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CHAPTER THREE - ROLES AND RESPONSIBILITIES OF SCOTTISH MINISTERS AND SCOTTISH EXECUTIVE PERSONNEL
Role of Scottish Ministers
3.1 The Mental Health (Scotland) Act 1984 gave the then Secretary of State particular duties in relation to restricted patients. Since the introduction of the Scotland Act 1998 these duties are the responsibility of Scottish Ministers and are normally carried out by the First Minister.
3.2 With the introduction of the Mental Health (Care and Treatment) (Scotland) Act 2003, the 1984 Act will be repealed and the responsibilities of Scottish Ministers will be significantly altered. However, the authority of Scottish Ministers will still be required at key points in the care of restricted patients:
- transfer between hospitals or to another hospital unit within a hospital (section 218);
- transfer between hospital and prison (section 210);
- cross border transfers (section 290);
- suspension of detention out with the hospital grounds (sections 221 and 224);
- variation of conditions of discharge (section 200(2)); and
- recall from conditional discharge (section 202).
3.3 In addition, Scottish Ministers will be responsible for making references or applications to the Mental Health Tribunal following:
- a recommendation from the Responsible Medical Officer ( RMO) (sections 185 & 210);
- notice from the Mental Welfare Commission (sections 186 & 209);
- a period of not more than 2 years after the date of the patient's previous reference/application or the day on which the Compulsion Order/Restriction Order, hospital or transfer for treatment direction is made (sections 189 & 213); and
- as a result of their duty to keep Compulsion Order/Restriction Orders under review (section 188).
3.4 All requests for consideration of any of the above should be directed to the Psychiatric Adviser, who will ensure that the appropriate action is taken. On receiving a request from an RMO, Scottish Ministers will consider and give authority or refer the case to the Mental Health Tribunal for consideration as appropriate. Scottish Ministers' primary aim is to provide for the protection of and security of the public. The decision of Scottish Ministers will be relayed to the RMO by SEHD officials. Where they do not authorise any request the reason for this will be given.
3.5 It is important that RMOs allow sufficient time for such decisions to be considered. Every effort will be made to process requests timeously. RMOs can assist in this by ensuring that all relevant information is provided to the SEHD to enable Scottish Ministers or the Mental Health Tribunal to make the decision. It is very important that RMOs do not assume that a favourable decision will be given to any request and, in particular, do not raise a patient's expectations unrealistically.
Role of Officials in the Scottish Executive Health Department
3.6 The Scottish Executive Health Department ( SEHD) undertakes the casework on restricted patients on behalf of Scottish Ministers. The SEHD role, like that of Scottish Ministers, is to ensure the protection of the public from serious harm in the management of restricted patients, as well as ensuring that the patients benefit from appropriate care and treatment. Risk assessment and management lie at the heart of the restricted patient casework carried out by officials in SEHD. The fuller the background information, the speedier the response officials are able to provide to recommendations for suspension of detention and transfer. Scottish Ministers need to be satisfied that any risk to the public has been properly identified and evaluated and that sound measures have been taken to guard against it. Further details on risk assessment are contained in Chapter 4, Chapter 5 and Annex B2.
3.7 Further information about the role of the Mental Health Tribunal and procedures for applications and referrals are contained in Chapter 9 and Annexes D & E.
3.8 Officials in the SEHD concerned with restricted patients are: -
- The SEHD Psychiatric Adviser, a psychiatrist who is responsible for liaison with the RMO and for advising Scottish Ministers and their administrative officials on clinical aspects in relation to restricted patients; and
- Officials in Mental Health Division of the SEHD who are responsible for administrative matters generally in relation to case work on restricted patients, and the preparation and submission of specific recommendations about a patient for consideration by Scottish Ministers or the Mental Health Tribunal.
Role of Psychiatric Adviser
3.9 The role of the Psychiatric Adviser is to provide advice to Scottish Ministers on restricted patients. The Psychiatric Adviser will visit and report on each restricted patient at appropriate intervals. These visits are likely to be around one year after admission and thereafter at intervals of between 6 months and 2 years depending on the patient and their rate of progress. In addition, the Psychiatric Adviser will normally visit the patient when the multidisciplinary team are considering transfer, discharge or lifting of a restriction order. This will ensure that advice and opinion provided to Scottish Ministers by the Psychiatric Adviser is based on up to date and first hand information. An RMO may ask the Psychiatric Adviser to visit their patient if they feel that they wish to discuss certain aspects of their care or rehabilitation.
3.10 When visiting a patient, the Psychiatric Adviser will normally discuss the patient and their progress with their RMO and members of the multidisciplinary team as well as, on occasion, reviewing relevant case notes. When arranging a date to assess the patient it is important that this is organised on a date on which the RMO is available. Only in exceptional circumstances will the Psychiatric Adviser visit a patient when the RMO is not present. The RMO must be present when a change in the plan of care is being considered, i.e. transfer to a lesser degree of security or conditional or absolute discharge. The Psychiatric Adviser will form a view on the patient's progress and care and prepare a report for the SEHD. A copy of this report will be sent to the RMO for information (or the supervising psychiatrist and social work supervisor if the patient is on conditional discharge) and to the Mental Welfare Commission.
