There are 9 requirements that may be imposed as part of a Community Payback Order (CPO):-
- Compensation requirement
- Offender supervision requirement
- Unpaid work or other activity requirement
- Programme requirement
- Residence requirement
- Mental health treatment requirement
- Drug treatment requirement
- Alcohol treatment requirement
- Conduct requirement
11.1 Compensation Requirement
An offender supervision requirement will be imposed in addition to a compensation requirement. A compensation order continues to be a disposal available to the court independent of a CPO.
A compensation requirement, as a requirement of a CPO, requires the individual to pay compensation for any personal injury, loss, damage or other matter incurred as a result of the individual's offending behaviour.
Compensation can be paid either by means of a lump sum or by instalments, and should be paid directly to the court.
Where a compensation requirement is imposed:
- the compensation must be paid within 18 months, starting from the date the requirement was imposed; or
- if the offender supervision requirement is for a shorter period than 18 months, the total sum must be paid two months before the end of any supervision requirement. For example, where an offender supervision requirement and a compensation requirement are imposed as part of a CPO, and the offender supervision requirement is to last 12 months, the compensation requirement must be paid in full by the end of the 10 month period;
- the responsible officer will monitor compensation payments through liaison with the court and by requiring the individual to produce receipts;
- if an individual fails to pay the compensation requirement within the required timescale, the responsible officer will notify the court by means of a breach report.
11.2 Offender Supervision Requirement
Where the order contains an offender supervision requirement (plus possibly other requirements) the responsible officer will be a suitably qualified and registered social worker. Whilst accountability in such situations rests with the responsible officer, non-social work qualified staff may, where appropriate, undertake work with the individual as part of the order.
Section 227G of the 1995 Act defines offender supervision as:
'.. during the specified period, the offender must attend appointments with the responsible officer or another person determined by the responsible officer, at such time and place as may be determined by the responsible officer for the purpose of promoting the offender's rehabilitation.'
The court must impose an offender supervision requirement in the following situations:
- where the individual is aged under 18
- where the court imposes any requirement other than an unpaid work or other activity requirement
- where the court imposes two or more requirements
The responsible officer has two key roles:
- to work with the individual and relevant others to achieve change in the individual's behaviour to encourage desistance from offending behaviour; and
- to work with the individual to achieve compliance.
The responsible officer is responsible to the court for the effective planning, management and monitoring of the case management plan, which supports the offender supervision requirement and through that the order. This responsibility involves motivating and supporting the individual to desist from further offending, preparing and implementing the case management plan, keeping it to schedule, organising levels and types of contact and resources to support the interventions, and supporting the individual to achieve the intended outcome of each intervention. The responsible officer also reviews progress, reports to court as required and helps the individual to deal with any obstacles to the successful completion of the CPO.
The responsible officer will be responsible for ensuring the level of supervision intensity is adhered to. This will be determined by regular assessment of the pattern, nature, seriousness, likelihood and imminence of offending. Formal departmental reviews will maintain or vary the case management plan following a review of progress and outstanding outcomes. It should be stressed that in addition to deciding the level of contact, the responsible officer must give consideration to the purpose and nature of that contact. This will be determined by the assessed likelihood of offending and will be geared towards meeting the stated outcomes of the case management plan. The responsible officer must clarify the separate but related issues of risk of offending and risk of harm to others.
11.3 Unpaid Work or Other Activity Requirement
Where an unpaid work or other activity requirement is imposed by the court, it will be for the responsible officer to decide, following discussion post sentence with the individual and the unpaid work case manager, whether is it appropriate for them to undertake "other activity", and what the nature of that activity might be. Because of the complexities of the legislation, and the differing arrangements which operate when this requirement is used as a first or second instance disposal, a separate section can be found in section 22 of this guidance covering the specific procedures to be applied where a court imposes an unpaid work or other activity requirement.
11.4 Programme Requirement
An offender supervision requirement will always be imposed where a programme requirement is made by the court. The duration of the programme must not exceed the period of the offender supervision requirement.
Section 227P(2) of the 1995 Act defines a programme as:
'a course or other planned set of activities, taking place over a period of time, and provided to individuals or groups of individuals for the purpose of addressing offending behavioural needs'.
