Mental health law in Scotland - cross-border transfers: guidance

Changes to cross-border transfers requiring approval of Scottish Ministers

Changes to the arrangements for cross-border transfers came into force on Friday 30 June 2017. RMOs, MHOs, independent advocates and patients may wish to be aware of the information below.

Responsible Medical Officers (RMOs)

RMOs should be aware that:

• the new arrangements apply in all cases where the RMO notifies the patient on or after 30 June 2017 of their intention to make an application for a warrant for removal of that patient
• the previous arrangement continue to apply in all cases where the RMO notified the patient before 30 June 2017
• there are new application forms which are available on this website
• the notification of a proposed application has to be given to the patient’s primary carer and the patient’s nearest relative if the patient does not have a named person. All parties notified will have a right to make representations direct to Scottish Ministers, rather than only the patient currently
• there is a new application for fast-track removal with consent for transfers to a place within the UK. This requires the patient to consent in writing; an approved medical practitioner (who is not the RMO) to certify that the patient is capable of giving consent; and the patient’s named person also to consent in writing
• the patient will only be able to be removed from Scotland within 7 days after the end of a standstill period which is calculated in accordance with the Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Amendment Regulations 2017
• the standstill period remains in place where an appeal is made to the Mental Health Tribunal Scotland before the end of the standstill period. Although a warrant would allow a patient to be transferred in circumstances where an appeal is made after the standstill period the strong advice to RMOs is that no patient should be transferred while an appeal to the Tribunal is outstanding. If the patient is not transferred within the 7 day transfer window a new application for transfer will be required

Information on the new arrangements can be sought from our cross-border transfer team on 0131 244 5668.

• Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Amendment Regulations 2017
• Forms for making an application for a cross-border transfer

Mental Health Officers (MHOs) and independent advocates

The duties of Mental Health Officers under the cross-border transfer arrangements have not changed.  MHOs are still required to interview the patient and advise them of their rights.

It remains the case that the patient cannot be transferred before the end of a standstill period, providing time for the patient to use their rights and appeal the transfer to the Mental Health Tribunal for Scotland if they wish to contest the proposed transfer. However, the warrant would allow the patient to be transferred after the end of the standstill period.

It is therefore crucial that patients are aware of the importance of making any appeal as early as possible after they have been notified by Scottish Ministers of their intention to authorise the transfer.

Patients

Patients are at the heart of the cross-border transfer arrangements. If you are detained in hospital and want to transfer to a hospital in another part of the UK that will be able to be done more quickly under new changes to the arrangements. If you do not agree with any proposed transfer outwith Scotland, RMOs continue to be required to give you an opportunity to provide your views and RMOs and Scottish Ministers to take into account those views. 

If, having taken into account all of the factors, Scottish Ministers decide to authorise the proposed transfer you will be notified of that decision immediately. If you wish to contest the proposed transfer, it is important that you take quick action to appeal the proposed transfer to the Mental Health Tribunal for Scotland.