Report on the Review of the Mental Health (Scotland) Act 1984

Section 7 INTERNATIONAL AND CROSS BORDER ISSUES

Chapter 31

CROSS BORDER ISSUES

1. Part VII of the 1984 Act provides for the transfer of detained patients between Scotland, England and Wales, Northern Ireland, the Channel Islands and the Isle of Man, and the removal of non-UK patients from Scotland. There are parallel provisions in Part VI of the Mental Health Act for England and Wales.

2. We have not received a great deal of evidence on this Part of the Act. It appears, from such evidence as we have, that the procedures for cross-border and international transfer of patients are being operated quite effectively. However, there may be a need to formalise safeguards for the patient.

Transfer within the United Kingdom

Differences between the UK Acts

3. The UK Mental Health Acts are broadly similar, although they differ on some significant issues, such as the definition of mental disorder, and on several practicalities, such as the method of approval of detention. The provisions in the various Acts relating to cross-border transfer are however presently quite similar.

4. It is possible that this will not be the case in the future. In England and Wales, a separate review of the Mental Health Act 1983 is being undertaken by the UK Department of Health, in the light of the report of the Richardson Committee. It is not yet known what the legislative outcomes of that review will be. The same is true as regards any recommendations made in this report.

5. Even if the conclusions reached on cross-border transfer are the same, the timescales for introduction of legislation may differ.

6. There is the possibility, therefore, that the procedures for moving patients within the UK may become more complex. We do not believe that this would be in the best interests of patients, and recommend that there be liaison between the Scottish Executive Health Department, the Department of Health and the Northern Ireland Health and Social Services Department to ensure that, so far as possible, the provisions relating to transfers in the various Acts remain complementary.

Consultation and appeals

7. A patient detained in Scotland may be transferred to England, Wales or Northern Ireland if it appears to Scottish Ministers to be in the interests of the patient¹. There are corresponding provisions in the Mental Health Act 1983 in relation to the transfer of patients to Scotland. Arrangements have to be in place to admit the patient to a hospital and, in practice, this means that a doctor is named at the receiving hospital as having agreed to take the patient. It is also possible for patients subject to guardianship to be transferred within the UK, if Ministers are satisfied that the necessary arrangements are made for the person to be taken into guardianship in the receiving jurisdiction. The provisions relating to guardianship will in due course be repealed by the Adults with Incapacity (Scotland) Act 2000.

8. It appears to us to be appropriate that the grounds for transfer are broadly expressed. There are a number of possible reasons why it would be in a patient's interests to be transferred to another jurisdiction. However, we believe that the specific grounds for transfer should be recorded and made available to the Mental Welfare Commission and, where appropriate, the tribunal (see further below).

9. Where a patient is to be transferred from Scotland, s87 of the Act provides that the Mental Welfare Commission and the nearest relative must be given at least seven days advance notice by Scottish Ministers. There is no requirement formally to notify the patient.

10. For patients transferred to Scotland, s88 provides that the receiving responsible medical officer (RMO) must notify the hospital managers within 28 days of the transfer. After such notification, the hospital managers have a further seven days to notify the Mental Welfare Commission. There is no requirement for the receiving hospital to notify the nearest relative

11. In general, we believe that the safeguards for patients in relation to transfers between Scotland and other parts of the UK should build on those which we recommend in Chapter 11 for transfers within Scotland. The requirement for seven days notice prior to leaving Scotland is consistent with these recommendations. We believe it should be retained in a modified form, requiring notice to be given to the patient, the patient's named person and, where appropriate, the primary carer, as well as to the Mental Welfare Commission.

12. There could be some situations where the patient very much wants to be transferred as quickly as possible, for example a patient who has experienced an episode of mental illness while in Scotland, but whose home is elsewhere and who wishes to return home. There may also be cases where transfer as quickly as possible is clinically desirable. Currently, there is no power to waive the seven day notice period. We believe it should be possible for the notice to be waived where

• the patient is able to agree to this and does so agree, or
• there are strong clinical reasons for an urgent transfer.

13. So far as transfer to Scotland is concerned, the present notice periods are unnecessarily long, and we recommend that they should be replaced by a provision that both the named person and the Mental Welfare Commission should be notified within seven days of the transfer taking place.

