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

Chapter 27

HIGH RISK PATIENTS

Introduction

1. In this chapter we deal with two separate, but linked, aspects of the legislation which deals with patients who present a high risk to others: the imposition of restriction orders (and other similar orders) in cases which have come before the criminal courts, and the arrangements for patients to be placed in the State Hospital. We also address the recommendations of the MacLean Committee.

The MacLean Committee

2. The MacLean Committee was established by the UK Government in March 1999. It reported in June of this year¹⁸. The Committee was asked to consider experience in Scotland and elsewhere and to make proposals for the sentencing disposals for, and future management and treatment of 'serious violent and sexual offenders who may present a continuing danger to the public'. The Committee designated this group as 'high risk offenders'. Our own terms of reference require us to have regard to the MacLean Committee's recommendations.

3. The Maclean Committee took the view that, in general, the primary issue of concern in relation to high risk offenders is how best to assess and manage the risk they present. They therefore made a detailed series of recommendations in relation to the risk management of serious violent and sexual offenders, including the creation of a new sentence, the Order for Lifelong Restriction, and a new body, the Risk Management Authority.

4. The Order for Lifelong Restriction (OLR) is intended largely to replace the existing discretionary life sentence, and would be based on a thorough assessment of risk, both prior to and during the operation of the sentence.

5. The Risk Management Authority (RMA) is intended to develop and promote best practice in risk assessment and management in relation to high risk offenders. It would also have an operational role, in overseeing risk assessment and management of individual offenders subject to the OLR.

6. The RMA would agree a risk management plan for each such offender and commission appropriate services to reduce the risk presented. It would supervise the review of this plan on a regular basis, and report progress to the Parole Board. Decisions as to release would be the responsibility of the Parole Board, sitting as a designated life tribunal¹⁹.

7. Chapter 7 of the Committee's report deals with high risk offenders who have mental disorders. The Committee makes recommendations regarding particular disposals, including hospital directions and interim hospital orders, which we address at the relevant points in our report.

8. In the case of a high risk offender who has been assessed as suitable for an OLR and who also suffers from a mental disorder that meets the criteria for compulsory detention in hospital, the MacLean Committee recommends that the disposal should be an OLR with a hospital direction²⁰ and that this should be a mandatory disposal.

9. The question of OLRs generally is not a matter for this Committee but there is a comment that we would wish to make in relation to this recommendation. The MacLean Committee report points out that those offenders with mental disorder who fall within their designation of high risk offenders are likely to have complex mental disorders, possibly combinations of mental illness, substance abuse disorder, personality disorder, psychosexual disorder and possibly a learning disability²¹. There will be other offenders, however, who have an uncomplicated mental illness, who would undoubtedly present a high risk to the public without treatment, but who are not likely to pose a risk if appropriately treated. We would expect that such offenders should, after careful assessment, continue to be dealt with as now, by means of hospital orders, with restrictions where appropriate.

10. The Committee also makes comments on the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, which we discuss in Chapter 28.

11. Although the recommendations of the MacLean Committee are confined to the group of offenders within its remit, the report suggests that the approach recommended, with its emphasis on risk management, may be relevant to other groups, including patients subject to restriction orders²². We set out below our proposals for restricted patients.

12. In relation to personality disorder, the MacLean Committee is generally of the view that this label is not an appropriate starting point from which to consider the problem of sentencing serious violent and sexual offenders. Many high risk offenders do not attract a diagnosis of personality disorder, and many people with personality disorder are not dangerous. There is still great uncertainty about suitable treatment approaches for personality disorder. The Committee concludes that it has not been able to identify any major clinical development in the management of personality disorder which would justify a change in Scottish practice, namely that the great majority of offenders with a primary diagnosis of personality disorder are dealt with by the criminal justice system.

13. The MacLean Committee considered the possibility of some new form of detention of people with personality disorder who were considered to present a risk to public safety, as proposed for England and Wales by the Home Office²³. They concluded that, in jurisdictions where this had been attempted, the legislation amounted to preventive detention under the guise of mental health treatment. The Committee strongly favoured the alternative approach of improving the assessment procedures in the criminal justice system, to deal more effectively with those who present a high risk. We are in agreement with the views of the MacLean Committee on this point.

14. In general, we take the view that the Committee's recommendations in respect of offenders with mental disorders can be accommodated within our proposed framework for a new Mental Health Act.

