1. Solicitor Scottish Government Legal Division Section 193 and report writing

2. SGLD legal teams for mental health:- Court Division 1. Russell Hunter0131 244 7161 2. Victoria Ayre0131-244 5914 3. Alison Stevenson0131-244 7974 - give legal advice on individual cases to Scottish Ministers - represent Scottish Ministers at Tribunals - advise on drafting of documentation for MHTS Health & Community Care Division 1. Joanna Keating 2. David Smith 3. Stella Smith - advise SGHD and Ministers on Mental Health policy and legislation generally - interpretation of / advice on existing mental health legislation - advise on / instruct any new primary legislation (Acts) - draft any new secondary legislation (Regulations and Orders) - advise on Scottish Ministers’ statutory role re case management of restricted patients - suspension of detention; transfers between hospitals; cross- border transfers; conditional discharge etc

3. Objectives -Details of s193 -Serious harm test -Significant risk test -Necessary test -Report writing -Giving oral evidence

4. CORO Applications & References to the MHTS are made by -Application by: - patient or named person (s192) - SM’s under s191 to the MHT at any time it is considered appropriate - Reference by Scottish Ministers, following: - Recommendation in report from RMO, s185(1) - Notice from Mental Welfare Commission s187(2) - 2 year review s189(2) MHTS makes an order under s193

5. Applying the Act -When writing your report, or giving evidence you must help the Tribunal to come to a decision. -What does the Tribunal have to do? -Be “satisfied”/ “not satisfied” as to various matters. -Once it is so “satisfied” “not satisfied”, the Tribunal makes an order under one of the subsections of s193. How can I help the Tribunal? -Use the phraseology and terminology of the Act. -Apply the facts of the particular case to the terms of the Act. - Be consistent logical case specific - Don’t be general vague avoid applying the tests altogether

6. s193 of the 2003 Act - See the section hand-out - See flow chart hand-out - Basic sections 193 (2) No order (3) Revoke Compulsion Order (CO) (4) Revoke Compulsion Order (CO) (5) Revoke Restriction Order (RO) (7) Grant Conditional Discharge (CD) s193(2) No order -2 limbs to the test - mental disorder - serious harm requiring detention -If both limits are met, the Tribunal has an overarching duty to leave the CORO in place, and so the Tribunal makes no order under any of the sub-sections of s193, i.e. no order at all under section 193. -If the serious harm test requiring detention is not met, the Tribunal can then go on to look at the other sections of the act. s193(4) Revoke CO -4 limbs to the test - mental disorder and - serious harm requiring detention AND either - conditions in s182(4)(b) and (c) continue to apply or- CO continues to be necessary - If the first 2 legs and at least one of the 2nd legs is met, the CO must remain - In order to revoke the CO, all 4 tests must be met

7. s193(5) RO -4 limbs to the test -conditions in 182(4)(a), (b) and (c) and - CO continues to be necessary and - serious harm requiring detention and - RO continues to be necessary -If only 3 limbs are met, the Tribunal cannot revoke the RO. -In order to revoke the RO, all 4 tests must be met. s193(7) Granting CD -4 limbs to the test - conditions in s182(4)(a), (b) and (c) and- the CO and RO continue to be necessary and- serious harm requiring detention and- it is necessary for the patient to be detained -If only 3 limbs are met, the Tribunal cannot grant CD. -If all 4 limbs are test, the Tribunal “may” grant CD. -Even if all 4 limbs are met but you disagree with CD, then ask the Tribunal to exercise their discretion not to grant CD.

8. Various tests under s193 Serious harm testSignificant risk test Necessary s193(2)(b) (no order) s193(4)(b)(i) (revoke CO) 193(4)(b)(ii)(A)193(4)(b)(ii)(B)- CO continues to be necessary s193(5)(b)(i) (revoke RO) 193(5)(a)(i)193(5)(b)(ii)- RO continues to be necessary see s59 of 1995 Act s193(7)(b)(i) (grant CD)s193(7)(a)(i)193(7)(a)(ii) - CO and RO continues to be necessary 193(7)(b)(ii)- is necessary to be detained in hospital

