What does "good practice" in relation to court-mandated substance use treatment look like?
At the very highest level, the evidence seems to suggest that overall and on average, court ordered treatment is less effective than voluntary treatment, but still likely to produce more positive outcomes for people than custody. Beyond that, the evidence on how best to maximise the potential benefits, and minimise the potential harms, of court ordered drug treatment in response to offending behaviour is growing but remains uncertain.
The evidence suggests that the most evidence-based community sentencing option for people with substance use problems would be one that:
1. Does not widen the reach or deepen the intensity of punishment.
2. Prioritises keeping people out of custody, in recognition of the harms prison causes, particularly by elevating their risk of drug related death due to multiple risk factors that are prevalent in, or directly caused by, prisons.
3. Recognises that substance dependency is a health condition and should be treated that way.
4. Recognises that while traditional models of voluntary treatment begin at the "action" phase, people who are mandated to treatment have several preparatory steps to move through first. Therefore, sentences need to support the person to make an agentic choice to change.
5. Recognises that a strong therapeutic alliance and support system forms the basis of almost all effective drug treatment, and prioritises a strong therapeutic alliance.
6. Recognises that no single response is appropriate to everyone, and effective responses are based on thorough individualised assessment and targeting.
7. Recognises the role of social exclusion and economic distress in substance use and offending, and provides an integrated and comprehensive care package addressing multiple needs.
8. Provides a range of different types and modes of drug treatment for different needs.
9. Recognises the significant resources needed to provide a consistent, thorough and high quality service at appropriate dosage.
The following findings are summarised from the evidence review, which is annexed in full (including all references) on page 25.
Understanding drug use, recovery and desistance
Substance use disorder and offending behaviour are both extremely complex phenomena. Like all complex and contested concepts, there are many different definitions of problematic or disordered substance/drug use, and every person affected will have a unique experience. Its symptoms manifest in a variety of ways: cognitive (affecting the person's thoughts and the way they think), behavioural (affecting the actions the person takes) and physiological (affecting processes and chemistry in the person's body, especially their brain, the organ that coordinates their thoughts and actions).
This experience is overall characterised by a lack of control over ones own thoughts or actions - the person can perceive the potential or real harm to themselves and their loved ones, yet experiences an inability to turn these thoughts into a different behaviour, and possibly suffers acutely when they try. This must be borne in mind when thinking about how our services, and their policy environment, can best support people recovering from problematic drug use.
Recovery, desistance and agentic change – what can we expect from "treatment" for this group?
There are a number of theoretical models of how recovery from problematic substance use and desistance from crime each work. Ultimately all models rely on some degree of intrinsic individual motivation to change, and all models to date have failed to identify consistent types of external events that can make someone change. Rather, the most consistently reported experiences of change are not linked to an external "cause" but instead depend on the person's self-motivated decision to use their own agency to change their behaviour.
Extensive evidence has been found for a congruous account of recovery and desistance along the following lines:
1. The person must experience a genuine "crystallization of discontent" – meaning that they must come to truly believe that the behaviour (whether that is offending or substance use) is causing other problems or failures in their life, and that the benefits and rewards no longer outweigh the risks and consequences.
2. The person must experience a genuine "vision of the feared self" – meaning that they must come to see themselves as being on a trajectory that will lead them to become a person they do not want to be.
3. The person makes an "agentic decision" to change – meaning that, as a result of the experiences above, their personal agency guides them logically to the decision to change their behaviour, because it has become what they themselves want (regardless of motivations linked to external forces like what their family members or employers want).
4. The person then embodies and takes action on that decision, through "changing preferences and supports" – meaning that, once a person makes a genuinely agentic decision to change, their preferences will naturally begin to align with a more "pro-social" lifestyle and identity, and they can then safeguard those changes by putting supports such as treatment services and lifestyle changes in place.
Notably, while this process is similar for both desistance and recovery, the ability for these two processes to influence one another does not appear to be symmetrical in the studies reviewed. In general, when a person first made an agentic decision to stop using drugs, this most often led to them also ceasing offending behaviour. However, when a person first made an agentic decision to stop committing crimes, ending substance use did not always follow.
Recognising that this process of agentic choice must be at the core of anyone's recovery or desistance if it is to last, highlights the importance of considering very carefully what "success" or "progress" might look like for the population of people receiving court sentences. There is some evidence that mandated treatment can be as effective as voluntary treatment (eg NIDA, 2014), and other evidence contesting this claim (eg Van Wormer and Davis, 2016). What is clear is that mandated treatment cannot be effective if it does not first address the person's motivation and readiness to change. This is supported by findings from LS/CMI data from assessments of people on community sentences in Scotland, which show that those with drug related problems are significantly more likely than those without drug related problems to be recorded as having "motivation as a barrier".