Restricted patients

Restriction orders-statutory provisions

15. There are special arrangements for people who have been made subject to a mental health disposal by a criminal court, and who are held to present a particularly high risk. Those who are subject to hospital orders may be placed under additional restrictions by way of a restriction order. (These restrictions also apply to offenders made subject to a hospital direction, while they are in hospital.)

16. Section 59 of the Criminal Procedure (Scotland) Act 1995 (CPSA) sets out the criteria for a restriction order. It may be imposed by a criminal court on a person at the time he or she is made subject to a hospital order where it appears to the court:

"having regard to the nature of the offence with which he is charged;

the antecedents of the person; and

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".

17. Section 62 of the 1984 Act sets out the effect of restriction orders.

18. Firstly, the normal time limits for renewal of detention do not apply. The patient continues to be liable to be detained until absolutely discharged. However, although there is no requirement for detention to be renewed from time to time, there is provision for review. The responsible medical officer (RMO) must examine the patient and report to Ministers at least annually. Furthermore, guidance issued to those involved in the management and care of restricted patients states that, if the RMO considers that the patient's mental condition has changed in such a way that Ministers should be informed, the RMO should take the initiative in making any additional report or recommendation which he or she considers appropriate²⁴.

19. Secondly, any transfer from one hospital to another, or leave of absence, must be approved by Scottish Ministers.

20. Thirdly, the primary power of discharge is vested in Scottish Ministers. Neither the RMO nor the Mental Welfare Commission can discharge the patient, although they can make recommendations to Ministers.

21. There is a right of appeal to the sheriff seeking discharge²⁵. The patient can appeal in a period between six and 12 months from the commencement of the relevant order, and once in any subsequent period of 12 months.

22. The appeal to the sheriff was introduced as a result of the decision of the European Court of Human Rights in the case of X v UK²⁶. Such an appeal right was necessary to comply with Articles 5 and 6 of the European Convention on Human Rights. Under the principles enunciated in the earlier Winterwerp judgement, there must be periodic review of any detention on the basis of 'unsound mind'. Such detention only continues to be lawful where there is

• a true mental disorder established by objective medical expertise;
• which disorder is of a nature or degree warranting compulsory confinement; and
• which disorder persists at the time of review.

Also, the patient must have the right to have the lawfulness of the continuing detention reviewed by an independent and impartial tribunal.

23. The sheriff must therefore direct the discharge of the patient if the criteria for continuing detention are no longer met.

24. Prior to the passing of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, the criteria for the continued detention of a restricted patient were similar to those for other detained patients. The 1999 Act added a new "public safety" test, which must be fulfilled before either the sheriff or Scottish Ministers may discharge the restricted patient. Discharge must be refused if Ministers or the sheriff are satisfied that the patient is "suffering from a mental disorder, the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital, whether for medical treatment or not". We deal with the Act generally in Chapter 28²⁷.

25. Ministers or the sheriff can discharge patients either absolutely or subject to conditions. If a patient is discharged subject to conditions, he or she remains liable to be recalled at a future date to hospital.

26. We are advised that there are around 280 patients subject to restriction orders at any one time. Around half of these are in the State Hospital; one-third are in local psychiatric hospitals and the remainder are on conditional discharge.

Ministers' role in relation to restricted patients

The current role of Ministers

27. Scottish Ministers have a significant role in overseeing the management of restricted patients. This includes not only the major decisions in relation to discharge, but also more day to day management issues. Ministers must approve leave of absence, even at the level of an escorted trip from hospital. They are also responsible for the authorisation of transfers between hospitals and decisions to recall patients from conditional discharge. Decisions by Ministers are based on advice from the responsible medical officer, and internal advice from a psychiatric adviser and officials employed by the Scottish Executive, in some cases supplemented by independent opinions commissioned from elsewhere. In some cases, the decision-making authority is delegated from Ministers to Scottish Executive officials, although Ministers personally approve all decisions to discharge a restricted patient or to transfer a patient from the State Hospital.

28. We considered whether it was still appropriate for Ministers to have this responsibility, particularly in relation to discharge. Originally, it was felt to be right for the responsibility for discharge of restricted patients to be vested in Ministers because of the public safety interest. The Butler Committee, which reviewed forensic provision for patients in England and Wales, took the view that it was acceptable for the Home Office to continue to detain restricted patients whom a tribunal would discharge, because Ministers had a different responsibility from mental health tribunals.

