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CHAPTER NINE - APPLICATIONS AND REFERENCES TO THE MENTAL HEALTH TRIBUNAL FOR SCOTLAND
Introduction
9.1 The Mental Health (Care & Treatment) (Scotland) Act 2003 brings with it the introduction of the Mental Health Tribunal for Scotland ("the Mental Health Tribunal") - a body set up to make decisions in a wide range of situations relating to compulsory detention and treatment of those persons considered to be suffering from a mental disorder.
9.2 The Mental Health Tribunal will consist of three groups of members: legal; medical and general members. Decisions on most individual cases will be taken by a team of three members, one from each group. In restricted patient cases the legal member, who is also the convenor, must be a sheriff or the President of the Tribunal.
9.3 The intention is that Mental Health Tribunal hearings will take place locally where possible, e.g. in the hospital where the patient is detained. NHS Boards and Local Authorities are required, where practical, to provide accommodation where hearings can be held. However, where this is not possible, a purpose built hearing suite will be available at the Mental Health Tribunal's headquarters in Hamilton.
Applications and Referrals
9.4 A restricted patient's case may be put forward for consideration by the Mental Health Tribunal by:
- an application or appeal by the patient or their named person; or
- an application or reference by Scottish Ministers.
A list of approved forms can be found at Annex J, and details of their use are contained in the following paragraphs.
Application by the patient or their named person
9.5 Under section 192 of the 2003 Act, a patient subject to a compulsion order and restriction order (or equivalent), and their named person, may make an application to the Mental Health Tribunal for an order under section 193 of the Act -
(a) conditionally discharging the patient;
(b) revoking the restriction order to which the patient is subject;
(c) revoking the restriction order and varying the compulsion order by modifying the measures specified in it; or
(d) revoking the compulsion order to which the patient is subject.
The patient or their named person cannot make an application until at least 6 months after the compulsion order and restriction order are first applied and may only make one application in any 12 month period. In such cases, the Mental Health Tribunal convenor could be the Tribunal President rather than a sheriff.
9.6 Where a patient makes an application to the Mental Health Tribunal, Scottish Ministers will receive notice of the application from the Tribunal Administration and will be expected to respond to them within 14 days indicating whether they intend to resist the application and, if so, the reasons for this or the position they intend to take. Prior to making their reply on behalf of Scottish Ministers, SEHD officials will contact the Responsible Medical Officer ( RMO) to discuss the appropriateness of the application. A written report will also be required from the RMO and, in some cases, further reports may be sought from the social worker, psychologist or an independent clinician.
9.7 An ongoing application to the Mental Health Tribunal by a restricted patient should not halt or delay the normal progress of their care and treatment. An ongoing application does not affect the Scottish Ministers' decision making powers. The RMO should continue to report on progress and request permission for suspension of detention, etc., where appropriate. If a patient is progressing towards transfer or conditional discharge the pre-transfer or pre-discharge planning process should continue as normal. Where there is a likelihood that an application for discharge will be successful, the RMO should inform the relevant local authority and other agencies to allow contingency planning to be put in place. It is important for this to be done at an early stage. The Early Discharge Protocol NHSHDL (2002) 85 is based on the principles of the Care Programme Approach and provides guidance in respect of a small number of patients who may no longer meet the grounds for detention under the mental health legislation but may continue to pose a significant risk
Application by Scottish Ministers
9.8 Section 188 of the 2003 Act confers on Scottish Ministers a duty to keep compulsion orders and restriction orders under review. This duty is separate from a recommendation having been received from an RMO or notification having been received from the Mental Welfare Commission that it requires a reference to be made to the Mental Health Tribunal. The Act states that Scottish Ministers shall from time to time consider the continued appropriateness of the compulsion order and restriction order (the tests as set out in Chapter 4 paragraphs 4.10 to 4.14 refer). Where they are not satisfied that the patient continues to meet the criteria they may make an application to the Mental Health Tribunal, under section 191, for an order -
(a) conditionally discharging the patient;
(b) revoking the restriction order to which the patient is subject;
(c) revoking the restriction order and varying the compulsion order by modifying the measures specified in it; or
(d) revoking the compulsion order to which the patient is subject.
The application is made using form CORO2.
9.9 When Scottish Ministers make an application to the Mental Health Tribunal, they will give notice of the making of the application to the following -
(a) the patient;
(b) the patient's named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the patient's RMO;
(f) the mental health officer; and
(g) the Mental Welfare Commission.
9.10 Scottish Ministers may also make an application to the Mental Health Tribunal under sections 267 and 271 of the 2003 Act. However, these provisions relate to the patient's right of appeal against conditions of excessive security and are not yet in force. They will come into force in May 2006 and further guidance will be issued by SEHD nearer the time.
Reference by Scottish Ministers
9.11 The 2003 Act places a duty on Scottish Ministers to make a reference to the Mental Health Tribunal in respect of the compulsion order and restriction order to which a patient is subject, following -
(i) a recommendation from the RMO (sections 185 & 210 of the Act);
(ii) notice from the Mental Welfare Commission (sections 187 & 211); or
(iii) a reference under 189(2) where no reference made for two years
A reference is made using form CORO1, CORO2 or HD2.
9.12 When making a reference to the Mental Health Tribunal, Scottish Ministers must include the name and address of the patient; the patient's named person; the recommendation submitted by the RMO; or the reason given by the Mental Welfare Commission or Scottish Ministers for making the reference. They must also give notice of the making of the reference to those persons listed in paragraph 9.8 above.
9.13 Further guidance on the procedures for RMOs to make a recommendation for conditional or absolute discharge or revoking of the restriction order is contained in Chapters 10, 11 and 12.
Mental Health Tribunal Hearings
9.14 Hearings will take place on a date and venue agreed by the Mental Health Tribunal. The Tribunal Administration will notify all relevant parties of the arrangements and will issue a "hearing bundle" no less than 7 days prior to the hearing date. The bundle will consist of reports and other documents submitted by the applicant or authority making the reference, and the respondent. Decisions on most individual cases will be taken by a team of three members: one legal, medical and general. In restricted patient cases the convenor must be a sheriff or the President of the Mental Health Tribunal.
9.15 It is envisaged that most restricted patients will have legal representation at Tribunal hearings and that members of the patient's clinical team may be invited to give oral evidence. Scottish Ministers may be represented by officials from SEHD and the Officer of the Solicitor to the Scottish Executive ( OSSE). Although it is anticipated that Scottish Ministers will provide written representation in the majority of cases with only the more complex cases involving representation by Counsel with support from OSSE and the Scottish Executive..
Appeals
9.16 The patient and their named person may appeal to the Mental Health Tribunal against Scottish Ministers decision to vary the conditions of a patient's discharge; to recall a patient from conditional discharge; to transfer a patient from prison to hospital; to transfer a patient from one hospital to another (regardless of level of security); or to transfer a patient between jurisdictions (cross border transfer).
9.17 The patient and their named person, and Scottish Ministers, may appeal to the Court of Session against a decision taken by the Mental Health Tribunal. A patient may not be transferred or conditionally discharged until the expiry of the appeal period or, where an appeal is lodged, until the decision of the Court of Session is known.
9.18 Both of these appeal rights are dealt with in Chapter 13.
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