Criteria for admission to the State Hospital
28. A review is underway of the arrangements for governance of the State Hospital. It will, however, continue to be a specialist resource, for patients who require conditions of special security. We will update the statutory criteria for admission to the State Hospital, both for patients admitted from the courts, and patients referred by other hospitals. The basis for admission to the State Hospital will be that the patient suffers from mental disorder of such a nature or degree that:
• he or she presents a significant risk to others;
• requires treatment under conditions of special security; and
• cannot be suitably cared for in a hospital other than the State Hospital.
29. This reflects the Millan Committee’s recommendations, with one exception. The Millan Committee proposed that admission to the State Hospital should be possible where there was a risk of self-harm, rather than a risk to others, although they recognised that the State Hospital was not an appropriate setting for such patients. We have concluded that it would not be desirable to specify self-harm as a potential ground for admission to the State Hospital. The State Hospital should retain its focus on patients who present a potential danger to others. However, we recognise the importance of ensuring that health and prison services have proper strategies and support to deal with offenders or patients who self-harm.
Decisions concerning restricted patients
Imposing special restrictions
30. Restricted patients are offenders with mental disorders who require additional scrutiny as they progress through the mental health system, to ensure that issues of public safety are given proper consideration at each stage. Restrictions may be imposed either by a sentencing court, on making a mental health disposal, or when an offender is transferred from prison to hospital.
31. We wish to make the system for managing restricted patients fairer and more transparent, while keeping public safety to the fore.
32. The basis for imposing special restrictions will continue to be that they are necessary, because of the nature and degree of risk presented by the patient. We will make it clear that the decision of the court to impose restrictions must be based on expert evidence, and a full risk assessment. In most cases, this risk assessment will take place under an interim hospital order.
33. At the moment, patients can appeal against the imposition of such restrictions by the court, but cannot appeal later, if the level of risk has reduced. We will introduce a right for the patient to apply to a mental health tribunal, chaired by a sheriff, to request that the special restrictions be removed, if the risk has reduced to an acceptable level.
Role of Ministers
34. Currently, Scottish Ministers oversee the management of restricted patients, and may also discharge such patients, either absolutely or subject to conditions. Patients may also appeal to the sheriff to seek absolute or conditional discharge, and Scottish Ministers are bound to comply with a ruling of the sheriff.
35. The Millan Committee took the view that it was no longer appropriate for Ministers to have responsibility for taking such decisions. The Committee proposed that the Parole Board, re-constituted as a Restricted Patients Review Board, should take over responsibility for deciding on questions of discharge and transfers to lower security, while the Risk Management Authority (recommended by the MacLean committee) should be responsible for approving leave of absence and transfers to the same level of security. The Mental Health Tribunal (see paragraphs 3.72 - 3.91) would take on the role currently performed by the sheriff.
36. Our consultations found wide support for reform of the system of management of restricted patients. The general aim of the Millan recommendations is consistent with the Executive’s general policy, set out in Public Bodies: Proposals for Change, that Ministers should be responsible for strategic direction and policy-making rather than detailed casework. We have already provided that the Parole Board should take over responsibility for decisions on the release of life prisoners, and there are strong arguments for a similar approach to restricted patients.
37. However, we have identified a number of difficulties with the Millan Committee’s scheme. We have amended the proposals to take account of these, while meeting what we see as the main aims of the Committee’s recommendations.
38. The role envisaged by the Millan Committee for the Risk Management Authority (RMA) was on the basis that this body would be established with the powers recommended by the MacLean Committee. Our proposed Criminal Justice Bill will establish the RMA.
However, as our White Paper on serious violent and sexual offenders indicated, there will be a change to the operational side of the RMA’s work. Its operational role is to be primarily a monitoring one, rather than being ‘hands-on’. We are also concerned that taking on responsibility for the oversight of around 300 restricted patients could distract the RMA from its core task of improving the management of serious violent and sexual offenders, particularly in its initial stages.
39. We have therefore concluded that, for the time being, Scottish Ministers should retain responsibility for authorising leave of absence, and transfers to the same levels of security, of restricted patients. The RMA will provide best practice advice on risk management and assessment issues relevant to restricted patients. It will also be able to provide specific advice on the care plans of individual restricted patients, where its expertise would be useful. However, we will make legislative provision which would allow risk management responsibilities to transfer from Ministers to the RMA if, in the future, this was considered to be desirable.
40. So far as discharge decisions are concerned, we do not believe that the Parole Board could take on the role proposed for it without major changes to its membership and operations. This would create major operational problems for the Board, which is already undergoing significant change, as a consequence of the Convention Rights Compliance (Scotland) Act 2001. Furthermore, the Millan proposals would involve two different independent bodies - the Parole Board and the Mental Health Tribunal - having overlapping powers of discharge.
41. We believe the simpler and better option is to provide that it should be for the Mental Health Tribunal to authorise all discharges, and transfers to lower security, of restricted patients.
How the new system will work
42. Special restrictions will apply to all patients who receive hospital directions. They may also be imposed where patients receive hospital orders, or interim hospital orders, are transferred from prison, or are remanded to hospital. In all these cases, the order will only be made after considering medical evidence, and the basis for making such an order will be that the patient presents a high risk to public safety. There will be a right of appeal against the imposition of such an order, and a new right to apply periodically to the Mental Health Tribunal to have the restrictions removed.
43. Where a patient is placed under restrictions, the normal time limits for renewal of detention will not apply. Detention will continue until the Tribunal grants conditional or absolute discharge.
44. The patient will have the right to apply to the Tribunal for discharge after 6 months, 12 months, and annually thereafter.