29. This distinction has now largely been eroded. Firstly, the right of appeal to the sheriff has been introduced. Secondly, although the power of Ministers to discharge is worded as a discretion, rather than a duty, it was stated in the case of Anderson ²⁸ that Scottish Ministers would be legally required to discharge a restricted patient if the criteria for detention were no longer met.

30. Also, the view that it is appropriate for politicians to make decisions concerning continuing detention has changed substantially in respect of prisoners. It is already the case that the power to release prisoners subject to discretionary life sentences and those convicted of murder under the age of 18 has been transferred from Ministers to the Parole Board, sitting as a designated life tribunal. The Scottish Executive has also now announced its intention to introduce legislation which will remove the discretion of Ministers in relation to the release of adult prisoners subject to mandatory life sentences.

Issues raised in consultations

31. In our first Consultation, we asked whether it was right that decisions concerning the discharge of restricted patients should be made by a Minister. Responses were mixed, but several key respondents felt that such an arrangement was no longer appropriate.

32. The Law Society did not advocate change at present, saying that it was appropriate that decisions of this nature are taken by a person who is accountable. However, they felt that, if such decisions were taken out of the hands of the Scottish Executive in the case of prisoners, then the same should apply for restricted patients.

33. The Royal College of Psychiatrists felt that such decisions should be dealt with by an independent expert panel or tribunal.

34. The State Hospitals Board said that assessments of fitness for transfer to conditions of lower security are fundamentally clinical judgements and should not be influenced inappropriately by political considerations. All such judgements should be made against explicit criteria and through a process that is transparent and publicly accountable. The Board felt that current arrangements fall short of this ideal, and recommended that a new statutory body with clinical expertise, independent of both the State Hospital and the Scottish Executive, be established, with the responsibility to provide consent to discharge for restricted patients against specific criteria.

35. We took oral evidence from the State Hospital on this point. They commented that the current process was somewhat opaque. Advice to Ministers is confidential, so neither the RMO nor the patient is fully aware of the basis on which Ministers' decisions have been made. In principle, they felt that it was wrong that such a decision should be made by a politician.

36. We agree with this view. Whatever the reality in practice, the current system contains the potential for concern that political considerations might influence discharge decisions. We feel that this would be wrong. In our second Consultation, we therefore proposed that an independent body should consider questions of the absolute and conditional discharge, and recall, of restricted patients.

37. Almost all respondents on this point agreed with the proposal, with most believing that the body should have a power of discharge, rather than simply a power to make recommendations. The Mental Welfare Commission reiterated the proposal they made in the Report of their Inquiry into the Care and Treatment of Noel Ruddle²⁹, that an independent body should assume the powers and responsibilities of Ministers in relation to restricted patients. Support for this view was also expressed by the British Association of Social Workers (BASW), the Scottish Association of Mental Health (SAMH), ENABLE, and the Scottish Users Network (SUN).

38. However, there are still two issues to resolve: what should the independent body be, and how should the day to day oversight of restricted patients be managed? In our second Consultation, three options for the independent body were identified: the Parole Board, the Mental Welfare Commission, and a wholly new body.

Our proposals

39. There was little support for the suggestion that this responsibility should rest with the Mental Welfare Commission. It is of course the case that the Commission has the power to discharge non-restricted patients, but this is rarely used, and the primary responsibility rests with the RMO. To give the Commission the central role of deciding whether to discharge restricted patients would compromise its important role as an independent monitoring body. This is, indeed, the view of the Commission itself. We have therefore discounted this option.

40. The Faculty of Advocates and the British Medical Association supported the idea that the Parole Board be constituted in a particular way to carry out responsibilities in relation to restricted patients, but this was opposed by bodies including the Royal College of Psychiatrists and Greater Glasgow Primary Care NHS Trust, on the basis that this was a body which would not be appropriate for people who should be regarded as patients.

41. We think that there is a strong case for a new body. This would ensure appropriate expertise in the needs of the particular patients under consideration. However, we have also considered the option of expanding the role of the Parole Board. We note that, in relation to discretionary life prisoners it has already taken over the responsibility of Ministers for determining the date of release. The MacLean Committee proposals would continue this role, in relation to offenders sentenced to the new OLR.