This includes accredited and non-accredited programmes.
Before a programme requirement can be imposed, the court must be informed (through the Criminal Justice Social Work Report (CJSWR)) of the individual's eligibility and suitability for the programme, the programme availability and confirmation that the programme manager/provider has agreed to the individual's participation. This can be ascertained through consultation between the CJSWR author and the programme manager and should then be clearly identified in the CJSWR.
In some cases where a court has not imposed a programme requirement at first instance, it may become apparent during work with the individual that their participation in a programme could be beneficial. In such cases the responsible officer can apply to the court to have the CPO varied by the addition of an appropriate programme requirement. Consideration may also be given to whether or not the same outcomes could be delivered by structured 1-2-1 work with the individual, which could be delivered as part of the offender supervision requirement.
In keeping with section 227ZA(7)(b) of the 1995 Act, this can in practice, only be done with the agreement of the individual. Where the individual is in agreement with seeking such a requirement, this can be undertaken by means of a letter outlining the request and the reasons for it, with the individual countersigning the request. Such an approach may, depending on the practice of the court, make it possible to avoid the individual having to appear in court.
With regard to best practice the high level standards state that responsible officers should work closely with, communicate effectively with, and participate in reviews with programme providers to ensure that:
- individuals are well prepared and motivated for participation in programmes;
- individuals are well supported to participate in the programme and to learn from it;
- any non-compliance or other practical hindrances to participation are addressed promptly and effectively; and
- individuals are well supported to follow up on goals they have set as a result of participation in the programme.
11.5 Residence Requirement
An offender supervision requirement will always be imposed by the court when a residence requirement is made.
Where a residence requirement is imposed by a court, the individual will require to reside within the designated accommodation. Where the accommodation is a hostel or institution, this requires to be recommended to the court as a suitable place for the individual to reside, and for the court to specify it in the residence requirement. Where the accommodation will require to be funded, the funding should be identified and agreed in advance in accordance with the procedure of the local authority. Where the address is that of a family member, the CJSWR author may wish to ascertain that the imposition of such a requirement will not have a detrimental impact on other residents at that address. (See section 8.1 of this guidance - Domestic Abuse Offences).
Most individuals who are made the subject of a CPO will not require any direct intervention by the responsible officer with regard to accommodation. However some individuals may lack settled accommodation and require practical assistance in securing suitable accommodation in order to stabilise their lives, and improve their prospects of engaging with a period of intervention aimed at reducing the risk of re-offending. Such assistance should be regarded as part of the normal duties undertaken by a responsible officer. Problems of homelessness alone should not suggest imposition of a residence requirement.
A small proportion of individuals who pose a risk of serious harm in the community, require a greater level of supervision with regard to their accommodation in order to live successfully in the community. In these cases, the CJSWR author may recommend to the court that a residence requirement be imposed as part of a CPO, but should only do so after prior consultation about the feasibility of arranging a package consisting of designated accommodation, supervision and support within the community setting. From the court perspective, a residence requirement is likely to provide some reassurance that the individual will be living in a more stable environment, with access to appropriate guidance and assistance to address problems and issues relating to their offending behaviour.
In a small number of cases, the designated accommodation may also involve the provision of varying degrees of support/education, restrictions and stability with the provision of learning support for life skills and independent living. Where a residential placement is thought appropriate to help to address an addiction issue, a residence requirement may be applied in conjunction with a drug or alcohol treatment requirement.
11.6 Mental Health Treatment Requirement
In imposing a CPO with a mental health treatment requirement, an offender supervision requirement will always be imposed. Any period of a mental health treatment requirement imposed must not exceed the period of time specified in the offender supervision requirement.
In contrast, an individual in respect of whom a CPO with mental health treatment requirement is imposed must agree to the mental health treatment requirement otherwise the requirement cannot be made. Therefore a mental health treatment requirement cannot be imposed where the individual meets the criteria for either a compulsory treatment order (under the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act")) or a compulsion order (under the 1995 Act). Whilst an individual must have a mental health condition to warrant a mental health treatment requirement under a CPO, the circumstances must fall short of meeting the criteria for the individual being made subject to compulsory measures under the 2003 Act by the Mental Health Tribunal or the 1995 Act by the court. Where the individual's mental health is assessed as requiring the imposition of more restrictive measures, and where the individual meets the criteria as laid out in section 57A(3) of the 1995 Act, the court should in such cases impose a compulsion order.