Oversight of transfers

14. Transfers may, at present, only proceed on the authority of Scottish Ministers. We understand that, in practice, officials at the Scottish Executive have delegated authority to give Ministerial approval to transfers of non restricted patients which have already been agreed between the relevant doctors.

15. We have no evidence to suggest that this process disadvantages patients. We understand that officials at the Scottish Executive contact the named doctor in the receiving hospital to confirm that he or she is aware of the transfer and is happy to accept the patient. This seems to us to be an important and necessary protection for the patient.

16. The Scottish Executive's staff are also knowledgeable about the technicalities of transfers under the Act and are able to answer queries from doctors and others on the procedure.

17. However, it may not necessarily be the case that the process of approving a transfer need be a Ministerial responsibility.

18. For non-restricted patients, we gave consideration to whether it could be left to the RMO and a doctor at the receiving institution to discuss the practicalities, as is done for transfer within Scotland under s29 of the Act. Whilst this would have the benefit of simplicity, it might not provide the level of patient protection that we see as appropriate.

19. We therefore propose that Ministers should retain a formal responsibility for authorising transfers of non-restricted detained patients between different parts of the UK. As now, we anticipate that this responsibility would in practice be delegated to officials.

20. In relation to restricted patients, decisions concerning transfer are part of the overall management of the patient. We propose in Chapter 27 that day to day responsibility for this should be transferred to the new Risk Management Authority, subject to the oversight of the Restricted Patients Review Board. It would therefore be appropriate for the Risk Management Authority to be consulted concerning such transfers and for the Restricted Patients Review Board to have the responsibility for approving transfers outwith Scotland.

21. In line with our general approach that compulsory measures of care should be based on consideration of a plan of care, there should be a process for recording the background and circumstances of any transfer.

22. As with transfers within Scotland, a patient being transferred to or from Scotland (or the named person) should have the right to appeal against the transfer. The appeal should be to a mental health tribunal.

23. The precise arrangements would depend on the extent to which the legislation in the other jurisdictions is consistent with our proposals for Scotland. Ideally, the patient should have the opportunity to initiate an appeal prior to the transfer taking place, to a tribunal in the original jurisdiction. Even where the appeal is not heard until after the transfer, it would seem to be desirable that it be heard by the jurisdiction of origin, since that is where the original detention was authorised, and it is where the person would return should the appeal succeed.

24. If this approach were to be followed, any appeal against patients being transferred to Scotland would be a matter for the Mental Health Act of the country of origin. However, a useful safeguard for such patients, in our view, would be for the Mental Welfare Commission to visit them after transfer, to ensure that the arrangements being made for their care were consistent with the requirements of Scottish mental health law.

Duration of compulsion following transfer

25. Under the current provisions, upon being transferred to England, Wales or Northern Ireland, the patient is treated as if, on the date of his or her admission to the receiving hospital, he or she has been detained on the basis of an application on that date under the Mental Health Act 1983² or, as appropriate, the relevant Northern Irish legislation. The same applies to transfers from those countries into Scotland.

26. The effect is that the detention 'clock' resets itself. Thus a patient could find that his or her period of compulsion without review or a second opinion on his or her medication lengthens. We do not consider this to be right.

27. We therefore consider that the Act should provide that in all cases the patient should be transferred onto compulsion under the terms of the law of the receiving jurisdiction, but that the compulsion should be deemed to have started on the date that the patient became subject to compulsion under the law of the previous jurisdiction.

State Hospital patients from Northern Ireland

28. Northern Ireland has no secure hospital accommodation. As a result, Scotland receives Northern Irish patients who require to be placed in a secure hospital, including patients detained under civil law, patients committed to a secure hospital by a criminal court and patients given a prison sentence who then become mentally disordered in Northern Ireland and require care under conditions of high security.

29. However, there is no appeal against detention in the State Hospital for patients from Northern Ireland. This is in contrast to s29 (4) of the 1984 Act, which otherwise provides for an appeal by the patient, to the sheriff in the sheriffdom from which he or she was transferred, against being thus detained.