There are two groups of clients who may enter mandated treatment:
- those who have already made a genuine agentic decision to change, and for whom drug treatment will be helpful in enacting that decision and maintaining consequent lifestyle changes.
- those who have not yet made a genuine agentic decision to change, and for whom treatment may be useful to either help them reach that point, or provide knowledge they can utilise in the future when they reach that point themselves.
Mandated intervention can be effective, if the goals and modes of delivery are set appropriately, with cognisance of the need to foster the person's agentic change rather than putting them through a general "treatment" they are not yet ready for. Additionally, those populations with lower treatment efficacy may still be efficient investments, considering that the costs and harms of their chronic condition and frequent contact with the justice system are likely also higher.
Role and aims of treatment for this population
The evidence demonstrates that mandated treatment for the population of people who have substance related problems and also criminal charges must be cognisant of this population's different starting point in the stages of change, compared to people voluntarily entering treatment. In order to foster lasting change in people's lives and behaviour, treatment must focus on fostering a genuine agentic change in the person's worldview. Therefore, there is a larger role for interventions aimed at developing the person's readiness to change, than there might be for other populations, and those involved in treating and supervising them must recognise that their progress may appear slower and face more setbacks.
Court process and judicial supervision have the potential to either support or disrupt the development of this agentic change. Since a necessary step is for the person to develop a genuinely held belief in the connection between their drug taking behaviour and other problems in their life, clear communication and timely processing can help the person to draw this connection, while decisions that seem arbitrary or so slow as to become disconnected from the precipitating behaviour may sever this connection in the person's mind.
Features of evidence based mandated treatment
As with all complex interventions in complex systems, there is a wide range of ideas about what outcomes should be sought, how to measure those outcomes and also how to prioritise them when they may be in tension. Moreover, the body of literature that assesses interventions for this population may be significantly biased in favour of interventions and outcomes that lend themselves to rigorous study designs and measurement, rather than those that make the most difference to people in actuality.
This means that, overall, while there is extensive literature on drug treatment and on recidivism from crime, there is a lack of high quality, comparable evidence to draw on in relation to people at the intersection of both issues. To help overcome this limitation, Wallace argues that policy makers and practitioners should expand their ideas of evidence for "effectiveness" for this group.
This section summarises the current available knowledge on effective interventions for this group.
The leading work on effective mandated drug treatment (Wallace, 2019) proposes that the ideal approach to delivering treatment to mandated patients is the "Matrix Model". This involves medically supervised detoxification if required, then the person being enrolled in a day-treatment / outpatient model that is:
1. Intensive (4-5 days per week),
2. Extensive (minimum 18 months including continuing care), and
3. Comprehensive (incorporating multiple approaches including a therapeutic alliance, various forms of individual and group counselling / therapy, drug testing, education and family / peer involvement, and addressing multiple needs).
In essence, this model makes many of the features laid out below available, and matches people to those best suited to their needs at any given time.
Specific features of evidence based mandated treatment are:
- Thorough individualised assessment and targeting: Assessment and targeting are crucial to ensuring people receive the right interventions for their circumstances and needs. This should begin with thorough assessment at intake, and continue throughout treatment.
- Strong therapeutic alliance: There is extensive evidence that the relationship between a person and their practitioner(s), (often referred to as a strong Therapeutic Alliance / Support System (TASS)), is a key factor in both treatment retention and success.
- Integration and recognition of early stages of change: there is a need to lengthen expectations regarding how long a person may take before being ready to make a change, and also to refocus treatment on fostering the conditions for the person to make an agentic choice to change and develop an internal motivation to maintain recovery.
- Effective interventions: the following types of interventions are generally considered to be either effective or state-of-the-art (although only partially validated):
- Cognitive Behavioural Therapy/Relapse Prevention/Social Skills Training
- Twelve step facilitation / guidance using AA/NA/CA/CMA etc
- Individual Drug Counselling and/or Supportive-Expressive Psychotherapy
- Community Reinforcement Approach/ Contingency Management
- Integration of harm reduction and moderation approaches / abstinence by gradualism
- Affective, Behavioural and Coping skills
- Medication Assisted Treatment (MAT)
- Respond to multi-problem clients with an integrated and comprehensive care package: there is a longstanding and well-corroborated evidence base showing a complicated but strong correlation between people who experience trauma and/or mental ill-health, people who experience severe multiple disadvantage, and people who use substances, both generally and problematically. The most effective treatment approaches help to target all of the areas in which the person is struggling or requires support. The data presented below on the needs of people on community sentences in Scotland shows that, in general, those with drug-related problems are assessed as having poorer mental health, higher rates of trauma, and higher rates of homelessness or housing insecurity, than those without drug related problems.
