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CHAPTER SEVEN - TRANSFERRED PRISONERS
Background
7.1 Section 136 of the Mental Health (Care & Treatment) (Scotland) Act 2003 sets out provisions for persons serving a prison sentence to be transferred to hospital for treatment - a "transfer for treatment direction". This direction has the effect of a compulsion order and restriction order. Where a person is a restricted patient as a result of such a transfer, these special restrictions will apply for so long as the person would have been held in custody had they not been transferred, unless they are returned to prison at an earlier stage. If a patient is to be detained beyond the expiry of their sentence, further steps (as set out in Schedule 3 of the 2003 Act should be taken).
7.2 A patient in this category cannot be transferred or have suspension of detention without the permission of Scottish Ministers. There is also during that period, no possibility of absolute or conditional discharge from hospital under the 2003 Act. If it ceases to be appropriate for such a patient to be detained in hospital, they will usually be returned to prison by direction of Scottish Ministers. Where Ministers decide not to act on a recommendation to revoke the transfer direction, they must refer the case for consideration by the Mental Health Tribunal. Should the Tribunal conclude that the direction indeed be revoked, it will direct Ministers to revoke it and return the patient to prison. Where a patient who is a transferred prisoner appeals successfully against transfer to hospital, the Mental Health Tribunal will direct their return to prison to complete the remaining part of their sentence.
7.3 A direction for the return of a transferee to prison is given by warrant on the recommendation of the RMO and the Scottish Executive Health Department's ( SEHD) Psychiatric Adviser. In no circumstances can the RMO return the person to prison without the Scottish Ministers' warrant. If the RMO concludes that it is unnecessary or inappropriate for the transferee to remain in hospital, they should inform the Psychiatric Adviser accordingly so that the appropriate steps may be taken.
Statutory provisions governing release
7.4 Provision relating to the release of such restricted patients is made in section 217 of the 2003 Act. Attached at Annex H is a Patient Guide to the current provisions.
Transferred prisoners serving determinate or extended sentences
7.5 A transfer for treatment direction given in respect of a determinate or extended sentence prisoner ceases to have effect on the date on which, but for the transfer, that person would have been released from prison. A prisoner sentenced on or after 1 October 1993 to less than 4 years is automatically released as soon as he has served one half of the sentence. A prisoner sentenced on or after that date, to 4 years or more, is eligible for parole after serving one half of the sentence and must be released on licence after serving two thirds of the sentence. The timing of the release of a prisoner subject to an extended sentence is governed by the custodial term of the sentence.
7.6 When a determinate or extended sentence prisoner is transferred to hospital, SEHD staff take careful note of the date on which he or she must be released and on which the transfer for treatment direction will therefore cease to have effect (this is known as the earliest date of liberation or EDL). SEHD will issue a letter to the RMO, where possible, 6 weeks prior to the EDL to advise him or her of the effect on the transfer for treatment direction and the need to consider whether the patient requires to be detained in hospital beyond their EDL.
7.7 Prisoners serving sentences of 4 years or more, or, in the case of extended sentence prisoners with custodial terms of 4 years or more, qualify for consideration of early release on licence at the half-way point of sentence. Where a transferred prisoner is eligible for parole, a note should also be taken of the parole qualifying date ( PQD). Once that date has been reached, Scottish Ministers may release the individual on licence if this is recommended by the Parole Board for Scotland ("Parole Board"). Approximately 6 months prior to the prisoner's PQD, officials in Parole and Life Sentence Review Division ( PLSRD) will write to the RMO for an assessment on whether or not it is appropriate for the parole review to take place and for confirmation of whether or not the individual wishes the review to proceed. Only in the most exceptional circumstances, that is, where an RMO has reason to believe that consideration of early release by the Parole Board would bring about a serious deterioration in the patient's mental health, should the RMO recommend that a parole review should not proceed. In addition, close regard must be had to the individual's own views on the matter. In these cases, SEHD will again write to the RMO approximately 6 weeks prior to the PQD highlighting the possibility of the patient's release and the need to consider re-detention under the 2003 Act.
7.8 Where it is determined that the review should proceed, the parole co-ordinator at the prison where the individual was last detained will assemble the dossier of papers on the individual's circumstances including a comprehensive report on the patient's progress in the mental health system and reports from the hospital social work unit and a community based social worker. RMOs will wish to bear in mind that the Parole Board is concerned primarily with the question of the risk that a person's early release would present to the public and, where possible, they should make a specific comment about this in any report that they prepare for the Parole Board.