42. Giving the responsibility to the Parole Board might be administratively simpler than the creation of a completely new body. However, it would significantly increase the Board's workload, and it would be necessary to review the membership of the Board, to ensure it has sufficient expertise in mental health issues. It would also be necessary to ensure that the Board was adequately resourced to discharge its new obligations.

43. Provided this is done, we believe that there would be advantage in the Parole Board taking over responsibility for decisions currently taken by Ministers in relation to discharge and recall of restricted patients, rather than establishing a new body. When carrying out this function, it should be called the Restricted Patients Review Board.

44. However, while Ministers take some decisions personally, others are delegated to officials (although the ultimate responsibility rests with Ministers). If the role of Ministers is removed in relation to discharge, it would be undesirable for the day to day management to remain with them, since decisions in relation to discharge are likely to be affected by what is known about a patient as a result of managing these day to day issues. The Parole Board would not be well placed to carry out this operational responsibility.

45. The MacLean Committee proposes that, for offenders subject to an OLR, the Risk Management Authority should have responsibility for overseeing risk management. A similar role could be played by the RMA for restricted patients. The RMA would take charge of those responsibilities currently delegated by Ministers to officials.

46. As with other patients, restricted patients should have a plan of care. This should also operate as a risk management plan. The RMA would agree the risk management aspects of the plan with the responsible medical officer. It would then have the power to approve decisions on matters such as leave of absence, on the basis set out in the plan.

47. The RMO would report on the patient's progress to the Restricted Patients Review Board on the same basis as he or she currently reports to Ministers: an annual report supplemented by additional reports in the event of any material change of circumstances.

48. The precise relationship between the Restricted Patients Review Board, the RMA, and the RMO would require to be developed in greater detail. This should be set out in a revised Memorandum on Procedure for Restricted Patients and this Memorandum should be publicly available. It would be particularly important for the Risk Management Authority to liaise closely with local health and social work agencies in carrying out its operational responsibilities.

49. As we have currently already noted, there is a right of appeal to the sheriff for patients seeking discharge. We propose in Chapter 9 that the role of the sheriff in approving and hearing appeals concerning long term compulsion should be given to a new mental health tribunal. Such a tribunal would also consider appeals by restricted patients. Because such appeals may be more complex than those concerning non-restricted patients, and raise issues of public safety, the tribunal in those cases should be chaired by a sheriff. In other respects, the procedure in appeals concerning restricted patients would be essentially the same as for other patients appealing to the tribunal.

50. The provisions regarding the frequency of appeals which could be made would be the same as is currently the case with appeals by restricted patients to the sheriff. As we propose in Chapter 9 there would be an appeal against a decision of the tribunal by either the patient or the Review Board to the Court of Session, on questions of fact and law.

Conditional discharge

51. The evidence we have received suggests that, for the most part, the present arrangements for conditional discharge work reasonably well. There are normally between 35-40 patients subject to conditional discharge at any one time. Such patients can be subject to a range of conditions. Where conditional discharge is initiated by Ministers, there are standard conditions that the patient shall subject him or herself to the supervision of such persons as Ministers may approve; shall reside at an approved address; and shall conduct him or herself in a law abiding and orderly manner. Additional conditions may also be imposed as appropriate to the individual case, for example that the person avoid drugs and alcohol³⁰.

52. Supervision of conditionally discharged patients is normally the responsibility of psychiatrists and social workers, and sometimes also community psychiatric nurses. The Care Programme Approach may be employed to aid liaison between agencies. Initially, reports are provided to Ministers on a monthly basis. Should the patient's situation stabilise, this may be reduced to reports every three or, more rarely, six months. If, at any time, the patient's mental state should appear to deteriorate, Ministers may recall the patient to hospital.

53. One concern which has been identified is the apparent lack of a sanction, should a patient breach the conditions of discharge. It would seem that recall is only felt possible where there has been a deterioration in the patient's mental state so as to require detention in hospital and not because, for example, the patient is abusing alcohol or has committed offences. This may seem surprising, but reflects the ruling of the European Court in the case of Winterwerp³¹, that detention on the grounds of 'unsound mind' can only be justified where the person has a mental disorder of a nature or degree which justifies detention.

54. We asked in our second Consultation whether there was a case for conditional discharge operating in a manner closer to parole, and whether there should be a process for a formal review of conditional discharge where conditions are breached.

