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CHAPTER TWO - ADMISSION TO HOSPITAL

How restricted patients are admitted to hospital

2.1 A patient becomes subject to special restrictions as a result of one of the following orders made under the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), as amended by the Mental Health (Care and Treatment)(Scotland) Act 2003 ("the 2003 Act"), or the 2003 Act itself. The orders are divided into pre and post-disposal for ease of reference: -

Pre-disposal

• An assessment order under section 52D of the 1995 Act - a pre-disposal order made by the court authorising hospital detention for up to 28 days so that the patient's mental condition may be assessed. Compulsory treatment may also be given in certain circumstances (see section 242(5) (b). The order may be renewed once only for 7 days.
• A treatment order under section 52M of the 1995 Act - a pre-disposal order made by the court authorising hospital detention for treatment of a person's mental disorder. The order ceases at the end of the period for which the person is on remand or is committed.
• An interim compulsion order under section 53 or 57(2)(bb) of the 1995 Act - a pre-disposal order made by the court authorising hospital detention for 12 weeks (but can be renewed regularly for up to one year) so that the court can gather further evidence on whether the forensic criteria apply.

Post-disposal

• An order under section 57(2) (a) and (b) of the 1995 Act. This may follow a finding of insanity in bar of trial or acquittal on the grounds of insanity. Where there is a finding of insanity in bar of trial, an examination of facts will determine beyond reasonable doubt whether the offence(s) in question took place.
• A restriction order made by the court under section 59 of the 1995 Act at the time of disposal and is added to a compulsion order under section 57A of that Act. It means that the measures specified in the compulsion order will be without limit of time.
• A hospital direction order made by the court under section 59A of the 1995 Act following a conviction on indictment under the 1995 Act. In addition to receiving a prison sentence, a hospital direction is made. It allows the person to be detained in hospital for treatment of their mental disorder and then transferred back to prison to complete their sentence once detention in hospital is no longer required.
• A transfer for treatment direction - an order made by Scottish Ministers under section 136 of the 2003 Act which allows the transfer of a prisoner to hospital for treatment of a mental disorder.
• Removal to Scotland from another part of the United Kingdom in any case where the patient has been subject to similar restrictions under the equivalent statutory provisions.

2.2 The following orders were available under the Criminal Procedure (Scotland) Act 1975 and the 1995 Act prior to the introduction of the 2003 Act. These will automatically transfer over to the corresponding provisions under the 1995 Act, as amended by the 2003 Act, at the point of its introduction:

• A restriction order under section 178 or 379 of the Criminal Procedure (Scotland) Act 1975 (the 1975 Act) made in addition to a hospital order under section 175 or 376 of that Act.
• An order under section 174 of the 1975 Act, following a finding of insanity in bar of trial or acquittal on grounds of insanity. In accordance with section 174(4) such an order has the effect of a hospital order together with a restriction order.
• An order made by the High Court on appeal, under section 254(4)(b) of the 1975 Act (which like a section 174 order and, by reason of section 254(5) of the 1975 Act, has the effect of a hospital order together with a restriction order).
• A restriction order under section 59 of the Criminal Procedure (Scotland) Act 1995 made in addition to a hospital order under section 58 of that Act. The Court may make a restriction order under section 59 if, having had regard to various considerations, it considers this necessary for the protection of the public from serious harm.
• An order under section 57(2)(a) and (b) of the 1995 Act. This may follow a finding of insanity in bar of trial or acquittal on the grounds of insanity. Where there is a finding of insanity in bar of trial, an examination of facts will determine beyond reasonable doubt whether the offence(s) in question took place.
• An order made by the High Court on appeal, under section 118(5)(b) of the 1995 Act (which like a section 57(2)(a) and (b) order has the effect of a hospital order together with a restriction order).
• A Hospital Direction order under section 59A of the 1995 Act following a conviction on indictment under the 1995 Act. In addition to receiving a prison sentence, a hospital direction with restriction direction is made. Section 62A(5) of the 1984 Act sets out the restriction applicable to a Hospital Direction.

2.3 The following orders made under the Mental Health (Scotland) Act 1984, prior to the introduction of the 2003 Act, will automatically transfer over to the corresponding provisions under the 2003 Act at the point of its introduction:

• Sections 71 and 72 - a transfer direction and restriction direction made by Scottish Ministers in respect of a person serving a sentence of imprisonment; and
• Removal to Scotland from another part of the United Kingdom in any case where the patient has been subject to similar restrictions under equivalent statutory provisions.

