1. INTRODUCTION AND EXECUTIVE SUMMARY
1.1 This (April 2010) Memorandum is an updated and revised version of the Memorandum which was published by the Scottish Executive in September 2005 to accompany the coming into force of the Mental Health (Care and Treatment) (Scotland) Act in October 2005; throughout the rest of this document this will be referred to as "the 2003 Act"). For a full list of terminology used throughout the Memorandum, see paragraph 1.22.
1.2 The Memorandum is an essential reference document for those who are involved with the management and care of patients subject to a compulsion order with restriction order, a hospital direction or a transfer for treatment direction; that is, patients who are subject to special restrictions. It should be noted that whilst the 2003 Act in fact makes separate provision in parts for such patients 1, for ease of reference within this Memorandum, all three categories of patients are together referred to as "restricted patients" unless the context otherwise requires; where the context does so require, such patients are referred to as " CORO patients", " HD patients" and " TTD patients" respectively (see terminology at paragraph 1.22). The Memorandum also sets out information in relation to certain patients subject to other types of mental health orders, such as interim compulsion orders, assessment orders and treatment orders, in relation to whom Scottish Ministers also have a statutory role although they are not "restricted patients".
Legal Status of this Memorandum
1.3 The explanations which this Memorandum gives and the procedures it describes should be closely noted and observed by all those involved in the care and management of restricted patients, and other patients in relation to whom the Scottish Ministers have a statutory role, both within hospitals and in the community. It is not, however, intended as a complete instruction document or an authoritative interpretation of the law. You are therefore strongly advised to seek your own independent legal advice in respect of specific situations.
Overview of Scottish Ministers' Role
1.4 The 2003 Act gives the Scottish Ministers a specific statutory role in respect of restricted patients. The underlying purpose of the Scottish Ministers' statutory role in respect of the management of restricted patients is to provide an additional layer of scrutiny as regards the long-term protection and security of the public whilst at the same time ensuring that appropriate care and treatment is delivered by the clinical team to the patient. The Scottish Ministers thus expect a multidisciplinary approach to managing restricted patients. Therefore, this revised version of the Memorandum reinforces the key role played by all members of the multi-disciplinary team, including Mental Health Officers (" MHO"s) who should be consulted and involved in the decision making process
1.5 The oversight of the Scottish Ministers means that restricted patients are overseen not only by the Responsible Medical Officer (" RMO") but also by the Scottish Ministers and the Mental Health Tribunal for Scotland ("the Tribunal"). The main safeguards are as follows:
(a) specifically for CORO patients: the existence of a restriction order means that the compulsion order continues without limit of time, instead of lasting only 6 months. Such patients also cannot be released from compulsion (either within a hospital or community setting) without a decision of the Tribunal after a hearing at which the Scottish Ministers have the right to make representations;
(b) specifically for TTD patients: it is for the Scottish Ministers both to make the TTD authorising the transfer of a prisoner to hospital, and to subsequently revoke it to return the patient to prison. The Scottish Ministers also have duty to revoke a HD in certain circumstances;
(c) decisions about transfer of a restricted patient (for example between hospitals, including to lower security hospitals) and suspension of detention from hospital (" SUS") (for example for testing out in the community) are subject to scrutiny and approval of the Scottish Ministers. The Scottish Ministers may also revoke the SUS, independently of the RMO;
(d) The Scottish Ministers are required to monitor restricted patients on a continuing basis (reports from RMOs and MHOs) and refer the case to the Tribunal at appropriate intervals;
(e) CORO patients who are conditionally discharged, and thereby coming into increased contact with the community, are subject to the supervision of the Scottish Ministers in the public interest, including variation of their conditions of discharge. The Scottish Ministers also have a unique power to recall a patient to hospital from conditional discharge if necessary.
1.5 As noted above, the Scottish Ministers also have a more limited statutory role in relation to certain other patients, namely those subject to interim compulsion orders, assessment orders and treatment orders.
The Scottish Ministers' Policy
1.6 Managers of restricted patients should also refer to other relevant Scottish Government literature most notably:
- Health, Social Work and Related Services for Mentally Disordered Offenders in Scotland ( NHSMEL (1999) 5) Scottish Executive, 1999) 2
- the 2003 Act3 itself and all regulations and orders made under that Act;
- the Scottish Government Health Directorate Code of Practice4 (made under Part 18 of the 2003 Act);
- the Mental Health Tribunal for Scotland Rules of Procedure5 ( SSI 2005/519, as amended by SSI 2006/171 and SSI 2008/396) (made under section 21 and Schedule 2 to the 2003 Act);
- circulars containing policy and guidance - links to these are accessible throughout the revised Memorandum.
