 The patient and the patient's named person may make applications directly to the Tribunal (section 192(2)).

08 The RMO must consult the designated MHO and have regard to his/her views in relation to the annual review (sections 182(3)(c) and 183), in advance of making any recommendation to the Scottish Ministers for a change to be made to the status of the patient.

09 As previously stated, the Scottish Ministers therefore retain their role in authorising the suspension of detention and the transfer of patients subject to restriction orders, but they lose their direct ability to authorise discharge. However, with the exception of applications by patients and named persons, all referrals to the Tribunal regarding patients subject to restriction orders must be made by the Scottish Ministers who therefore still have an important role. It should be noted that if the Scottish Ministers receive a recommendation from an RMO (sections 183(2) or 184), or a notification from the MWC (section 186(2)) they are under a duty to refer the case to the Tribunal in terms of sections 185(1) or 187(2); they have no discretion regarding this matter.

Suspension of detention (sections 224 to 226)

10 Suspension of detention was called "leave of absence" under the 1984 Act. Part 13 of the 2003 Act sets out the statutory procedures for the suspension of the measure in a CORO specifying detention of the patient. For further information on these procedures refer to Part 1, Chapter 6 of this Volume of the Code of Practice.

Transfer (sections 218 to 221)

11 Part 12 of the Act sets out the statutory procedures for the transfer within Scotland of a patient who is subject to a CORO. For further information on these procedures refer to Part 2, Chapter 9 of this Volume of the Code of Practice.

Absconding

12 The statutory procedures in relation to absconding by mentally disordered offenders are set out in The Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005. For further information refer to these regulations and to Part 1, Chapter 6 of this Volume of the Code of Practice.

Responsibilities subsequent to a Compulsion Order and a Restriction Order being imposed

13 The compulsion order made in conjunction with a restriction order may include such directions as the court thinks fit in accordance with section 57A(14)(b) of the 1995 Act, for the removal of the patient to, and the detention of the patient in, a place of safety pending his/her admission to the specified hospital. In terms of section 307 of the 1995 Act this place of safety may be the detention area at the court, a police station, a prison, a young offenders' institution or a hospital. However best practice would suggest that, in keeping with the principles set down in section 1 of the Act, the most appropriate place of safety in these circumstances would be a hospital. It would be expected that only in exceptional circumstances would the alternatives listed in section 307 of the 1995 Act be used as a place of safety. The patient should be conveyed from the place of safety to the specified hospital as soon as practicably possible by a person listed in section 57B(2) of the 1995 Act.

14 Following the imposition of a CORO, the patient must be conveyed to the specified hospital within 7 days of the making of the compulsion order in accordance with section 57B of the 1995 Act. This would usually be carried out by the Prisoner Escort and Court Custody Service. Consideration should be given to providing a nurse escort to accompany patients who are very unwell. Although not a statutory provision under the Act, best practice would suggest that as soon as practicable after admission the hospital managers should ensure that the Scottish Ministers and the Mental Welfare Commission are informed of the patient having been admitted.

15 As soon as practicable after the patient's admission to hospital the hospital managers have a duty under section 260(5)(a) to ensure that the patient and his/her named person are fully informed of, and understand the 'relevant matters' as set down in sections 260(5)(a) to (h) and also informed of the availability of independent advocacy services under section 259. For further information on these procedures refer to Chapter 6 of Volume 1 of this Code of Practice.

16 An RMO and an MHO must be allocated for the patient's case under sections 230 and 229 respectively and a multi-disciplinary assessment should be initiated. In the case of a patient who has been made subject to a CORO, an RMO and an MHO should already have been appointed given that the patient would have been assessed in hospital prior to the making of the CORO by way of an assessment order and/or an interim compulsion order.

RMO responsibilities - the care plan

17 Similar to cases where a compulsion order (" CO") has been imposed without a restriction order, the RMO should prepare a care plan setting out the medical treatment that is currently being given to the patient (which includes medication, psychological and social interventions) and the medical treatment which it is proposed will be given to him/her. Although not a statutory duty it would be expected that the RMO would also record in the care plan similar information to that which is required in a Part 9 care plan for a patient who is subject to a CO without a restriction order as set down in The Mental Health (Content and amendment of Part 9 care plans) (Scotland) Regulations ( SSI No. 312). For further information on the content of a Part 9 care plan refer to these regulations and to Part 2, Chapter 1 of this Volume of the Code of Practice.

18 It would be expected that the RMO would send a copy of the care plan to the patient, the patient's named person/nearest relative/primary carer, the Scottish Ministers, the MHO and the other members of the multi-disciplinary team where relevant and appropriate. The RMO should record on the care plan the details of those parties who have received a copy.

19 Although not a statutory duty under the Act best practice would suggest that the RMO would, in consultation with the MHO and other members of the multi-disciplinary team where relevant and appropriate, update the care plan following a statutory review of the order under section 182(2) or where there has been a change to the status of the patient such as his/her being conditionally discharged.

20 Although most mentally disordered offenders are not subject to the provisions of the Sexual Offences Act 2003, in the minority of cases where a patient who is subject to a CORO is also subject to the notification requirements under Part 2 of that Act, the care plan should be updated when the notification period expires. If the patient is subject to a sexual offences prevention order under section 105 of the same Act the plan should be updated where that order is varied, renewed or discharged.

21 It would be expected that the RMO would send a copy of the updated plan to the parties mentioned in paragraph 18 at the time of the statutory review of the CORO under section 182(2).

22 Although not a statutory provision under the Act, it is current practice for the Scottish Ministers to request a report from the RMO three months after the admission of a patient subject to a CORO; and thereafter an annual report is requested. The care plan should form part of the RMO's report to the Scottish Ministers in every case. Best practice would suggest that, where the RMO is unfamiliar with this process and the administrative procedures involved he/she should contact the Health Department of the Scottish Executive for further information.

MHO responsibilities

23 When a CORO is imposed the relevant local authority must allocate a designated MHO for the patient in accordance with section 229. As with cases where a CO has been imposed without a restriction order, it would be expected that the MHO would work in close collaboration with the RMO and the rest of the multi-disciplinary team who are responsible for overseeing the care of the patient. The duties of the MHO after a CORO has been imposed are very similar to those of an MHO after a CTO has been granted by the Tribunal under section 64. One exception is in relation to the Social Circumstances Report (" SCR") prepared by the MHO in terms of section 231; best practice would suggest that the MHO should send a copy of the SCR to the Scottish Ministers. For information on the duties of the MHO see Chapter 4 of Volume 2 of this Code of Practice.

24 As soon as practicable after the CORO is imposed the MHO must take such steps as are reasonably practicable to ascertain the name and address of the patient's named person (section 181).