The role of judicial supervision in community drug treatment
The idea of judicially supervising a person's journey through substance use treatment raises many complex issues that are impacted substantially by consideration of what the alternative path for that person might be. There are a number of theoretical mechanisms that may be relevant to considering effectiveness, and can be summarized as:
- In favour of judicial supervision:
- Formal accountability and fear of negative consequences may be effective for a small proportion of people, who otherwise struggle to commit to recovery.
- If processed in a timely way, the experience of judicial supervision may help the person to connect their problems with their substance use, contributing to developing their agentic decision to change.
- The ability to supervise someone's treatment closely may be the factor that causes a court to give the person a chance in the community instead of sending them to custody.
- Against judicial supervision:
- Increased time spent in court and around justice professionals may contribute to strengthening the person's identity as an offender, which is a known criminogenic risk.
- A number of features of judicial supervision may be harmful to the therapeutic alliance.
- Judicial supervision (in particular, negative reaction to lapses or mixed messages between court and treatment providers) may trigger resistance or reactance from the person.
- A number of features of judicial supervision may provoke fear, stress and anxiety, potentially to an existentially threatening level, for the person – which can be a trigger for relapse, recidivism and/or disengagement from the process.
- The more frequently a person comes before a court, the more opportunities the court has to send them to custody, with the associated disruptions to treatment and elevated risk of death due to multiple risk factors that are prevalent in, or directly caused by, prison.
The core of recovery (agentic change), and the core of treatment (the therapeutic alliance), are both in tension with the criminal justice system's focus on compliance and enforcement. While court mandated treatment may recognise the need for support and treatment in order to change behaviour, requiring someone comply with the treatment and support package or face punishment can in fact rupture both the agency and the alliance. This may weaken the potential benefits and reduce the impact of treatment.
However, this argument only suggests that mandated treatment will be less effective than voluntary treatment. If the alternative to mandated treatment is even more focussed on compliance and control, such as a prison sentence or an order with multiple onerous requirements, then mandated community-based treatment may still be less harmful.
What do we know about people with substance use problems serving community-based sentences in Scotland?
There are significant limitations in the data available on people in the justice system who use drugs. In particular, around two thirds of people convicted are sentenced without a social work report, so no information is available about them.
For those who do receive an assessment and report before sentencing, data on drug use specifically are not recorded. The best proxy measures available are a variable called "drug or alcohol problem: work/school", and the presence of drug offences in the person's history. By this measure, between 2017-2021 around 1,433 people assessed per year are potentially likely to have drug related problems.
More detailed data is available only for people who receive a supervision-based community order, or some custodial sentences. Amongst this group, consistent with other research in this field, the data shows that multiple disadvantages tend to cluster together with higher prevalence amongst those with drug related problems. For example, between 2017-2021, people with drug related problems were more likely than those without drug related problems to:
- face homelessness or housing insecurity
- show indications of poor mental health, depression, anxiety and distress
- have experienced trauma and victimization
Variables from the LS/CMI database held by the Risk Management Authority on all of those receiving initial assessments are presented here. However, quantitative data relating specifically to drug use at this assessment stage is very limited and this analysis is therefore based on proxy measures for identifying people with drug dependency. These proxy measures are not ideal for a number of reasons, and may under or over estimate "true" rates. However, currently these are the best measures available and are presented here to give some idea of the order of magnitude of people who may have a drug problem identified at this stage.
- Around one third of people convicted have typically received a social work report before sentencing (between 2016/17 and 2019/20).
- Of those receiving a social work report before sentencing, there are an estimated 1,433 people who may potentially have drug related problems per year over the last 5 years (average, with a total of 7,163 people in this group between 2017 and 2021).
- 65% of those who may potentially have drug related problems (4,660) did not go on to receive a more detailed social work assessment.
- On average for this period, 68% in the group who potentially have drug related problems received a CPO, 13% received a custodial sentence and 8% received a DTTO, however there has been a shift away from CPOs in favour of custody for this group in the most recent year for which data is available.