55. Many respondents, particularly from social work, supported the suggestion of a formal review. The State Hospitals Board expressed surprise that this was not currently a requirement and considered that this should be a role for the proposed new supervisory body.

56. However, the Royal College of Psychiatrists felt that a review, in the absence of sanctions, would serve little purpose. It was suggested that a specific offence of breaching conditions should be introduced to allow a court to determine any requirement for further sanctions.

57. Other suggestions were made. The Mental Welfare Commission said that conditions of discharge should be clear, should incorporate a care plan, and be grounded in a robust assessment of risk. The Commission also recommended that it be statutorily required to visit conditionally discharged patients. The British Association of Social Workers suggested new guidance from the Scottish Executive on the roles and responsibilities of health and local authorities regarding the supervision of this group.

58. We believe that there is a potential problem but it need not be insuperable. It should be borne in mind that any patient subject to conditional discharge must be assumed to have some degree of mental disorder; otherwise the patient would be entitled to absolute discharge. We understand that European case law allows some latitude to States in determining what degree of mental disorder justifies detention, and such detention can be justified by the need to protect others as well as the need for treatment.

59. It would seem therefore to be possible for a patient to be recalled on the basis of a continuing mental disorder together with evidence of increased risk to the public, on the basis of breach of conditions of discharge.

60. While we are not aware of any evidence of serious failures of co-ordination in relation to the management of conditionally discharged patients in Scotland, we feel that our suggestion of a formal review by the Restricted Patients Review Board where conditions are breached may be a useful additional safeguard, to provide additional reassurance to the public.

61. More generally we feel that, under our proposals the Risk Management Authority would be well placed to issue guidance and improve co-ordination between agencies in managing patients subject to conditional discharge.

62. On that basis, we are not convinced that the case for an offence of 'breach of conditions', as suggested by the Royal College of Psychiatrists, is made out. Such an offence would place people subject to a psychiatric disposal into the criminal justice system, which we do not think is desirable.

Delayed discharge after appeals

63. Currently, a sheriff can delay a conditional discharge until appropriate arrangements have been made for the ongoing care of the patient³². However, if the sheriff decides to grant an absolute discharge, there is no equivalent power to defer release. There is concern that this may not allow time for the relevant agencies to put in place arrangements for support or monitoring of the patient. The Mental Welfare Commission proposed, in their Report on the Care and Treatment of Noel Ruddle,³³ an interim procedure or delayed discharge after a successful appeal, which would allow the implementation of community care plans. We sought views on this in our second Consultation.

64. Relatively few respondents dealt with this point. Although there was some support for such a provision, concerns were expressed about its appropriateness in the light of ECHR. It was suggested that good practice would indicate the importance of anticipating a successful appeal and preparing suitable contingency plans.

65. We have sympathy with this point of view. Furthermore, s2 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 amended the legislation so that the patient does not fall to be released until the expiry of the 14-day appeal period, and is only released then if no appeal has been lodged. This would seem to deal with the concern raised by the Commission, and we believe that to allow a further period of delay would be an unacceptable infringement of the discharged patient's right to liberty. We therefore make no recommendation on this point.

Criteria for admission to the State Hospital

66. Although the State Hospital is often associated in the public mind with mentally disordered patients who have committed serious offences, by no means all of the Hospital's patients fall within this category. The Hospital's Health Improvement Programme shows that, in the period from 1/4/98 to 28/2/99, 26% of patients were admitted from other hospitals, while 43% were sent by the court, and 31% were transferred from prison. As at August 2000, we understand that nearly 40% of the population of the State Hospital were not subject to restriction orders or restriction directions.

67. The Criminal Procedure (Scotland) Act 1995 sets out the basis on which people sent by the Court should be admitted to the State Hospital, namely that the patient 'on account of his dangerous, violent or criminal propensities, requires treatment under conditions of special security, and cannot be suitably cared for in a hospital other than a State Hospital'³⁴. We understand that the State Hospital also operates more specific clinical criteria in determining whether admission in an individual case is appropriate.

68. It is possible, albeit rare, for patients detained under civil procedure to be admitted directly to the State Hospital. The more normal route is by transfer from another hospital. The 1984 Act does not specify directly any specific admission criteria for patients admitted to the State Hospital in these circumstances. However, when a patient is transferred to the State Hospital from another hospital, s29(4) provides a right of appeal to the sheriff. The sheriff must order the return of the patient unless satisfied that the criteria set out in the Criminal Procedure Act apply.

