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Division of Psychiatry, University of Edinburgh, Morningside Park, Edinburgh EH10 5HF and Honorary Consultant Forensic Psychiatrist, The State Hospital, Lanark ML118RP, email: l.d.g.thomson{at}ed.ac.uk
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Introduction |
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 Top Introduction Major developments within the...Powers of detention and...References |
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Legislation to ensure the assessment and management of mentally disordered offenders in a health rather than custodial setting is long-standing in Scotland and exists at every stage of the criminal justice process (see Fig. 1). The criminal justice process can continue in tandem with any mental health involvement or at a later date. Individuals can be returned to the criminal justice system unless a final disposal solely to psychiatric services is made. The 2003 Act amends the Criminal Procedure (Scotland) Act 1995. It brings the 1995 Act into line with the 2003 Act provisions for civil patients, for example, by uncoupling detention and treatment. Further information on the new legislation for mentally disordered offenders can be found in Mental Health and Scots Law in Practice (McManus & Thomson, 2005) and in the Code of Practice on Forensic Compulsory Powers (Scottish Executive, 2005).
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Major developments within the 2003 Act |
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Definition of mental disorder
The 2003 Act defines mental disorder as ‘any mental illness,
personality disorder or learning disability however caused or
manifested’. A person is not considered to be mentally disordered by
reason only of sexual orientation; sexual deviance; transsexualism;
transvestism; dependence on or use of alcohol or drugs; behaviour that causes,
or is likely to cause, harassment, alarm or distress to any other person; or
acting as no prudent person would act (section 328). Personality disorder was
added to the Mental Health (Scotland) Act 1984 by the Mental Health (Public
Safety and Appeals) (Scotland) Act 1999. Personality disorder was included in
the definition of the 2003 Act to allow primarily for the short-term detention
of patients with problems secondary to their personality disorder, for example
a suicidal individual with a borderline personality disorder. It was not
envisaged that there would be a wholesale change in psychiatric practice
whereby mentally disordered offenders with a primary diagnosis of a
personality disorder were made subject to the provisions of the Act. A recent
report on services for people with personality disorder who present a
significant risk of physical and psychological harm to others and who come
into contact with, or are likely to come into contact with, the criminal
justice system outlines proposed services for this group in Scotland
(Forensic Mental Health Services Managed
Care Network, 2005).
The Mental Health Tribunal for Scotland
The Mental Health Tribunal for Scotland is established by the Act (Part 3).
Tribunal members, appointed by Scottish Ministers, include legal
representatives, psychiatrists and others with training and active involvement
in caring for people with mental disorder. A sheriff will chair all tribunals
regarding restricted patients. A tribunal has a major role in the review of
compulsion orders, restriction orders, hospital directions and transfer for
treatment directions. In addition, it hears appeals against excessive
security.
Conditions for detaining mentally disordered offenders
The following medical conditions must be fulfilled for the detention of a
mentally disordered offender, but in every case the court must consider all of
the known circumstances and any alternative means of dealing with a
person.
For civil provisions under the 2003 Act there is an additional criterion that the mental disorder significantly impairs the patient’s ability to make decisions about the provision of such medical treatment. This does not apply to mentally disordered offenders, reducing the threshold for use of the 2003 Act provisions with this group.
Remand to hospital for assessment and treatment
Under the old legislation patients could be remanded to hospital for
assessment but there was no provision for treatment, although a system to
allow this to occur via a recorded second opinion had been agreed with the
Mental Welfare Commission. Under the new legislation there is an assessment
order (section 52 D CP (S) A 1995) and a treatment order (section 52 M CP (S)
A 1995). Both of these cover the period pre-trial and now also presentencing.
In addition, these orders are applicable to people from court and also from
prison. For prisoners on remand, following a recommendation from one or more
medical practitioners, Scottish Ministers apply to the court that remanded the
individual to prison for an assessment or treatment order. Importantly all
patients on an assessment or treatment order now have restricted patient
status. The criteria for an assessment order do not include treatability and
only require that there are reasonable grounds for believing that the person
has a mental disorder.
