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1. CHAPTER ONE - INTRODUCTION
1.1 This Memorandum gives guidance to those who are involved with the management and care of restricted patients; that is, patients who are subject to the special restrictions. Under the Mental Health (Care and Treatment)(Scotland) Act 2003, such patients cannot be granted suspension of detention from hospital, transferred between hospitals or returned to prison without the consent of Scottish Ministers. The explanations which this Memorandum gives and the procedures it describes should be closely noted and observed by all those involved in the care and management of restricted patients, both within hospitals and in the community. It is not, however, intended as a complete instruction document or an authoritative interpretation of the law.
1.2 Managers of restricted patients should also refer to other relevant literature (most notably the Mental Health (Care and Treatment) (Scotland) Act 2003, the Scottish Executive Health Department Code of Practice, the Mental Health Tribunal for Scotland Rules of Procedure, the Community Care guidance on care plans for people with mental illness, etc). The guidance assumes that use of the Care Programme Approach, ( CPA) is standard practice for all patients who have required treatment in secure conditions and who now require continuing support to minimise the level of risk presented through their transfer to alternative care arrangements. The CPA care plan forms the template for discharge, through-care and aftercare arrangements and specifies individual and agency responsibilities. NHS Boards and their operating divisions, hospitals and local authority and other services must ensure satisfactory working procedures and communication between all relevant parties in relation to the patients concerned.
1.3 The 1999 policy statement on health, social work and related services for mentally disordered offenders in Scotland set out guidance for the organisation of safe care and accommodation, supported by joint working between all relevant agencies. The policy and principles are well understood by the Partnership Agencies. A care pathway document published in 2001 provided a planning and audit tool on which to base service re-design or measure progress towards overall objectives. The guidance promotes multi-agency and multi-disciplinary working to ensure services provide quality care and rehabilitation that responds to individual needs, under conditions of appropriate levels of security and with regard for public safety. Guidance published in 2000 on the management and reduction of risk in mental health care settings generally also highlights the factors to be taken into account when considering patient, staff and public safety and offers advice on a range of key issues and approaches including procedures to review critical incidents.
1.4 In addition, an amendment to the Management of Offenders Bill, scheduled to come into force in spring 2006, will establish joint arrangements between the police, local authorities and the Scottish Prison Service as responsible authorities to manage the risk from sex offenders and violent offenders and those offenders who continue to pose a risk to the community. Building on the arrangements in the Bill, an amendment was introduced at stage 2 of its progression through Parliament which provides also for the health service to become a responsible authority in the establishment of joint arrangements for the assessment and management of mentally disordered offenders who are also sex offenders and violent offenders. This will provides a robust statutory framework for ensuring that justice and health work in partnership in providing services to those deemed to pose a continuing risk to the public. Significantly, they will allow the Health Service to formalise the Care Programme Approach. The Forensic Network have agreed to take the development of revised care programme guidance forward in a multi-disciplinary, multi-agency setting as part of their ongoing work.
1.5 The Memorandum sets outs the formal responsibilities of the Responsible Medical Officer ( RMO), supervising psychiatrist and social worker in the care and management of restricted patients. However, the Scottish Executive Health Department ( SEHD), Psychiatric Adviser and SEHD officials are keen to encourage informal contacts with those caring for restricted patients in addition to these formal requirements. RMOs and others are, therefore, invited to telephone the Psychiatric Adviser or SEHD officials to discuss any particular issues relating to a patient on which they wish advice or guidance. Contact numbers are provided inAnnex A1.
1.6 Restricted patients have been a part of the mental health system in Scotland for many years and hospitals caring for such patients will already have established procedures for their care and management. There are generally around 300 restricted patients in the system at any one time. Around half this number are detained in the State Hospital with the remainder detained in local psychiatric hospitals or living in the community on conditional discharge. However, despite the long history of the system, the SEHD urges all those concerned to pay close attention to the up-to-date guidance in this Memorandum, and advises NHS Boards and hospitals to review their internal procedures in relation to restricted patients to comply with the guidance set out in this paper.
1.7 The Mental Health (Scotland) Act 1984 gave the then Secretary of State particular powers in relation to restricted patients. Since the introduction of the Scotland Act 1998 these powers are the responsibility of Scottish Ministers. Some of these powers - including decisions relating to conditional or absolute discharge and lifting of restriction orders - have transferred, under the provisions of the 2003 Act, to the new Mental Health Tribunal for Scotland ("the Mental Health Tribunal").
1.8 This Memorandum indicates, therefore, that some decisions on restricted patients are taken by Scottish Ministers. Previously, the First Minister personally took decisions on restricted patients on behalf of Scottish Ministers although decisions may be taken by any Scottish Minister, if necessary. While legally all decisions on restricted patients are taken by Scottish Ministers there are procedures, whereby, Scottish Ministers may delegate this authority to appropriate officials.
1.9 Consultation is currently underway with Scottish Ministers about their roles in the decision making process and representation at Mental Health Tribunals. In the meantime the First Minister will continue to take decisions as previously with the exception of those decisions taken by the Mental Health Tribunal. This section will be updated in due course.
1.10 The First Minister generally delegates to officials all other decisions relating to the management of restricted patients. This may be subject to revision.
1.11 The SEHD Psychiatric Adviser provides advice to Scottish Ministers and officials on the course of action to pursue in relation to any decision on a restricted patient.
Role of the Mental Welfare Commission for Scotland
1.12 The Mental Welfare Commission for Scotland ("the Mental Welfare Commission") is an independent body working to safeguard the rights and welfare of everyone with a mental illness, learning disability or other mental disorder. The Commission will give advice and guidance to patients and to service providers. They will arrange to visit people detained in hospital, including people subject to restriction orders. Whilst the Mental Welfare Commission cannot order the release of a restricted patient they can recommend to Scottish Ministers that a patient's case be referred to the Mental Health Tribunal for consideration. The new Act continues and extends the role of the Mental Welfare Commission. It gives the Commission a duty to monitor the operation of the Act and to promote best practice in its use. This includes promotion of the principles of the Act. The Commission have already indicated that there are some topics they will be looking closely at including care plans, compulsory treatment in the community and overridden advance statements. Further information is contained in the Mental Welfare Commission's booklets "Who we are and what we do" and "Monitoring your care and treatment".
Enquiries
1.13 Any enquiries on this Memorandum should be addressed to the Scottish Executive Health Department, Mental Health Division, Room 2N.08, St Andrew's House, Edinburgh, e-mail restrictedpatient@scotland.gsi.gov.uk.
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