1. Scottish Government Directorate for Legal Services Overview of the legal tests (s193 and s264) and report writing

2. SG DLS legal teams for mental health:- Court Division 1 Claire Meikle0131 244 0529 2. Louisa Walls0131 244 7974 3. Shalani Raghavan 0131-244 5914 - give legal advice on individual cases to Scottish Ministers - represent Scottish Ministers at Tribunals - advise on drafting of documentation for MHTS

3. Objectives Section 193 -Serious harm test -Availability of treatment test - Significant risk test -Necessity of Restriction Order test Section 264 -Conditions of excessive security? -Discretion -Application of section 1 principles

4. Routes to Section 193 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) Appeal by patient against variation of conditions (s201) MHTS makes an order under s193

5. s193 of the 2003 Act 193 (2) Serious Harm Test: 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 (s328) - risk of serious harm requiring detention -If both are met, the Tribunal must leave the CORO in place, and make no order -If the serious harm test requiring detention is not met, the Tribunal can then go on to look at the other sub sections of the act. s193(4) Revoke CO -4 limbs to the test to revoke the compulsion order: - satisfied of mental disorder - not satisfied of serious harm requiring detention AND either – not satisfied of the conditions in s182(4)(b) and (c): availability of “medical treatment” (s329) & significant risk or- not satisfied that CO continues to be necessary - In order to revoke the CO, the first two plus either of the third and fourth tests must be met. - to retain the CO, the Tribunal must be satisfied on availability of treatment, significant risk and the continuing necessity of the compulsion order

6. s193(5) Revoke RO -4 limbs to the test to revoke the restriction order: - Satisfied of the conditions in 182(4)(a), (b) and (c) and - satisfied that the CO continues to be necessary And - not satisfied of the serious harm requiring detention test And - not satisfied that RO continues to be necessary -In order to revoke the RO, all 4 tests must be met. s193(7) Granting CD -4 limbs to the test - satisfied of the conditions in s182(4)(a), (b) and (c) and- satisfied that the CO and RO continue to be necessary and- not satisfied of the serious harm requiring detention test and- not satisfied that it is necessary for the patient to be detained in hospital -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, the Tribunal has a discretion as to whether or not to grant CD. Tribunals Powers re conditionally discharged patients: -When making the original order for conditional discharge the Tribunal can impose such conditions as it thinks fit -Whereas, when reviewing a patient who is already conditionally discharged, the Tribunal cannot vary the existing conditions

7. Risk of serious harm requiring detention -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. -“This is a clear and peremptory requirement, which in our view the Tribunal must first consider in every case”. JK para 32 -What sort of harm do you think the patient might inflict on any other person both within and outwith the confines of the hospital? What grounds to you have for this view? -The type of harm inflicted must be “serious”. -the categories of serious harm are not restricted to risks of lethal attacks. Serious assault or psychological harm can be “serious harm”. -The protection (ie detention in hospital) must be directed at the risk - The risk does not need to be “significant” or “serious” – but must be a “real risk” -Whether detention “is necessary” to prevent the risk of serious harm involves a risk assessment. -If this test is met, the Tribunal is obliged to leave the CORO in place – it shall make no order under section 193 (2). -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.

8. The significant risk test Imported to s193 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, “significant” relates to the “risk”, not the harm. So, if the patient is not provided with medical treatment, the risk to the patient or others must be a “significant” one (but it need not involve serious harm). -It is about the level of chance of the consequences of not providing medical 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. -Give reasons for your opinion with reference to risk assessments/CPA documentation/offence details & the patient’s history when not receiving or complying with medical treatment

9. 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? – see JK para 39 -Different from question of necessity for detention in hospital -Start with entry test: -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. -Question: To what extent do the reasons for imposing the order in the first place remain relevant today? -Secondly: Must consider the Nature and effect of the RO on the patient’s current circumstances -See: Nature and Effect of Restriction Order Handout & para 6 of JK as to what a Restriction Order does

10. Section 264 Is it necessary for the patient to be detained in conditions of special security? Relational, environmental and procedural security Discretion: if satisfied, Tribunal “may” grant an order… (See G v MHTS) Application of section 1 principles Obligations fall on the “relevant Health Board”: 7 months maxiumum from date of s264 order No obligation on Ministers to introduce right of appeal for those detained in medium or low secure hospitals (RM v Scottish Ministers)

11. 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 – use relevant headings -Be consistent -Be logical – introduction, consideration of the evidence, and conclusion -Language -Use plain English (and repeat language used in the relevant statutory tests) -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 purpose of the report - what is your view on the application of each of the relevant statutory tests; and why. -See the pro forma annual report included in the MOP

12. 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.

13. Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (cont) (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.

14. s182 of 2003 Act and s59 of 1995 Act 182 of 2003 Act, 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.

15. Restriction Orders The nature and effect of a restriction order is to give a supervising and monitoring role to the Scottish Ministers in the public interest, because of the circumstances in which the order is made. The patient is subject to this public interest supervision and monitoring, as well as supervision by the RMO. The nature and effects of a restriction order are as follows: (a)Where a patient is subject only to a compulsion order, that order lasts only 6 months, unless renewed by the RMO. It can therefore be revoked by the RMO acting (or failing to act) alone A restriction order continues it without limit of time: Section 57A(7) of the 1995 Act (A12), and can only be revoked by the Mental Health Tribunal. (b)A restriction order also prevents the patient being released from compulsion (either within a hospital or community setting) without a decision of the Mental Health Tribunal after a hearing at which the Scottish Ministers have the right to make representations (Section 193(8) and (9) of the 2003 Act); for example it prevents the RMO and/or Mental Welfare Commission being able to terminate the compulsion order (and accordingly detention) unilaterally either deliberately (Sections 141 and 143) or by omitting to refer the case to the Tribunal for an extension to the compulsion order under Section 167. (c)Decisions about transfer of the patient (for example to lower security hospitals) and suspension of detention (for example for testing out in the community) are subject to scrutiny and approval of the Scottish Ministers (see Sections 218 and 224 of the 2003 Act). The Scottish Ministers may revoke the suspension of detention. (d)A restriction order also involves the Scottish Ministers in monitoring the patient on a continuing basis (reports from RMOs and MHOs) and referring the case to the Tribunal at appropriate intervals (see Part 10 and especially Section 188 of the 2003 Act). (e)Patients conditionally discharged, and thereby coming into increased contact with the community, are subject to the supervision of the Scottish Ministers in the public interest. Conditional discharge allows supervision, assessment and monitoring in the community. –The RMO, MHO and CPN provide monthly reports to the Scottish Ministers. The reporting arrangements may be reduced to 3 monthly after the patient has been on conditional discharge for a year without incident and they can be revisited if there is increase in risk. –A patient subject to a restriction order can be required to provide urine and blood samples to monitor abstinence from drugs and alcohol/compliance with medication as a condition of their discharge. Compulsory testing is not permitted under a compulsion order alone.

16. –The Scottish Ministers have powers to recall a patient to hospital from conditional discharge “if necessary”, under Section 202 of the 2003 Act, as conditionally discharged patients are still subject to restriction orders (Section 193(7)(a)(ii)). In the event of an incident (including, for example a positive drug test) Scottish Ministers must be alerted immediately and consideration given by the multi-disciplinary team as to whether recall is appropriate. Scottish Ministers have the power to recall when “satisfied that it is necessary for the patient to be detained in hospital” (section 202(2)). This would include a situation where there is an increase in the risk to the public. It is not necessary to wait (amongst other things) until a significant deterioration in the patient’s mental health is reasonably likely (see s113 & s114 re recall of patients subject to Compulsion Orders without restriction – CTO provisions applied by s177). –Scottish Ministers have the power to vary conditions and may consider varying conditions of discharge if recall is not necessary to ensure risk is appropriately managed. The powers of the Scottish Ministers on conditional discharge enable the public interest to be taken into account. (f)Restricted patients are subject to ‘MAPPA’, multi agency public protection arrangements. Under Sections 10 and 11 of the Management of Offenders etc (Scotland) Act 2005 (A13), a statutory function is placed on police, local authorities, health services, and Scottish Ministers to establish joint arrangements for assessing the risk from mentally disordered offenders. As a result they are subject to the Care Programme Approach to management, which means that there is multidisciplinary input to care programmes. (g) A patient with unescorted suspension of detention, or being discharged from hospital, will come into increased contact with the community, and the supervision and monitoring role in the public interest played by a restriction order is very important at this stage to monitor for example compliance with medication, supervision, abstinence from illicit drugs and where appropriate abstinence from alcohol. Conditions of discharge can include abstinence from non-prescription drugs and/or alcohol, and can require the patient to co-operate with drug and alcohol testing to monitor abstinence.

