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CHAPTER TEN - REVOKING A RESTRICTION ORDER
Introduction
10.1 A restriction order is made by the Court for a patient where it considers that this is required to protect the public from serious harm. While a restriction order is made without limit of time it is recognised that in particular circumstances where the patient no longer presents a risk of serious harm to the public that it should be possible to remove the patient's restriction order.
When this might be appropriate
10.2 Under sections 185 and 187 of the 2003 Act, Scottish Ministers have a duty to refer a case to the Mental Health Tribunal where they receive a recommendation from the RMO, or the Mental Welfare Commission, to revoke the restriction order to which the patient is subject. The effect of such an order being that the patient would cease to be subject to the special restrictions. The compulsion order would in such circumstances remain in force until the RMO decided that it was no longer necessary.
10.3 The RMO should consider very carefully why this option is preferred to conditional or absolute discharge for the patient. It is unlikely to be appropriate for a patient who is detained in conditions of special security.
10.4 It might be appropriate for the RMO to recommend such a step to Scottish Ministers for reference to the Mental Health Tribunal when the patient has not, for a long time exhibited the type of behaviour which initially gave rise to concern and the imposition of the restriction order and there is evidence that the patient is no longer a serious risk to him/herself or the general public but does still require compulsory care in hospital. This might arise, for instance, when the patient is no longer physically active, as a result of age or physical illness, and no longer represents a risk of serious harm but still requires to be detained in hospital.
What information is required
10.5 Scottish Ministers have a duty to make a reference to the Mental Health Tribunal upon receipt of a recommendation from the RMO. Thereafter it will be for the Tribunal Members to satisfy themselves that they have enough information upon which to make a decision. It will be necessary for the RMO to provide sufficient information for Scottish Ministers to make a reference to the Mental Health Tribunal to remove the restriction order and, in particular, to be assured that the patient no longer represents a serious risk to the public before doing so.
10.6 However, Scottish Ministers are separately required to take a view on the recommendation made by the RMO and submit their view to the Mental Health Tribunal for consideration at the hearing. In practice, it will largely be the information provided by the RMO which allows SEHD officials to assess the merits of the recommendation. It would be helpful therefore if the RMO could provide the following information along with their recommendation:
- information on patient's current mental state;
- why RMO considers patient no longer presents risk to public safety;
- a full risk assessment;
- a social work report (from the mental health officer); and
- plans for patient's future care.
10.7 Where a recommendation for lifting of restriction order is being considered by the multidisciplinary team, the Psychiatric Adviser will visit the patient and RMO to discuss the plans for the patient's current and future care.
How it is achieved
10.8 In the event that the Mental Health Tribunal authorise the revocation of the restriction order, the Tribunal Administration will inform Scottish Ministers, the patient, the RMO, the Mental Welfare Commission and any other relevant parties. They will provide written confirmation of the date on which the order to revoke the restriction direction takes effect (on form CORO2) in order that the RMO can manage this appropriately.
How it is managed
10.9 The effect is that the patient ceases to be a "restricted patient", is no longer subject to special restrictions. From that date it will, of course, be necessary to observe in respect of the patient the statutory provisions and procedures specified in the 2003 Act which would apply to any patient who is subject to a compulsion order. Once the restriction order has been revoked Scottish Ministers' special responsibilities for the patient will cease.
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