Consultation on Updates to the Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003 - easy read version

Chapter 14. Cross-border transfers (moving into or out of Scotland) Easy Read version

Introduction

This document explains what happens when someone who has a mental disorder is moved:

• out of Scotland or
• into Scotland

This is called a cross-border transfer.

What this document is about

The rules about legal transfers under mental health law. There are different pathways depending on:

• where the person is (hospital or community)
• where they are going
• who makes the decision

Pathway means steps to be taken.

The pathways are:

Pathway A. Moving out of Scotland for people in hospital. Decided by Scottish Ministers with agreement from the country the person is moving to.

Pathway B. Moving out of Scotland to England or Wales for people on community orders. Decided by the Responsible Medical Officer with agreement from England or Wales.

Community order allows patient to receive the treatment in the community.

Pathway C. Moving into Scotland for people detained in hospital. Decided by the country people are leaving with agreement from Scottish Ministers.

Pathway D. Moving into Scotland for people on community requirements. Decided by the managers of the receiving hospital.

Who must not be transferred

A transfer should not happen if the person is on an order a court makes before making a final decision on the case. This includes:

• some assessment or treatment orders made by a criminal court
• interim orders. Interim means in the meantime
• temporary orders

Also, a transfer should not happen if a person is on community order without detention and they are not following the rules.

Some moves are not covered by transfer laws

Some moves are not set out in the law. They may happen as local, case by case decisions. Examples include:

• informal patients moving within the UK
• people coming into Scotland from places that are not listed in the law
• community cases moving to places other than England and Wales

These decisions should be:

• person centred
• rights based
• clearly written down

Independent legal advice may be needed.

Human rights and principles

Decision makers must follow the law and think about human rights. This includes the right to respect for private and family life.

This means:

• think about how the move affects family contact and relationships
• any unwanted changes made must be needed
• record what support will help to keep in touch

Get legal advice if needed.

Planning transfer

Transfers should be planned early. The team should plan with:

• the sending service
• the receiving service

People who should be told and supported include:

• the patient
• the named person
• carers and family if ok to do so
• guardians and welfare attorneys

Travel should be:

• safe
• quick
• as comfortable as possible

Plan for medication should be in place.

Security during travel should:

• reduce absconding risk. Absconding means running away.
• use the least restriction needed

Services should meet the needs of people under 18.

Avoiding delays

Delays happen because:

• the wrong people were informed
• time limits were missed

Do not book travel until:

• Scottish Ministers have allowed Pathway A or
• the receiving hospital has agreed Pathways B, C, D.

Other things that help avoid delay:

• check the named person paperwork is ok

• get the legal set up of the other place in writing

• if court or Tribunal proceedings are happening contact the cross-border team early
• if the legal order is close to ending check if transfer is going ahead

Urgent requests must be for medical reasons.

Escorts, directions and absconding

People called escorts help move the patient. Directions are legal instructions that name the escorts and give them powers in Scotland.

If escorts come from another place they must be named in directions before they start working in Scotland.

Powers may change when crossing the border. Scottish powers might not continue elsewhere.

If a patient runs away during travel:

• the law sets out who can return them
• force may be used if needed
• the person is returned to the place or escort custody

Pathway A. Moving out of Scotland for people in hospital

Pathway A is for people who are:

• detained in hospital or
• treated like they are in hospital or
• informal in-patients where the destination is outside the UK

Scottish Ministers decide and issue a warrant. Warrant is a legal document that allows transfer.

Transfers in the UK must have similar legal measures in the new place. Transfers outside the UK should have similar legal measures.

Sometimes a different set up may be allowed if it is best for the patient and is the minimum restriction needed.

Before applying:

• The Responsible Medical Officer consults the Mental Health Officer and other people involved.