17. S264 of the 2003 Act 264DETENTION IN CONDITIONS OF EXCESSIVE SECURITY: STATE HOSPITALS (1)THIS SECTION APPLIES WHERE A PATIENT’S DETENTION IN A STATE HOSPITAL IS AUTHORISED BY— (A)A COMPULSORY TREATMENT ORDER; (B)A COMPULSION ORDER; (C)A HOSPITAL DIRECTION; OR (D)A TRANSFER FOR TREATMENT DIRECTION; and whether or not a certificate under section 127(1) (either as enacted or as applied by section 179(1) of this Act) or 224(2) of this Act has effect in relation to the patient. (2)ON THE APPLICATION OF ANY OF THE PERSONS MENTIONED IN SUBSECTION (6) BELOW, THE TRIBUNAL MAY, IF SATISFIED THAT THE PATIENT DOES NOT REQUIRE TO BE DETAINED UNDER CONDITIONS OF SPECIAL SECURITY THAT CAN BE PROVIDED ONLY IN A STATE HOSPITAL, MAKE AN ORDER— (A)DECLARING THAT THE PATIENT IS BEING DETAINED IN CONDITIONS OF EXCESSIVE SECURITY; AND (B)SPECIFYING A PERIOD, NOT EXCEEDING 3 MONTHS AND BEGINNING WITH THE MAKING OF THE ORDER, DURING WHICH THE DUTIES UNDER SUBSECTIONS (3) TO (5) BELOW SHALL BE PERFORMED. (3)WHERE THE TRIBUNAL MAKES AN ORDER UNDER SUBSECTION (2) ABOVE IN RESPECT OF A RELEVANT PATIENT, THE RELEVANT HEALTH BOARD SHALL IDENTIFY A HOSPITAL— (A)WHICH IS NOT A STATE HOSPITAL; (B)WHICH THE BOARD AND THE SCOTTISH MINISTERS, AND ITS MANAGERS IF THEY ARE NOT THE BOARD, AGREE IS A HOSPITAL IN WHICH THE PATIENT COULD BE DETAINED IN APPROPRIATE CONDITIONS; AND (C)IN WHICH ACCOMMODATION IS AVAILABLE FOR THE PATIENT. (4)WHERE THE TRIBUNAL MAKES AN ORDER UNDER SUBSECTION (2) ABOVE IN RESPECT OF A PATIENT WHO IS NOT A RELEVANT PATIENT, THE RELEVANT HEALTH BOARD SHALL IDENTIFY A HOSPITAL— (A)WHICH IS NOT A STATE HOSPITAL; (B)WHICH THE BOARD CONSIDERS, AND ITS MANAGERS IF THEY ARE NOT THE BOARD AGREE, IS A HOSPITAL IN WHICH THE PATIENT COULD BE DETAINED IN APPROPRIATE CONDITIONS; AND (C)IN WHICH ACCOMMODATION IS AVAILABLE FOR THE PATIENT. (5)WHERE THE TRIBUNAL MAKES AN ORDER UNDER SUBSECTION (2) ABOVE IN RESPECT OF A PATIENT, THE RELEVANT HEALTH BOARD SHALL, AS SOON AS PRACTICABLE AFTER IDENTIFYING A HOSPITAL UNDER SUBSECTION (3) OR, AS THE CASE MAY BE, (4) ABOVE, GIVE NOTICE TO THE MANAGERS OF THE STATE HOSPITAL OF THE NAME OF THE HOSPITAL SO IDENTIFIED.

18. Court of Session Appeals Scottish Ministers v MHTS (JK), 2009 SC 398 http://www.scotcourts.gov.uk/opinions/2009CSIH9.html Scottish Ministers v MHTS (MM), 2010 SC 56 http://www.scotcourts.gov.uk/opinions/2009CSIH66.html Scottish Ministers v MHTS (NG & PF), 2009 SLT 650 http://www.scotcourts.gov.uk/opinions/2009CSIH33.html G v MHTS, 2011 CSIH 55 http://www.scotcourts.gov.uk/opinions/2011CSIH55.html