A treatment order allows treatment in hospital pretrial or pre-sentencing and again applies to people from court or prison. On this occasion, written or oral evidence is required from two registered doctors one of whom must be an approved medical practitioner. The treatment order can be applied for directly or following an assessment order. There is no specified period for a treatment order, rather this is fixed by the remand time limits in Scotland (40 days for summary proceedings and 140 days for solemn proceedings).
Compulsion order
The compulsion order (section 57 A CP (S) 1995) replaces the hospital
order. Its purpose is to provide treatment of a mental disorder in hospital or
in the community. Its civil equivalent is the compulsory treatment order
(section 64(4)). A hospital-based compulsion order includes powers to detain
in hospital and to give treatment under part 16 of the Act
(Thomson, 2005). A
community-based compulsion order includes powers to give medical treatment
under part 16 of the Act; a requirement to attend specific or directed places
for medical treatment, community care services or any other authorised care,
service or treatment, on specific or directed dates or at defined intervals;
to reside at a specific place; to permit a mental health officer (MHO), a
responsible medical officer (RMO), and others to visit; and to obtain MHO
permission to change address prior to any move.
Non-compliance with a compulsion order is treated exactly as with the compulsory treatment order. If a patient under a compulsion order with a requirement to attend for treatment fails to do so, the RMO, following consultation in agreement with the MHO, may take or authorise another person to take the patient into custody and to convey the patient to the agreed place of the attendance requirement or to any hospital where they may be detained for up to 6 h (section 112/176). During this time the patient may be given any medical treatment authorised in the compulsion order, or it can be determined whether the patient is capable and willing to consent to medical treatment. When a patient subject to a compulsion order fails to comply generally with a compulsion order, the patient’s RMO may take or arrange for another person to take the patient into custody and convey the patient to a hospital (section 113/177). The patient’s MHO must give consent. Prior to being taken to hospital the patient must be given a reasonable opportunity to comply with the measures, and it must be considered reasonably likely that there would be a significant deterioration in the patient’s mental health if he was to continue to fail to comply with the measure, and that it is necessary as a matter of urgency to detain the patient in hospital. The patient may be detained in hospital until a medical examination has been carried out as soon as is reasonably practicable. The patient can be detained for up to 72 h. Thereafter a RMO can detain the patient in hospital for up to 28 days (section 114 (2)) pending a review or application for variation following non-compliance with a compulsion order.
Restriction order review
The criteria for a restriction order (section 59 CP(S) A 1995) are
unchanged. A compulsion order and a restriction order are appropriate in cases
where there is a significant link between the mental disorder and future risk
of harm to others. Decisions regarding leave and transfer remain the
responsibility of Scottish Ministers but discharge from the order becomes the
responsibility of the mental health tribunal. The RMO reports on an annual
basis or, if there is a significant change in the patient, to Scottish
Ministers. Scottish Ministers can refer cases to the mental health tribunal,
and must do so following a recommendation by a RMO, as can the Mental Welfare
Commission.
All restricted patients’ cases will be considered at least every 2 years by the tribunal, although further reviews can be requested by Scottish Ministers and the patient or their named person can apply to the tribunal to change an order or grant discharge on an annual basis. The mental health tribunal must consider whether the mental disorder, treatability and risk criteria are fulfilled, and whether a compulsion order, including the need to be detained in hospital, or a restriction order are necessary. In addition, the tribunal must consider whether as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment. Thus the public safety test introduced in the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 remains in place. The tribunal can order an absolute discharge revoking both compulsion order and restriction order; make a conditional discharge with a defer option to allow arrangements to be put in place; revoke a restriction order and continue or vary the compulsion order; or continue both the compulsion and restriction orders. Scottish Ministers can appeal against any decision and it is not until this appeal period has passed that any order of the tribunal can be enacted.
Standard procedures for mentally disordered offenders
Admission
In general the provisions of the 2003 Act require that patients are
admitted within 7 days and that this can be via a place of safety. The powers
to convey apply to the police, hospital staff, or others as appointed.
