Chapter 14: Cross-border Transfer of Patients - sections 289 and 290
This chapter examines provisions in the Act which deal with the transfer of patients subject to a detention requirement or otherwise in hospital for mental disorder from Scotland, and the reception in Scotland, of patients subject to corresponding measures in England and Wales, Northern Ireland, the Isle of Man or the Channel Islands.
The Mental Health (Cross-border transfer: patients subject to detention or otherwise in hospital) (Scotland) Regulations 2005 specify the duties and roles of persons and agencies involved in the application process and procedures for the cross-border transfer of patients.
01 Regulations made under section 290 of the Act (The Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005) make provision for the following:
the transfer from Scotland of a patient who is subject to any provision of this Act which authorises that patient's detention in hospital, or to the following provisions of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"): a compulsion order which authorises the patient's detention in hospital (with or without a restriction order) or a hospital direction;
the transfer from Scotland to a place outwith the United Kingdom of an informal patient who is in hospital for the purpose of receiving medical treatment for mental disorder. That is a person not subject to this Act or the 1995 Act. Note that subsection (1)(b) of section 290 does not provide for the transfer of an informal patient from Scotland to another part of the United Kingdom;
the reception in Scotland of a person subject to corresponding measures in England, Wales, Northern Ireland, the Isle of Man or any of the Channel Islands and removed from there.
Removal of patients from Scotland
Duties of the RMO
02 Where an application is to be made to Scottish Ministers for the removal of the patient from Scotland, the duties of the RMO are set out in the regulations.
03 Where the RMO considers that it may be appropriate to make such an application he/she must, as soon as practicable, consult the designated MHO and such other persons as the RMO considers appropriate. In the case of an informal patient who is to transfer outwith the United Kingdom, the RMO must also inform the relevant local authority to allow an MHO to be designated responsibility for the patient's case.
04 If, taking into consideration the views of the parties mentioned in paragraph 3 above, the RMO considers that an application is appropriate he/she must give notice as soon as practicable to:
the patient's named person;
the patient's primary carer where the patient is in hospital being treated for mental disorder other than by virtue of the 1995 Act or the Act ( i.e. an informal patient);
any guardian of the patient;
any welfare attorney of the patient; and
05 The RMO must allow these parties a period of 7 days to revert to him/her with their views.
Duty on the patient
06 Where the patient has a particular wish or preference that he/she would like the Scottish Ministers to take into consideration, the patient must inform the Scottish Ministers within 7 days of the day on which the notification was received (either directly or via their RMO).
Responsibilities of the MHO
07 As soon as practicable after being notified, and in any event no later than 7 days after being notified, the MHO must comply with a number of requirements set out in the regulations, involving interviewing the patient and informing them of their rights in relation to the application. The MHO must inform the patient of the advocacy services provided by the Act, ensuring that the patient has the opportunity to use these services. The MHO must also inform the patient's RMO if he/she agrees or disagrees that the application should be made. If the MHO disagrees, a reason must be given along with any other relevant matters.
08 If, taking into consideration the views expressed by the MHO and those of the parties detailed in paragraph 4 above, the RMO is satisfied that an application should be made to the Scottish Ministers for a warrant for the removal of the patient he/she may make such an application. The specific information which must be included in the application is detailed in the regulations.
The role of Scottish Ministers
09 Scottish Ministers, when deciding whether to authorise an application, must consider a number of factors including the best interests of the patient, any wish or preference that the patient has notified to Scottish Ministers, the patient's security after being removed from Scotland and the treatment, care or services which will be available for the patient once transferred. Where Scottish Ministers decide that a patient should be removed from Scotland, they shall issue a warrant which authorises that removal. Regulations prescribe that no warrant shall be issued until consent has been obtained from the country or territory to which it is proposed that the patient be removed. Notice of the decision of the Scottish Ministers must be given to the patient, their named person, the RMO, the MHO, the Commission and the country or territory to which the patient is moving.
10 The regulations specify an effective date for the patient's removal and a warrant issued under the regulations will only authorise removal of the patient within 14 days from the effective date. If the removal is authorised to a place in the UK, the effective date will be no sooner than 7 days before the date proposed for the patient's removal. In the case where removal is to a place outwith the UK, the effective date will be no sooner than 28 days before the date proposed for the patient's removal. However, where the patient consents to the move or it is considered of urgent clinical necessity to move the patient Scottish Ministers can waive the number of days specified. In such cases the effective date is a date no sooner than 3 days before the date of the patient's removal. The Commission must also be notified at least 3 working days before the proposed date of the patient's removal.
