SWSG Guidance Package Index Ref : G6

Circular No [Health Ref]

March 1998

Directors of Social Work/Chief Social Work Officers

Crown Office

Scottish Courts Administration

Scottish Courts Services

Clerk of Justiciary

Sheriff Clerks

Clerks to District Courts

Chairman, Health Boards

General Managers, Health Boards

Chief Executives, NHS Trusts

Chairman and General Manager, State Hospitals Board

for Scotland

General Practitioners

Copy to : Holders of SWSG/SWSI Circulars and Guidance

Package (circular only)

Dear Sir/Madam

CRIMINAL JUSTICE (SCOTLAND) ACT 1995 AND CRIMINAL PROCEDURE ACT 1995

SUPERVISION AND TREATMENT ORDER GUIDANCE

Summary

1. This circular offers guidance to Health and Social Work Services on the implementation of Supervision and Treatment Orders which became available to the courts in 1996. The orders are intended to fill a gap in the legislative provision for dealing in the community with people with mental health problems who become criminally involved and correspond closely to orders of the same name introduced in England and Wales by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.

Contact Point

2. Enquiries about this circular should be made to Mr B Cole, Social Work Services Group, James Craig Walk, Edinburgh EH1 3BA. (Telephone 0131 244 5438).

Note

3. Copies of the enclosure to this circular are available to other interested parties by contacting Carol Ann Gray, Room 38 at the above address ((Telephone 0131 244 5409).

Yours faithfully

MRS V M MACNIVEN KEVIN J WOODS

SWSG Director of Strategy and Performance Management

NHS in Scotland

Management Executive

Health Boards are requested to circulate this guidance to all General Practitioners in their area.

SUPERVISION AND TREATMENT ORDER GUIDANCE

General Introduction

1. Supervision and Treatment Orders were introduced into the Scottish Criminal Justice System in the Criminal Justice (Scotland) Act 1995. The Act came into force on 31 March 1996 and was consolidated into the Criminal Procedure (Scotland) Act 1995 which came into effect on 1 April 1996. Legislative references in this guidance are therefore to the Criminal Procedure (Scotland) Act 1995. Although Supervision and Treatment Orders are new, they have some similarities with existing statutory provisions for probation orders with a condition of psychiatric treatment. They also correspond closely to orders of the same name introduced in England and Wales by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.

The Purpose of Supervision and Treatment Orders

2. The purpose of a Supervision and Treatment Order is to secure access to supervision and assistance in the community, including medical treatment, for persons who are unfit to stand trial but who have been found to have committed the act with which they are charged, or who are acquitted on the ground that they were insane at the time of the act. The aim is to offer the right combination of medical treatment, oversight and support which will enable such persons to lead settled lives in the community.

Circumstances in which an order may be made

3. The legislation governing Supervision and Treatment Orders is set out in section 57 and Schedule 4 of the Criminal Procedure (Scotland) Act 1995. The court can make an order where a person has been acquitted by a trial court on the ground of insanity at the time of the act, or where the accused is found insane in bar of trial and the court finds, following an examination of facts, that he or she committed the act with which they had been charged.

Medical Assessment and Treatment

4. Before making an order, the court must be satisfied on the evidence of 2 or more medical practitioners approved for the purposes of section 20 or 39 of the Mental Health (Scotland) Act 1984 that the mental condition of the person requires, and may be susceptible to, treatment and is not such as to warrant the making of a hospital order. The court must also be satisfied that the making of a Supervision and Treatment Order is the most suitable means of dealing with the person, that arrangements have been made for any treatment required by the order and that the supervising officer intended to be specified in the order is willing to undertake the supervision.