Responsible officers may face challenges in relation to a delay in treatment commencing, ambiguity regarding the duration of treatment or the potential for non-completion of treatment within the timeframe of the CPO. This will vary according to resources available locally.
Where it appears to the responsible officer that the individual is willing to engage with a course of treatment (for example, to treat depression or anxiety via their GP), use of this requirement may not be deemed useful or necessary. In such cases, signposting to treatment and providing ongoing encouragement for the individual to remain concordant with treatment may suffice.
Purpose of a mental health treatment requirement
The purpose of imposing a mental health treatment requirement is to ensure that an individual who has been diagnosed with a mental health condition and/or learning disability which contributes to the individual's offending receives support, care and treatment to enable them to improve their mental health in terms of their mental health needs. Section 328 of the 2003 Act provides that "mental disorder" means "any mental illness, personality disorder, or learning disability however caused or manifested". These definitions are adopted for the purposes of the guidance and the term "mental health" is used generically and includes individuals considered "learning disabled". In the latter, it is acknowledged that learning disability itself is not treatable, but that the behaviours that give rise to offending may be.
A mental health treatment requirement is imposed to enable the individual to access assessment and treatment by or under the direction of a registered medical practitioner or registered psychologist with a view to the improvement of the individual's mental health. This treatment will be determined by the opinion of a registered medical practitioner or registered psychologist and should be recorded and updated in the case management plan. A registered medical practitioner is a medical doctor who is registered with the relevant body, and as such is licensed by the General Medical Council to practice medicine.
For a mental health treatment requirement to be imposed under a CPO, the court has to be satisfied, following evidence from a registered medical practitioner, that:
- the individual suffers from a mental health condition;
- the condition requires and may be susceptible to treatment; and
- that the condition is not such as to require compulsory treatment under section 64 of the 2003 Act or a compulsion order under section 57A of the 1995 Act.
The court also has to be satisfied (on evidence from the registered medical practitioner or registered psychologist who will be giving the treatment), that the proposed treatment by the doctor or psychologist for the individual is appropriate, and that arrangements have been made for the treatment to be given to the individual. The CJSWR author must therefore liaise with the relevant medical personnel in advance to determine these facts.
Where consideration is being given after conviction to the imposition of a mental health treatment requirement, to assist in decision making the court may wish to request a psychiatric report which may include a multi-disciplinary assessment. In this instance a multi-disciplinary assessment may include the views of a registered medical practitioner, CJSWR author, community psychiatric nurse and a mental health officer if the individual has had contact with a mental health officer in the preceding 6 months. This assessment will address the need for a mental health treatment requirement and also the nature of treatment deemed appropriate within such a requirement.
Nature of treatment
Treatment can be provided to the individual either as:
- an inpatient in a hospital, (other than in the State Hospital);
- a non-resident patient at a hospital or other place as may be specified; or
- may be specified to be under the direction of such registered medical practitioner or registered psychologist as appropriate to the individual in terms of their mental health and social circumstances.
Otherwise the nature of the treatment is not to be specified in the CPO.
Therefore the individual may receive treatment as an outpatient, day patient or in patient. If treated as an inpatient, it would be inappropriate to treat the individual in a secure setting. If such a level of security is necessary, formal care and treatment under relevant provisions of the 1995 Act or the 2003 Act must be considered and applied.
Section 329 of the 2003 Act defines "medical treatment" as "treatment for mental disorder" and for this purpose "treatment" includes:
- psychological intervention; and
- rehabilitation (including education, and training in work, social and independent living skills).
Implementation of a mental health treatment requirement
The responsible officer will hold overall responsibility for the CPO and will encourage concordance in relation to the individual's engagement with the mental health treatment requirement. This will require regular liaison with mental health specialists involved with the mental health treatment requirement.
Where treatment is being considered on a multi-disciplinary basis, and where this necessitates involvement from agencies other than Justice Social Work (JSW) services, a commitment from the agencies involved will require to be obtained in devising a case management plan. Treatment will be determined by the opinion of the registered medical practitioner.