1.7 Although the current policy on the management of mentally disordered offenders was established in January 1999 and is outlined in the document Health, Social Work and related services for Mentally Disordered Offenders in Scotland6 the policy in relation to restricted patients has developed further over recent years and has been informed by the following matters.
Mental Welfare Commission Inquiry
1.8 The Mental Welfare Commission (" MWC") inquiry report into Mr L and Mr M 7 helped to inform policy development and its recommendations are reflected in this revised version. Following receipt of the MWC Report, the Scottish Government invited the Risk Management Authority (" RMA") to take forward work reviewing the risk assessment and management of restricted patients. The RMA worked closely with those professionals working with restricted patients, officials in the Scotland Government Health Directorate (" SGHD") and the Forensic Mental Health Managed Care Network (Forensic Network) in conducting this review. The report by the RMA is available on their website8. It focuses on the way in which the system works to produce, share and use knowledge and information. The list of their recommendations together with the Scottish Government response is contained in NHSCEL 13 (2007)9. The RMA have worked closely with the Scottish Government in the production of this revised Memorandum of Procedure.
The Forensic Mental Health Managed Care Network (Forensic Network)
1.9 The Forensic Network was established in 2003 to advise on policy and service development in respect of forensic mental health services. The Forensic Network has worked in a consultative way with clinicians, managers, service users and others to develop papers on a range of issues relevant to service delivery. Since 2003 the Forensic Network has established a series of short life working groups that have produced reports that have informed national policy and guidance. The consultation papers and comments on the papers can be viewed or downloaded from the Forensic Network website10. Policy and guidance emanating from the work of the Forensic Network has been set out in NHSHDL (2006)48 and with regard to the Care Programme Approach (" CPA") for Restricted Patients in NHSCEL 13 (2007). 11 More recently, May 2010, the Forensic Network produced updated guidance on the use of CPA. The full report can be accessed on the Forensic Network website
The Management of Offenders etc (Scotland) Act and operation of CPA
1.10 The Management of Offenders etc (Scotland) Act 2005 ("the 2005 Act") contains provisions in sections 10 and 11 which require the Scottish Prison Service, Local Authorities and the Police, as responsible authorities in the area of a local authority, to jointly establish arrangements for the assessment and management of risks posed by sex offenders subject to registration and violent offenders convicted on indictment and subject to a Probation Order or licence supervision 12. In addition the legislation also provides the NHS with a statutory function as a responsible authority to establish joint arrangements for the assessment and management of risk posed by restricted patients. Specific guidance on referral and notification to MAPPA in relation to restricted patients was issued in NHSCEL 19 (2008)13
1.11 These arrangements will be supported by the operation of the Care Programme approach which is mandatory for restricted patients. 14The CPA care plan forms the template for admission, through-care, discharge and aftercare arrangements and specifies individual and agency responsibilities.
1.12 Multi Agency Public Protection Arrangements (" MAPPA") and CPA for restricted patients have a common purpose of maximising public safety and the reduction of serious harm. Although the same underlying principles of gathering and sharing of relevant information in relation to risk apply, CPA focuses on the care and treatment likely to minimise the risk posed, whilst MAPPA focuses on multi agency management of risk. Within the MAPPA framework, the CPA process will remain the vehicle for planning a person's care and treatment and for risk assessment and management planning. See Chapter 5 for further background
1.13 The concept of clinical governance was introduced to NHS Scotland in Designed to Care ( SEHD 1997),15 the White Paper on improving Scotland's healthcare, with policy detailed in MEL (1998) 7516 and updated in MEL (2000) 2917. It was described as corporate accountability for clinical performance. More recently, it has been described as the system for making sure that healthcare is safe and effective, that care is patient-centred and that the public are involved.
1.14 Clinical governance is intended to provide a framework for activities supporting the improvement of patient care through a commitment to high standards, reflective practice and risk management. This is achieved by ensuring that those providing services work in an environment that supports them and which places safety and quality of care at the top of the Board's governance agenda.