Right of appeal
11 A patient may appeal to the Tribunal against his/her proposed transfer at any time between being notified by the Scottish Ministers and the transfer taking place. The Tribunal may make or refuse to make an order that the proposed transfer go ahead. Thereafter an appeal against the decision made by the Tribunal may be made to the sheriff principal and thence to the Court of Session except where the patient is subject to a compulsion order and a restriction order or a hospital direction or a transfer for treatment direction. In these cases the appeal would be made direct to the Court of Session. Pending determination of an appeal, any warrant issued shall be suspended and removal shall not take place. There is no right of appeal once a removal has taken place.
Powers of escorts from other territories
12 The regulations also make provision for the powers of escorts from a country or territory to which the patient is being removed from Scotland who are:
authorised to escort patients in that country or territory under the law of that country; and
authorised to escort the patient from Scotland under directions set out by the Scottish Ministers in the warrant;
and the procedures to be followed should a patient abscond or attempt to abscond during the removal.
13 A patient who is subject to civil detention procedures and who absconds while being removed from Scotland under these regulations is liable to be taken into custody and dealt with in accordance with sections 301 to 303 of the Act subject to certain modifications. A patient who is subject to a compulsion order (with or without a restriction order), a hospital direction or a transfer for treatment direction ("the relevant 1995 Act provisions") under these regulations is liable to be taken into custody in accordance with regulations made under section 310 (The Mental Health (Absconding by mentally disordered offenders) (Scotland) Regulations 2005). In general terms both sets of provisions provide that once the patient is taken into custody he/she may be:
returned to the hospital where he/she was originally detained;
taken to the hospital in which he/she was to be detained; or
taken to any other place considered appropriate by the patient's responsible medical officer.
Cessation of measures
14 Where a patient whose detention in hospital is authorised by the 2003 Act or the relevant 1995 Act provisions, is removed from Scotland under these regulations, the measures which authorised the patient's detention in hospital in Scotland shall cease to have effect when the patient becomes subject to relevant measures in the country or territory to which the patient is removed.
Treatment of prison sentence with respect to certain patients
15 Where a patient whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction is removed from Scotland under these regulations, his/her sentence is treated in the relevant territory as if it had been imposed in that territory.
Transfer of Patients from other Jurisdictions into Scotland
16 The regulations made under section 290 of the Act (The Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005) also make provision where it is proposed to receive a patient into Scotland. These transfers require the consent of Scottish Ministers who will consider requests made by the person or authority exercising corresponding functions in a relevant territory. The information required by Scottish Ministers to be included in a request is:
the patient's name and address;
the name and address of the patient's nearest relative or primary carer (if there is one);
the type of mental disorder the patient has;
details of the relevant measures to which the patient is currently subject; and
the name and address of the hospital in the relevant territory in which the patient is presently detained or is liable to be detained.
17 Where consent to the reception in Scotland is given, Scottish Ministers can consider any directions as to the patient's conveyance to their destination in Scotland which have been made by the sending person or authority and may give further directions as they think are required.
18 The regulations set out the process which will be put in place once the Scottish Ministers have consented to the reception of a patient into Scotland and the managers of the sending hospital have notified the managers of the receiving hospital that the transfer is to go ahead.
Appointment of an RMO
19 As soon as is reasonably practicable after being notified by the managers of the sending hospital that the transfer is to go ahead, the managers of the receiving hospital must appoint an RMO.
Designation of an MHO
20 As soon as reasonably practicable after being notified by the managers of the sending hospital that the transfer is to go ahead, the managers of the receiving hospital must notify the relevant local authority of certain details relating to the patient. The local authority must designate an MHO responsible for the patient.
Powers of escorts
21 From the time when the patient enters Scotland until reaching his/her destination, the escorts have the following powers:
where the patient is being escorted to their destination in Scotland by escorts authorised in the relevant territory under the law of that territory, the same powers in respect of the patient as they had in the relevant territory;
where the patient is being escorted to their destination in Scotland by escorts authorised under or by virtue of the 2003 Act, the same powers to escort the patient as they would have if the patient was subject to the measure under the 2003 Act or the 1995 Act;
where the patient absconds from the custody of escorts mentioned in that subparagraph, to immediately pursue and resume the custody of the person; and
to restrain the patient if the patient has absconded, or attempted to abscond while being so escorted.
22 The regulations provide that a patient who absconds within Scotland while being escorted to their destination in Scotland, will be taken into custody by an MHO, a constable, a member of staff of any hospital or any other person authorised to do so by the patient's RMO.
