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MENTAL HEALTH (CARE AND TREATMENT) (SCOTLAND) ACT 2003 TRANSITIONAL TRAINING GUIDE INTRODUCTORY TRAINING FOR MENTAL HEALTH OFFICERS AND OTHER PRACTITIONERS SOCIAL CIRCUMSTANCE REPORTS
ANNEX B
Summary of the duties of the MHO for Criminal Procedures Act provisions
Compulsion Orders
Generally speaking, the duties placed upon MHOs and upon RMOs are the same after someone has been made subject to a Compulsion Order as they are after someone is made subject to a Compulsory Treatment Order.
Under
Section 57C a Mental Health Officer's report may be required by the Court. In such cases an MHO is required to interview the offender wherever practicable and prepare a report stating the name and address of the offender; if known, the name and address of the offender's primary carer; in so far as relevant for the purposes of this section of the Act, details of the personal circumstances of the offender; and any other information the MHO considers relevant for the purposes of that section.
Section 138 imposes a duty on MHOs as soon as practicable after a Compulsion Order is made to take such steps as are reasonably practicable to ascertain the name and address of the patient's named person.
Mandatory reviews of Compulsion Orders by RMO
Section 139 consultation with MHO by RMO required re first review of order.
Section 140 consultation with MHO by RMO required re further reviews.
Section 141 consultation with MHO by RMO required before making a determination during mandatory reviews that the patient no longer meets the criteria for continued Detention and revokes the order.
Section 144 notification to MHO of revocation of order required by RMO.
Section 145 consultation with MHO by RMO required re mandatory reviews of order.
Section 146 consultation with MHO by RMO required where there is a proposed extension of order at first review.
Section 147 imposes duties on MHO triggered by above. MHO must interview the patient wherever practicable and must, in any case, inform the patient of the RMO's proposal, of their rights in relation to the proposed application, and of the availability of independent advocacy services. They must also take appropriate steps to ensure that the patient has the opportunity of making use of those services. In addition, the MHO must inform the RMO as to whether the MHO agrees or disagrees with the proposed application and, if they disagree, the reasons why this is the case. They must inform them as well of any other matters that the MHO considers relevant. The RMO must inform the Tribunal in any subsequent application under Section 149 of the MHO's views and why they disagree with the order if they do. They must also advise the Tribunal in the application where the MHO failed to comply with the duties imposed by
Section 147.
Section 150 consultations with MHO by RMO required in respect of proposed extension of order at further reviews.
Section 151 imposes duties upon the MHO triggered by above which are the same as those imposed under
Section 147.
Section 152 imposes a duty on RMOs to consult with the MHO during further reviews of the order before making a determination.
Section 153 requires that the RMO give notice to the MHO (as well as the patient, the patient's named person, the Tribunal and the MWC) of the determination that the order is to be extended. The RMO must also advise the Tribunal of whether the MHO agrees or disagrees with the determination and if they disagree, the reasons for this. They must also advise the Tribunal where the MHO failed to comply with their duties under
Section 151. Where the MHO disagrees the Tribunal has a duty under
Section 165 to review the determination. Before making a decision the Tribunal must afford the MHO the opportunity to make representations orally or in writing and of leading or producing evidence.
Extension and variation of Compulsion Order:
Section 154 requires the RMO to give notice to and consult with the MHO where the RMO is proposing extending and varying the order.
Section 155 imposes duties on MHO triggered by above which are the same as under
Sections 147 and 151.
Section 157 places a duty on RMOs to give notice to MHOs where an application is to be made extending and varying a Compulsion Order. The application must state whether the MHO agrees or disagrees that the application should be made and if they disagree, the reasons why they do.
Variation of Compulsion Order:
Section 159 imposes a duty on RMOs to consult with MHOs as soon as practicable but before deciding to make an application when it appears to them that the Compulsion Order should be varied by modifying the measures specified in it. Any subsequent application under
Section 161 must include a statement as to whether the MHO agrees or disagrees with the application, and if they disagree, the reasons for this. The application must also indicate where the MHO failed to comply with the duties imposed under
Section 159. Before making a decision the Tribunal must afford the MHO the opportunity of making representation orally or in writing and of leading or producing evidence.
Reference to Tribunal by MWC re Compulsion Orders:
Section 162 requires the MWC to give notice to the MHO when they refer a case to the Tribunal. In such circumstances the Tribunal may make an order varying the Compulsion Order in respect of which the reference is made, or revoking the order. Before making a decision the Tribunal must give the MHO the opportunity to make representations orally or in writing and of leading or producing evidence.
Application to Tribunal by patient/named person for revocation of extension and/or variation of Compulsion Order:
Section 163 relates to the Tribunal's duty to review a determination to revoke an extension of a Compulsion Order. Before making a decision, the Tribunal must afford the MHO the opportunity of giving evidence orally or in writing and of leading or producing evidence.
Section 164 relates to situations where the patient or the patient's named person applies to the Tribunal to revoke a Compulsion Order or vary it by modifying the measures specified in it. When this happens, before making a decision the Tribunal must afford the MHO the opportunity to make representations orally or in writing and of leading or producing evidence.