Social Work Assessment and Supervision

5. Responsibility for the social work assessment of suitability and for supervising a Supervision and Treatment Order will be held by a professionally qualified social worker with experience of mental health work (normally a designated Mental Health Officer (MHO)). Although the costs of supervision will be met by the 100% funding arrangements for criminal justice social work services, staff preparing reports and supervising orders may be drawn either from these services or from community-based mental health services. It will be important for authorities to establish clear procedures for deciding how the responsibility for undertaking assessments and supervising orders is allocated. Any person whose mental disorder is sufficiently serious for them to be considered unfit to stand trial may present some risk to the community. It follows that an indication of willingness to supervise a person who may be given such an order should be given to the court by a local authority only after a thorough consideration of all the circumstances including the risks involved and full discussion with the medical practitioner who will be responsible for treatment. Although not a legal requirement, local authorities should prepare a report for the court to be submitted at the same time as any medical report which offers both an assessment of the person’s suitability for supervision and, if he or she is considered suitable, a clear indication of what supervision would involve and what resources would be available to support the person in the community. Consideration of suitability will include an assessment of:

- the risk which the person may pose;

- whether the person is likely to comply with the conditions of the order;

- the satisfactoriness of the home surroundings;

- whether a condition of residence may be necessary.

The report should also indicate that the arrangements for supervision and treatment have been drawn up in consultation with the relevant specialist medical practitioner.

The Conditions of Supervision and Treatment Orders

6. A Supervision and Treatment Order must specify the local authority area in which the supervised person is to reside and will require him or her to:-

- submit to treatment under the direction of a named specialist medical

practitioner. This should be a specialist practitioner ie a psychiatrist based

either in a hospital or in the community. Wherever practicable it should

be one of the doctors who carries out the assessment;

- comply with instructions from the supervising officer relating to supervision;

- keep in touch with the supervising officer and notify him or her of any change of address.

The order will not specify the nature of any treatment but must specify:-

- the name of the specialist medical practitioner responsible for directing treatment;

- the length of the order (which must not exceed 3 years);

- any requirement as to residence (in which case the Court must consider the home surroundings).

The order may specify the institution at which treatment as a non resident patient will take place but cannot require the supervised person to reside as a patient in a hospital. The order may require the supervised person to reside in an institution other than a hospital, and if so must say for how long. This is likely to be some form of specialist residential facility and it will therefore be necessary to establish how the costs will be met.

7. When an order is made, the court (through the Sheriff Clerk) must immediately give copies to:-

- the supervising officer;

- the person to be supervised;

- in the case of orders containing a residence requirement, the person in charge of the institution;

- the relevant Sheriff Court for the area where the supervised person will reside (along with any relevant papers) if different from the court making the order.

8. On receiving an order, the supervising officer should send a copy to the named specialist medical practitioner responsible for treatment and to the Mental Welfare Commission for Scotland at:

K Floor

Argyle House

3 Lady Lawson Street

EDINBURGH EH3 9SH

Tel No. 0131-222-6111

It is also good practice for the named specialist medical practitioner to keep the supervised person’s GP informed of the existence of the order and the nature of the treatment. The specialist medical practitioner should be responsible for the general medical treatment of the supervised person during the currency of the order.

The Care Programme Approach

9. Policy and practice developments in the field of community care for mentally ill people stress the importance of adopting what is called the "Care Programme Approach" to supporting individuals in the community with severe and enduring mental illness who also have complex health and social care needs. (See SWSG Circular 16/96 Community Care: Guidance on Care Programmes for people with a mental illness, including Dementia.) The approach seeks to ensure the properly co-ordinated management of the resources required to meet individual care needs. Local medical, social and housing agencies agree criteria for entry to the programme and contribute to "packages of care". The lead practitioner (key worker) is determined by the nature of individual needs. Social workers with the task of reporting to the court on whether their authority is willing to supervise a Supervision and Treatment Order should consider, in consultation with the relevant service providers including the relevant specialist medical practitioner, whether the subject meets the criteria for inclusion in and therefore consideration for a programme of this kind.