7.9 Once all the reports have been received, the parole co-ordinator will assemble these into a dossier which will be submitted to PLSRD. PLSRD will subsequently refer the case to the Parole Board to consider the transferred prisoner's suitability for early release on licence. In accordance with the Parole Board (Scotland) Rules 2001, a copy of the dossier which is sent to the Parole Board will also be sent to the transferred prisoner who will have the opportunity to submit representations to the Board and to be interviewed by a Parole Board member prior to the consideration of his case.
7.10 In other circumstances where the RMO is of the view that a transferred prisoner meets or is likely to meet the criteria for discharge during the period between the PQD and the EDL, he or she may recommend through the Psychiatric Adviser that release on licence direct from hospital should be considered. This will then be raised with PLSRD to consider whether or not the individual's case should be referred to the Parole Board to consider his suitability for early release.
7.11 Where a transferred prisoner is not returned to prison or otherwise discharged from hospital before the date on which the transfer for treatment direction ceases to have effect, under section 217(2) of the 2003 Act, the RMO is required, not earlier than 28 days before that date, to obtain from another medical practitioner a report on the condition of the patient and then to assess the need for the patient's continued detention in hospital. If it appears that the patient should continue to be detained, the RMO is required to send to the managers of the hospital and the Mental Welfare Commission for Scotland a report to that effect along with the other medical practitioner's report. If these steps are not taken within 28 days before the date on which the transfer for treatment direction ceases to have effect, the patient must be discharged on that date. (The patient may, of course, remain as a voluntary patient where they are in a local psychiatric hospital.)
7.12 The steps for the continued detention of a transferred prisoner are prescribed in Schedule 3 of the 2003 Act. Schedule 3 makes provision for a compulsory treatment order ( CTO) application to be made to the Mental Health Tribunal in relation to a patient who is subject to a transfer for treatment direction (or hospital direction) provided that the direction has less than 28 days left to run. The 6 month period during which the measures are authorised by the compulsory treatment order does not begin until the day on which the direction expires. In such cases, the patient has a right to apply to the Mental Health Tribunal for an order revoking or varying the compulsory treatment order but not until 3 months after the date on which the order commenced.
7.13 All determinate sentence prisoners sentenced to 4 years or more after 1 October 1993 and all extended sentence prisoners require to be released on licence at their earliest date of liberation. For determinate sentence prisoners sentenced to 4 years and extended sentence prisoners with a custodial term of 4 years or more, the licence exists until the prisoner's sentence expiry date ( SED). For extended sentence prisoners with a custodial term of less that 4 years, the licence exists until the end of the extension period. In cases where a transferred prisoner is in hospital prior to their EDL, the licence authorising the release will be sent to the individual's RMO, with a copy to the named social work supervisor, with a request that the purpose and terms of the licence be explained to the individual. Ideally, both the RMO and the named social work supervisor should discuss the terms of the licence with the prisoner.
7.14 Information on parole eligibility or licence requirements of a transferred prisoner with a determinate or extended sentence can be obtained from PLSRD, Scottish Executive Justice Department, St Andrew's House, Regent Road, Edinburgh, EH1 3DG. A list of contacts can be found at Annex I.
Transferees serving indeterminate sentences
7.15 Where a person has been sentenced to life imprisonment, detention for life or detention without limit of time, they will not have an "earliest date of liberation". Therefore, if they are transferred to hospital, the restrictions will apply indefinitely. If the person makes a full recovery from mental illness, 2 options exist: either -
- a return to prison (by warrant under section 210(2) of the 2003 Act); or
- release on life licence direct from hospital. (Such release would be under section 2(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993.)
In either event, the transfer for treatment direction or hospital direction will cease to have effect.
7.16 Under the relevant provisions of the Convention Rights (Compliance) (Scotland) Act 2001 effective from 8 October 2001, the arrangements relating to the release of transferred adult mandatory life prisoners were brought into line with other life prisoners. Under these provisions, a punishment part is set by a judge in open court and is the length of time that the judge considers a transferred prisoner should serve for retribution and deterrence. As soon as the punishment part has expired, he has the right in law to require Scottish Ministers to refer his case to the Parole Board. The case is reviewed by the Parole Board sitting as a Life Prisoner Tribunal: that is there are 3 members of the Parole Board who consider the case.