Compared to the remainder of the population receiving initial assessments, people potentially likely to have drug related problems are:
- Significantly more likely to be identified as requiring supervision or intervention (83%, compared to 67% for those with no indication of a drug problem), but only slightly less likely to be identified as feasible for community disposal (94%, compared to 96% of those with no indication of a drug problem)
- Slightly more likely to be identified as being on a trajectory of worsening offending (47%, compared to 43% for those with no indication of a drug problem)
- Somewhat more likely to be identified as meriting fuller assessment (7%, compared to 5% for those with no indication of a drug problem)
- Slightly less likely to receive the disposal that social work recommend to the court (47%, compared to 50% for those with no indication of a drug problem). It is also notable that the disposals recommended by social work, and those imposed by the courts, appear to have diverged over time.
More detailed data are available for people who do receive an order that includes supervision. For the purposes of this analysis, people scoring 0 or 1 (on a scale from 0-3) on the LSCMI variable "current drug problem", meaning those with more than minor drug related problems, have been compared to the remainder of the population receiving the same assessments. For ease, these groups will be referred to as "people with drug-related problems" and "people without drug related problems" in this section of the analysis.
- People with drug related problems in this group are more likely than those without drug related problems to face housing issues (23% recorded homeless or transient and 42% recorded as having accommodation problems, compared to 10% and 21% respectively).
- People with drug related problems show indications of significantly poorer mental health than those without drug related problems (for example: higher prevalence of attempted or threatened suicide (28% cf. 20%), self harm/mutilation (22% cf. 13%), as well as multiple indicators of depression, anxiety and distress).
- People with drug related problems also appear to have experienced significantly more trauma than those without drug related problems (for example higher prevalence of victimisation in; family violence (39% cf. 27%), physical asault (43% cf. 27%), sexual assault (12% cf. 8%), as well as higher rates of exclusion from school and indications of "severe problems of adjustment in childhood").
People with drug related problems are more than twice as likely to be assessed as having motivation as a barrier than those without (48% cf. 23%).
What do we know about the processes, services and interventions involved in delivering treatment-based orders across Scotland, and to what extent do the current approaches being delivered across Scotland appear consistent or inconsistent with the evidence on good practice?
The broad outline of the Scottish approach broadly aims to achieve most of the features of good practice identified in the review – the legislation, guidance and policy aim to concentrate both resources and intervention on those with the greatest needs and the most likelihood of benefiting, while moving towards a public health oriented approach to people who both use drugs and commit crimes. However, whether the scale and relevant thresholds are ideally calibrated is not clear, as is the merit of substantial regional variability. Moreover, the necessity of offering both DTTOs and CPOs with a treatment requirement remains unclear, as the conditions of a DTTO can be almost exactly replicated within the CPO framework.
The picture of service delivery and outcomes for people subject to mandated drug treatment in Scotland is unclear. What is clear is that services vary widely in their structures and approaches across the country.
Eligibility, targeting and assessment
CPOs and DTTOs are available for similar populations. Both are for people whose offending is sufficiently severe that they have not been diverted from the justice system earlier, are imposed in situations where the person might otherwise receive a prison sentence, and can provide (and require compliance with), drug treatment for people who use substances problematically. However, a CPO is potentially both available and suitable to a wider range of people, as it is a more flexible and general-purpose order.
The specific procedures and assessments used will vary depending on local court practice, local authority social work arrangements and local health board and Alcohol and Drug Partnership (ADP) arrangements.
The process established by the legislation and practice Guidance is complex, containing multiple pathways and many key decision or transition points – each of which reflects a potential opportunity for someone with substance related problems who needs treatment to "fall off" of the pathways to a treatment-based community order.
Assessment of practice against the evidence base: eligibility, targeting and assessment
Eligibility and targeting
The evidence suggests an apparently high number of people in prison who have substance use problems, and a relatively low number of people who receive DTTOs or CPOs with a treatment requirement. The data demonstrates a mismatch between the proportion of people recommended for community based sentences by justice social work, but receiving a custodial sentence instead.
There are some potential tensions in the practice guidance for the orders. For DTTOs, social workers are advised to prioritise those with high-risk use patterns. However, they are also advised that CPOs may be more suitable for people if complex social circumstances might impede their focus on treatment, there are additional issues related to the offending that would not be addressed, or the person requires medium to long term residential treatment. One possible reason for the low rates of DTTO usage, is that it is unlikely that there will be many, if any, people whose substance use is sufficiently problematic to make them eligible for a DTTO, who don't also have the kind of co-occurring problems that then exclude them.
The community sentencing process in Scotland is largely based on individualised assessment, uses a well-validated tool (the LSIR or LS/CMI) to assess Risk, Need and Responsivity (RNR), and aims to tailor the sentence and interventions a person receives based on RNR principles – all of which are generally supported by the evidence.
