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SCOTTISH EXECUTIVE HEALTH DEPARTMENT MEMORANDUM OF PROCEDURE ON RESTRICTED PATIENTS

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5. CHAPTER FIVE - SUSPENSION OF DETENTION

5.1 Under the Mental Health (Care and Treatment) (Scotland) Act 2003, Responsible Medical Officers ( RMOs) need Scottish Ministers' consent before granting suspension of detention from hospital to detained restricted patients. The primary role of the Scottish Executive in the management of restricted patients is to protect the public from serious harm.

5.2 This chapter sets out to RMOs in medium secure units and other psychiatric hospitals, the framework for making a request to the Scottish Executive Health Department ( SEHD) for suspension of detention for restricted patients which, from 5 October 2005, includes all remand and pre-disposal cases (with the exception of S200). The State Hospital will continue with their current system but adopting the principles contained in this guidance. The guidance introduces new arrangements for rehabilitation leave and standard forms of reporting.

5.3 The changes centre on:

  • The new procedures set out in the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act) relating to suspension of detention;
  • A requirement to report back to the Scottish Executive not later than 3 months after consent to suspension of detention using a standard form ( Annex B4) and thereafter using the standard form as part of the annual statutory report.
  • A new standard form to be used by RMOs or Scottish Ministers when a suspension of detention certificate has been issued by the patient's RMO or revoked by the RMO or Scottish Ministers ( SUS3, see paragraphs 5.19 and 5.30 and Annex J, for details).

5.4 This guidance sets out the Scottish Executive's requirement for information needed in support of individual applications and the key points about risk assessment which must be taken into account.

Legislation

5.5 Section 224 of the 2003 Act sets out procedures for the suspension of detention, previously called "leave of absence", for patients who are on a compulsion order with a restriction order, a hospital direction, a transfer for treatment direction or any of the pre-disposal orders (with the exception of S200). Where a patient is subject to any of these orders, the RMO may grant a suspension of detention certificate for up to 3 months * (apart from for an assessment order which only lasts 28 days) provided that:

  • they have obtained the consent of the Scottish Ministers; and
  • it does not take the total period of suspension granted over 9 months in any 12 month period.

*Approval for suspension of detention for up to 3 months would only be granted in exceptional circumstances, and any requests should be discussed with the Psychiatric Adviser before being submitted to Scottish Ministers. The expectation is that the current good practice of gradually building up suspension of detention to 4 overnights and 5 days will continue with the prospect of the leave being further extended in exceptional circumstances.

Reasons for suspension of detention of patients

5.6 Scottish Ministers recognise that well thought-out suspension of detention, which serves a definable purpose and is carefully and sensitively executed, has an important part to play in the treatment and rehabilitation of restricted patients by assessing risk and assisting their progress towards eventual discharge into the community. It also provides valuable information to help RMOs and Scottish Ministers in determining when, and under what conditions, moves within the hospital system can safely be made, and to all parties, including the Mental Health Tribunal, when considering discharge into the community. It is important that suspension of detention programmes should be designed and conducted in such a way as to sustain public confidence in the arrangements as a whole, and to respect the feelings and possible fears of victims and others who may have been affected by the offences.

5.7 In general, the SEHD will consider suspension of detention requests for the following purposes:

  • rehabilitation including pre-transfer visits to another hospital;
  • quality of life;
  • compassionate visits;
  • scheduled treatment in hospital;
  • emergency treatment in hospital;
  • attendance at Court in relation to criminal proceedings; and
  • attendance at Court in relation to civil proceedings - but see paragraph 5.25 below.

Applications for suspension of detention

5.8 Annex B3 sets out the format for making a request for the Scottish Ministers' consent to suspension of detention for the purpose of rehabilitation or quality of life. The RMO should address the suspension of detention request to the SEHD Psychiatric Adviser using this proforma. Other, "one off" requests should be made by letter or fax or, in the case of the State Hospital, on their approved outing form. Once suspension of detention has been approved by Scottish Ministers, the RMO must complete a certificate granting the patient permission for each individual suspension of detention. This should be done using form SUS3, see paragraph 5.19 and Annex J.

5.9 When applying for permission to grant a suspension of detention certificate, the RMO should draw on best practice in order to report to the Scottish Ministers details about risk assessment and risk management and provide a satisfactory plan. Annex B2 provides a useful checklist of some of the risk factors which should be considered. In addition, RMOs will also need to consider all other risk factors which apply individually to the patient. Suspension of detention for rehabilitation or quality of life reasons should relate to an overall care and treatment programme and set personal objectives for the patient. The request to the Psychiatric Adviser should explain the part this will play in the overall plan.