Supervision in the Community

10. Whether or not the care programme approach is adopted, the social worker undertaking supervision should, in consultation with the specialist medical practitioner, draw up a supervision and care plan which identifies the needs for the individual under supervision and what will be done to meet them. This will involve close co-ordination with other service agencies to meet identified needs related to accommodation, day care and employment, as well as for medical treatment. The plan may also identify a need to work with the family of the supervised person if this will help him or her to lead a more settled life. While the specialist medical practitioner will be responsible for medical treatment under the order, the supervisor and medical practitioner must work closely together in monitoring the supervised person’s mental state. They should arrange regular joint reviews of progress and have a clear understanding that they will communicate any concerns to each other.

11. The supervising officer is responsible to the court for maintaining the order and is the person who must apply to the court to seek to amend the order. In practice, an application should normally be supported by a joint report from the specialist medical practitioner and the supervisor. The supervised person may also make such applications direct to the court. The supervising officer must remain in regular contact with the supervised person and also seek to ensure that the supervision plan is implemented. It is for the supervisor in consultation with the specialist medical practitioner to alert the court if problems arise and to apply to the court formally to amend or revoke the order.

12. It should be noted that all medications will be provided, not through general medical services, but via the hospital services.

Amendment or Revocation of Orders - General

13. Taking account of the need for close co-operation with the specialist medical practitioner, the supervising officer or the supervised person may, at any time, apply to the Sheriff Court for the court to amend or revoke the order by:-

- cancelling any of the requirements of the order (including the requirement for treatment);

- inserting or replacing any requirement which could have been made at the time of making the original order;

- revoking the order, which the court may do if it is of the view that it would be in the interests of the health or welfare of the supervised person to do so.

It may be that the supervised person is admitted to hospital either voluntarily or compulsorily whilst a Supervision and Treatment Order is still in force. In such cases it will be for the specialist medical practitioner to assess and report to the supervising officer about whether the deterioration of the mental health of the supervised person since the date of the order was made is such that the hospitalisation will not be temporary but will require another form of order or whether extension of a Supervision and Treatment Order should be considered at the point of discharge. (See also paragraph 24).

Amendment of Residence Requirements

14. The order must specify the area where the supervised person lives and may specify the supervised person’s residence (provided it is not in hospital). The court should agree the supervised person’s move to another area only if it is satisfied that the requirements of the order regarding medical treatment will continue to be complied with and that the new local authority area is willing to undertake supervision.

15. Where a move to an address in another Scottish local authority area is proposed the supervising officer must contact the social work office for the social work department in the new area immediately and request that:-

- the proposed new address is investigated to assess its suitability;

- the new authority indicates whether the requirements of the order, including medical treatment, can be met;

- the new authority nominates a new supervising officer to be named in the order, who is willing to undertake the supervision.

The initial supervising officer should then apply to the Sheriff Court for the order to be amended by substituting the new authority and new supervising officer. If enquiries show that any of the requirements of the order cannot be complied with, the court shall not amend the order without either cancelling these requirements or substituting ones which can.

16 It is not possible for orders to be transferred to areas outside Scotland. If the supervised person intends to move, or has already moved, away from Scotland then the supervising officer should contact the appropriate social services department for the area where the supervised person intends to live and ask them to investigate the circumstances and to indicate whether the supervised person’s health and social care needs can be met on a voluntary basis.

17. If the authority considers that these cannot be met, the supervising officer should consult the specialist medical practitioner about what to do, both in the interests of the supervised person and where the supervised person may pose a risk to others. This may involve applying to the court under the relevant provisions of Part V of the Mental Health (Scotland) Act 1994 and/or notifying the police.

Amendment and Revocation of Orders - Medical Treatment

18. If the specialist medical practitioner responsible for directing the treatment of the supervised person is of the opinion that:-

- treatment needs to be continued beyond the period specified in the order (but not beyond 3 years from the date of the original order); or

- the supervised person requires a different form of treatment of a kind which he or she could be required to submit to under an order; or

- the supervised person is not susceptible to or requires no further treatment; or

- if he or she is for any reason unwilling to continue to treat or direct the treatment of the supervised person;

he or she must report the matter in writing to the supervising officer who must in turn apply to the Sheriff Court to amend or revoke the order.

