Written evidence submitted by Alison Giraud-Saunders (MHB0041)

Introduction

1.              Thank you for the opportunity to submit a response. My comments are based on my experience as a freelance consultant (formerly Co-Director of the Foundation for People with Learning Disabilities and also a member of the Valuing People Support Team). My practice is focused on how the criminal justice system, health and social care respond to people with learning disabilities whose behaviour has brought them into contact with the criminal justice system.

Overall comments

2.              I welcome the principles developed by the 2018 Wessely Independent Review. I would welcome these being included on the face of the Bill, as a touchstone for interpretation.

3.              I regret that the ‘therapeutic benefit’ criterion for detention does not seem to apply to detention under Part 3. Yet the explanatory notes on the Bill say that detention under Part 3 has been retained as an option for people with learning disabilities “to ensure that this cohort are able to access the specialist support they may need”. Why not, therefore, say that therapeutic benefit must be a test for detention of people with learning disabilities under Part 3? If there is no therapeutic benefit, hospital detention becomes merely custodial. This risks being very demoralising for other patients (and for staff), as I have heard from staff working in secure services, and I have a personal concern that NHS resources should not be used simply as substitute prisons.

4.              I find it very difficult to understand how learning disability can be a criterion for detention under Part 3 and not under Part 2. I think this has the potential to cause great confusion – for people with learning disabilities and their families, for criminal justice agencies and for everyone involved with an individual. I will say more at the end about the potential I can see for unintended consequences. I know that many clinicians are strongly of the view that detention under Part 2 should continue to be an option (for longer than the 28 day assessment permitted under Section 2). On the other hand, I know many people with learning disabilities and families who argue passionately against this. I can see both points of view. What I believe to be unwise is allowing learning disability to be a criterion for detention under one Part and not the other – the law should be consistent.

5.              I will order my further detailed comments according to a notional ‘journey’ that an individual might follow through the system.

Comments ordered according to notional ‘journey’

6.              Risk registers, S.125D: I am puzzled that the duty to maintain a risk register refers only to people who have risk factors for detention under Part 2, not Part 3. Yet Government policy for people with learning disabilities, described in ‘Building the Right Support’, does set out an expectation that community health and social care services should be aware of offending risks in people with learning disabilities, seeking to reduce and manage those risks.

7.              Commissioning, S.125E: the duty to commission services that “seek to ensure that the needs of people with autism or a learning disability can be met without detaining them” follows on from the risk register requirement and consequently seems to be limited to detention under Part 2. This is equally puzzling, given the policy set out in ‘Building the Right Support’ to develop and invest in community forensic services for people with learning disabilities – to prevent offending, re-offending and (presumably) reduce the risks of detention.

8.              Care and Treatment Reviews, S.125B: I welcome the provisions relating to care and treatment reviews (CTRs) for people liable to be detained. Experience in some areas has shown that so-called ‘blue light’ CTRs, arranged when a crisis occurs, can help to put the right community services in place swiftly and thereby avoid a need for admission. This could equally be used if a person with learning disabilities is arrested and at risk of custody or detention under Part 3 – for example, the right community services might support an out of court disposal or a community sentence.

9.              Clinical advice to the court: in addition it seems to me that there is an opportunity, missed in the draft Bill, to strengthen the requirement for a clinician advising the court to have expertise and experience relevant to the case, for example in relation to offending behaviour in people with learning disabilities and to new disposal options such as Community Sentence Treatment Requirements. The evidence from accident and emergency departments shows that more experienced doctors are better at assessing clinical risks and matching recommendations to their assessments.

10.              Places of safety: I welcome the removal of police stations and prisons as ‘places of safety’. Courts sometimes believe that prison will be safer for a person with learning disabilities than remaining in the community without support; the draft Bill proposes detention under S.35 or bail with support as alternatives.