The treatment offered in a DTTO or CPO drug treatment requirement is also based on the individual's assessed needs, but the fidelity between needs and treatment received may be higher in CPOs with treatment requirements than DTTOs, because the treatment details are not specified by the court.
However, while this general approach is consistent with the evidence, there remain questions about whether this approach is implemented in optimal ways, specifically around:
- Timing and coverage of assessment
- Criteria for orders
- Assessment tools
- Resources and time required
The complex geographic arrangements in the court, community justice, and health systems may mean that in cases where a person is tried for offending in an area other than where they live, the court may have less information about, understanding of, experience with, or trust in, the community services they can receive. While the sentencer can still request a report from the justice social work department in the person's local area, this reduced familiarity may have an impact on the decision to request an assessment, and about what sentence is believed will best serve the intended purpose.
Overall, both treatment based orders provide a similar framework, based on accessing treatment relevant to the person's assessed substance-related needs, while keeping them in the community.
However, DTTOs can be seen as offering less flexibility in how they are delivered. On the other hand, a CPO with a drug treatment requirement offers less scrutiny of the person's progress in drug treatment (because tests are not reported to the court, and court reviews are less common), but also involves both more support and more scrutiny of their progress in other domains of life. Depending on the person and their circumstances, and the court's and social worker's expectations, this could either be an enabling factor or a barrier to successful completion of the order.
While DTTOs may offer less flexibility in the delivery and management of individual cases, Justice Social Work departments and Alcohol and Drug Partnerships have a wide degree of flexibility in terms of how they structure and deliver services for their local area.
Assessment of practice against the evidence base: service delivery
The evidence reviewed shows a complex system and a high degree of local variability. While limitations in the data make it difficult to draw a complete picture, in general the evidence suggests that justice social work services tend to provide quality assessment and support, while drug treatment services can be more variable, but are working through a period of implementing change and are aware of key challenges the sector faces.
The DTTO practice guidance is now significantly out of date: having been published in 2011, it pre-dates the current Community Justice structures that have been in place since 2017, as well as the current crisis of drug deaths. It also refers to a number of outdated features in the justice system, including Probation Orders (replaced by Community Payback Orders) and Social Enquiry Reports (replaced by Justice Social Work Reports). Other elements of the guidance appear to be inconsistent with current day practice or service structures, and the advice it contains on both mental health and homelessness are ambiguous. To make the practice guidance fit for purpose in the current context, consideration of review and update in line with current evidence and best practice is warranted.
The balance between support and enforcement
DTTOs and CPOs vary in the extent to which they might be considered to take a realistic approach to recovery that recognises goals other than abstinence and accommodates the need to build the person's motivation and readiness to change. CPOs with a treatment requirement generally provide more flexibility for these factors, as the order only requires the person engage with treatment. This leaves more room for the person and their treatment provider to develop goals and tasks together, potentially incorporating harm reduction as appropriate, or changing approach as the person's needs change. However, DTTOs include the specific treatment activities and testing frequency that must be adhered to. This means a gradualist approach is harder to take; the goal of treatment is often set (or at least strongly implied) by the court's expectations about testing results, and treatment is less flexible in terms of providing harm reduction alongside other treatments, or adapting to the person's changing needs. This is understandable if one takes the perspective that the increased monitoring is necessary in order for the court to be comfortable keeping people with higher reoffending risk levels in the community instead of custody. However, it is less aligned with the perspective that people with the highest risks and needs are also those who may be slowest to make progress, and require the most flexibility and accommodation in order to remain engaged in treatment. The way both orders and expectations are calibrated for different target groups may therefore also warrant further exploration with stakeholders.
The dynamic between the offer of support, and the enforcement of engagement with that support, is a nuanced one. This is particularly true in the context of the present legislative limitations on supervision in DTTOs. The evidence review found that one feature of effective mandated community drug treatment is responding to multi-problem clients with an integrated and comprehensive care package. Compared to a DTTO, a CPO with a drug treatment requirement offers less scrutiny of the person's progress in drug treatment (because tests are not reported to the court, and court reviews are less common), but also involves both more support and more scrutiny of their progress in other domains of life. Depending on the person and their circumstances, and the court's and social worker's expectations, this could either be an enabling factor or a barrier to successful completion of the order. Such scrutiny and enforcement may have the unintended consequence of de facto criminalising need, but on the other hand it may also be a necessary level of control to hand the courts in order for them to be willing to keep the person out of custody. This dynamic, and the legislative limitation on social work's role in supporting people on DTTOs, may therefore warrant further exploration.
