The Transforming Rehabilitation agenda

The major change resulting from the Transforming Rehabilitation agenda is a restructuring that resulted in the replacement of the 35 probation trusts with 21 ‘community rehabilitation companies’ (CRCs), supported by a smaller National Probation Service (NPS). The community rehabilitation companies will be responsible for managing low-and medium-risk offenders, and the NPS will be responsible for assisting courts in sentencing, managing high-risk offenders, approved premises and victim liaison units (Ministry of Justice 2013a). These organisational and structural changes have enabled private and third-sector (voluntary or charitable) organisations to tender for services carried by community rehabilitation companies and introduces the concept of payment by results to the field of rehabilitation of offenders (Home Office 2013). At a national level, the Ministry of Justice has contracted the work being undertaken by the 21 community rehabilitation companies to a number of private companies and newly formed partnership organisations from April 2015. The new owner organisations include Sodexo Justice Services in partnership with Nacro, the Achieving Real Change in Communities Community Interest Company, Purple Futures, the Reducing Reoffending Partnership, Working Links, EOS Works Ltd, MTCNovo and Seetec (Clinks 2014).

There has been much debate about the impact of these changes in regard to the fragmentation of services, the potential for duplication and increasing complexity (Reference GarsideGarside 2014). Equally, some commentators have highlighted the benefits of an effective widening of the rehabilitation remit, with community rehabilitation companies offering all offenders ‘through-the-gate’ support, even those who would previously not have received input from probation services (Reference CloughertyClougherty 2014). Through-the-gate support begins during offenders’ final weeks in prison and continues through their release and resettlement in the community.

Organisations responsible for the delivery of probation services will need to work collaboratively with mental health services to provide appropriate support for individuals with related needs. In view of extensive organisational changes, the interface between companies providing probation services and mental health services may differ significantly from previous working practices.

A number of services (Box 1) have been exclusively ‘reserved’ for the NPS, including the management of high-risk offenders. Its caseload will comprise around 30 000 offenders a year (NPS 2014), supporting their rehabilitation while protecting the public.

Probation services and probation officers

For the purpose of this article, we will use the term ‘probation services’ to refer to services provided by both the NPS and community rehabilitation companies. Probation services work alongside and in partnership with a vast number of statutory and non-statutory agencies, including those in other areas of criminal justice, health, social care and third-sector organisations.

Probation services are also one of the ‘responsible authorities’ within the multi-agency public protection arrangements (MAPPA), along with the police and prison services. These organisations have a statutory duty to identify, manage and monitor high-risk offenders in the community. For more detail about MAPPA see Reference Taylor and YakeleyTaylor & Yakeley (2013).

Probation officers are sometimes referred to as ‘offender managers’ when working with other criminal justice organisations, although they are referred to as ‘probation officers’ by offenders. The key areas of responsibility of probation officers are outlined in Box 2.

Suspended sentences

When a court imposes a custodial sentence of between 14 days and 2 years (or 6 months in a magistrates’ court), the court may choose to suspend the sentence for up to 2 years (Sentencing Council for England and Wales 2012). This means that the offender does not go to prison immediately, but is given the opportunity to refrain from further offending and comply with specific requirements imposed by the court. These are the same requirements that are available to the court through community orders under the Criminal Justice Act 2003 (not to be confused with community treatment orders under the Mental Health Act).

If the offender does not comply with the requirements imposed or is convicted of a further offence during the operational period of the suspended sentence, the courts are able to activate in part or in full the suspended sentence from the original offence and may also impose a new sentence for the further offence.

Community orders

The sentence served by an offender in the community is called a community order. Section 117 of the Criminal Justice Act 2003 provides magistrates and judges with the options of 12 requirements when making a community order (Box 4).

The Criminal Justice Act requires that, when deciding which requirements to include, the court must be satisfied on three matters: that the restriction on liberty is commensurate with the seriousness of the offence(s), that the requirements are the most suitable for the offender and that, where two or more requirements are included, they are compatible with each other. The Sentencing Guidelines Council (2004: p. 6) states that:

Licence

All offenders subject to determinate sentences of 12 months or more are required to serve the second half of their sentence in the community on licence. Offenders serving determinate sentences are released from custody half way through their sentence and will be subject to specific requirements until their sentence expires. Individuals convicted of a ‘specified offence’ listed in schedule 15 of the Criminal Justice Act 2003 may receive an extended period on licence after release, to protect the public. When an offender is convicted of a ‘serious’ specified offence and receives an indeterminate sentence, a minimum term (tariff) will be set, at the end of which the person convicted will be eligible to apply for release on parole. The Parole Board should direct release only if it is satisfied that the offender no longer presents a significant risk of harm to the public. Individuals subject to indeterminate sentences will be subject to licence for the rest of their life (Ministry of Justice 2009), although the Secretary of State has the power to suspend contact with the NPS if they feel it is appropriate to do so.

While on licence, an offender will be subject to supervision and other specific requirements to protect the public and support rehabilitation and resettlement into the community. If an offender serving a determinate sentence breaches their conditions, they may be sent back to prison and required to serve the remainder of their sentence there (Sentencing Council for England and Wales 2012). All licences must include ‘the standard conditions’, for example, a requirement that the offender be of good behaviour. Probation services are responsible for supervising all individuals aged 18 years or over on licence.