30. Whilst the provisions of the Northern Irish Act are outside our remit, we recommend that consideration be given to ensuring that the rights of Northern Irish patients are equivalent to those of their Scottish counterparts in the State Hospital.

31. There has also been reported to us a difficulty with transferring Northern Irish patients out of the State Hospital, because of a lack of accommodation in Northern Ireland at appropriate levels of security. As we have said elsewhere, patients should not be detained in conditions of maximum security simply because there are no services available to provide a more appropriate level of security. We therefore recommend that consideration be given by the Northern Ireland Health and Social Services Department to how this problem may best be addressed.

Community orders

32. It would be desirable for there to be arrangements to allow patients subject to community orders to move to other parts of the United Kingdom. At the moment, the UK government has indicated its intention to introduce for England and Wales compulsory orders which could be applicable either in hospital or a community setting³. However, we do not know when such legislation will be introduced, or how it may differ from any Scottish legislation.

33. Section 35K of the 1984 Act makes provision for patients who are subject to after-care under supervision, in terms of the English Mental Health Act, to be made subject to an application for a community care order in Scotland, with regulations setting out the details of the procedure⁴. Section 35K and the regulations made thereunder deal with two equivalent orders, introduced by a single UK Act of Parliament. Should any arrangements for compulsion in the community differ substantially in different parts of the UK, such transfers may be less straightforward. This is a matter which should be dealt with by regulations, following the cross border liaison which we recommend above.

Overseas patients

34. Section 83 of the Act gives Scottish Ministers the power to remove a patient who is neither a British citizen nor a Commonwealth citizen having the right of abode in the United Kingdom from the country if it is in the interests of the patient to do so. Section 83 applies to both voluntary and detained patients.

35. There is some concern that s83 does not in practice provide the same safeguards, as far as the need to arrange reciprocal healthcare in the receiving country is concerned, as Part VII does for transfers within the UK, even though s83 requires Ministers to be satisfied that proper arrangements have been made for the care and treatment of the patient in the receiving country. There is also no requirement to consult with the patient, and no right of appeal. We believe that patients being transferred overseas are in even greater need of protection than those being transferred within the UK. There should therefore be provision for the patient to be consulted, and to challenge the decision to remove him or her from Scotland.

36. Certain difficulties with the Section have been commented upon. Despite the statement in the Act that Scottish Ministers should arrange "the conveyance of the patient to his destination..." and "his detention in any place or on board any ship or aircraft until his arrival at any specified port or place in any such country or territory", it is not clear that the detention of the patient legally continues once he or she has left British soil. We discuss this in Chapter 32 in the context of the Hague Convention on the International Protection of Adults, and make a recommendation in that Chapter that compulsion under the Act should last until the patient is handed over to the relevant authorities in his or her home country.

Refugees and asylum seekers

37. We would hope that all non-UK nationals with mental disorders who require to be treated in the UK would have their cases dealt with and decisions about transfer to another country made with sensitivity. However, there are specific issues relating to refugees and asylum seekers whose problems we deal with generally in Chapter 18 (paragraph 48).

The Immigration and Asylum Act 1999

38. The Immigration and Asylum Act 1999 contains provisions which amend the duties of local authorities under the Mental Health Act towards asylum seekers. Broadly, the Act takes asylum seekers out of the normal welfare system, and provides instead a 'safety net' support system administered and funded by the Home Office. Section 120 of the Act amends the duties on local authorities in sections 7 and 8 of the 1984 Act to provide accommodation and aftercare services to persons with mental disorders. Such services may not be provided to persons excluded from benefits under the Immigration and Asylum Seekers Act, if the reason for providing the services is solely because the person is destitute, or because of the anticipated effects of being destitute. The practical effect of this is unclear, since accommodation and after-care services provided under the Mental Health Act are provided because of needs arising from a person's mental disorder, not because the person is destitute.

39. A number of organisations, including the British Association of Social Workers, the Law Society of Scotland, ENABLE and the Scottish Association for Mental Health strongly criticised these proposals (as they were at that stage) in responding to our first Consultation. We are not aware of any difficulties created for local authorities by the existence of these duties in relation to asylum seekers, and we believe that their limitation in this way could create difficulties for a group of very vulnerable people. We therefore believe these restrictions should be removed.

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