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

Chapter 11

OTHER PROVISIONS RELATING TO PATIENTS SUBJECT TO COMPULSION

Introduction

1. We deal in this chapter with a number of other provisions which affect patients subject to compulsion, namely transfer of patients within Scotland, communication, patients absent without leave, searches and sharing information.

Transfer of Patients within Scotland

2. Section 29 of the 1984 Act contains provisions regarding the transfer of detained patients within Scotland. It provides that patients can be transferred by the managers of a hospital to another hospital, provided the managers of the other hospital consent. Transfers must be intimated by the receiving hospital to the Mental Welfare Commission and the nearest relative within seven days of the transfer having taken place.

3. Currently, s29 allows patients to be transferred from detention to the guardianship of a local authority or a person approved by a local authority. However, that provision will be repealed when the relevant provisions of the Adults with Incapacity (Scotland) Act 2000 take effect.

4. The effect of a transfer is that the hospital to which the patient is transferred is treated as the hospital named on the original detention. The duration of the detention, and time limits for appeals, do not change.

5. It is clearly desirable that there be simple and flexible arrangements to allow patients subject to compulsion to move between hospitals. In many cases, the reasons for a transfer are likely to be because the patient wishes to be nearer family or other local connections, or because the services at the receiving hospital are more appropriate for the patient's needs. However, pressures on services can lead to transfers which are not primarily in response to the patient's wishes or clinical need. We therefore feel that safeguards are necessary.

6. As the Act stands, the patient has no appeal against a transfer. There is an exception for transfers to the State Hospital, which we deal with in Chapter 27. Indeed, the Act does not currently require the patient to be given notice of the transfer before it takes place, or to be advised of the implications of the transfer after it happens. So far as the nearest relative is concerned, there is no right to prior consultation. Information is given after the event, by which time any representations the relative wishes to make may have little effect.

7. We believe that patients should have a formal right to be consulted prior to any such transfer. Ideally, such consultation should allow the patient sufficient time to consider the implications of the transfer, seek advice or make representations. However, we recognise that a minimum period of consultation, if rigidly applied, may delay transfers which the patient would strongly wish to happen, and which are very much in his or her interest.

8. We propose that the normal provision for patients subject to long term compulsion should be that the patient should be given at least seven days notice of an impending transfer. The information which is passed to the Mental Welfare Commission should confirm that this has been done, or indicate the reasons why such notice was not given.

9. We have also considered transfers during emergency and short term detention, and we understand that the Mental Welfare Commission is concerned about the detrimental effect such transfers can have on a patient's welfare. We believe that this is an important issue for operational management in providing acceptable standards of care, but it is not a matter for the legislation. However it could well be a matter for monitoring by the Scottish Health Advisory Service.

10. In Chapter 16, we recommend that the 'nearest relative' in the Act be replaced by a 'named person'. The named person should also be entitled, in normal circumstances, to at least seven days prior notice of a transfer, and the information passed to the Mental Welfare Commission should confirm that this was done, or why it was not done.

11. We also propose in Chapter 16 that, in those cases where the named person is not also the primary carer, the primary carer should have a right to certain information, in order to carry out the caring role. A transfer is obviously a significant change in the circumstances of the service user. Provided the user does not object, the primary carer should be entitled to the same notice as the named person of the impending transfer. The Code of Practice should specify circumstances where it may be appropriate to notify the primary carer of the transfer, notwithstanding any objections by the service user.

12. We would expect that in most cases of long term compulsion the mental health officer (MHO) should be involved in discussion covering the transfer. This may also be a matter which could be dealt with in the Code of Practice.

13. We considered whether patients should have a formal right to request a transfer, but concluded that it was not necessary to spell this out in legislation. However, we believe that the Code of Practice should emphasise the need to treat such requests with sensitivity and respect.

14. We are attracted by the idea that there should be a right of appeal against a transfer. We would hope that this would only rarely be used, since most transfers should be in the interests of the patient. However, where this is disputed, the transfer is such a significant change to the plan of care that, in our view, the tribunal should have an opportunity to consider it. The right of appeal would not apply in cases of short-term detention, since the tribunal would be required to approve any continuation of detention within a reasonably short period in any case. There may also be cases where the transfer is anticipated at the time the tribunal authorises long term compulsory measures, or considers an appeal against them. In such cases, it may be appropriate for the tribunal to approve the subsequent transfer as part of its consideration of the plan of care.

