The Mental Health (National Secure Adolescent Inpatient Service: Miscellaneous Amendments) (Scotland) Regulations 2023: BRIA

Purpose and Intended Effect

Background

The National Secure Adolescent Inpatient Service (NSAIS), Foxgrove, in Irvine, is the first medium secure mental health inpatient service for children and young people in Scotland. It is expected to open in January 2024.

The NSAIS will initially have four beds. Its purpose will be to deliver high quality mental health care and treatment for children and young people aged between 12 and 17 years, who meet all of the following criteria:

• are subject to measures for compulsory care and treatment under the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) or part VI of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”)
• have a mental disorder (as defined by section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”)
• present a significant risk to themselves or other people
• require a medium secure level of security in order to meet their needs.

The significant risk of harm, either to themselves or to other people, that patients in medium secure services present means such services must have an adequate level of safety and security measures to ensure the safety of both patients and those involved in their care and security or good order of the hospital.

In order to apply the measures of medium security required, and to ensure that NSAIS patients will have the right of appeal against conditions of excessive security, the 2023 Regulations make changes to:

• The Mental Health (Safety and Security) (Scotland) Regulations 2005 (“the 2005 Regulations”)
• The Mental Health (Detention in Conditions of Excessive Security) (Scotland) Regulations 2015 (“the 2015 Regulations”)

The changes mean that the same safety and security measures, subject to protections and safeguards, that are available in other medium secure inpatient settings can be applied where necessary in the NSAIS. Children and young people detained in the NSAIS will also have the same right of appeal against detention in conditions of excessive security as those detained in other medium secure inpatient settings.

Detention in Conditions of Excessive Security

Section 268 of the 2003 Act makes provision for an application to be made to the Mental Health Tribunal for Scotland (“the Tribunal”), contesting the level of security a patient is being held under for patients detained in a “qualifying hospital”. The right to make such an application to the Tribunal exists where the patient is subject to a compulsory treatment order, a compulsion order, a hospital direction, or a transfer for treatment direction.

The 2023 Regulations add the NSAIS to the list of qualifying hospitals in regulation 4 of the 2015 Regulations. This will allow a patient detained in the NSAIS, their named person, welfare attorney, guardian, or the Mental Welfare Commission for Scotland (“the Commission”) to apply to the Tribunal for an order declaring that the patient is being detained in conditions of excessive security.

The Tribunal, if satisfied that the patient is being detained in conditions of excessive security, is able to make an order which requires the relevant health board to identify a suitable hospital for the patient to transfer into. A suitable hospital will be a hospital which the health board considers is a hospital in which the patient could be detained in conditions that would not involve a level of security that is excessive in the patient’s case.

Safety and Security

The 2005 Regulations, made in exercise of the powers in section 286(1), (2), and (3) of the 2003 Act, authorise measures, subject to conditions, to protect the safety and security of patients and others in hospital. The measures can be applied to a patient who is detained in hospital by virtue of the 2003 Act or the 1995 Act and who is a “specified person”. A patient is a specified person if:

• they are either:
  • detained in a hospital listed in regulation 2(2)(a), or
  • detained in a non-listed hospital and their responsible medical officer (“RMO”) has recorded a reasoned opinion as mentioned in regulation 2(2)(b) of the 2005 Regulations, and
• the condition in regulation 2(3) is met, and
• the condition in regulation 2(4) is met.

Currently the hospitals listed in regulation 2(2)(a) are the State Hospital and the existing medium secure services. The 2023 Regulations add the NSAIS to the list of secure services in regulation 2(2)(a) of the 2005 Regulations. The consequence of this addition is that all children and young people detained at the NSAIS will be classed as specified persons (provided also that the conditions in regulation 2(3) and (4) are met). Therefore the measures in the 2005 Regulations, summarised below, can be applied to them.

The 2005 Regulations authorise the following measures in respect of specified persons:

• the searching of patients and anything they have with them in the hospital
• taking certain types of samples of bodily fluid or tissue
• placing restrictions on the kinds of things which patients may have with them in hospital, and the removal from them of articles kept in breach of such restrictions
• placing restrictions and prohibitions on the entry and the conduct of visitors to these patients
• the surveillance of those patients and their visitors
• the searching of visitors and anything they bring with them into hospital

Being designated as a specified person does not dictate how the measures will be applied, or that they will be carried out. Regulation 5 of the 2005 Regulations sets out the “General Conditions” on the authorisation of the measures that must be met whenever the measures are applied in a particular care setting. These include that a measure may only be applied in respect of any specified person where, in the opinion of the patient’s RMO, not to apply them would pose a significant risk to the health, safety or welfare of any person in the hospital or the security or good order of the hospital. There are also additional conditions that must be met in respect of particular measures, set out in regulations 6 to 11.