Some areas have developed models where additional, voluntary support is offered to people on Level 1 CPOs (who are not required to engage with supervision). This may be one model worth considering within the bounds of the current legislation for providing additional support to people on DTTOs as well, and indeed this Review was made aware that some areas may already be doing this. Considering the generally positive findings regarding the quality of community justice social work services, there is reason to believe they may be a valuable asset to many people on DTTOs.
Therapeutic alliance and harmonising expectations
The crux of designing effective approaches to mandated treatment is balancing the justice system's need for accountability and enforcement with effective treatment's reliance on a compassionate and patient therapeutic alliance. Whether this balance is appropriately struck by current approaches is worthy of deeper consideration, particularly from the perspective of people with lived experience of court mandated treatment.
Service structures and funding
This review has found a high degree of variation in service structures and funding, the appropriateness of which may warrant consideration. The delegation of community justice and health care is intended to provide flexibility to local needs, and it is a natural consequence of this model that community sentences and drug treatment will vary in different areas. However, the high variation in arrangements presently observed, coupled with the grave seriousness of both the public health emergency and the prospect of using the state's coercive power to mandate drug treatment, raises questions about what consistency might reasonably be expected, and in turn about equality before the law. It may be appropriate to consider whether more should be done to standardise provision, or to facilitate systematic learning between services so that over time we might expect to see more convergence on models that are most effective.
Generally, more work is needed to better understand the range of treatment types available in each area, and whether they reflect a model that is sufficient as per the recommended Matrix Model. The literature reviewed suggests that, in particular, there may be gaps in terms of integrated mental health support, treatments for people who use stimulants or have complex poly-drug use patterns, availability of residential rehabilitation, and intensive structured day programmes. Consideration may be warranted in relation to whether the interventions offered are sufficiently ambitious in terms of engaging people early in the process of considering change, and whether current standards of motivation and readiness for change being applied in assessments are appropriate.
Opportunities for, and following, revocation and reconviction
A key difference between DTTOs and CPOs are the opportunities they present for revocation. While this consideration should not be overstated, due to the similar completion rates for DTTOs and CPOs with a treatment requirement, the CPO model is arguably closer to that which the evidence canvassed in this review supports. Consequently, it is worth exploring the role that each opportunity for revocationplays in an order over all. In particular, how important do sentencers consider the monthly DTTO review to be in their decision about whether they are comfortable keeping someone in the community? A more tailored, and evidence-based, approach may be achieved through the CPO model, where reviews are scheduled only if the court feels they are necessary. Similarly, how important do sentencers consider the monthly testing results to be in their decision to maintain or revoke an order? A more evidence-based approach recognising that people can engage well with treatment but still test positive for drugs, may be for justice social workers (collaborating with health and social care professionals) to interpret the meaning of testing results within the context of the person's broader engagement – and raise the results with the court if they consider them a cause for concern.
Relatedly, it may be valuable to explore the factors that affect decision-making when a person either has a treatment-based order revoked, or is reconvicted after serving one. Current legislation does not prevent multiple treatment-based orders from being made, so the low levels of DTTOs (or other community based disposals) for reconvictions following a DTTO should be explored with stakeholders to better understand the reasons for current patterns and whether they are considered to reflect good practice.
Finally, the gap in the quality of care between community and custody settings, and disruption to treatment in transitioning settings, is concerning, particularly for the significant number of people receiving a custodial sentence following revocation or reoffending. While not a primary focus of this report, these findings form an important part of the context in which sentencing decisions are made, and custody is the most likely counter-factual for many, if not most, people on mandatory treatment orders.
What areas may warrant further consideration by policy makers or exploration with stakeholders, including people with lived experience of drug use and the justice system?
This evidence review identifies five key areas for further consideration by policy makers, which are:
1. The experiences of people with lived experience of substance use, mandated treatment, and the justice system are integral to improving our understanding and delivery of community justice and treatment services. There is a need for people with lived experience to be engaged with, alongside health and justice professionals, to explore the issues identified in this report and contribute to any future work on potential improvements to the sentencing and service delivery landscape.
2. The current practice guidance on DTTOs is significantly out of date and does not reflect the current legal landscape, Scottish drug context, or current practice. To make the guidance fit for purpose in the current context, consideration of review and update in line with current evidence and best practice is warranted.
3. Scotland's experiences with drug court, alcohol court, and problem-solving courts present an opportunity to capture learning, and consider whether these models warrant specific funding, legislation or policy development work in support of national implementation.