• Responsible Medical Officer is the doctor in charge of treatment. Mental Health Officer is a specially trained social worker.
• The receiving hospital confirms acceptance in writing

People must be told in writing and given time to respond. Usually:

• you have 7 days to tell your views
• you must be able to understand the notice
• the notice must not give a transfer date

During this time the Mental Health Officer must:

• meet the patient
• explain rights and advocacy
• support access to advocacy

There are different speeds of application:

• Standard. Normal time limits. A normal standstill period before travel. Standstill is a waiting period before travel can happen.

• Urgent. Shorter standstill but must be medically urgent and agreed with the Mental Welfare Commission.

• Fast-track. Only for some UK destinations. Only if the patient consents in writing and the Approved Medical Practitioner approves. Consent means accept.

If someone appeals or consent is taken back the normal standstill rules apply.

After Scottish Ministers authorise:

• A warrant says where you will go and when removal can happen
• Removal must happen within a set time

After removal the hospital managers must notify key people within 7 days.

Pathway B. Moving out of Scotland (community orders) to England and Wales

Pathway B is for people who are on a community order and want to move to England or Wales.

This is for:

• A Compulsory Treatment Order or
• A Compulsion Order

without detention in hospital

A Compulsory Treatment Order is a legal order to receive medical treatment. A Compulsion Order is a legal order to receive medical treatment made by a Court in proceedings about a crime.

Compulsion Orders can be given even if the person is acquitted due to their mental disorder and the risk to themselves and others.

It is decided by the Responsible Medical Officer. England and Wales must agree too.

The patient must request the move, or their named person if the patient cannot decide.

The Mental Health Officer should give their view to the Responsible Medical Officer within 3 working days.

The Responsible Medical Officer can only authorise if there will be similar care and legal set up in England or Wales.

If the Responsible Medical Officer refuses, the patient or other people can appeal to the Tribunal within 14 days.

If the Responsible Medical Officer issues a warrant:

• it starts at least 3 working days after it is signed
• travel must happen within 14 days

After removal the hospital managers notify the Mental Health Officer and the Mental Welfare Commission within 7 days.

Pathway C. Moving into Scotland. Detained in hospital or similar

Pathway C is for people coming into Scotland from places like England, Wales, Northern Ireland, Channel Islands, Isle of Man and some EU states. For patients who are detained in hospital or on conditional discharge.

Conditional discharge means the patient is allowed to leave hospital but needs to follow set rules.

Scottish Ministers need to decide and consent before receiving.

A person must not be received in Scotland without Ministers’ consent or detention may be unlawful.

After receiving in Scotland:

• the person is treated as if they are on the closest matching Scottish measure
• time limits run as if the original measure’s date applies

Within set times:

• a Responsible Medical Officer is arranged
• the Responsible Medical Officer assesses within 7 days
• the Mental Health Officer prepares a Social Circumstances Report within 21 days. The Social Circumstances Report collects information about the person beyond their diagnosis

• hospital managers send notifications within 14 days

• a care plan is prepared within 28 days of assessment

Pathway D. Moving into Scotland. Community requirements

Pathway D is for people coming into Scotland on community requirements. Like Community Treatment Order where a person receives supervised medical treatment in community.

The managers of the receiving hospital must decide and consent before receiving.

After receiving in Scotland:

• the person is treated as if on the matching Scottish community measure
• time limits run from the original date in the other place

Within set times:

• a Responsible Medical Officer is arranged
• the Mental Health Officer is allocated
• managers notify key people within 14 days
• care planning and information duties must happen

Victim information for restricted cases

In some cases, there are registered victims under criminal justice laws. If a transfer out of Scotland happens in some restricted cases:

• victims may be told that a transfer happened
• medical teams must not share the destination or exact date

Staff should make sure the victim notification administration team is told that a transfer happened.

Getting help

If you need help you can ask:

• an independent advocate
• a solicitor
• your Responsible Medical Officer or ward team
• your Mental Health Officer
• the Mental Welfare Commission for Scotland

If you are a named person, guardian, or welfare attorney, you can also ask for advice.