Memorandum of Procedure on Restricted Patients

12 END OF SPECIAL RESTRICTIONS

12.1 For CORO patients, the Tribunal can order:

• revocation of a compulsion order; or
• revocation of a restriction order,

which has the effect of ending the special restrictions which the continuation of the restriction order had authorised and patient is absolutely discharged. In the case of revocation of a compulsion order, the restriction order automatically fall, it and cannot stand alone. See further details in

14 on Tribunals.

12.2 There are also other times when the statutory responsibilities of the Scottish Ministers in respect of certain patients under the mental health legislation automatically come to an end on a particular date. These are:

• when a patient is subject to an assessment order or treatment order under section 52D and 52M or an interim compulsion order under sections 53 or 57(2)(bb) of the Criminal Procedure (Scotland) Act 1995, once the case is finally disposed of by the Courts or proceedings dropped (unless a CORO is then made);
• when a determinate or extended sentence prisoner who is also subject to a transfer for treatment direction or hospital direction is released on licence at their earliest date of liberation ( EDL) or is granted early release on the recommendation of the Parole Board for Scotland ⁷⁸;
• when an indeterminate sentence prisoner, who is subject to a transfer for treatment direction or hospital direction, is released on life licence ⁷⁹; or
• when a prisoner subject to a transfer for treatment direction or hospital direction is returned to prison to serve the remainder of their sentence.

Revocation of Compulsion Order

12.3 In most cases, the CORO patient will have been under supervision in the community on conditional discharge for several years without incident before a decision about revocation of the compulsion order will be taken.

12.4 Where the Responsible Medical Officer (" RMO") and Mental Health Officer (" MHO") [supervisors] agree in consultation with the multidisciplinary team that neither social work nor psychiatric supervision is required, both should write to the PMO ( FP) to recommend the revocation of the patient's compulsion order. The MHO supervisor must provide a full comprehensive Community Care Assessment to support the viability, safety and effectiveness of the proposed end of special restrictions for a CORO patient. Evidence of a prolonged period of stability in the community which has been tested by a variety of normal pressures or experiences will be important. Supervisors should use their judgement and put forward a recommendation for an end to formal supervision whenever they consider it appropriate. Care should be taken, however, not to raise the patient's expectations as ultimately a decision on whether to revoke the compulsion order rests with the Tribunal. The PMO ( FP) will then assess the CORO patient. It may be appropriate to seek the advice of an independent psychiatrist. Following a recommendation the Scottish Ministers are required to make a reference to the Tribunal.

12.5 Where the Tribunal and the Tribunal agrees to the revocation of the compulsion order of a conditionally discharged CORO patient, a letter will be issued and copied to both the patient and the supervisors. Such a decision does not, of course, preclude continuing contact between the patient and the supervisors on a non-statutory basis.

12.6 A conditionally discharged CORO patient also has the right to make an application to the Tribunal seeking a variation in the conditions of their discharge or seeking revocation of the Compulsion Order.

12.7 The Tribunal are bound to revoke a compulsion order in certain circumstances, as laid down in section 193(3) and (4) of the 2003 Act. This is essentially once they are fully satisfied that the patient is no longer suffering from mental disorder as defined in the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act"), or where, although the Tribunal is satisfied that the patient continues to have a mental disorder, they consider that he or she no longer presents (as a result of that mental disorder) a risk of serious harm to any other person, and that the compulsion order is no longer necessary. The exception is those restricted patients who are also life sentence prisoners.

Reminder: if the Compulsion Order is revoked the Restriction Order also ceases to be in place⁸⁰.

12.8 It may be helpful for the RMO, after discussion with the MHO and Community Psychiatric Nurse (" CPN") supervisors to discuss a recommendation for revocation of a compulsion order in the first instance with the Scottish Government's Principal Medical Officer (Forensic Psychiatry) ("the PMO ( FP)"). Prior to making a formal recommendation for revocation of the compulsion order the RMO must make a MAPPA referral. Consideration by the MAPPA Group will inform the Scottish Ministers' position in relation to risk. When a formal recommendation is submitted to the Scottish Ministers, the Scotland Government Health Directorate (" SGHD") will automatically refer the recommendation for consideration by the Tribunal.

12.9 To enable Ministers and the MAPPA Group to take an early view on the recommendation and make their position clear to the Tribunal, it would be helpful if the following information could be provided:

• the RMO's clear confirmation that in their view, the patient is no longer suffering from mental disorder which requires detention in hospital and no longer presents a significant risk to the public; and
• reports from the MHO supervisor providing a full comprehensive community care assessment to support the viability, safety and effectiveness of any proposed revocation of Compulsion Order.

12.10 Scottish Ministers shall make a reference to the Tribunal under the 2003 Act, following a recommendation from the RMO or the Mental Welfare Commission ⁸¹. The Scottish Ministers shall make an application to the Tribunal following under their duty to keep the compulsion order and the restriction order under review ⁸². Patients, or the patient's named person, may also make an application to the Tribunal for an order revoking the compulsion order and the restriction order ⁸³. It will be for the Tribunal to determine the sufficiency of evidence and to seek any additional information that they consider relevant to their deliberations.

