Justice Committee

Meeting date: Tuesday, December 18, 2018

Official Report 793KB pdf

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Management of Offenders (Scotland) Bill: Stage 1

Agenda item 3 is an evidence-taking session on the Management of Offenders (Scotland) Bill. I refer members to paper 3, which is a note by the clerk, and paper 4, which is a private paper.

I welcome to the meeting John Watt, chair of the Parole Board for Scotland; Yvonne Gailey, chief executive of the Risk Management Authority; Dr Johanna Brown, a consultant forensic psychiatrist and member of the Royal College of Psychiatrists in Scotland; and James Maybee, the principal officer for criminal justice and the interim chief social work officer in Highland Council, who is representing Social Work Scotland. I thank the witnesses for the written evidence, which, as ever, has been really helpful to the committee in advance of our hearing from them in person.

We move straight to questions from members, starting with John Finnie.

Good morning, panel, and thank you for your written submissions.

I want to ask about the new arrangements and the improved information sharing that we have been advised of. Who takes the decisions? At what level are they taken?

Who would like to start? If we do not have volunteers, we will have conscripts. Can we try you, Mr Watt?

What stage of the process are we talking about, Mr Finnie?

It is the point at which the Scottish Prison Service assesses someone’s suitability for home detention.

In that case, I can sit back, because at that stage the issue has not come before the Parole Board.

Would anyone else like to start off, then? Mr Maybee?

Obviously, criminal justice social work is involved in the home detention curfew assessment process. A written assessment is requested of us, which we submit to the Scottish Prison Service for consideration as part of its decision-making process. Ultimately, it is the SPS’s decision whether to release someone on HDC.

Is that a change from the previous arrangements?

No. Criminal justice social work has always provided an assessment report to the Scottish Prison Service.

Okay. It is said that the aim is to improve information sharing, but has there ever been an issue in that respect between the Scottish Prison Service and criminal justice social work?

Information exchange has generally been very good. We work to the current HDC guidance, which was refreshed a couple of years ago and which I believe is subject to further review. A joint SPS, Police Scotland and Scottish Government working group has been looking at that issue, and Social Work Scotland is formulating its response to the social work aspects of that report. However, that response has not yet been brought to the Social Work Scotland justice standing committee.

We are primarily taking this evidence because of a very tragic case that has focused a lot of minds on the matter. We had—not unreasonably—expected something else. You have suggested that existing arrangements are being refreshed, but are you saying that, as far as you are aware, there have been no difficulties at all with information sharing?

There has always been a clear set of guidance on HDC, and the criminal justice social work responsibilities are set out very clearly. For example, the guidance that was introduced a couple of years ago set out in a much clearer way our responsibilities with regard to conducting home visits. We have to ensure that there is not just, say, a telephone conversation with the home owner, but a physical visit to ascertain the circumstances in relation to the prisoner’s proposed property and residence.

Okay. Let me take a different tack, then. The Scottish Prison Service has told us in evidence that there is now a presumption against home detention curfews and that that has led to a 75 per cent reduction in their use. Is it therefore reasonable to suggest that risk aversion has crept in that was not there previously? I am trying to understand the wider implications for prison capacity and the very important issue of rehabilitation. Can all the panel members comment on that, please?

With respect, Mr Finnie, I think that that will be difficult. There is no representative from the Scottish Prison Service here, and I can speak only from my agency’s perspective. When we are requested to provide an assessment, we will do so in accordance with the guidance. What triggers a request is entirely a matter for the Scottish Prison Service. All that we can do is respond to that request and provide the assessment, ensuring that it contains sufficient detail to enable the Scottish Prison Service to undertake a fuller and more rounded risk assessment of whether somebody qualifies for release.

If, as we have been advised, there has been a 75 per cent reduction in the granting of these curfews, is it still too early to see any manifestation of that in the work load of criminal justice social work?

I cannot sit here and say that I can quote you figures for HDC requests. It might suggest that the Scottish Prison Service has taken a slightly different tack, perhaps in light of media coverage and concerns about prisoners being released on HDC. However, I am afraid that I cannot say much more than that.

11:15  

Miss Gailey, do you have a view on that from a risk assessment viewpoint?

Thank you for inviting us to be here today.

I have an interest in HDC from the perspective of risk assessment, which is the only perspective I can comment on. I cannot speak about operational processes. We have recently been invited to join a group run by the Scottish Government and the Scottish Prison Service to review the guidance for HDC with a particular focus on the risk assessment process. That has a bearing on the questions that Mr Finnie asked about the reduction in numbers.

The group had its first meeting last week. One of the points made at that meeting was that, if a risk assessment process is being refined, and there is an argument for doing that, there is a need to start from a clear understanding of the purpose of the intervention that is being assessed. The recent introduction of the presumptions against HDC has inadvertently or on purpose—it is not for me to say—raised the question of the purpose of HDC, its intention and what it is in place to achieve. It is from that perspective that we can work out the correct risk assessment process and have as clear an idea as possible of who the right candidates for HDC are.