However, an order under section 70 - a transfer order in respect of an untried prisoner which has the effect of a hospital order and a restriction order - will continue to run to the end of that particular stage of the criminal justice process. However, any subsequent order made would be under the 2003 Act.

Order for Lifelong Restriction

2.4 Part 1 of the Criminal Justice (Scotland) Act 2003 provides for the establishment of the Risk Management Authority and, from 1 January 2006, for a new High Court disposal for high risk violent and sexual offenders, the Order for Lifelong Restriction ( OLR). The OLR is designed to ensure that offenders are not released into the community until they have served an adequate period in custody to meet the requirements of punishment and thereafter do not present an unacceptable risk to public safety.

2.5 Where an offender with a mental disorder is convicted of a serious violent and sexual offence such that he meets both the criteria for the Court to impose an OLR and the criteria for a Compulsion Order, the High Court will have the choice between:

• a Compulsion Order and Restriction Order; or
• an Order for Lifelong Restriction and a Hospital Direction.

The deciding factor between these two would be whether the offender's risk is "directly or in significant part linked to a mental disorder likely to benefit from treatment" - if it is, then the mental health disposal would be more appropriate than the OLR.

Effect of Special Restrictions

2.6 A patient who is subject to special restrictions cannot be transferred or granted suspension of detention for specified occasions unless Scottish Ministers have given consent. Discharge of such a patient from hospital (whether conditional or absolute) or the lifting of a restriction order can only be authorised by the Mental Health Tribunal for Scotland ("the Mental Health Tribunal").

2.7 There are also times when the responsibilities of Scottish Ministers automatically come to an end on a particular date. These are:

• when a patient is subject to an assessment order or treatment order under section 52D and 52M or an interim compulsion order under sections 53 or 57(2)(bb) of the 1995 Act, as amended by the 2003 Act, once the case is finally disposed of by the Courts or proceedings dropped (unless a compulsion order and a restriction order are made);
• when a determinate or extended sentence prisoner who is also subject to a transfer for treatment direction or hospital direction is released on licence at their earliest date of liberation ( EDL) or is granted early release on the recommendation of the Parole Board for Scotland;
• when an indeterminate sentence prisoner, who is subject to a transfer for treatment direction or hospital direction is released on life licence.

Patients detained under sections 52D, 52M, 53 and 57(2)(bb)

2.8 A person detained in custody whilst awaiting trial or sentence may be transferred to a hospital by order of the Court under sections 52D, 52M, 53 and 57(2)(bb) of the 2003 Act and thus become a restricted patient. Once that person's case is disposed of by the Court, or if proceedings are dropped, the temporary restricted patient status lapses, subject to the right of the Courts to make a compulsion order with or without a restriction order under the 1995 Act, as amended by the 2003 Act. The hospital authorities should include the SEHD in their notification system when any such patients are admitted to hospital and when their cases are disposed of by the Court (or proceedings are dropped). The SEHD have put in place a protocol with Scottish Court Service ( SCS) and will be notified by the courts of all new pre-disposal orders and any subsequent changes to their status.

2.9 Where a section 52D, 52M, 53 or 57(2)(bb) patient has clearly recovered from their mental disorder in advance of their anticipated court appearance, it will be appropriate for the RMO to submit a report to the court who will decide whether or not it is appropriate to return the patient to custody or release them. Scottish Ministers have no statutory role in this process.

2.10 Under the 2003 Act, there is no longer any automatic provision for the continued detention in hospital of a patient subject to an order under sections 52D, 52M, 53 or 57(2)(bb) where the transfer order ceases to have effect because the proceedings have been dropped or the person has been acquitted. In such circumstances, civil detention procedures should, where necessary, be effected under sections 36, 44 or 63 of the 2003 Act.

Transfers from out with Scotland

2.11 Restricted patients may be accepted on transfer from countries with which there are reciprocal legislative arrangements i.e. England, Wales and Northern Ireland, as well as from other countries. The transfer might be on compassionate (such as family reasons) or on treatment grounds. Patients from Northern Ireland, who require care in conditions of special security which are not available presently in Northern Ireland, may be transferred to the State Hospital if the hospital agrees to accept these patients while they require such care. For all patients, the Scottish Executive Health Department ( SEHD) must check that the patient is detainable under the legislation currently applying before arrangements can be made for the transfer.

2.12 Full details of the procedures to follow in respect of transfers are to be found in Chapter 8.

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