Breaches

Decisions regarding enforcement of community sentences and licences are statutory responsibilities of probation services and must be based on breaches of specific requirements or evidence of increased risk that is no longer manageable in the community. The processes for enforcement differ depending on the type of sentence being served by the offender and level of risk of serious harm presented. Breaches of community sentences are dealt with by a return to court, and breaches of licence requirements result in the offender being returned to custody. If there is evidence that the risk of serious harm presented by an individual has increased, enforcement proceedings can be expedited to protect the public or specific persons identified as being at risk (Ministry of Justice 2013b).

Criteria for MHTRs

The criteria for an MHTR as part of either a suspended sentence order or a community order are shown in Box 5.

For an MHTR to be made, there must be a named registered medical practitioner or registered psychologist supervising the treatment. An MHTR requires offenders to engage in specific treatment, the nature of which will depend on their condition, for a specified period of time. An MHTR is not often made alone: it is usually combined with a supervision requirement for the offender to engage with a probation officer. This officer will address other matters in relation to offending and monitor compliance with the order (Reference Scott and MoffattScott 2012).

Consequences of breaching an MHTR

If the requirements of a community order are breached, the individual can be taken back to court and more onerous requirements added, or a custodial sentence can be imposed. However, concerns have been expressed by court professionals about the impact of such breaches on offenders’ mental health. Probation staff, on the contrary, generally see breach proceedings as a way of encouraging compliance, particularly for those who are high risk (Reference Scott and MoffattScott 2012).

Barriers to the use of MHTRs

The Centre for Mental Health, in collaboration with the Criminal Justice Alliance, has published policy briefings on overcoming the barriers to the use of the MHTR. The most recent of these (Reference Scott and MoffattScott 2012) fully explores these barriers.

There tends to be uncertainty regarding which offenders will benefit from MHTRs and there is little published evidence on this subject. Often an offender has many complex problems and there can be differing views among professionals regarding who should receive an MHTR, with some arguing that mental health problems should not be dealt with via the criminal justice system. There is also a lack of awareness among professionals about community sentences and MHTRs, and this can be compounded by uncertainty regarding the process and practice of such orders and the joint working with probation services that is required (Reference Scott and MoffattScott 2012).

One study (Reference Mair and MillsMair 2009) found that magistrates and judges were equally uncomfortable with the use of MHTRs: they felt that their knowledge about them was sparse and their knowledge of local mental health services was insufficient.

There can be uncertainty regarding when an offender has breached an MHTR and how this should be managed. Healthcare professionals may be concerned about damaging their therapeutic relationship with the patient, but probation officers rely on health professionals to report non-compliance. There can be problems with communication between the two agencies and differing expectations of each other.

Reference Khanom, Samele and RutherfordKhanom et al (2009) conducted qualitative research into the use of the MHTR, interviewing 56 professionals from the courts, probation and health services about their understanding of MHTRs and how they worked in practice. They found that one of the biggest barriers to the use of MHTRs was the need for formal psychiatric reports. Obtaining these reports can be a lengthy process and requires additional funding through legal aid. Often, the psychiatrists writing the reports are independent, have no prior knowledge of the individual and will not be the ones responsible for the supervision of any subsequent MHTR.

Elliott House: approved premises for mentally disordered offenders

Elliott House is a specialist approved premises in Birmingham offering accommodation for male offenders aged 18 years or above who have diagnosed or suspected mental health problems. They must be charged with or convicted of a criminal offence and meet the other criteria for admission to standard approved premises, but require specialist mental health interventions. Most residents will have an established diagnosis of mental illness or autism spectrum disorder. Offenders with a personality disorder or substance use disorder are considered as long as they have a comorbid mental illness. Elliott House was opened in 1993 and was born out of a partnership between West Midlands Probation Service and the regional forensic mental health service based at Reaside Clinic, Birmingham (Reference Geelan, Griffin and BriscoeGeelan 2000). It is currently run by the NPS with specialist input from the forensic services of Birmingham and Solihull Mental Health NHS Foundation Trust. We work as part of the team at Elliott House.

Although Elliott House functions much like other approved premises and is managed by probation staff, the mental health multidisciplinary team is well integrated within the service. It provides sessional input by a consultant forensic psychiatrist, community psychiatric nurse, psychologist and occupational therapist. There is a strong focus on joint working between mental health and probation staff and the team meets weekly to review the progress of residents and formulate management plans.

On arrival at Elliott House, all residents sign an agreement that information can be shared between its probation and mental health staff. The mental health team offers support to all residents, even those who are already engaged with a mental health team, although they do not hold care programme approach (CPA) responsibility. The team focuses on working in a collaborative manner with external mental health teams, drug and alcohol services and probation officers involved with residents’ care. For some residents, placement at Elliott House is their first experience of contact with community mental health services, their diagnosis having been made in prison. In these cases, it is ensured that appropriate follow-up is arranged once they move on to their next accommodation.

The services offered at Elliott House have developed over time. It is a national resource, accommodating offenders from around the country, although priority is given to referrals from the West Midlands area. There are one or two similar services around England and Wales, but Elliott House is unique in that it offers multidisciplinary forensic mental healthcare to all residents. One of the greatest challenges that we face as a service is the availability of suitable supported move-on accommodation and obtaining funding for this. Further challenges are faced in ensuring that residents continue to engage with mental health services after they have moved on. These are similar to the problems related to continuity of care that are encountered on release from prison (Reference Jarrett, Thornicroft and ForesterJarrett 2012).