The 2005 Regulations provide for monitoring and supervision of the use of measures in respect of specified persons. This will also apply to the use of these measures in respect of patients at the NSAIS. Regulation 5 requires that where a measure is applied, the reasons for and the outcome of applying the measure shall be recorded. Regulation 12 specifies all hospitals as being required to provide statements about the implementation of the 2005 Regulations to the Scottish Ministers and the Commission. Regulation 13 confers power on the Commission to make a direction which may prohibit the implementation of the measures in respect of certain patients for a period of up to 6 months unless implemented under the supervision of or with the permission of the Commission.

The type of patient who can be the subject of a direction is one in respect of whom the Commission has reviewed the implementation of the regulations. The Commission may also direct that the patient’s named person has to be notified that any of regulations 4 to 11 of the 2005 Regulations has been implemented in this way.

Objective

The NSAIS is currently being built to medium secure care standards and will provide mental health care and treatment to children and young people aged between 12 and 17 years, in a secure inpatient facility. The unit will be the national CAMHS secure inpatient unit and will sit within the wider mental health network of secure inpatient services. The objective of the proposal is to ensure this new service has the same legal standards as other medium secure units in Scotland.

Rationale for Government intervention

With the opening of the new NSAIS, there is no reasonable justification as to why patients in the NSAIS should not be provided the right to appeal conditions of excessive security. In keeping with the section 2 principles of the 2003 Act, children and young people should be afforded the same right as others detained in the same security setting.

Ensuring the service is able to implement the safety and security measures for all in the NSAIS helps facilitate a secure and effective care environment for both patients and those involved in their care and for the security and good order of the hospital. The measures will be applied when necessary, and they will be proportionate to the potential risk.

Consultation

Short Targeted Consultation

Between September and October 2022, the Scottish Government conducted a short targeted consultation on the proposed changes to the 2005 and 2015 Regulations. The aim of the consultation was to seek the views of a key group of stakeholders, with an interest in forensic mental health and CAMHS care, on the implications of extending the provisions and measures to children and young people to be detained in the NSAIS. The consultation provided an explanation of the proposed changes.

The following questions were posed to stakeholders in the written consultation:

Q1. Taking into account this overarching duty to secure the welfare of persons under 18, should the measures be authorised for Foxgrove as they stand or are there particular conditions needed specifically because the measures will apply to young people? If so, what conditions should apply to which measures?

Q2. Please use this opportunity to provide any further comments you may have on secure inpatient services for young people and safety and security or appeals against detention in conditions of excessive security.

The stakeholders who responded were:

• The Mental Health Tribunal for Scotland
• The Forensic Network
• Centre for Mental Health and Capacity Law, Napier University
• Forensic Directorate, NHS Greater Glasgow and Clyde
• Children and Young People’s Commissioner Scotland
• National Youth Justice Advisory Group
• Children and Young People’s Centre for Justice
• The Clinical Director of NSAIS, Foxgrove and Clinical Lead for West of Scotland CAMHS Network, on behalf of the clinical team at NSAIS, Foxgrove
• An individual response from a child and adolescent psychiatrist

Reponses - Excessive Security Appeals

There was broad agreement from stakeholders on the need to provide patients with the right to appeal conditions of excessive security. Several respondents commented that a successful appeal may result in the transfer of a patient to another jurisdiction (e.g. England) and that finding a suitable placement may be difficult. However, the lack of alternative services in Scotland, in which young people could be placed following a successful appeal, should not necessarily impede their right to make such an appeal.

Responses - Safety and Security Measures

Some stakeholders raised concerns with the measures being applied to children and young people, due to the different levels of maturity and developmental stage support they require. Their comments highlighted concerns highlighted comments around a child consenting, and the capacity to consent, to certain security measures. Some of the comments highlighted communication difficulties, past experiences, trauma and taking these into consideration when applying the measures. Other comments focused on applying the least restrictive practices possible and the appeals with regards to the measures.

Some stakeholders were accepting of the measures being applied to the new service. The justification for this was that the measures being applied to the new service would allow for the effective management and care of those posing a serious risk to themselves or others.