9. Risk of serious harm requiring detention - Appears in 4 sub-sections -193(2)(b) (no order) - (4)(b)(i) (revoke CO) - (5)(b)(i) (revoke CO) - (7)(b)(i) (grant CD) -As a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment. -Where it appears in the Act, the test must to be considered; it is a statutory duty to consider each of the test. -“is necessary” involves a risk assessment. -What sort of harm do you think the patient might inflict on any other person both within and outwith the confines of the hospital? -The type of harm inflicted must be “serious”. -Biggley decision – “the categories of serious harm are never closed” – not restricted to risks of lethal attacks. It also refers to serious assault or sexual assault as being “serious harm”. -The ethical concerns of consultants are in relation to the use of words “whether or not for medical treatment”. This is the statutory test for detention which Parliament has laid down and must therefore be considered each time. -If this test is met, the Tribunal is under a overarching statutory duty to leave the CORO in place – it shall make no order at all under section 193. -Further, if the test is met in subsections 193(4), (5) or (7) it cannot exercise its powers to revoke the CO, RO or grant CD.

10. The significant risk test Appears in a 3 sub ‑ sections -s193(4)(b)(ii)(A) (revoke CO) - (5)(a)(i) (revoke CO) - (7)(a)(iv) (grant CD) Comes from s182(4)(c): if the patient were not provided with such medical treatment there would be a significant risk- (i) to the health, safety or welfare of the patient; or (ii) to the safety of any other person. -Here it is the term “risk” which is defined. So, the risk that if the patient is not provided with medical treatment, the risk to the patient or others must be a “significant” one. -The chance of risk occurring must be “significant”. -It is about the level of chance of the consequences of not providing treatment. -If you think there would be a “significant risk” of the events occurring if the patient is not provided with medical treatment, then the conditions continue to apply.

11. Necessary test -s193(5)(b)(ii) “it continues to be necessary for the patient to be subject to the RO” -What does “continues to be necessary” mean? -Compare entry and exit tests -Criminal Procedure (Scotland) Act 1995 (c. 46) (as amended by paragraph 8(5) of schedule 4 to the 2003 Act.) 59. Hospital orders: restrictions on discharge. (1) Where a compulsion order authorising the detention of a person in a hospital by virtue of paragraph (a) of section 57A(8) of this Act is made in respect of a person, and it appears to the court- (a)having regard to the nature of the offence with which he is charged; (b)the antecedents of the person; and (c)the risk that as a result of his mental disorder he would commit offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in Part 10 of the Menal Health (Care and Treatment) (Scotland) Act 2003 (asp 23), without limit of time. -Entry test – considers 3 factors: nature of offence; antecedents; risk that as a result of mental disorder he would commit offences if set at large -Looks at same factors as were considered when RO made -Code of Practice guidance on applying RO (p141, Vol. 3) describes purpose of a restriction order as allowing additional scrutiny of mentally disordered patient who may potentially pose a risk of serious harm to others as he/she progresses through rehabilitation, so as to protect the public from risk -Different from question of necessity for detention in hospital is the SM’s role in tracking patients, control in decision-making, “formal second opinion”, “accountability structure”

12. A successful report -Think about the statutory test/s that you need to address -Think about who your readers are -Plan what you want to say -Be consistent -Be logical -Language -Use plain English -Be accurate, clear and concise -Put yourself into the reader’s shoes -Don’t use jargon/acronyms -Don’t parachute into the middle of a subject/assume knowledge on your reader’s part -Focus on the aim/result of the report ie what order should be made

13. The various tests -Address each test in turn -Go through each section in turn either agreeing or disagreeing with the criteria -Use the language of the Act Egserious harmNOTsignificant risk significant harm some harm serious injury significant injury necessaryNOTimportant needed useful helpful would be a significant riskNOTmay be ie is/shallmight be could be DO NOT SAY The patient has a mental disorder and may significantly injure someone The patient has a mental disorder and if they hurt someone, a CORO would be helpful MORE APPROPRIATE The patient has a mental disorder and is a risk of serious harm, therefore no order should be made and the CORO must remain If the RO remains in place, it will be helpful for staff because they will have an extra level of oversight from Scottish Ministers If the RO remains in place, the staff will be aware that this patient needs extra supervision The patient [is /is not] a risk of serious harm, [and/or] it continues to be necessary for the patient to be subject to a RO, therefore the restriction order should not be revoked. When the patient is in the community the public would like to think someone was keeping a matching eye over him The patient [does/not] meet all the criteria for a CD, [and the Tribunal should not exercise its discretion and grant a CD because

14. Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) 193 Powers of Tribunal on reference under section 185(1), 187(2) or 189(2) or application under section 191 or 192(2) (1)This section applies where- (a) an application is made under section 191 or 192(2) of this Act; or (b)a reference is made under section 185(1), 187(2) or 189(2) of this Act. (2) If the Tribunal is satisfied- (a)that the patient has a mental disorder; and (b)that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment, it shall make no order under this section. (3) If the Tribunal is not satisfied that the patient has a mental disorder, the Tribunal shall make an order revoking the compulsion order. (4) If the Tribunal- (a) is satisfied that the patient has a mental disorder; but (b) is not satisfied- (i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and (ii) either- (A) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient; or (B) that it continues to be necessary for the patient to be subject to the compulsion order, it shall make an order revoking the compulsion order. (5) If the Tribunal- (a) is satisfied- (i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and (ii) that it continues to be necessary for the patient to be subject to the compulsion order; but (b) is not satisfied- (i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and (ii) that it continues to be necessary for the patient to be subject to the restriction order, it shall make an order revoking the restriction order.

15. Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (contd) (6) If the Tribunal- (a)makes an order, under subsection (5) above, revoking the restriction order; and (b) is satisfied that the compulsion order should be varied by modifying the measures specified in it, it shall make an order varying the compulsion order in that way. (7) If the Tribunal- (a)is satisfied- (i) that the conditions mentioned in section 182(4) of this Act continue to apply in respect of the patient; and (ii) that it continues to be necessary for the patient to be subject to the compulsion order and the restriction order; but (b) is not satisfied- (i) that, as a result of the patient’s mental disorder, it is necessary, in order to protect any other person from serious harm, for the patient to be detained in hospital, whether or not for medical treatment; and (ii) that it is necessary for the patient to be detained in hospital, the Tribunal may make an order that the patient be conditionally discharged and impose such conditions on that discharge as it thinks fit.

16. 182 Review of compulsion order and restriction order 182(4) (a) that the patient has a mental disorder; (b)that medical treatment which would be likely to- (i) prevent the mental disorder worsening; or (ii) alleviate any of the symptoms, or effects, of the disorder, is available for the patient; and (c) that if the patient were not provided with such medical treatment there would be a significant risk- (i) to the health, safety or welfare of the patient; or (ii) to the safety of any other person. Criminal Procedure (Scotland) Act 1995 (c. 46) (as amended by paragraph 8(5) of schedule 4 to the 2003 Act.) 59. Hospital orders: restrictions on discharge. (1) Where a compulsion order authorising the detention of a person in a hospital by virtue of paragraph (a) of section 57A(8) of this Act is made in respect of a person, and it appears to the court- (a) having regard to the nature of the offence with which he is charged; (b) the antecedents of the person; and (c) the risk that as a result of his mental disorder he would commit offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the person shall be subject to the special restrictions set out in Part 10 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 23), without limit of time.

17. Tribunal considers whether the criteria in s193(2) are met s193(2)(a) Mental disorderYes AND Tribunal not satisfied Tribunal shall revoke Compulsion Order under s192(3) S193(2)(b) Serious harm test requiring Detention in hospital Tribunal satisfied Tribunal shall make no order S193 – CORO remains and status quo maintained Tribunal not satisfied Tribunal considers whether the criteria in s193(4) are met S193(4)(a) mental disorderTribunal satisfied AND Section 193 – powers of Tribunal Tribunal shall revoke the Compulsion Order s193(4) S193(4)(b)(i) serious harm test for detention in hospital AND either (i) conditions under s182(4)(a) and (b) continue to apply or or (ii) CO continue to be necessary Tribunal not satisfied All criteria not met Tribunal cannot revoke ie CORO remains, no order is made

18. Tribunal considers whether the criteria in s193(5) are met s193(5)(a)(i) the conditions under s182(4) continue to apply Tribunal satisfied Tribunal must revoke the RO under s193(5) AND (ii) The CO continues to be necessary AND s193(5)(b)(i) serious harm test for detention in hospital AND AND (b)(ii) the RO continues to be Necessary under s59 Criminal Procedure (Scotland) Act 1995 All criteria NOT met Tribunal cannot revoke RO ie CORO remains, no order is made AND Tribunal NOT satisfied

19. Tribunal considers whether the criteria in s193(7) are met S197(a)(i) the conditions under s182(4) continue to apply AND (a)(ii) CO continues to be necessary Tribunal satisfied AND S197(b)(i) serious harm test for detention AND (b)(ii) necessary for detention in Hospital AND Tribunal MAY grant CD Tribunal NOT satisfied All criteria met Tribunal cannot grant CD, and CORO remains, no order is made