11.              Health and social care support: this leads me to another opportunity that seems to be missed in the draft Bill: to strengthen the requirement for community health and social care to be provided to support out of court disposals and non-custodial options. This could give courts increased confidence in such options in relation to both public protection and rehabilitation of the individual. It seems extraordinary to me that a court can mandate very substantial NHS expenditure on detention in hospital but not expenditure on community support. The Government’s recent ‘Building the Right Support Action Plan’ says (p.70) that someone should only be “detained in hospital under the Mental Health Act after all community alternatives have been considered”. The reference is to detentions under Part 2; it is difficult in policy terms to see why it should not apply equally to Part 3.

12.              Alternatives to admission: following on from my point about support for alternatives to custody or detention, the draft Bill makes provision for ‘supervised discharge’ with conditions amounting to a deprivation of liberty, but it does not include ‘supervised alternative to admission’. It can be argued that such an option could be risky for the individual – might courts resort to this too readily, when a community sentence without deprivation of liberty would have sufficed? Would the supervised support be based on adequate assessment and would it meet the person’s needs as well as protecting the public? On the other hand, could such an option reduce the risks associated with admission? Perhaps there is a case for piloting a scheme, as was done with Community Sentence Treatment Requirements.

13.              Supervised discharge: I welcome the proposals for supervised discharge. Risks and mitigations for such an arrangement were discussed in some detail at a short series of workshops hosted by the Prison Reform Trust, which I helped to facilitate, with input from the Working for Justice Group of experts by experience. I attach as an annex an extract from the second report from these workshops and would draw the Joint Committee’s attention to the discussion about possible safeguards.

14.              S.117 aftercare: I welcome clause 39 of the Bill, which clarifies that S.117 aftercare provisions will apply to people detained under criminal justice sections.

Potential for unintended consequences

15.              Finally, the Joint Committee asks about unintended consequences. I have heard from a number of very experienced learning disability clinicians that they are concerned about the potential consequences of differential eligibility criteria for detention under Part 2 vs Part 3. An unintended consequence of excluding people with learning disabilities from detention under Part 2 (except for a short S.2 assessment) could be increased resort to Part 3 and possibly the Mental Capacity Act. Further, the differential eligibility could increase the arguments over whether a person has learning disabilities or not and whether or not the person has (or had) capacity to make the relevant decisions at the relevant time. In their efforts to secure what they believe a person needs, health and social care staff often become expert at ‘gaming’ systems. It is very difficult to work out in advance what the consequences might be. The more straightforward the law, the fewer opportunities there are for distortions.

16 September 2022

Annex

Extract from discussion paper from a roundtable hosted by the Prison Reform Trust (Nov 2019):

Facilitating Discharge

Discussion paper from 5 November roundtable on enabling discharge of

detained people with intellectual (learning) disabilities and/or autism

What would we want a new framework to allow?

In brief the aim would be to devise a framework that would allow informed and non-coercive treatment and support plans that amount to a restriction or deprivation of a person’s liberty in community settings (to support a community sentence, or discharge from hospital, or release from prison)

• where such restriction or deprivation is required for public protection and the alternative would be custody or detention in hospital
• and could be achieved in a way that would be the least restrictive possible and less restrictive than custody or detention in hospital
• subject to legal safeguards for the individual
• and where the individual would give informed consent to a deprivation of liberty in a community setting for public protection as an alternative to admission, or as part of a plan for discharge 

One option could be a ‘supportive restriction’ provision, available to the court as an alternative to detention in hospital and also as a provision to be attached to discharge from hospital if it could be shown to be necessary for public protection. Just as the use of S.37 with S.41 combines mandated hospital admission for treatment with restrictions imposed by the Secretary of State for Justice (for public protection), a new provision or pair of provisions could mandate treatment and support in other settings (as appropriate to the person’s needs) and impose restrictions amounting to deprivation of liberty for public protection. Such restrictions would need to be justified in relation to assessed risks of offending, subject to regular review and could be time-limited (with the option of renewal if justified). Recall could be for breach of the restrictions. Existing mental health law covers options related to deteriorating mental health. Many people with intellectual disabilities and/or autism will require continuing support to reduce their risk of re-offending and maintain the reduction in risk; such support will also require regular review and may be increased or decreased to match the individual’s needs.