3.11 It should be noted that the role of the Psychiatric Adviser is to advise Scottish Ministers on restricted patients. Until the view of Scottish Ministers has been formally sought on any issue relating to a patient, the Psychiatric Adviser is not able to give a formal opinion on a patient's detainability, suitability for transfer, or other similar matters.
3.12 The Psychiatric Adviser is available to discuss any matters relating to Scottish Ministers' role in the management of restricted patients with an RMO if required. At certain points it may be helpful for the RMO to consider and evaluate with the Psychiatric Adviser the future options for the patient's care. The Psychiatric Adviser will not be able to give authority on behalf of Scottish Ministers or the Mental Health Tribunal to pursue any particular option but will be able to assist the RMO in considering the merits of each option, discuss how these might be taken forward and identify any difficulties or benefits there might be in pursuing a particular option. The Psychiatric Adviser will have a good sense of which cases are likely to give Scottish Ministers particular cause for concern and will be able to discuss with the RMO how such concerns might be effectively addressed.
3.13 In addition, it is often helpful if the Psychiatric Adviser, and/or members of the SE Health and Justice Departments, are invited to attend case meetings at significant points in a patient's care, for instance, at the initial consideration of transfer from the State Hospital, conditional discharge or planning for release on life licence of a life sentence prisoner. The procedures and information required in seeking approval can be explained and it may be possible to identify at this stage any particular concerns which Scottish Ministers would wish addressed. The shape of the plan for the next stages of the patient's care and rehabilitation can also be discussed.
3.14 All requests for suspension of detention, transfer, conditional or absolute discharge or lifting of a restriction order should continue to be directed to the Psychiatric Adviser who will consider and respond on behalf of Scottish Ministers where this is appropriate, e.g. suspension of detention. Where a request must be approved personally by Scottish Ministers or referred to the Mental Health Tribunal, the Psychiatric Adviser will ensure that the appropriate administrative procedures are initiated.
SEHDOfficials in the Mental Health Division of
3.15 Officials in Mental Health Division of the SEHD are responsible for progressing the casework on restricted patients on behalf of Scottish Ministers. In order to do this, comprehensive records are maintained on each restricted patient to enable a full view of the patient's case to be taken at any time.
3.16 Officials are responsible for all the administrative work relating to restricted patients and are able to answer queries relating to procedures from professionals concerned with the care of such patients. They can indicate progress with any case and, in particular, provide information to the RMO on progress of any requests to Scottish Ministers for authority relating to a restricted patient. Officials can explain and expand on the guidance contained in this Memorandum and on mental health or criminal procedure legislation as it affects restricted patients. Where a recommendation for transfer is being considered, officials will keep the RMO informed of progress. Where an application or referral has been made to the Mental Health Tribunal, the Tribunal Administration will ensure that all interested parties are kept informed of progress. Where legal advice is required and it is appropriate for this to be provided by the Scottish Executive, officials will obtain this from the Office of the Solicitor to the Scottish Executive ( OSSE). However it should be noted that the final interpretation of the law is for the courts. The Central Legal Office ( CLO) also provides legal advice to the NHS.
Officials in the Parole and Life Sentence Review Division of the Scottish Executive Justice Department and Officials of the Scottish Prison Service
3.17 These officials are responsible for the management of casework on prisoners and for presenting cases to the Parole Board for Scotland ("Parole Board"). Where a restricted patient is a life sentence prisoner, the Parole and Life Sentence Review Division ( PLSRD) must be kept informed of the patient's progress in the mental health system. Officials of the SEHD will do this in liaison with the RMO. As reports on patients prepared by the RMO and Social Work Department may form part of the review dossier for referral to the Parole Board sitting as a Life Prisoner Tribunal, their permission will be sought before any such reports are sent to PLSRD. SEHD officials will keep the RMO informed of any relevant issues. Where a patient is a determinate or extended sentence prisoner with a parole qualifying date ( PQD), PLSRD will contact the RMO and social worker in advance of the patient's PQD or other date on which a review for suitability of early release on licence is due. These reports should be sent to PLSRD and copied to the Psychiatric Adviser. The RMO will be notified whether or not the prisoner is successful in this application. Patients who are not released on their parole qualifying date will continue to be detained until their earliest date of liberation ( EDL). See Annex I for contact details
) who advise Scottish Ministers and their OfficialsOSSESolicitors in the Office of the Solicitor to the Scottish Executive (
3.18 The role of the Office of the Solicitor to the Scottish Executive ( OSSE) is to provide legal advice to Scottish Ministers and officials including advice on all aspects relating to restricted patient cases. Such advice is not normally made public.
3.19 Scottish Executive solicitors cannot give legal advice to RMOs, social workers or other mental health professionals. RMOs and other members of the care team should seek their own legal advice from Central Legal Office ( CLO) or the appropriate local authority legal department.
3.20 Solicitors will provide advice to officials on relevant legislation, on Scottish Ministers' statutory responsibilities and, where it is appropriate to do so, will represent Scottish Ministers at Mental Health Tribunal hearings and defend any appeals by restricted patients on behalf of Scottish Ministers.
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