4. It may be beneficial for there to be dialogue between the judiciary, justice social work and health and social care partners, to explore the differences in their expectations of people in treatment, and potentially work towards developing a more mutually congruent understanding of recovery with more harmonised expectations for people on treatment based orders.
5. In light of findings indicating significant porosity between the community-sentenced and prison populations, particularly amongst people who use drugs, consideration should be given to any opportunities to prioritise and accellerate the implementation of the MAT standards in prisons, to reduce harms of custody to people who either cannot be safely managed on a community order, or who have their community order revoked.
It also identifies a number of areas for further exploration with stakeholders, and suggests further work is necessary to deepen our understanding in relation to three key questions:
1. Are we identifying the right people for treatment orders, and optimising opportunities for referral or assertive outreach for those for whom a treatment order is either not appropriate or not imposed?
2. Are we delivering the right supervision and services to the people who receive treatment orders?
3. Are our legislative and policy environments fit for purpose?
The findings of this review indicate five key areas for policy makers to consider (listed above), but the majority of work to improve this area must be underpinned by more detailed consideration in partnership with stakeholders and people with lived experience of drug use and the justice system. Consequently, the following three priority areas for further exploration have been identified:
Areas for further exploration with stakeholders, including people with lived experience of drug use and the justice system
1. Are we identifying the right people for treatment orders, and optimising opportunities for referral or assertive outreach? In particular:
a. In the current system, some people who are appearing in court and who would benefit from receiving an initial assessment, or a specific assessment for treatment, may not be assessed or offered treatment. This may happen for a number of reasons, including the court not requesting an initial assessment (meaning their needs are never identified at all), the social worker not pursuing an assessment for a treatment based order, or the court not agreeing to defer sentencing for assessment of drug-related needs. Whether there may be opportunities for earlier assessment or triaging of cases, or assertive outreach separate from court ordered treatment, is a question worthy of exploration with stakeholders.
b. It is important that the best decisions possible are made at each transition point, to engage and retain those who would benefit in treatment, while chanelling those who would not to other pathways without up-tariffing them. It may be worthwhile for future work to consider whether each decision rests with the right professionals, whether they have access to adequate information at each stage, and whether current practice leads to the best outcome for the circumstances in each case.
c. The pre-sentence assessment and planning process for DTTOs is longer and more involved than that for a CPO treatment requirement, because it requires a full multidisciplinary assessment rather than just a statement from a health specialist, and must specify the full details of treatment for the court to include in the order. This may have strengths in terms of detail considered and support offered, but also limitations in terms of the number that can be conducted and (potentially) the length of time added to the sentencing process in order to convene all the relevant professionals. How these factors are balanced against one another, and against the value courts place on detailed information, warrants further exploration with stakeholders.
d. While LSIR and LS/CMI are well-validated tools for understanding offending risk and management, they are not specialised for exploring substance use. It may be worth considering whether they facilitate a sufficiently structured and consistent approach across areas. Beyond the quality of information informing recommendations and provided to the court, it would also be beneficial if consideration were given to whether more specific variables on drug use could be recorded in the data at earlier stages, to assist future monitoring and allow us to understand more about this population in future research.
e. There is a notable gap between the number of people recommended for community based treatment orders by social workers (based on their risks and needs), and the number who receive such a sentence, and evidence that this gap is growing. The reasons for this gap and its trajectory may warrant further exploration.
f. Consideration may be warranted in relation to whether the interventions offered are sufficiently ambitious in terms of engaging people early in the process of considering change, and additionally, whether current standards of motivation and readiness for change being applied in assessments are appropriate.
2. Are we delivering the right supervision and services to the people who receive treatment orders? In particular:
a. As DTTOs include the specific treatment activities and testing frequency that must be adhered to, a gradualist and flexible approach is harder to take. It may be that the increased monitoring is necessary in order for the court to be comfortable keeping people with higher reoffending risk levels in the community instead of custody. However, this should be considered alongside the perspective that people with the highest risks and needs are also those who may be slowest to make progress, and require the most flexibility and accommodation in order to remain engaged in treatment.
b. Compared to a DTTO, a CPO with a drug treatment requirement offers less scrutiny of the person's progress in drug treatment (because tests are not reported to the court, and court reviews are less common), but also involves both more support and more scrutiny of their progress in other domains of life. This dynamic, the legislative limitation on social work's role in supporting people on DTTOs, and the range of current practice within this legislative limit, may therefore warrant further exploration.