Such an option would need to be underpinned by the availability of community-based treatment and support of sufficient quality to make a reality of this as a less restrictive option than detention in hospital. This availability, along with the kinds of restrictions allowed, would be essential to give courts confidence in sentencing.

Some specific suggestions about how to design a new framework were made during the discussion on 5 November 2019 or in subsequent email exchanges:

• there should be a new mandatory requirement for health, social care and justice agencies to work together to develop the necessary package of personalised intervention and support when a person with learning disabilities and/or autism first comes to the attention of the police. S.117 of the MHA entitles people who have been in hospital to health and social care ‘aftercare’
• people should be held responsible for their behaviour: as recommended by the Law Commission[1], capacity should be assumed, decision-making should be supported through reasonable adjustments and it would be expected that only a small number of people would then be found to lack capacity in relation to the relevant decisions
• new community options should allow courts to balance punishment with other aims of sentencing
• some people with learning disabilities and/or autism might feel that it would be much harder to make positive changes in their behaviour in the community, especially if their environment and relationships have played a part in their offending behaviour. Others might find it hard to transfer learning about new ways of behaving from a hospital environment and would have a better chance of success by being supported to learn in their usual environment
• discharge planning from hospital still requires considerable improvement to ensure that there are:
• common ways of understanding and managing risk
• integrated approaches to planning
• and sufficient notice to plan properly

A new framework, based on the points above, would enable courts to have greater flexibility to respond in a way that best meets the health, social care and justice needs of individuals and, in so doing, to maximise the potential to reduce reoffending.

What would we want a new framework to avoid?

There was some discussion of the risks to be avoided in drafting any new provision. The following list will not be exhaustive, but indicates the immediate concerns. A new framework should avoid:

• drawing more people into being detained in more restrictive situations (“up-tariffing”, as some say happened with previous revision of the MHA), when the policy direction is to reduce restrictive practice
• creating new institutions under other names and with weaker regulation and monitoring
• creating detention options that discriminate against a person on the basis of a disability label
• allowing deprivation of liberty without active treatment and/or support
• excluding people who are “not disabled enough”

What kinds of safeguards should be built in?

Members of the Working for Justice Group talked about what would help to protect the rights of a person leaving hospital with lots and lots of rules and restrictions. Their suggestions are shown in Box 3.

Discussion at the roundtable on 5 November 2019 added some more specific suggestions:

• deprivation of liberty for public protection would have to be justified to a court (at sentencing, as an alternative to custody or detention in hospital) or a tribunal considering discharge from hospital
• restrictions should be reviewed regularly (with an expectation of reduction over time) and could be time-limited; there could be a requirement to re-apply at regular intervals, possibly with oversight from the court. The onus would be on the authority responsible for the deprivation of liberty to prove the need for both ongoing restriction/deprivation and ongoing treatment and/or support
• there should be clear criteria for review of restrictions, and scrutiny by people who are sufficiently qualified (bringing together justice, health, social care and advocacy perspectives)
• there should be a statutory duty to refer to the court or tribunal, rather than leaving it to the person or representative to appeal. Tribunals need to be competent to consider issues for people with intellectual disabilities and/or autism and courts need to be able to draw on appropriately qualified advice

Making a new approach work in practice would depend upon factors such as:

• appropriately qualified and experienced professionals across justice, health and social care collaborating to assess individual needs and risks, and to design effective interventions
• joint training to underpin such collaborative practice, especially on working together (justice/health/social care) and on managing risk effectively in community settings
• practical availability of community treatment and support services that can demonstrate appropriate skills, resourced so that neither an individual nor a service is set up to fail
• clarity about eligibility for benefits for individuals subject to new provisions