1.15 Health Boards should be able to demonstrate clarity around governance arrangements and the effectiveness of risk reporting arrangements. Health Boards also have to demonstrate they are satisfied with the quality of the operation of the CPA and that there are appropriate resources in place. They will be responsible for collating statistical information on the operation of CPA, MAPPA and recording breaches of conditional discharge. It is essential that a senior manager is identified for each Health Board and that they link in with the relevant RMO in order to meet their responsibilities under MAPPA. It is recommended that an audit be carried out on the quality of the operation of CPA on an annual basis. Annex I contains a useful CPA audit tool adopted by Lanarkshire Health Board.
1.16 Risk reporting arrangements should exist that supply regular reports from clinical teams to Health Boards. The Health Board should have active and dynamic risk registers that document the consideration of risks. The associated risk management action plans should demonstrate a planned approach to minimising risk. In addition, risk assessments for individual patients or units should demonstrate considered approaches to minimising risk.
Structure of the Memorandum
1.17 The Memorandum has been structured with early chapters exploring the overarching principles in the management of restricted patients:
- Risk assessment and management;
- Care Programme Approach; and
- Multi-Agency Public Protection Arrangements.
1.18 The patient is at the centre of the considerations of, and requirements placed upon, these professionals and as such, a 'patient journey' is at the centre of the document. This patient journey is used as a loosely chronological model of processes and is not intended to reflect individual patient experiences. There are links throughout the document to make navigating through the Memorandum easier. Contact details of colleagues in the casework branch are available at Annex E.
1.19 There are chapters on the management of prisoners who have been transferred to the mental health system for treatment and who are then subject to special restrictions. Contact details of colleagues in Victims, Witnesses Parole & Life Sentence Division ( VWPLSD) are provided at Annex E.
1.21 Examples of Risk Management Traffic Lights for all levels of Security is contained at [ Annex H]
1.22 References to legislation or to provisions of such legislation, throughout the Memorandum are to the 2003 Act18 unless otherwise stated. In addition, the following terminology is used throughout this Memorandum:
"1995 Act" means the Criminal Procedure (Scotland) Act
" 2003 Act" means the Mental Health (Care and Treatment) (Scotland) Act 2003
" 2005 Act" means the Management of Offenders etc (Scotland) Act 2005;
" CD" means conditional discharge (by the Tribunal under section 193(7) of the 2003 Act);
"Commission" means the Mental Welfare Commission for Scotland (continued under section 4 of the 2003 Act);
" CORO" means a compulsion order (made under section 57A(2) of the 2003 Act) and a restriction order (made under section 59 of the 2003 Act);
" CPA" means the Care Programme Approach, see chapter 4;
" CPN" means Community Psychiatric Nurse, see paragraph 2.22;
" HD" means a hospital direction (made under section 59A of the 2003 Act);
" MAPPA" means Multi Agency Public Protection Arrangements, see chapter 5;
" Memorandum" means the Memorandum of Procedures on Restricted Patients (DATE 2010);
" MHO" means a mental health officer (appointed, or deemed to be appointed, under section 32(1) of the 2003 Act), see paragraph 2.20;
" MWC" means the Mental Welfare Commission
(" PMO ( FP)") means the Scottish Government's Principal Medical Officer (Forensic Psychiatry)
"Restricted patients" means patients subject to a compulsion order with restriction order, a hospital direction or a transfer for treatment direction; that is, patients who are subject to special restrictions under the 2003 Act; see paragraph 1.2.;
" RMA" means the Risk Management Authority as established under Part 1 of the Criminal Justice (Scotland) Act 2003;
" RMO" means the approved medical practitioner appointed (by virtue of section 230 of the 2003 Act) to be the patient's responsible medical officer;
" SGHD" means the Scottish Government Health Directorate;
" SGJD" means the Scottish Government Justice Directorate
" SGLD" means the Scottish Government Legal Directorate
" SUS" means suspension of detention from hospital (granted under section 224 of the 2003 Act for restricted patients), see chapter 8;
"Tribunal" means the Mental Health Tribunal for Scotland (established under section 21 of the 2003 Act
"Tribunal Rules" means The Mental Health Tribunal for Scotland (Practice and Procedure) (No.2) Rules 2005 19
" TTD" means a transfer for treatment direction (made under section 136 of the 2003 Act);