Communications With and By Patients

Written communications

15. Sections 115 and 116 of the 1984 Act contain provisions regarding the correspondence of patients. Mail from any detained patient may be withheld if the person to whom the communication is addressed has so requested it.

16. There is an additional provision in relation to detained patients in the State Hospital. Any postal packet sent by such a patient may be withheld if the managers of the hospital consider that it is likely to cause distress to the person to whom it is addressed or any other person (other than a member of the staff of the Hospital), or to cause danger to any person.

17. Incoming mail to a detained patient can be withheld only in the State Hospital. This can only be done if, in the opinion of the managers of the hospital, it is necessary to do so in the interests of the safety of the patient or for the protection of other persons.

18. There is a list of exceptions to the State Hospital's powers, which preclude interference with correspondence between a detained patient and MPs, the Mental Welfare Commission, various ombudsmen, the judiciary, health boards and trusts, local authorities, legal advisers and the European Court of Human Rights.

19. The State Hospital, we understand, has a policy with regard to incoming and outgoing mail. If the clinical team consider it necessary, a patient's mail is checked and all incoming mail is passed through an X-ray machine. All parcels are opened in the presence of nursing staff. All mail considered inappropriate is dealt with in accordance with s115 of the Act.

20. Any decision by a hospital to withhold a postal packet must be notified, within 7 days, to the Mental Welfare Commission, giving details and the reasons for withholding the packet.

21. Under Section 116, the patient or the sender of a postal packet to the patient may ask the Mental Welfare Commission to review the decision to withhold the postal packet or its contents. The Commission has the power to direct that the postal packet or its contents shall not be withheld. This power does not apply where the intended recipient of the correspondence from the patient has requested that it be withheld.

22. The Mental Welfare Commission made some observations regarding this issue in its Annual Report for 1995/96. The Commission stated that it rarely receives reports from "open" hospitals of mail being withheld, but that it is a reasonably regular occurrence for the State Hospital to notify the Commission of the use of these powers. Some concern was expressed by the Commission that, in circumstances where mail is withheld, the Commission is not given sufficient detail as to the justifications for withholding the correspondence. We understand that the Commission continues to have these concerns.

23. The European Convention on Human Rights contains protection for individual's correspondence. Article 8 states that everyone has a right to respect for his private and family life, his home and his correspondence. It goes on to state that:

"there shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

24. The Committee is not in a position to give an authoritative interpretation of Article 8, as it affects Sections 115 and 116 of the 1984 Act. This is a matter which the Scottish Executive will need to consider, though it would appear to us that the purposes for which correspondence may be withheld under these Sections are capable of coming within the provisions of Article 8.

25. The Committee was not made aware of any major difficulties with the operation of these Sections. We believe that the list of persons and bodies, correspondence with whom is protected, should be widened to include recognised advocacy groups, and to specifically include Members of the Scottish Parliament and European Parliament. Other than this the main problem with this part of the Act would appear to be that it has not kept pace with the development of other forms of written communication, including fax and E-mail.

26. The issue of access to the internet was a significant feature of the Report of the Committee of Inquiry into the Personality Disorder Unit at Ashworth Special Hospital⁹¹. The Inquiry recommended that patients at that Hospital should not be allowed to have 'mobile telephones, personal organisers, palmtop computers, hand helds, laptop computers and pagers' (Recommendation 35). The Report also recommended that patients should only be allowed adapted computers connected to a patients' server in their rooms (Recommendation 33).

27. At the State hospital, all patient computers are 'stand alone'. There are no modems in ward areas, and electronic games and discs are screened prior to use by patients.

28. We agree that such restrictions may be appropriate in a secure hospital. In order to regulate the use of these restrictions, they should have a proper legislative base.

29. We also believe that legislation should clarify the extent to which patients in other hospitals should have access to electronic mail and the internet. In our view, the Act should provide that restrictions should only be allowed where it can be demonstrated that it is necessary to restrict access to such media in the interests of the health or safety of the patient or for the protection of other persons from harm or distress.

30. Such a decision to restrict access should, in all cases, be subject to review. We propose that this review should be by the Mental Welfare Commission, which should have the power to direct that a patient be allowed to use such equipment.