12.11 Once a compulsion order is revoked, the Scottish Ministers no longer have a formal role to play in the patient's care. In most cases following revocation of compulsion order, the multidisciplinary care team, including the social worker, maintains informal contact.

Early Discharge Protocol for patients in secure hospital settings

12.12 The Early Discharge Protocol complements the proper application of the established Care Programme Approach CPA, and applies to all patients who no longer, or may no longer meet the criteria for compulsory intervention under the 2003 Act or the Criminal Procedure (Scotland) Act 1995, as amended, but who have complex needs and continue to pose a significant risk to public safety. Whilst the Protocol refers to the State Hospital this should be read as referring as well to those exceptional cases where patients who meet the described criteria are being considered for discharge from local forensic services. An electronic version of the Protocol can be found on the NHS Scotland website ⁸⁴. The Early Discharge Protocol may be used in conjunction with MAPPA where appropriate.

Revocation of the Restriction Order

12.13 It should be noted in relation to a restriction order that the "risk of serious harm requiring detention in hospital" test is a quite separate test from the "necessity for a restriction order" test. A recommendation for revocation of a restriction order will only be appropriate where the RMO is satisfied that both tests are not met. In other words, even if the RMO considers that the restricted patient does not meet the test of "risk of serious harm requiring detention in hospital (whether or not for medical treatment)", the RMOmust separately go on to consider whether or not otherwise, or in any case, the restriction order "continues to be necessary". In relation to that latter test of whether or not the restriction order "continues to be necessary", Scottish Ministers' view is that those applying the statutory test must have regard both to:

1. the original criteria which the court considered when imposing the restriction order, i.e. having regard to:

(i) the nature of the index offence,

(ii) the antecedents of the patient, and

(iii) the risk that the patient would commit further offences if at large;

2. whether it is necessary for the protection of the public from serious harm for the

patient to be subject to the restriction order;

and

3. the nature and effect of the restriction order on the patient's present circumstances *.

( *With particular regard to the statutory overseeing role afforded to the Scottish Ministers under the 2003 Act; the decision making role of the Tribunal; the involvement of MAPPA in assessing risk; and the fact that without the restriction order, the compulsion order becomes time limited). See the necessity for restriction order test guidance attached to the RMO annual report template.

12.14 Revocation of the restriction order will leave the patient as a compulsion order patient, subject to Part 9 of the Act instead of Part 10, whose management is now solely at the discretion of the RMO, subject to the power of the Tribunal to order discharge. If the restriction order is revoked, this would take effect 21 days after receipt by the Scottish Ministers of the written judgement of the Tribunal

12.15 It may be helpful for the RMO, after discussion with the MHO and CPN supervisors to discuss a recommendation for revocation of the restriction order in the first instance with the PMO ( FP). Prior to making a formal recommendation for revocation of the restriction order the RMO must make a MAPPA referral. Consideration by the MAPPA Group will inform the Scottish Ministers' position in relation to risk. When a formal recommendation is submitted to the Scottish Ministers, the SGHD will automatically refer the recommendation for consideration by the Tribunal.

12.16 To enable Ministers and the MAPPA Group to take an early view on the recommendation and make their position clear to the Tribunal, it would be helpful if the following information could be provided:

• why the restriction order is no longer considered necessary; and
• reports from the MHO supervisor providing a full comprehensive community care assessment to support the viability, safety and effectiveness of any proposed revocation of restriction order.

Reason for Lifting Restrictions

12.17 It is worth remembering that the majority of patients who receive compulsion orders do not receive restrictions. The sentencing court can only subject the patient to the special restrictions set out in Part 10 of the 2003 Act if satisfied "that it is necessary for the protection of the public from serious harm so to do" ⁸⁵". In managing CORO patients you should ask yourself whether that requirement is still met. This test is not about whether detention in hospital is required (the "serious harm requiring detention in hospital, whether or not for medical treatment" test found in sections 183(6)(b)(i), 184(5)(b)(i) and 193(5)(b)(i)), but rather about whether or not the restriction order remains necessary (the second leg of the test for revocation, found in sections 183(6)(b)(ii), 184(5)(b)(ii) and 193(5)(b)(ii)). See Compulsion and Restriction Order flowchart.

12.18 If you think that restrictions are no longer serving a useful purpose in protecting the public from a risk of serious harm, the next question is whether the patient still requires to be subject to a compulsion order or whether the compulsion order can be revoked (absolute discharge). Many restricted patients live safely after discharge, either because they no longer need treatment, or because they readily comply with it, without any compulsion, and as a result pose little risk.

12.19 If you are in any doubt about the impact on public safety, the recommendation should be that the restrictions should remain in place. If it is still necessary, but not under hospital conditions, then conditional discharge is not only appropriate but expressly designed to meet the need.

12.20 When it is not appropriate to recommend revocation of the compulsion order, it would normally be appropriate to lift the restriction order when:

• a patient continues to be detained in hospital with little prospect of conditional discharge due to the severity of their illness but has become frail, particularly due to age, and will never pose a threat of serious harm to others. [But look at offending behaviour as not all dangerous offences require strength ( i.e. fire-raising or assault/attempted murder by poisoning)]; and
• the patient's management is almost entirely to protect his or her own health and safety needs rather than those of others.