Where appropriate, and to ensure safeguards, the Mental Welfare Commission may be informed by letter, where a CPO with a mental health treatment requirement is imposed. This is the responsibility of the responsible officer. Circumstances under which the Mental Welfare Commission should be informed include:
- where an individual has previously had several previous periods of detention under the 2003 Act; and
- where an individual has significant learning difficulties or other mental disorder which could impair their capacity to consent/agree.
Review or alteration to the mental health treatment requirement
The responsible officer is responsible for convening departmental reviews where an offender supervision requirement has been imposed as part of the CPO, at the periods specified earlier in the guidance. All effort should be made for the CPO review and any necessary mental health review to be combined.
It is the responsibility of the responsible officer to record any changes to the mental health treatment requirement, in accordance with departmental policies.
It is possible to change the treatment originally authorised by the court to be given under the mental health treatment requirement. This could be appropriate when the registered medical practitioner or registered psychologist considers that it would be appropriate for the individual to receive a different kind of treatment from what was originally authorised. This might be a change in where the treatment is given, or a change to the treatment itself. In either case, the registered medical practitioner or psychologist may make the necessary arrangements for the individual's treatment to be varied. Such a change can, however, only be made if the individual and the responsible officer agree to the change. When a change in treatment or location of treatment is made, the responsible officer must notify the court of the arrangements. The legislation provides for the new treatment package to be substituted automatically for that which was originally authorised. (See Section 227T(7)(b) of the 1995 Act).
Any change to the provider of the treatment or to the location where the treatment is provided should follow full consultation with all those involved in the care of the individual. A review of the individual's circumstances and any changes since the mental health treatment requirement was imposed should be convened and undertaken, at which the individual should be present, where possible, to discuss and agree any such changes and amendments.
If an individual subject to a mental health treatment requirement withdraws consent to treatment, for example, failing to attend appointments with the psychiatrist, a registered medical practitioner should assess the individual. If their mental health has deteriorated to the point that they meet the requirements for detention under the 2003 Act, such detention should be considered. Withdrawal of consent should not, in itself, be seen as such an indication on its own however, and consideration should be given to the reasons behind the person's withdrawal of consent and whether these can be addressed, rather than moving directly to the option of compulsion or disciplinary procedures. In such circumstances, consideration should be given to returning the CPO to court for variation.
Where it is assessed that the individual does not meet the criteria for detention under the 2003 Act, but continues to refuse to comply with the mental health treatment requirement imposed by the court, despite efforts made by those involved in providing the care and treatment under the requirement, consideration should be given to the issuing of warnings, in accordance with disciplinary procedures invoked as specified in this practice guidance.
Where an individual's mental health deteriorates during the course of the CPO so that the individual, following assessment by a registered medical practitioner and a mental health officer, meets the requirements to be made subject to compulsory measures of care and treatment under the 2003 Act, the mental health treatment requirement will be suspended by Justice Social Work (JSW) staff and the court notified of any such changes.
Where an individual is assessed as requiring longer term detention under the 2003 Act in terms of detention under a compulsory treatment order, and once such an order is granted, a request should be submitted to the court for consideration of revoking the mental health treatment requirement and any other requirement which is deemed no longer appropriate. There may be occasions when the CPO is allowed to continue to ensure supervision and support beyond a compulsory treatment order. This may be in such situations where the patient's mental health improves and it is envisaged that the compulsory treatment order may be revoked after a short period. However, in the majority of cases, the CPO would be revoked to avoid a situation where an individual is moving between a CPO and a compulsory treatment order and back again for a period of years.
Additionally, a referral to the appropriate community care social work service should be considered where it is assessed there may be ongoing support needs, once a compulsory treatment order and CPO are no longer in force. It is good practice for the community care social work service to undertake an assessment to determine needs and services which can be offered to help provide support.
11.7 Drug Treatment Requirement
A drug treatment requirement might be imposed when there are drug issues identified, but where an individual has not established a chronic history of drug misuse. Such a requirement will only be imposed in addition to an offender supervision requirement.