31. The same provisions should apply in relation to other forms of written communication, such as faxes, and it should be possible to extend the powers to other forms of electronic communication which may emerge.

Telephone calls

32. Although the Act is silent about telephone communication, we understand that restrictions are sometimes imposed on patients, particularly in the State Hospital. We are advised that the State Hospital has a telephone policy, with clear guidelines. There is a dedicated telephone for patient use on each ward, which is controlled and monitored by ward based staff. Patients are only allowed to call telephone numbers on a list which has been approved by the clinical team, and all calls are monitored by nursing staff, except those accepted as appropriate by the clinical team.

33. This is broadly consistent with the recommendations of the Ashworth inquiry. Recommendation 34 stated that 'Patients' access to telephones should be limited to telephone numbers on the list of patient's approved numbers. All telephone calls by patients should be carefully monitored, except privileged calls, such as those to legal advisers, in which cases the number should be dialled by a member of staff who, having done so, should retire out of earshot, but maintain observation to ensure no other number is dialled.'

34. There is provision in relation to high security hospitals in the Regulation of Investigatory Powers Act 2000. Under s4, interception of telecommunications in the State Hospital is lawful if in accordance with directions by Scottish Ministers to the State Hospitals Board. The Act received the Royal Assent on 28 July 2000. We understand that directions have not yet been made.

35. We fully appreciate why it may often be necessary for the State Hospital to monitor telephone calls, and to control access to telephones. However we are concerned that 'blanket' policies could be unfair to individual patients, and possibly in breach of Article 8 of the European Convention. We believe that the directions by the Executive should ensure that such policies are applied with due regard to individual circumstances, and contain procedures for independent review by the Mental Welfare Commission.

36. Neither the 1984 Act nor the Regulation of Investigatory Powers Act makes reference to interference with telephone calls in other hospitals, including the proposed medium secure units. Although we have heard little evidence on the matter, we can anticipate circumstances where it would be appropriate either to restrict access to a telephone, or monitor calls made, by a patient in a regional secure unit, or even an ordinary psychiatric hospital. We believe that this should be regulated by statute, on a broadly similar basis to written communications.

37. However, on our visits, it was also pointed out that some people had no effective access to telephone communications for much more pragmatic reasons. There may be circumstances where a detained patient has no funds to make calls, for example if detained when without money on his or her person. Even where patients have money, we were told by patients' groups of phones which were regularly out of order, thus denying patients any direct communication with the outside world. In our view, this is unacceptable.

Patients who are absent without leave

38. Under s28 of the 1984 Act, patients who are absent without leave can be returned to hospital by a mental health officer (MHO), staff of the hospital and others authorised in writing by the hospital, or a police officer. Patients can also be returned to the place where they are required to stay under leave of absence provisions. The power to take a patient detained under s18 into custody lasts for up to 6 months, or the expiry of the period of detention, whichever is longer. If a patient who has been absent without leave is returned or taken into custody within a week of the end of his or her detention, the detention can be extended for up to a week to allow a decision to be made as to whether detention should be renewed⁹². If a patient is returned after more than 28 days absence, an examination must take place to determine whether the patient still meets the criteria for detention⁹³.

39. Sections 120 and 121 make provision for patients being conveyed to the place of detention to be in legal custody, and for patients who escape from custody to be retaken into custody.

40. In 1995, the period during which a patient who is absent without leave could be taken into custody was extended from 28 days to 6 months. We accept that this is appropriate for patients detained by order of a criminal court. However, it was pointed out by a users' organisation that this could in some circumstances prove counter productive. The threat of being taken into custody and redetained, lasting for as long a period as 6 months, could discourage a patient absent without leave from re-engaging with services.

41. We received no direct evidence as to how far this was a problem in practice, and we are aware of different views. On balance, we feel that for civil patients there is a case for a compromise between the original period of 28 days and the current provision of 6 months.

42. Section 108 of the Act makes it an offence to induce or knowingly assist a detained person to absent himself without leave or to escape from custody. It is also an offence to knowingly 'harbour' a patient who is absent without leave. It would appear that these provisions are very rarely, if ever, used. We believe they should be retained as they may occasionally provide a useful deterrent against persons whose actions may place a detained patient at risk. However, we recognise that there may well be situations where a friend or relative may take in or help a person who is absent without leave, out of genuine concern for their welfare. Refusal to do so might place the person at greater risk. We would not wish the law to be used to punish people who act in this way.