Absconding
If a patient absconds then they can be taken into custody and back to
hospital by hospital staff or by the police. The relevant court, if prior to a
final disposal, and the Scottish Executive for restricted patients must be
informed. A decision to revoke or vary an order may be required.
Suspension of detention
The RMO may suspend detention in hospital by use of a suspension of
detention certificate. For patients with restricted status this can only be
done with the consent of Scottish Ministers. Detention can be suspended by the
RMO for an event or series of events. If the RMO considers it necessary in the
interests of the patient, or for the protection of others, the certificate may
include conditions, for example that the patient must be kept in the charge of
a person authorised in writing for the purpose by the RMO. Time limits apply
for suspension of detention for those on a treatment order, interim compulsion
order, compulsion order and restriction order, hospital direction and transfer
for treatment direction. Detention can be suspended for 6 months on a
continuous basis or up to 9 months in any 12-month period. Suspension of
detention can be revoked by the RMO or Scottish Ministers.
Urgent detention of an acquitted person
The 2003 Act creates a new provision to urgently detain for medical
assessment a person in a place of safety for up to 6 h who has not been
convicted but where there are two medical recommendations for a mental health
disposal, one by an approved medical practitioner. The conditions of mental
disorder, treatability and risk must be met and it must not be practicable to
secure an immediate examination. The place of safety will generally be the
hospital from which the patient came but this may not be appropriate in some
cases, for example when this hospital is a considerable distance from the
court, and an agreed local place of safety or the court cells may be used.
Appeals against excessive security
Patients subject to a compulsory treatment order, compulsion order,
hospital direction or a transfer for treatment direction may appeal against
their detention in conditions of excessive security (sections 264-273 MH
(C&T) (S) A 2003). This has only been enacted for high-security hospitals
at the present time. The patient, their named person, their guardian or
welfare attorney, or the Mental Welfare Commission may apply. Any of these
people can apply in the first 6 months of an order and thereafter once every
12-month period. Patients resident in the state hospital must be thought to
require conditions of special security and that such conditions can only be
provided in a state hospital. The criterion that a state hospital patient must
have dangerous, violent or criminal propensities still applies. The appeal is
made to the tribunal and the tribunal can agree with the existing order, or
give up to 3 months for a health board to identify a lower secure hospital.
Scottish Ministers must agree on any proposed setting for restricted patients.
If the patient has not moved by the end of the delineated period, there are
further hearings; and the Act specifies up to three hearings in total. As long
as the tribunal continues to give extensions no appeal can be made to the
Court of Session. At the end of the process, the Mental Welfare Commission or
the patient can make an application under section 45(b) of the Court of
Session Act 1988. This allows for fines and imprisonment in the event of an
order not being implemented.
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Powers of detention and compulsory measures |
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Although few psychiatrists outside forensic mental health are likely to recommend restriction orders or hospital directions, it is essential that all are aware of the provisions for assessment and treatment orders, and for the compulsion order. For colleagues working in different legal jurisdictions where mental health legislation may currently be under review, this paper describes the underlying principles and specific provisions for the detention and/or treatment of mentally disordered offenders in Scotland.
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References |
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TopIntroductionMajor developments within the...Powers of detention and...References |
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McMANUS, J. J. & THOMSON, L. D. G. (2005) Mental Health and Scots Law in Practice. Edinburgh: W. Green.
SCOTTISH EXECUTIVE (2005) Mental Health (Care and Treatment) (Scotland) Act 2003: Code of Practice - vol. 3, Compulsory Powers in Relation to Mentally Disordered Offenders. Edinburgh: Scottish Executive. http://www.scotland.gov.uk/Publications/2005/09/16121646/16541
THOMSON, L. D. G. (2005) The Mental Health (Care and
Treatment) (Scotland) Act 2003: civil legislation. Psychiatric
Bulletin, 29, 381
-384.
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| HOME | HELP | FEEDBACK | SUBSCRIPTIONS | ARCHIVE | SEARCH | TABLE OF CONTENTS |
| British Journal of Psychiatry | Advances in Psychiatric Treatment | All RCPsych Journals |