The nature of work with individuals made the subject of a drug treatment requirement means that staff will inevitably come into contact with individuals who are parents or caring for other vulnerable people. The safety and wellbeing of children and other vulnerable people is of paramount importance at all times. JSW staff's practice should reflect local authorities' procedures and protocols where substance misuse is a factor in relation to protecting others.
A CPO with a drug treatment requirement provides courts with an alternative sentencing option to a custodial sentence or a Drug Treatment and Testing Order (DTTO). In particular, individuals with drug problems who would not be eligible for a DTTO because their offending history is not sufficiently high tariff, should be considered by the CJSWR author for such a disposal. This may include, for example, female offenders who generally have a lower tariff offending history, or some first time offenders.
Drug treatment, in the context of CPOs, should focus on the needs of the individual. It should also, where possible, recognise that drug treatment programmes may have a higher rate of success where these include some family involvement.
The aim of all treatment should be recovery from drug use. Treatment does not require to be delivered by a drug specialist resource, but can be delivered by a responsible officer who has received appropriate training. However, different people have different routes to recovery and hence treatment could involve all, or some, of the following, as appropriate to the individual's needs and local resources:
- structured preparatory and motivational intervention;
- structured psychosocial intervention (such as cognitive behaviour therapy, trauma counselling or relapse prevention);
- support on family, social and financial issues as well as preparing individuals for education, training and employment;
- medical treatment to directly address the dependence such as prescription of substitute drugs or detoxification;
- relapse prevention; and
- peer support including mutual aid.
Where a drug treatment requirement is imposed, a case management plan will be compiled by the responsible officer setting out what treatment and interventions are planned to address an individual's drug misuse. This process will commence at the CJSWR stage and will be added to once the CPO commences. Depending on the stage of the process at which such an assessment is to be carried out, it may involve the CJSWR author, the responsible officer, addictions workers or others. As in all services providing treatment and care, the individual concerned should be consulted on all aspects of their needs and on the proposed approach to helping them achieve recovery.
Where treatment as a resident is required as part of a drug treatment requirement, such resources would require funding and advance agreement in accordance with the local authorities' procedures. Where individuals have responsibilities for the care of dependent children, particular attention should be paid to the impact for the children of their parent going into residential treatment.
11.8 Alcohol Treatment Requirement
The 1995 Act states that an alcohol treatment requirement will only be imposed in addition to an offender supervision requirement.
The nature of working with individuals affected by the problematic use of alcohol means that JSW staff will inevitably come into contact with individuals who are parents or caring for other vulnerable people. The safety and wellbeing of children and other vulnerable people is of paramount importance at all times. JSW staff practice should reflect local authorities' procedures and protocols where substance misuse is a factor in relation to protecting others.
An alcohol treatment requirement may be considered where the individual's dependence on alcohol contributes to the offending behaviour. Addressing an individual's alcohol dependence can therefore help address offending behaviour as well as wider personal and social needs.
The success of an alcohol treatment requirement may be enhanced where its implementation includes some family involvement.
Treatment can be targeted at individuals who:
- require treatment as a resident in an institution or other place;
- but can also be treated as a non-resident at a place and at intervals as specified as part of the treatment requirement;
- any such treatment is to be under the direction of such a person as specified.
Definition of alcohol dependency
The 1995 Act states that an alcohol treatment requirement aims to reduce or eliminate an offender's dependency on alcohol. Alcohol dependence is a medical term with a meaning distinct from the problems that can occur, sometimes as one-offs, through an uncharacteristic binge. The World Health Organisation (WHO) defines dependency as:
- a strong desire or sense of compulsion to consume alcohol;
- impaired capacity to control drinking in terms of its onset, termination, or levels of use, as evidenced by:
- alcohol being often taken in larger amounts or over a longer period than intended; or
- by a persistent desire to or unsuccessful efforts to reduce or control alcohol use;
- a physiological withdrawal state when alcohol use is reduced or ceased, as evidenced by the characteristic withdrawal syndrome for alcohol, or by use of the same (or closely related) substance with the intention of relieving or avoiding withdrawal symptoms;
- evidence of tolerance to the effects of alcohol, such that there is a need for significantly increased amounts of alcohol to achieve intoxication or the desired effect, or
- a markedly diminished effect with continued use of the same amount of alcohol;
- preoccupation with alcohol;
- interests being given up or reduced because of drinking;
- a great deal of time being spent in activities necessary to obtain, take, or recover from the effects of alcohol; or
- persistent alcohol use despite clear evidence of harmful consequences, as evidenced by continued use when the individual is actually aware, or may be expected to be aware, of the nature and extent of harm.