Searches

43. It may sometimes be necessary to search a patient's belongings, particularly in forensic settings. This may not only be necessary for physical security, but also to prevent access to illicit drugs. At the moment, the Act contains no specific framework for this.

44. In relation to secure hospitals, the matter was considered in England, in the case of R v Broadmoor Hospital Authority and others, ex parte S and others⁹⁴. Three patients objected to a policy of random searching. Mr Justice Potts concluded that since 'detain' means 'keep in confinement' a general power to search patients in order to prevent escape from detention must be implicit. A general power to search patients must necessarily be implied as part of the duty to create and maintain a safe and therapeutic environment. The legal issue was whether the exercise of that power was reasonable, under the general principles of reasonableness applicable in judicial review cases. On appeal, his view that there is a general power of search was upheld.

45. It would seem that this principle could apply to all detained patients, not only those in secure hospitals. However, the reasonableness of such searches will depend on the particular circumstances.

46. If this is also the legal position in Scotland, it may not be necessary for the Act to make specific provision in relation to searches. However, we feel that it is important that the rights of patients are clear in relation to this. It has also been pointed out to us that visitors may require to be searched in some circumstances. We therefore believe that all services which accommodate detained patients, and who would in some circumstances carry out searches, should be required to have a clear policy in relation to this issue. The Code of Practice should set out the general parameters of these policies. The Mental Welfare Commission should monitor the operation of search policies.

Sharing information regarding patients

47. Another issue which has been raised with the Committee, particularly by people working in forensic settings, is the extent to which patient information can be disclosed to other organisations, such as the police and prisons, as part of intelligence gathering or risk assessment processes. The extent to which the public interest can override the normal requirements of patient confidentiality is not always clear.

48. In 1997, a report was published by the Caldicott Committee on the Review of Patient-Identifiable information in the NHS. The UK government made a commitment to implementation of the report, which recommended that 'Guardians' be appointed in health organisations to oversee issues of information management. The Caldicott Committee's remit did not extend to Scotland, but a number of the Committee's recommendations were taken forward by the Scottish Office, which issued a 'Manual for Caldicott Guardians' in 1999. In summarising guidance on protecting and using patient information, this manual stated:

'Reflecting a lack of legal clarity, complex ethical dimensions and the different viewpoints of different sections of society, the guidance on some issues may reflect the perspective of the issuing body and conflict, at least in part, with guidance issued by other bodies', and

'This whole area is in a state of flux at the moment with the onset of Human Rights legislation and an ever-changing legal position'⁹⁵.

49. So far as we are aware, there is no Scottish legislation specifically concerning this, and few relevant Scottish judicial decisions⁹⁶, although general legislation such as the Data Protection Act 1998 is relevant. There is a Code of Practice on the Confidentiality of Personal Health Information, which is, we understand, being updated. The current Code was issued in 1990⁹⁷, and states that information can be made available where the public interest in passing the information outweighs the duty of confidence to the patient. It would seem to be clear that information may be disclosed where this is necessary to prevent serious harm to others: for example where there is reason to believe that a person may be about to commit a serious crime. What is perhaps less clear is the extent to which information can be shared as part of long term risk assessment and risk management procedures.

50. We considered whether this was a matter which required to be addressed in the Mental Health Act. On balance, we have concluded that this is not appropriate, at least at the moment. The issue of patient confidentiality, and the difficulty of knowing how far it extends, affects all patients. While there may well be a case for general legislation, to provide separate legal rules for some patients with mental disorders risks confusing the position further. Furthermore, we have received little evidence which would assist in articulating what special rules might apply to patients with mental disorders, or in particular to those thought to present a high risk.

51. That said, we agree that practitioners need clearer guidance than is currently available. The general framework should be contained in the revised Code of Practice on Personal Health Information. In relation to patients subject to compulsory orders, this should be supplemented by more specific guidance in the Mental Health Act Code of Practice. Finally, we understand that, in the follow up to the Caldicott report, all Scottish NHS Trusts and Boards are required to develop local protocols governing the disclosure of patient information to other organisations⁹⁸. These should take due account of the issues of risk assessment and sharing of intelligence which may be relevant for some patients, but also of the rights of all patients to proper safeguards against inappropriate disclosure of confidential information.

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