c. The delegation of community justice and health care to local areas is intended to provide flexibility to local needs, and it is a natural consequence of this model that community sentences and drug treatment will vary in different areas. However, the high variation in arrangements observed, coupled with the grave seriousness of both the public health emergency and the prospect of using the state's coercive power to mandate drug treatment, raises questions about what consistency might reasonably be expected, and in turn about equality before the law. It may be appropriate to consider whether more should be done to standardise provision, or to facilitate systematic learning between services so that over time we might expect to see more convergence on models that are most effective.
d. A key difference between DTTOs and CPOs are the opportunities they present for revocation, with the CPO model arguably closer to that which the evidence canvassed in this review supports. Consequently, it is worth exploring the role that each opportunity for revocation plays in an order overall. A more tailored and evidence-based approach may be achieved through the CPO model, where reviews are scheduled only if the court feels they are necessary, and to transfer interpretation of testing results to justice social workers who, (collaborating with health and social care professionals), can interpret the meaning of testing results within the context of the person's broader engagement and raise the results with the court if they consider them a cause for concern.
e. The crux of designing effective approaches to mandated treatment is balancing the justice system's need for accountability and enforcement with effective treatment's reliance on a compassionate and patient therapeutic alliance. Whether this balance is appropriately struck by current approaches is worthy of deeper consideration, particularly from the perspective of people with lived experience of court mandated treatment.
f. Consideration should be given to the specific resource and logistical challenges highlighted by services and experienced in key parts of the social work and health sector work forces. The evidence suggests that adequate specialist staff, co-location of justice and treatment staff, pre-review meetings, dedicated coordination roles, and joint training and awareness raising are all features likely to improve service quality.
g. Ensuring that sentencers accurately understand the support and treatment available - both in each area and on each order - is also essential. Ways of improving access to timely, accurate information on this sometimes shifting landscape should be considered.
h. It may be valuable to explore the factors that affect decision-making when a person either has a treatment-based order revoked, or is reconvicted after undertaking one. Current legislation does not prevent multiple treatment-based orders from being made, so the low levels of DTTOs (or other community based disposals) for reconvictions following a DTTO should be explored with stakeholders to better understand the reasons for current patterns and whether they are considered to reflect good practice.
i. The gap in the quality of care between community and custody settings, and disruption to treatment in transitioning settings, is concerning, particularly for the significant number of people receiving a custodial sentence following revocation or reoffending. While not a primary focus of this report, these findings form an important part of the context in which sentencing decisions are made, and custody is the most likely counter-factual for many, if not most, people on mandatory treatment orders.
3. Are our legislative and policy environments fit for purpose? In particular:
a. There are some potential tensions within the guidance. For DTTOs, social workers are advised to prioritise those with high-risk use patterns, such as poly drug use (especially in "chaotic circumstances"), injecting, high frequency, worsening chronic long term use, and the most harmful substances such as opioids, benzodiazepines, cocaine and crack (DTTO Guidance for Schemes, 2011). However, they are also advised that CPOs may be more suitable for people if: complex social circumstances might impede their focus on treatment; there are additional issues related to the offending that would not be addressed; or the person requires medium to long term residential treatment. The guidance is also somewhat ambiguous regarding people with co-occurring mental health problems and/or homelessness. Considering what we know about the issues that form the common causes of both substance use and offending, it is highly unlikely that there will be many, if any, people whose substance use is sufficiently problematic to make them eligible for a DTTO, who don't also have the kind of co-occurring problems that then exclude them.
b. The complex geographic arrangements in the court, community justice, and health systems may mean that in cases where a person is tried for offending in an area other than where they live, the court may have less information about, understanding of, experience with, or trust in, the community services they can receive. It may be worthwhile to explore whether professionals in the sector feel knowledge and information sharing across areas is adequate, and where court ordered treatment may fall in relation to the future National Care Service.
c. While international guidelines on human rights and drugs policy do not have official standing in Scottish law or policy, they are relevant, reputable and reflect international consensus on good practice. Two are particularly relevant when considering community based treatment orders made by a court, and Scotland's current arrangements may arguably be inconsistent with them. These are:
i. If treatment is court mandated, no penalties should attach to failure to complete the treatment.
ii. Treatment as an alternative to custody must only be offered with informed consent, where medically appropriate and must not be ordered for longer than the applicable custodial sentence.
While these rights are not Scottish policy or law, and may be contestable in the Scottish context, they were developed by international experts working with leading bodies including the World Health Organisation and reflect international consensus on public-health based best practice. As Scotland aspires towards a human rights respecting, public health based approach to drug use, they therefore warrant consideration in consultation with people with lived experience of drug use and the justice system.
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