In the WHO definition, three or more of the previous manifestations should have occurred together for at least 1 month or, if persisting for periods of less than 1 month, should have occurred together repeatedly within a 12-month period.
In relation to alcohol treatment being imposed as a requirement of a CPO, before a court issues an alcohol treatment requirement, the legislation states that the court must be satisfied that:
- the offender is dependent on alcohol;
- the dependency requires, and may be susceptible to, treatment;
- arrangements have, or can be made, for the proposed treatment to take place including where treatment is to be residential, and details of such arrangements.
The court is likely also to want to be satisfied that:
- the requirement is appropriate for the individual;
- the individual is motivated to comply with the requirement and engage in treatment;
- that the work undertaken is focussed on reducing or eliminating alcohol dependency;
- that alcohol is a significant factor in the individual's life, causing impaired general functioning e.g. impacting on health, relationships, employment and contributing to their offending behaviour.
These factors should be taken into account in the CJSWR.
Alcohol treatment, in the context of CPOs, should put the needs of the individual at the centre of their care and treatment. The aim of the alcohol treatment requirement should be recovery from alcohol dependency. Different people have different routes to recovery and hence treatment should be individualised as appropriate to the individual's needs and may include the following:
- structured preparatory and motivational intervention;
- psychosocial intervention (such as cognitive behaviour therapy, trauma counselling or relapse prevention);
- support for family, social and financial issues as well as preparing individuals for education, training and employment;
- structured day care programmes; or
- more intensive residential inpatient care.
Where treatment as a resident is required as part of an alcohol treatment requirement such resources would require funding and advance agreement in accordance with the local authority's procedures.
Depending on the stage of the process, the potential need for this requirement would be identified by JSW staff in consultation with relevant others involved in the treatment of the individual. Local policies and procedures would require to be followed to access funding in providing such resources.
Where a CPO including an alcohol treatment requirement is imposed, a case management plan will require to be compiled by the responsible officer which should indicate what treatment and interventions the individual will receive to address their alcohol dependency. It should also ensure that individuals are well supported to participate in treatment and follow up on goals they have set as a result of it.
Interventions relating to non-dependent alcohol problems
Problematic alcohol use can result in physical, psychological and social harm both for an individual and others and can be closely linked to offending behaviour. Where the degree of problematic alcohol use is hazardous or harmful but does not constitute dependency, this could be addressed through the offender supervision requirement of a CPO by the responsible officer, through a programme requirement, or possibly through the "other activity" element of an unpaid work or other activity requirement. In such cases interventions could generally be considered to include:
- motivational work;
- psychosocial education and provision of information;
- engagement with local projects and community based initiatives to raise awareness; or
- self-help groups.
The intention to address alcohol problems in any of the ways should be recorded in the case management plan which is, as noted in section 10 of this guidance, provided to the court as part of the CJSWR.
11.9 Conduct Requirement
A conduct requirement will only be imposed in addition to an offender supervision requirement.
The intention of the "conduct requirement" in section 227W of the 1995 Act is to provide the courts with additional flexibility to impose requirements on an offender to do or refrain from doing specified things not covered elsewhere in the legislation. In so doing, the court must be satisfied that this is necessary to secure or promote good behaviour by the individual, or preventing further offending by the individual, and the conduct requirement is defined in the 1995 Act as such.
For example, the court may require the individual not to enter a certain street or not to enter a play park. In many circumstances, non-compliance with this requirement may not be known to a responsible officer until guilt is established -where an individual has committed a further offence but the responsible officer is not aware of this until the matter is dealt with in court.
A conduct requirement will not be imposed where another requirement would meet the objective. For example, where it is deemed necessary for an individual to undertake alcohol treatment it would not be necessary or permissible under the legislation, for the court to impose a conduct requirement to ensure that the individual complies with alcohol treatment.