5.10 Each request for suspension of detention is considered on its merits by the SEHD having regard to all relevant factors. When making a request the RMO should provide details of the following:

  • an assessment of any risk of harm to the public arising from the proposal, and the nature and adequacy of safeguards against any specific identified risk;
  • the patient's current mental state;
  • the purpose of the suspension of detention; whether for rehabilitation, quality of life etc, the arrangements for escorting the patient, where necessary;
  • destination, duration and frequency of event(s);
  • aims of the proposal and what part the individual events will play in the overall care and treatment plan, including any personal objectives for the patient;
  • the contribution which the suspension of detention is expected to make to future assessments of the patient's likely behaviour, and to plans for managing the patient's future rehabilitation;
  • any conditions considered necessary by the RMO, such as safeguards against any specific identified risk of harm to the patient or the public arising from the proposal, such as the patient being kept in the charge of an authorised person or the risk of absconding;
  • any reasonable public concerns which the suspension of detention would be likely to arouse, and any measures proposed in response to such concerns; and
  • proposed measures in response to any concerns which have been expressed or are likely to be expressed by victims of the offences committed by the patient, or by anyone who, on account of their relationship with the patient, may have reasonable cause to be concerned about the patient's presence in the community;
  • whether any children will be present at the location to be visited and, if so, any special arrangements required to protect them;
  • any social work or other reports prepared in relation to the planned suspension of detention (particularly where it is a first visit to the home of family or friends); and
  • the monitoring and reporting arrangements, whether by escorting staff, the patient's own report or both.

5.11 Where a patient is being escorted to court by the police/Reliance, permission is still required from the SEHD.

5.12 Permission for suspension of detention from the State Hospital is sought by submitting an appropriately completed "Patient Outing Application Form" to the Psychiatric Adviser. Each application should inform whether the use of handcuffs has been considered necessary and, if so, the reasons for this and the arrangements for their use.

Information to support requests

5.13 It is helpful if the SEHD has an opportunity to identify any potential concerns and resolve these with the RMO in good time before any suspension of detention. Where the suspension of detention is the first the patient has received for some time, is an unusual request or for a special occasion, it is helpful if the RMO informs the SEHD when the initial discussion on the suspension of detention takes place between the multidisciplinary team. Where consideration is being given to a patient being allowed compassionate or rehabilitation suspension of detention for the first time to the home of family members or friends, the SEHD will need to be reassured that all relevant matters have been identified and taken into account in planning the suspension of detention. A social work report on the location to be visited will be required to inform consideration of the request for a first home visit.

Series of events

5.14 Where it is intended that the patient makes a series of similar events over a known time span (such as a series of hospital appointments, pre-transfer visits, rehabilitation programme including, for instance, attendance at college), a single detailed request may be submitted for the planned suspension of detention. The RMO should make clear the escort arrangements, if appropriate, and whether there are plans to vary the arrangements over time. Agreement would generally be granted to such arrangements, although each suspension of detention would be subject to the patient's mental state being stable on the day. It would be the RMO's responsibility to ensure this and to notify the SEHD of any changes. If the proposal is for a phased programme of rehabilitation which would develop according to the patient's reactions, mental state and behaviour, the proposal should be set out in full.

Requests for unescorted suspension of detention

5.15 For patients whose rehabilitation is well advanced, it is helpful to the RMO and the SEHD to provide a full plan of all the proposed programme. Any planned increases in these freedoms over time should be detailed with the timing and reasons for these. Where appropriate, the SEHD will give approval for the series of events for a patient. Any changes in the circumstances involving a patient should be made known to the SEHD immediately.

Requests for unescorted suspension of detention for patients on remand or pre-disposal orders (with the exception of S200)

5.16 An accused person who is detained in hospital while awaiting trial should be subject, at least initially, to a high level of supervision. The patient should not be allowed to leave the ward or place of supervised occupation without an escort. In some cases this level of supervision will require to be maintained throughout the remanded person's stay in hospital. In other cases, where, for example, the previous history of the accused is well known, or where his mental condition improves, the psychiatrist may think it appropriate to allow some relaxation in supervision. All escorted and unescorted leave is now subject to the suspension of detention procedures under the 2003 Act and SEHD will require to be consulted, using the appropriate forms, in all cases. SEHD will consult with the Procurator Fiscal in all requests for suspension of detention (except urgent clinical or court requests) to ensure that Scottish Ministers have all the relevant information to hand in considering such requests.

Timing of Requests

5.17 As a general rule, the longer or more unusual the freedoms sought, then the more advance notice the SEHD requires to consider the request. The RMO should not make final arrangements for the suspension of detention to take place until Scottish Ministers' consent has been received. Care should also be taken not to raise the patient's expectations.