69. In our view, it would be better for the criteria to be set out directly in the Mental Health Act, rather than only to be applicable should the patient choose to appeal.

70. We had some concern that the current criteria were no longer appropriate. We took oral evidence on this point from the State Hospital Board and clinical staff, who did not feel that a change to the criteria was required. In particular, they commented that it would not be appropriate to make the criteria for admission to the State Hospital the same as that for the imposition of a restriction order³⁵, on the basis that many restricted patients were not in the State Hospital, and a significant number of patients in the State Hospital are not restricted patients.

71. Against that, a number of people commented on possible difficulties with the criteria in their responses to our first Consultation. Some local authorities commented that the criteria might fall to be revised when the proposed network of medium secure facilities is in place.

72. The Law Society were concerned about the fact that 'dangerous propensities' was sometimes interpreted to include danger to self, meaning that some patients were transferred to the State Hospital when local services could not provide adequate protection against self harm. The Law Society felt that consideration should be given as to whether this was appropriate.

73. In oral evidence, the State Hospital confirmed that people were sometimes admitted when at risk of self-harm, particularly women. This was not encouraged by the Hospital, since the need is really for intensive rather than secure care, but there may be no safe alternative in some cases. Such patients were at risk of becoming entrapped in the State Hospital.

74. The most direct criticism of the current criteria came from the Royal College of Psychiatrists, who said that the term 'dangerous, violent or criminal propensities' was out of date and should be replaced. The essential aspect of any new criteria was that the nature of the patient's mental disorder rendered the patient such a high degree of risk to others that only high security care could ensure the safety of others.

75. We agree that the current terminology is not appropriate. A term such as 'dangerous, violent or criminal propensities' is not only highly stigmatising, but also categorises people in a way which is no longer consistent with clinical practice. It implies that the person is inherently dangerous, rather than requiring high security care at a particular time because of the need for treatment for a mental disorder. The phrase 'criminal propensities' is especially unfortunate, particularly when, as we point out above, a significant number of patients in the State Hospital have been transferred from other hospitals, rather than admitted on the basis of the conviction of a criminal offence.

76. We therefore propose that the statutory criteria should be replaced by criteria which are more consistent with clinical understanding, and other parts of the Mental Health Act.

77. We considered whether the criteria should specify that there must be a risk of serious harm to others, which would exclude people being admitted to the State Hospital on the basis of risk of self-harm. We have sympathy with the argument that patients who present such a high risk of self-harm that they cannot be safely managed in other settings should be in special units, rather than the State Hospital. We believe that, rather than admit such patients inappropriately to a high security establishment, appropriate services offering intensive support should be developed urgently.

78. Should this be done, we believe that the criteria for admission to the State Hospital could appropriately be narrowed. However, we would not wish in the meantime to make it impossible for a person who is at serious risk to be admitted to the State Hospital, if that is the best available option for the patient.

Appeals against levels of security

79. Currently, a patient transferred from another hospital to the State Hospital has 28 days to appeal against the transfer³⁶. A person sent to the State Hospital by a court may also appeal against the order on the same basis as any other appeal against sentence³⁷.

80. The State Hospitals Board, in responding to our first Consultation, said that the time scale for appeal against transfer to the State Hospital should be extended from 28 days to 10 weeks. They pointed out that patients transferred to the State Hospital are usually in the throes of an acute mental illness, or have undergone a traumatic life event; and that either of these conditions reduces the ability to make informed decisions about the appropriateness or otherwise of their treatment and its setting.

81. We agree with the views of the State Hospital on this point, and recommend in Chapter 26 that the time limit for an appeal against a transfer direction (including one to the State Hospital) should be extended to 10 weeks. However, we feel that there is a broader issue of concern. It is likely that patients admitted to the State Hospital will meet the admission criteria at the time of transfer. The Hospital faces considerable pressure on resources, and is unlikely to admit patients needlessly. However, the aim of the Hospital is to provide effective treatment, so that patients may move on to conditions of lower security in due course. The problem is that the patient, should his or her condition improve, has no legal right to move to lower security. The current rights of appeal would only be relevant in the relatively unusual situation that the patient is able successfully to argue for absolute or conditional discharge.