23 The regulations provide authority for detention and the giving of treatment in accordance with Part 16 of the 2003 Act, where patients are treated as if subject to a compulsory treatment order, an interim compulsory treatment order or a compulsion order.
Reception into Scotland: general
24 On reception into Scotland, the patient is treated as if they are subject to measures under the 2003 or 1995 Acts which most closely corresponds or is most similar to those which the patient was subject immediately before the transfer. This includes where the patient had immediately prior to the transfer been subject to conditional discharge in the relevant territory. Where the patient is treated on reception into Scotland as if he/she is subject to a hospital direction or a transfer for treatment direction, his/her sentence is treated as if it had been imposed by a court in Scotland.
Duties of the MHO
25 The regulations specify that the MHO shall, as soon as practicable after being designated as the MHO having responsibility for the patient's case, in accordance with section 229 of the 2003 Act as applied by regulation 28, comply with the following requirements:
to take such steps as are reasonably practicable to establish whether the patient has a named person;
to notify the patient's RMO of the name and address of any named person;
to comply with the requirements of section 231 of the 2003 Act subject to the modification that, in subsection (1) for the words "where a relevant event occurs in respect of a patient" substitute "patient is received in Scotland under The Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005";
to inform the patient of the availability of independent advocacy services under section 259 of the 2003 Act; and
to take appropriate steps to ensure that the patient has the opportunity of making use of those services.
Duties of the RMO
26 The regulations also specify the duties of the RMO. In particular, the RMO must carry out an assessment of the patient within 7 days of the reception of that patient in Scotland. A medical examination must be carried out in accordance with the regulations and the RMO must consider whether the measure which the patient is treated as if they have become subject to is appropriate.
27 Following this assessment, the RMO has specific duties with respect to:
The revocation of an emergency or short-term detention certificate;
The revocation of an interim compulsory treatment order, a compulsory treatment order or a compulsion order;
Reporting on and making recommendations to the Scottish Ministers following the assessment of patient;
Notification requirements post assessment;
Requirements post transfer; and
28 The regulations apply the relevant provisions of the 2003 Act to patients received in Scotland so that:
care plans are prepared for those who are being treated as if subject to a compulsory treatment order or a compulsion order;
information is provided to such patients at specified times; and
assistance is given to patients with communication difficulties.
29 Within 6 months of the date on which the patient was received in Scotland, the Commission must ensure that an authorised person in terms of section 14 of the 2003 Act visits him/her.
What practical considerations should be taken into account when transferring the patient?
30 The transfer should be carefully planned well in advance. The range of issues which should be considered by members of the patient's multi-disciplinary team and by the managers of the sending and receiving hospitals include:
ensuring that the patient, and his/her relatives, carers, named person, independent advocate and representatives have been informed of an agreed departure time in advance of the transfer, and ensuring that the patient is fully supported in preparing for the journey;
providing an appropriate, swift and comfortable means of transport which is also suitable for the provision of medication, where necessary;
anticipating any difficulties in relation to the required level of security and possible absconding en route (in as far as this is possible) bearing in mind the importance of caring for the patient in the manner which involves the minimum restriction on the patient's freedom that is necessary in the circumstances;.
ensuring that there is a clearly identified RMO in the receiving hospital;
ensuring that the receiving hospital has been informed of any relevant dates with respect to the Act's provisions, for example for consenting to medical treatment, or renewing a CTO;
ensuring that staff in the receiving hospital are properly prepared for the patient's arrival and that time is taken to ensure that the patient can settle quickly into the new environment;
ensuring that, in the case of a patient aged under 18, services are available in the receiving hospital which are appropriate to the needs of that patient.
Can a patient on a community based order be transferred from Scotland?
31 Section 289 makes provision for regulations to set out the conditions and procedures for the transfer from Scotland to a place outwith Scotland of a patient who is subject to a compulsory treatment order (" CTO") or a compulsion order (" CO") which does not specify that patient's detention in hospital. It is very unlikely that a community based patient subject to a CTO or a CO would request a transfer to a jurisdiction outwith Scotland given that there will be no directly equivalent provision in other parts of the British Isles for community based patients. Regulations detailing the process of transfer for a community based patient will be made when equivalent provisions come into effect in the rest of the UK. Until then where a patient who is subject to a community based CTO or CO requests a transfer to other parts of the UK, the RMO should consider whether the patient may be discharged prior to an informal transfer or should become a hospital based patient and transferred under the provisions of section 290 of the Act.