5.18 Consideration of requests takes some time. It is important that, where possible, the SEHD is given at least three weeks notice of a request for suspension of detention. It is appreciated that it is very upsetting for a patient (and where involved, the patient's family) when a suspension of detention planned by the multidisciplinary team is not approved by the SEHD due to lack of time for full consideration of the request. However, Scottish Ministers' responsibilities require that proper consideration is given to each suspension of detention request, that any risk to the public has been properly identified and evaluated, and that sound measures have been taken to guard against it. Late requests, and those where insufficient information on which to base a decision has been provided, must, therefore, be refused.

Suspension of detention certificates

5.19 After receiving the approval of Scottish Ministers, the patient's RMO may grant a certificate specifying the period during which the relevant order does not authorise the patient's detention in hospital, and any conditions attached to the suspension of detention ( form SUS3). When the RMO proposes to grant a certificate specifying:

  • a period of more than 28 days; or
  • a period which, when taken together with the period specified in any other certificate granted during the last 12 months, would exceed 28 days

the RMO must, before granting the certificate, give notice of the proposal to:

  • the patient;
  • the patient's named person;
  • the patient's general practitioner and the Mental Health Officer; and
  • when granting a certificate for more than 28 days the RMO must also, before the expiry of the period of 14 days beginning with the day on which the certificate is granted, give notice of the granting of the certificate to the Mental Welfare Commission for Scotland.

Risk assessment preceding approved suspension of detention and reporting on suspension of detention

5.20 It will be important that each occasion of suspension of detention is preceded by a careful risk assessment by the RMO or someone nominated by him/her who knows the patient well. If there are any doubts that the suspension of detention should take place, it should be stopped. A change in risk could have arisen from, for example, a change or cessation of medication; self-harming; the involvement of the patient in an incident in the hospital; abuse of substances; or the added stress of bad news from outside or from another stressful occasion. The RMO should also inform the SEHD should any change occur which affects the basis on which the Scottish Ministers' consent has been given for a suspension of detention. Escorted and unescorted suspension of detention which has been approved at the RMOs discretion should be reported back to the SEHD no later than 3 months after receiving the consent of the Scottish Ministers. The standard form for the reporting on suspension of detention is at Annex B4. Thereafter use of the standard form should form part of the annual statutory report.

Suspension of detention for compassionate reasons

5.21 Suspension of detention for compassionate reasons will be given serious consideration by the SEHD. It should be noted that such a request is more likely to be considered acceptable if efforts have been made to ensure a low profile, particularly, for example, where the media are already aware of the patient's background. Extending this example, visits to a sick relative in hospital are more likely to be acceptable if efforts are made to arrange this out with normal visiting hours. In cases where the risk is considered to be relatively high, efforts to secure a separate room for the visit would also be appropriate.

5.22 Where a patient's relative has died and the patient requests permission to attend the funeral, consideration should be given to the impact this might have on other family members, the victim and their family, and the general public in the area. In some cases an alternative may be for the patient to visit the funeral parlour or family home the evening prior to the funeral to view the deceased in the company of close family members.

Suspension of detention for cases of emergency

5.23 Telephone requests by the patient's RMO or the duty RMO may be made in compassionate or emergency circumstances which necessitate urgent suspension of detention (for example, to a hospital for treatment of a serious physical ailment). In these cases, the RMO or duty RMO must contact the Psychiatric Adviser or a SEHD official to obtain the necessary approval. The Psychiatric Adviser and officials may be contacted at any time including out of office hours - see Annex A1 for contact details. Where permission is not obtained in advance of urgent leave (such as an emergency visit to hospital), a telephone report must be made to the SEHD by the RMO as soon as possible thereafter, followed by a formal report including details of why prior contact was not possible.

Court/Tribunal appearances

5.24 Where a patient is being charged in a criminal court then they are entitled to be at court for their trial. A request for suspension of detention as detailed at paragraphs 5.8 to 5.18 should be submitted to the Psychiatric Adviser and will normally be approved, subject to consultation with the Procurator Fiscal in cases where patients are subject to remand or pre-disposal orders. If the RMO considers that the patient is not sufficiently well enough to attend court, the RMO should inform the court of this.

5.25 Where the patient is involved in a civil court case, different considerations apply. Where the case involves a civil matter, such as reparation, there is no entitlement for the patient to be present in court. Where the patient wishes to attend and the RMO considers this appropriate, an application for suspension of detention would need to be made.