19. In cases where the specialist medical practitioner is of the opinion that part of the treatment could be better provided at an institution other than that specified in the order, then, provided that the treatment remains under the direction of the same medical practitioner and the supervised person consents, this may be done without formal amendment of the order. This kind of agreement should be notified in writing to the supervising officer and must specify the place where treatment is to be carried out.

20. Particularly close consultation between the specialist medical practitioner and the supervising officer is necessary in cases where the medical practitioner considers that no further treatment is necessary or that the supervised person is no longer susceptible to treatment. In the first instance, the supervising officer should be fully appraised of the reason; in the second, the supervising officer must know what the implications are and the extent to which the supervised person may pose a risk because of his or her lack of susceptibility to treatment. Where such a risk is identified, the supervising officer and the specialist medical practitioner should decide what steps can be taken to safeguard the public.

21. If the supervising officer becomes aware, for instance through contact with the supervised person, that medical treatment is not taking place, he or she should contact the specialist medical practitioner at once to clarify the situation. Depending on what information the supervising officer is able to obtain, he or she may apply to the court to vary the order. It is the responsibility of the specialist medical practitioner to inform the supervising officer if the required medical treatment is not taking place and to discuss with the supervising officer what the next steps should be. If the supervising officer learns from the supervised person or other source that treatment is not taking place but has not been contacted by the specialist medical practitioner he or she should immediately check with the practitioner if possible before deciding what to do. The court should be notified at once if the supervising officer is concerned that arrangements for treatment have broken down or have not been implemented.

Action Following Amendment or Revocation

22. Where the court has amended or revoked an order, the Sheriff Clerk must give a copy of the amending or revoking order to the supervising officer immediately and, where the amendment involves a change in residence to another Sheriff Court area, copies of the amended order and other documents should be forwarded to the new relevant Sheriff Court.

23. On receiving an amending or revoking order, the supervising officer must give a copy to:-

- the supervised person;

- in the case of orders containing a residence requirement, any person in charge of the "old" or "new" institution;

- the named specialist medical practitioner; and

- the Mental Welfare Commission for Scotland (address at paragraph 8 above).

Non-compliance

24. A Supervision and Treatment Order is not enforceable in the same way as a Probation or Community Service Order. The former is a disposal in respect of a person who has not been convicted; the latter are disposals which follow conviction. The court may vary or revoke the Supervision and Treatment Order but has no power to enforce it or to otherwise intervene in cases of non-compliance, and penal sanctions are not appropriate. It will be for the supervising officer and specialist medical practitioner to decide on the appropriate action. If they believe that compulsory medical treatment is necessary the patient will require to meet the criteria for detention under section 17 of the Mental Health (Scotland) Act 1984. In cases where the supervising officer or medical practitioner believe that the supervised person poses a danger to others but does not meet the requirements for detention under the civil powers, they should act jointly in the same way as they would in respect of any other person in this position. This would require close liaison with the police to ensure that they are aware of any concern about the possible danger to others.

Fitness to Stand Trial

25 Where a person subject to a Supervision and Treatment Order is subsequently considered fit to stand trial and charged with an offence arising out of the same act or omission as that which the examination of the facts considered, any Supervision and Treatment Order ceases to have effect once the indictment or complaint is served.

26. Where a person subject to a Supervision and Treatment Order is found guilty of another offence, the court, before sentencing him or her, must obtain a social enquiry report from an officer of the local authority. This should normally be prepared by the social worker supervising the person, whether or not he or she is a member of the local authority criminal justice social work services staff. This will allow the circumstances of the supervised person and his or her response to supervision and treatment to be considered by the court.

Enquiries

27. Any enquiries on the content of this guidance, or on Supervision and Treatment Orders in general, should be directed to Mr B Cole, Social Work Services Group, Room 16, James Craig Walk, Edinburgh EH1 3BA.