82. We have received evidence from the State Hospital and the Mental Welfare Commission that there are significant numbers of 'entrapped patients'. These are patients who no longer require the level of security afforded by the State Hospital, but for whom appropriate local services are not available. The State Hospitals Board suggested that there is currently little incentive for local health boards and trusts to arrange secure psychiatric services. The local public is unlikely to welcome such services (indeed quite the reverse), and funding arrangements do not create incentives to develop such services. The Board strongly advocated that an explicit statutory duty be placed on health boards to commission local services to address the need for a range of medium and low security services for mentally disordered offenders.

83. We have considerable sympathy with the position of the State Hospital on this point. However, we have decided that, in terms of our core remit of reviewing the Mental Health (Scotland) Act 1984, it would be more appropriate for us to propose another means of addressing this problem, which is more directed at the rights of individual patients. This is that patients should have a continuing right to appeal against the level of security to which they are subjected.

84. It seems to us that to detain a patient unnecessarily in conditions of high security is inconsistent with respect for the patient's rights, and our general principle of Least restrictive alternative. Furthermore, the proposed development of medium secure units would seem to make it more likely that such an appeal right would be practicable.

85. We therefore proposed this in our second Consultation. There was general support for this proposal, including from bodies such as the Royal College of Psychiatrists, the Mental Welfare Commission, and the British Association of Social Workers. It was strongly welcomed by the State Hospital.

86. The question arises as to what should happen if the necessary arrangements are not put in place to provide care at a lower level of security. Clearly it would be undesirable that a patient who is still assessed as requiring some degree of secure care should simply be discharged. On the other hand, such a right of appeal is meaningless, unless it is capable of being upheld.

87. A number of suggestions were made as to how such an appeal right might be enforced. The Faculty of Advocates suggested that a failure by a health board to comply with directions following an appeal could amount to contempt of court. However, Greater Glasgow Health Board pointed out that there could be practical difficulties in developing appropriate provisions, which may be outwith the control of the health board.

88. A number of respondents suggested that the body hearing the appeal should be able to set a time limit for provision of the appropriate service. After this period, it should have the right to require health boards, or even Ministers, to appear before it to explain any ongoing failure to meet the needs of the patient.

89. We agree that a staged approach is appropriate. We therefore suggest that, should a patient successfully appeal to a tribunal against the level of security, it should set a time within which the necessary provision should be arranged by the responsible health board. The time limit might be of the order of three months. Should arrangements not be made at the expiry of that period, representatives of the health board should be required to appear before the tribunal to explain the position, and to confirm whether there is a prospect of a placement being found within a reasonable period. The tribunal should be able to extend the time limit for a further period of no more than three months. If, at the end of that period, no provision has been made, the tribunal could order that arrangements must be put in place to accommodate the patient within 14 days.

90. Of course, it would be our hope that such a process would rarely be required. The intention is that the existence of this right would help to ensure that a proper range of provision is in place.

91. Although the current concern relates to patients entrapped in the State Hospital, it is possible that the same difficulties could arise in future in respect of patients in medium secure services, who are not able to move to low security settings. We have addressed this in our recommendations.

Prisoners transferred to hospital with restriction directions

92. We discuss in Chapter 26 the procedure for transferring a prisoner to hospital, under a transfer direction. Under s72 of the 1984 Act, Ministers can add a restriction direction. This places the transferred prisoner under the same restrictions as a patient subject to a restriction order.

93. We have recommended earlier in this chapter that the responsibility for the management of restricted patients be transferred from Ministers to the Restricted Patients Review Board and the proposed Risk Management Authority. The question arises as to whether prisoners subject to restriction directions should also be subject to the same regime. There would seem to be a strong case for this, given that the Risk Management Authority's original operational role, as proposed by the MacLean Committee, is in respect of prisoners, as of course is the Parole Board's main function. This might also help to ensure co-ordination of risk management interventions between the time a prisoner spends in prison and time in hospital.

94. Against that, the role of the Parole Board in respect of prisoners and, under our proposals, restricted patients, is primarily concerned with issues of discharge into the community, and of management of risks to public safety. These considerations do not arise in the same way in respect of transfers between hospital and prison. Nevertheless, we believe that the balance of the argument supports a consistent approach to offenders in hospital subject to special restrictions, whether by way of a restriction order or a restriction direction. We therefore propose that the Restricted Patients Review Board and the Risk Management Authority should take responsibility for the management of patients subject to restriction directions, and decisions concerning their return to prison.

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