5.26 Where the case involves an appeal to the Mental Health Tribunal, the patient would be allowed to attend subject to: the health provisions outlined in rule 55(1) of the Rules of Procedure; or where excluded from all, or part, of the hearing by virtue of rules 68(1) or 69(1) of the Rules of Procedure. Where the hearing is taking place out with the hospital, a request must be made for suspension of detention.

Suspension of detention for life sentence prisoners

5.27 Scottish Ministers personally approve all requests for suspension of detention for life sentence prisoners. It is, therefore, helpful to draw up a programme of freedoms for a period of time for which approval can be sought in advance - one-off requests for life sentence prisoners are not helpful. Prior to submitting a request, it is often helpful for the clinical team at the hospital, the Psychiatric Adviser and SE Health and Justice Department officials to meet when rehabilitation has progressed to unescorted suspension of detention. This ensures that all the relevant parties are informed at the appropriate stage about a provisional timescale in relation to possible release on life licence.

Suspension of detention for sex offenders

5.28 Section 96 of the Sexual Offences Act 2003 provides a power to make regulations requiring those who are responsible for an offender while they are in detention to notify other relevant authorities of their release or transfer to another institution. The new regulations will come into force towards the end of 2005 or beginning of 2006 and will bring into force a number of changes affecting the registration requirements of those who are required to register under the 2003 Act. The main changes affecting mentally disordered offenders is the requirement on hospital managers to inform the police when a patient is transferred to another hospital, discharged from hospital and in cases where the patient is to be released from detention for a period of 3 days or more. Guidance on the operation of the regulations will be issued as soon as practicable following the regulations coming into force.

Patients on conditional discharge

5.29 Requests for suspension of detention for patients on conditional discharge within the United Kingdom are not normally required. However, where a patient wishes to go abroad, the SEHD must be consulted in advance as there are legislative implications for a patient on conditional discharge in another jurisdiction. It is worth noting, however, that requests for permission to go abroad are not normally considered until a patient has been on conditional discharge for at least one year. Further information on the supervision of conditionally discharged patients is contained in Annexes F and G.

RMORevocation of a certificate authorising suspension of detention by the

5.30 A suspension of detention certificate can be revoked by the patient's RMO (under section 225 of the 2003 Act) if the RMO is satisfied that it is necessary to do so in the interests of the patient or for the protection of any other person. Revocation of a suspension of detention certificate (using form SUS3) authorises the immediate conveyance of the patient back to hospital by the staff of the hospital and/or the police. As soon as is practicable after the revocation of the certificate the RMO must notify:

  • the patient;
  • the patient's named person;
  • the patient's general practitioner (where the certificate specified a period of more than 28 days);
  • the Mental Welfare Commission (within 14 days of the revocation of the certificate);
  • where a person is being kept in charge of a person authorised in writing by the RMO, that person;
  • the mental health officer, and
  • the Scottish Ministers ( copy of form SUS3).

5.31 The RMO must also make the SEHD aware if any suspension of detention is terminated or if an incident has taken place during the suspension of detention. When an event has been cancelled the reasons for this should be made known and whether it is planned that the event will take place at a later date.

Revocation of a certificate authorising suspension of detention by Scottish Ministers

5.32 A suspension of detention certificate can also be revoked by Scottish Ministers (under section 226 of the 2003 Act) if they are satisfied that it is necessary to do so in the interests of the patient or for the protection of another person. Revocation of a suspension of detention certificate by Scottish Ministers (using form SUS3) authorises the immediate conveyance of the patient back to hospital by the staff of the hospital and/or the police. As soon as is practicable after the revocation of the certificate the Scottish Ministers must notify:

  • the patient;
  • the patient's named person;
  • the patient's RMO;
  • the patient's general practitioner (where the certificate specified a period of more than 28 days);
  • the Mental Welfare Commission (within 14 days of the revocation of the certificate);
  • the mental health officer, and
  • where a person is being kept in charge of a person authorised in writing by the RMO that person.

Absconding while on suspension of detention

5.33 A patient will be treated as having absconded (and so is liable to be taken into custody) if he absconds from the charge of an authorised person in terms of section 224(7)(a) whilst out on a period of suspension of detention. In these circumstances, the suspension of detention certificate will not require to be revoked for the accompanying nurse to have the power to return the patient to hospital. Any abscond must be reported to SEHD officials immediately; see Chapter 6 for further guidance.

Suspension of detention following transfer

5.34 A consent to escorted or unescorted suspension of detention does not move with the patient if they are subsequently transferred. A new application for suspension of detention should be submitted by the RMO together with a new risk assessment reflecting the changed circumstances.

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Page updated: Wednesday, October 5, 2005