7.17 The purpose in sending the case to the Parole Board is to allow it to judge the level of risk the patient might present to the public. If that risk is considered by the Life Prisoner Tribunal to be acceptable, it will decide that he should be released on life licence (and simultaneous absolute discharge). If that is the decision, it will direct Scottish Ministers to release the transferred prisoner. Scottish Ministers are statutorily obliged, on receipt of a direction, to release the transferred prisoner as soon as practicable. The Parole Board will also decide on any special conditions to include in the life licence. If the Parole Board considers that the level of risk is unacceptable, it will advise the individual, explaining why it considers he requires to continue to be confined. The Parole Board may also make recommendations about the steps that could be taken to reduce the risk before the next hearing. The Parole Board will fix the date for the hearing no later than 2 years from the current disposal. The right of a life prisoner to require Scottish Ministers to refer his case to the Parole Board is not affected by transfer under the 2003 Act.
7.18 Where a transferred prisoner subject to such a sentence no longer meets the criteria for detention in hospital the patient should not be discharged and he should be returned to prison.
7.19 However, where the advice of the RMO is that the transferred prisoner cannot be returned to prison on medical grounds, the RMO may propose that the individual is prepared for release on life licence direct from hospital. The preparatory period for such release can be lengthy. Scottish Ministers will normally expect the person to progress through a local hospital and be gradually re-introduced to the community and tested through a programme of increasing unescorted freedoms.
7.20 Where a RMO intends to recommend that a transferred prisoner should be released in this way, this should be made clear to the Psychiatric Adviser at the earliest possible stage. The RMO should be as specific as possible about the likely timescale and preparations for release and whether these will include a proposal for transfer to another hospital, a move to a less restricted regime, or increasing outside freedoms. Suitable accommodation and supervision arrangements should also be in place in the community. Although such patients are unlikely to progress quickly through their rehabilitation, the RMO should make the SEHD aware of their views on the patient as early as possible and certainly at least 18 months before they make any formal recommendation for release on life licence and simultaneous absolute discharge. The SE Health and Justice Departments will need to consider the future plans for the patient and the timescale envisaged by the RMO. This process is likely to involve detailed correspondence and discussions between representatives of the SE and the RMO.
7.21 Once the RMO considers that the patient will be well enough for release on life licence and simultaneous absolute discharge in 6 to 12 months' time, they should make their views known to Scottish Ministers. Release on life licence and simultaneous absolute discharge may only take place once the individual has served the punishment part of the life sentence, i.e. the period for retribution and deterrence, and on the direction of the Parole Board. The RMO must also be aware that release is not automatic and even if there is a good clinical case for return to the community, at the end of the day the Parole Board, from the wider perspective of public safety, may be unable to authorise release. The RMO should ensure that the patient's expectations about the timing of their discharge from hospital are not raised unrealistically.
Alteration of sentence
7.22 In the event of a transferred prisoner becoming the subject of a further court order or decision while in hospital, for example, as a result of a separate offence or appeal against sentence, the RMO must notify the Health and Justice Departments immediately as this may affect the transfer for treatment direction or hospital direction and the timing of a review of the case by the Parole Board. If the RMO is aware that the person has been to court but not of the outcome, they must find out, and inform the SE Health and Justice Departments (with a copy of the Court order or decision) and must keep in close contact with other interests within the hospital. The SE Health and Justice Departments do not receive notification direct from the courts.
Hospital directions
7.23 Hospital Directions allow the courts to impose a sentence of imprisonment on someone who is in immediate need of hospital treatment, and at the same time direct their admission to hospital for as long as they are in need of that treatment. If a patient on a hospital direction recovers sufficiently so as to no longer warrant detention in hospital, before the date they would be released from prison, they can be transferred to prison to serve the balance of their sentence. Where an RMO is considering a return to prison he should contact the Psychiatric Adviser to discuss the case and allow the opportunity for them to review the patient. The RMO should put their formal recommendation in writing to the Psychiatric Adviser. If, however, the patient does not recover before the "expiry date" of the hospital direction, and still requires treatment in hospital, the RMO must take the steps outlined in 7.11 - 7.12 above. For indeterminate sentenced prisoners on a Hospital Direction the steps outlined in 7.15 to 7.21 should be followed.
7.24 Further guidance on hospital directions was issued by SEHD in NHSHDL (2005) 4.
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