Application for Interim Order by person with interest in proceedings:
Provision of MHO reports required by Tribunal:
Failure to attend for medical treatment when attendance requirement is specified in Compulsion Order:
Non-compliance generally with Compulsion Order:
Compulsion Orders and Restriction Orders:
Review of Compulsion Order and Restriction Order:
Reference to Tribunal by Scottish Ministers re Compulsion Order and Restriction Order:
Section 185 relates to situations where an RMO has submitted a report to Scottish Ministers under
Section 183 (2) that includes a recommendation that the Compulsion Order be revoked or has submitted a report under
Section 184. In such circumstances Scottish Ministers must make a reference to the Tribunal and must as soon as practicable give notice to the Mental Health Officer that a reference is to be made.
Under
Section 186 the MWC has authority to require Scottish Ministers to make reference to the Tribunal in respect of a person subject to a Compulsion Order and a Restriction Order. In such cases Scottish Ministers are required under
Section 187 as soon as practicable after receiving notice from the Commission to make reference to the Tribunal. When reference is made, Scottish Ministers must as soon as practicable give notice to the MHO that the reference is to be or has been made.
Where an application is to be made to the Tribunal by Scottish Ministers under
Section 191, Scottish Ministers must as soon as practicable after the duty to make the application arises give notice to the MHO that the application has been or is to be made.
Before the Tribunal makes a decision in relation to any reference made to it under
Sections 185(1), 187(2) or 189(2) or any application under
Section 191 or 191(2) they must afford the MHO the opportunity to make representations orally or in writing and of leading or producing evidence.
Conditional Discharge of Person on Compulsion Order and Restriction Order:
Where a patient has been conditionally discharged by the Tribunal under Section 193 and the Tribunal imposes conditions on that discharge, Scottish Ministers have the authority under Section 200, if satisfied that it is necessary, to vary any of the conditions imposed by the Tribunal and must in such cases notify the MHO as soon as practicable of that variation.
Appeal to Tribunal by patient/named person against variation of conditions imposed on Conditional Discharge where patient was subject to Compulsion Order and Restriction Order:
When Scottish Ministers do vary conditions as stated above, the patient and/or their named person may appeal this decision to the Tribunal within 28 days. Before making a decision on this appeal, the Tribunal must afford the MHO the opportunity to make representations orally or in writing and of leading or producing evidence
Appeal to Tribunal against recall from Conditional Discharge where persons were subject to Compulsion Order and Restriction Order:
Hospital Directions and Transfers for Treatment Directions:
Review of Hospital Direction and Transfer for Treatment Direction:
Reference to Tribunal by Scottish Ministers or the MWC re Hospital Directions and/or Transfer for Treatment Directions:
Section 210 requires Scottish Ministers to give notice to MHOs as soon as practicable where, upon receipt of a report by the RMO following a review of a Hospital Direction or a Transfer for Treatment Direction the decision is taken not to revoke the direction and a reference is to be made, as required, to the Tribunal.
Section 211 outlines the process to take effect when a notice is given by the MWC to Scottish Ministers under
Section 209. Scottish Ministers must make a reference to the Tribunal as a result and must give notice to the MHO as soon as practicable after receiving notice from the MWC.
Reference to Tribunal by Scottish Ministers re Hospital Direction or a Transfer for Treatment Direction:
Application by patient/named person to Tribunal to revoke Hospital Direction or Transfer for Treatment Direction:
Assessment Order: Suspension of measure authorising Detention:
Under
Section 221 the RMO may suspend the Detention requirement of a patient on an Assessment Order and may include conditions seen as necessary in the interests of the patient. These conditions may involve the MHO, e.g. a condition that the patient grants access to an MHO. If an MHO is authorised under this section, the RMO then has a duty under
Section 222 to give them notice when the order is revoked. Similarly, when Scottish Ministers revoke the order under
Section 223, they must also notify the MHO if they had been authorised under
Section 221.
Suspension of measures authorising Detention after other relevant events:
Section 224 relates to situations in respect of; Treatment Orders; Interim Compulsion Orders; Compulsion Order and a Restriction Orders; Hospital Directions; and, Transfer for Treatment Directions where the RMO grants a certificate specifying the suspension of the Detention requirement for up to three months. When the period for which Detention is to be suspended would exceed 28 days, the RMO must give notice of the proposal to the MHO. When the certificate is revoked under
Section 225, the RMO must also give notice to the MHO. Similarly, where Scottish Ministers revoke this certificate,
Section 226 requires that they give notice to the MHO.
This pack is one of a series of Training Guides detailed below developed for local authority mental health officers and related health and social care staff commissioned from Robert Gordon University by the Scottish Executive.
Reader 1
Introductory training for mental health officers and other practitioners
Reader 2
Emergency and short-term detention and related matters
Reader 3
Compulsory treatment orders and related matters
Reader 4
Provision of social circumstance reports and provisions for people with mental disorder within the criminal justice system and other related matters
Trainers Guide for Readers 1-4
Briefing Paper
For health service and local authority managers
Briefing Paper
For local authority elected members
This material is also available on the Scottish Executive's mental health law website:
www.scotland.gov.uk/health/mentalhealthlaw
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