3 The Duty to Cooperate
1 Section 10 (3) of the 2005 Act states 'the responsible authorities must act in cooperation with such persons as the Scottish Ministers may, by order made by statutory instrument, specify'. This is known as the "Duty To Cooperate" (DTC).
2 The 2005 Act, Section 1 (2) (a) states 'to cooperate may, without prejudice to the generality of that expression, include to exchange information'. The DTC is reciprocal, requiring two-way cooperation between responsible authorities and DTC agencies.
3 The DTC persons or bodies in Scotland are listed within The Management of Offenders etc. (Scotland) Act 2005 (Specification of Persons) Order 2007. They include registered social landlords, the Principal Reporter to the Children's Panel, electronic monitoring providers, and any persons/organisations providing services to, or on behalf of, a responsible authority in connection with the assessment and management of the risks posed in a relevant area by any person to whom section 10(1)(a) of the 2005 Act applies.
4 As Scottish Ministers have prescribed persons or bodies with a DTC in the 2007 order, the duty can only be extended or removed by amending that order. The responsible authorities cannot include other persons or bodies within the DTC arrangements or exclude those stipulated.
5 There is no legislative requirement to involve other agencies which are not DTC agencies, however, the responsible authorities should consider whether the involvement of other agencies is necessary for the effective operation of the MAPPA. Such cooperation must be compatible with the exercise by those agencies of their statutory functions and be cognisant of information sharing legislation.
Health boards and Special Health Boards
6 Health boards and Special Health Boards are a responsible authority (within the meaning of section 10 of the 2005 Act) in relation to the assessment and management of mentally disordered offenders and restricted patients who meet the criteria in section 10(1) of the 2005 Act.
7 Additionally Health Boards and Special Health Boards have a duty to cooperate with other agencies for non-restricted mentally disordered offenders who are subject to the SONR.
Department for Work and Pensions (DWP) and the Child Maintenance and Enforcement Commission
8 The Management of Offenders etc. (Scotland) Act 2005 (Disclosure of Information) Order 2010 and circular JD 5/2010 sets out the conditions under which information may be disclosed between the Secretary of State for Work and Pensions, (DWP) (Jobcentre Plus), the Child Maintenance and Enforcement Commission (the Commission), the responsible authorities and duty to cooperate agencies in the MAPPA. Albeit the DWP and the Commission are not DTC agencies.
9 The DTC is underpinned by memoranda prepared by the responsible authorities and the DTC agencies in each local authority area, and other relevant DTC agencies (including The State Hospitals Board for Scotland), in accordance with section 10(5) of the 2005 Act. The purpose of the memorandum is to enable the practicalities of cooperation to be agreed locally to ensure that there is a clear and agreed understanding by all involved of their roles and responsibilities. This allows those involved to take account of the variations in the structure and relationships between all the agencies concerned, which may differ from one part of the country to another.
10 The memorandum should refer to the Concordat on Sharing Information on Sex Offenders and be supported by protocols on sharing information. Guidance on developing protocols can be found in the Scottish Executive Justice Department Circular 15/2005. This guidance also covers agencies that are not involved directly in the MAPPA arrangements.
Memorandum of understanding
11 The memorandum drawn up by the responsible authorities and the DTC agencies at local level should at a minimum cover the following areas:
- Legislative provision;
- Principles and purposes of the DTC;
- Agencies to which the memorandum applies;
- Roles of agencies involved;
- Local protocol(s) on sharing information;
- Definitions of terms agreed in the Concordat;
- Media handling strategy;
- Disclosure arrangements and responsibilities;
- Annual report review arrangements.
A model memorandum is provided in the Annex 4 attached to this guidance.
The practicalities of cooperation
12 One of the most important means by which cooperation is achieved is by sharing information. Further detail on the subject of information sharing can be found in Chapter 9 of this guidance.
13 The memorandum should describe the ways in which the agencies agree to cooperate, however, the specific activities involved in cooperation will be determined by the circumstances of each case. The type of activities cooperation will involve can be broken down into four areas:
- Providing a point of contact for other agencies; while much of the formal business of cooperation will be conducted at MAPPA Level 2 or Level 3 meetings, cooperation may also entail informal contact. To enable that informal contact and to channel the more formal engagement, it is important that each agency provides a single point of contact (SPOC);
- Providing general advice about an agency's role including the type of services it provides and how they can be accessed;
- Providing specific advice about the assessment and/or the management of the risks presented by an offender;
- Coordination: this key partnership function requires each agency to perform its' role and to carry out its responsibilities in a way which complements the work of the other agencies.
14 Additionally further information on partnership working can be found in Standard 4 of the Standards and Guidelines for Risk Management (Risk Management Authority 2013).
15 For clarification and reassurance, it may be helpful to refer at each stage to the statutory definition of the duty and the principles outlined above.
Email: Gus MacDonald