45. The day to day management of the restricted patient will be the responsibility of the responsible medical officer. However, any leave of absence, or transfer, will require the approval of Scottish Ministers. The RMO will be required to submit a report once a year to Scottish Ministers, detailing progress on the plan of care and on issues of risk management, and would also be expected to report whenever there was any material change of circumstances potentially affecting liability to detention.
46. Scottish Ministers will be able to refer a case to the Tribunal at any time if they are satisfied that there may be grounds for granting conditional or absolute discharge. They will be required to make such a reference if either the RMO or the Mental Welfare Commission report to them that they believe the patient meets the grounds for discharge. As a further safeguard, Scottish Ministers will be required to refer a case to a Tribunal if it has not been so considered in the previous two years.
47. During any Tribunal hearing, Ministers will bring forward information about the patient’s progress, and on issues of risk. Ministers will be advised by the Risk Management Authority in appropriate cases.
48. The Tribunal will be obliged to grant discharge if it is not satisfied that the criteria for continuing compulsion are met. However, if the patient still suffers from a mental disorder, discharge would normally be on a conditional basis, until the Tribunal is satisfied that absolute discharge is appropriate.
49. Ministers will be able to recall patients subject to conditional discharge when satisfied that circumstances require it. The patient will be able to appeal to the Tribunal against any such recall.
50. There will be a right for both the patient and Scottish Ministers to appeal against any decision of the Tribunal to the Court of Session.
Appeals against Levels of Security
51. Patients detained in the State Hospital, or elsewhere in the mental health system, currently have no legal right to move to an establishment with a lower level of security, should their mental condition improve so as to justify such a move. The Millan Committee recommended that patients should have an ongoing right to appeal against the level of security to which they are subjected.
52. We recognise the importance for patients of being able to move to less secure surroundings when their condition justifies it. However, we have considerable doubts about the practicality of a formal legal mechanism, particularly for dealing with difficulties which may arise in securing appropriate placements for individual patients.
53. A statutory mechanism would require some form of grading of different establishments into different levels of security. Apart from the special status of the State Hospital, no
such grading currently exists, and there is a danger that to introduce one could reduce the flexibility of individual establishments to develop their own arrangements to meet the needs of their particular patient group. It is also unclear what should happen if a particular level of security is decided by the Tribunal as being appropriate, but there is no such place available. It could be argued that, if places are scarce, it would be wrong to give priority to people moving down the levels of security, if this meant that patients who required higher security than their current placement could not be accommodated.
54. We agree that more needs to be done to improve the prospects for patients of progression through the system. The current review of the governance of the State Hospital is considering a range of matters relating to the funding and management of high risk patients. Alongside this, we will give further consideration to the possible introduction of some form of legal right of appeal, perhaps when local forensic services are more fully developed. We will also consider whether there would be benefits in introducing new administrative mechanisms to review cases where patients cannot move on, because of clinical disagreements which cannot be resolved, or because of reluctance by individual agencies to take responsibility for a particular patient.
The Mental Health (Public Safety and Appeals) (Scotland) Act 1999
55. Before the Millan Committee completed its work, the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 was introduced as emergency legislation. We made it clear at the time that we would review the emergency legislation, in the light of the Millan and MacLean reports.
56. The 1999 Act contained three provisions, and we have considered how these should be dealt with in future.
57. Firstly, the Act amended the definition of ‘mental illness’ in the 1984 Act, to incorporate personality disorder. As Millan recommends, we propose to reformulate the definition of ‘mental disorder’, to incorporate personality disorder, but make it clear that this is distinct from mental illness (see paragraphs 2.17 -2.18).
58. Secondly, the Act introduced a new right for patients and Ministers to appeal to the Court of Session against a decision of the sheriff concerning discharge of a restricted patient. We will retain a right of appeal against a decision of the new Mental Health Tribunal (see paragraphs 3.72 - 3.91). Again, this implements the recommendation of the Millan Committee.
59. The third change made by the 1999 Act was to introduce a new test, which must be applied by Scottish Ministers and the sheriff, in determining whether a restricted patient should be discharged. Section 1 of the Act provides that a restricted patient may not be discharged if suffering from a mental disorder, the effect of which is that it is necessary, to protect the public from serious harm, that the patient continues to be detained in a hospital.
60. The Millan Committee considered that this provision should be repealed, on the basis that it would no longer be necessary under the new legislation. The Committee acknowledged, however, that there may be a need to retain a provision such as that in section 1, for patients who were already detained prior to the new Act, and who might not be detainable under the criteria set out in the new Act.
61. The Committee also endorsed a recommendation of the MacLean Committee that the public safety test should not apply to transferred prisoners who would otherwise be returned to prison.
62. Since the Millan Committee reported, an appeal has been heard by the Judicial Committee of the Privy Council, concerning whether the provisions of section 1 of the 1999 Act are compatible with the European Convention on Human Rights. Until the outcome of this case has been fully considered, it would be premature to put forward firm proposals on how the issues addressed by section 1 of the 1999 Act should be dealt with in the new Act.
63. In general, we agree with the view of the Millan and MacLean Committees that the primary responsibility for managing the risk presented by high risk offenders, who cannot be treated, should fall on the penal system, not the mental health system. The reforms we are making will support this approach.
64. Nevertheless, in cases where a person has been placed under special restrictions, and that person continues to suffer from a mental disorder and to present a serious risk to public safety, we believe there is a strong argument for retaining a provision to ensure that the patient remains subject to detention.
65. In the light of the Privy Council’s judgement, we will consider how best to make provisions in the new Act which will balance the rights of patients with the legitimate interests of the community to protection.