Mental Health( Care and Treatment)(Scotland) Act 2003 Consultation in relation to section 268 appeals against conditions of excessive security

CHANGES SINCE 2003

9. The landscape has changed significantly since the 2003 Act was commenced. The creation of an appeal against levels of excessive security in the State hospital has been a significant factor in achieving improved movement throughout the secure estate. But in addition the development of forensic psychiatry provision has, in conjunction with the 2003 Act, meant that management of patients in need of compulsory measures of detention has changed significantly since the report of the Millan committee and the development of the Act.

10 .Forensic psychiatry provision in Scotland was progressed from the late 90s, following a series of consultations on "The Health, Social Work and Related Services for Mentally Disordered Offenders in Scotland" policy document (1999).^[3]Until 2000, there were no medium secure units in Scotland and mentally disordered offenders were instead managed in intensive psychiatric care unit (IPCU) settings. Since that 1999 policy document, and the consultations on it, the Scottish Government has continued to work with NHS Boards, Regional Planning Groups and the Forensic Network to plan and provide appropriate medium secure services within the framework set out in the 2006 circular ' Forensic Mental Health Services'.^[4]

11. HDL (2006) 48 on Forensic Mental Health Services which was issued in June 2006 set out the Government's assessment of the needs for the future provision at high, medium and low in the secure forensic estate based on the understanding at that time of patients numbers and demand at each level of security.

12. The commissioning structure recognised that it was not reasonable to expect each NHS board to provide services at each level in light of the relatively small numbers of patients involved and the specialised nature of the services and staff required to care for and treat these groups of patients. The expectation was that a consortium of NHS Boards would collaborate to plan the provision of some services on a regional basis, which could not be provided, in a sustainable way by any individual health board. The NHS 2006 paper on configuration of mental health services^[5] defines which services should be planned on a regional as opposed to health board basis.

13. Provisions in the 2003 Act came into effect on 1 May 2006 enabling patients in the State Hospital to appeal to the Mental Health Tribunal for Scotland against being held in conditions of excessive security. At the time of the Bill's consideration there were around 30 patients who were detained in the State Hospital but who could have been moved to conditions of lesser security if accommodation had been available for them.

14. Around the same time, the Forensic Way Forward Group was established to performance manage the flow of patients from the State Hospital, monitor appeals made by patients in the State Hospital and have an oversight of the development by the regional planning groups of forensic services. The Group helped ensure the progress of transfers for patients for whom there was clinical agreement that they did not require the security of the State Hospital.

15. Patients transferring from the State Hospital are now moved to both medium and low secure facilities depending on their specific needs. In general patients were anticipated to spend approximately 2 years in a medium secure environment prior to rehabilitation. Given the evolving nature of the Scottish medium estate, there has been a varying experience in the 3 regional services. For example in the west of Scotland there has been an increased length of stay in medium security but this is considered to be due to case complexity in the main, rather than the lack of available low secure services.

16. The right of appeal for State Hospital patients against being held in conditions of excessive security has therefore, in our opinion, had a noticeable effect on the whole mental health system as patients have moved on, to free up beds for patients being transferred.

17. Notwithstanding the improvement in patient flow , which it could be argued , mitigates the need for regulations providing a right of appeal against excessive security, the Supreme Court judgement clearly cannot be ignored. Therefore we propose to consult on regulations . In the absence of concrete evidence to indicate whether or not there is an issue of entrapment in respect of persons held in medium or low secure units, we consider it sensible to draw on the analysis of appeals against detention within the State Hospital to support regulations against levels of security within medium secure units, that would address the issue of unlawful acting by Scottish Ministers, without placing undue pressure on clinicians and the Mental Health Tribunal.

18. The analysis undertaken by the Forensic Network of the first 100 appeals brought under section 264 of the 2003 Act indicated that an application was far more likely to be successful if the patient was already on the transfer list and the RMO (Responsible Medical Officer) supported the application. Those under civil orders had a relatively greater chance of appealing successfully. Following successful appeals, roughly equal numbers were transferred to medium and low secure facilities. And even where the application was withdrawn or the case cancelled, several patients were still transferred out of the State Hospital .The study suggests that being on a transfer list and having support of an RMO are the likeliest indicators of a successful appeal.

19. Using this analysis as a guide our proposal for regulations for consultation is that we bring forward a discrete set of regulations, identifying which patients would be eligible to raise appeal provisions under section 268. In the absence of evidence suggesting a wide pool of individuals that require this change, we propose that regulations provide that:

• Persons who are subject to an order requiring them to be detained in a hospital which operates a medium or low level of security; and
• Have a report from an approved medical practitioner as defined by section 22 of the 2003 Act, who is not the patient's current RMO, supporting the view that detention of the patient in the qualifying hospital involves the patient being subject to a level of security which is excessive in the patient's case;
• are to be treated as qualifying patients for the purposes of section 268(11),
• the Orchard Clinic, and the medium regional secure component of Rohallion and Rowanbank are qualifying hospitals for the purposes of section 268(12)

20. Accordingly only this small set of individuals would be eligible to raise an appeal against a level of excessive security. With this narrow set of regulations, we would meet the concerns of the Supreme Court, and we would have a further benchmark by which to assess whether the current flow of patients, down through the levels of security, is working or not.