If there is a reduction of 75 per cent, as we are told by the chief executive of the Scottish Prison Service, that suggests that there was a frailty in the previous system, and that there is a new, robust regime in place. Do you have a view? Were the previous arrangements satisfactory? That has to be acknowledged as a dramatic turnaround in figures.

I cannot comment on the operational arrangements as opposed to the risk assessment process.

Surely they are one and the same thing? The whole basis of the Scottish Prison Service and the judicial process should be about risk assessment in terms of the suitability of someone for HDC and the requirement that they be put in custody in the first place.

To answer the question in a robust way, we would need to take up the recommendation of HM inspectorate of prisons for Scotland on the research needed on the home detention curfew, both to understand what has happened in the past and to guide the way forward. I am not aware of evidence currently available to tell us what we need to know, although that could be my lack of knowledge. We understand that there has been an 80 per cent successful completion rate in HDC. In order to answer the question, it would be interesting to know the circumstances and characteristics of the 80 per cent of successful cases and of the 20 per cent of cases that did not complete successfully. From that, we could understand the reason for the dramatic reduction and whether that is the direction of travel that we wish to go in.

Were any of the panel members aware of the Scottish Prison Service’s change in the presumption arrangements and did any of your organisations play any part in informing the change?

My organisation’s first involvement was when we were asked to take part in the recently established group.

It would be helpful if you could explain about the Risk Management Authority, who appoints you, what you do and at what stage in any process you might have input.

We have a number of statutory functions, all of which have a bearing on effective risk assessment and risk management practice. The one that is most relevant to the discussion is the responsibility to set the standards for risk assessment against which practice is judged generally. We also have specific responsibilities in relation to the order for lifelong restriction.

For our discussions today, it is our more general functions that are relevant, which are advising on policy and research, setting standards, delivering training and publishing guidelines, all in relation to risk assessment and risk management.

Did you have concerns prior to the new rules coming into being? Were any general or, indeed, specific concerns raised from a risk assessment point of view?

No concerns were raised specifically on HDC. As I said, our first direct involvement has been in recent times. I have talked about us generally setting standards, but we are also involved in different risk assessment processes at different points in time, so that we can give advice on developing current practice processes into those that will aspire more closely to the standard that we have set. In recent times, colleagues of mine have been involved in work with the Scottish Prison Service to look generally at the risk assessment of short-term prisoners. There is a close overlap between that work and the discussions on HDC. That might be the most direct route of influencing the risk assessment of HDC.

That is helpful in clarifying that you have looked at risk assessment for those with short-term sentences, but not specifically for HDC. Clearly, you think that there is now an argument for looking at HDC.

There is a basic approach to risk assessment that can be applied in any situation, with any group and in any context. We have set the standard for that type of risk assessment. We work steadily through different processes and with different agencies to integrate that approach. It is well integrated in criminal justice social work processes and in Police Scotland. In certain areas of work with the Scottish Prison Service, that approach is already well integrated, and the work that we are currently doing together looks at short-term prisoners. That issue raises particular challenges.

We have supplementaries from Liam Kerr and Daniel Johnson. Is that right?

No, but since you are bringing me in—

Perhaps the questions have moved on from where you were going to come in.

I will happily ask Yvonne Gailey a question, if I may. You talked about risk assessment; risk to whom and risk of what? John Finnie mentioned that there has been a 75 per cent reduction in the use of HDC, which clearly has a negative impact on prison overcrowding and opportunities for rehabilitation. One would have thought that the overriding consideration is risk to the public from allowing people out on HDC. Is that the case?

That is an excellent question, and it is a fundamental question when we talk about risk. In any practice process or set of guidelines that are developed, it is essential to identify what we mean by the term “risk”. Often, several different risks are involved.

In relation to the Risk Management Authority’s work, the legislation is very specific that we are talking about the risk of serious harm to the public. In most areas of work, that is a primary consideration. In certain aspects of work in the criminal justice system, when people talk about risk they are thinking about the likelihood of reoffending, which is also a valid concern at times.

When we talk about risk, we need to consider a combination of the likelihood of something happening, the impact that that will have on whom and how serious that impact is estimated to be. There are a number of dimensions to risk, but it is always essential to identify what you are assessing and what you are estimating or forecasting in your risk assessment. What person or what group of people is at risk from a particular person? What is the nature of that risk?

Thank you for that answer, but I am not sure that I heard you say where the priority lies. I would have thought that the key priority is preventing harm to the public. Is that the case?

Secondly, you talked about the prevention of serious harm. I am slightly concerned about that because you have triggered something in my mind that I cannot quite put my finger on. Does the term “serious” refer to the possibility or, indeed, probability of harm to the public such that if it is not serious harm, the decision could be taken to allow someone to go out on HDC?

Thank you for clarifying that. I was unsure whether we were speaking generally or in relation to HDC. I wonder whether you are referring to the three guiding principles for HDC. Can you clarify that, when you talk about risk of harm to others or to the public being a priority, you are talking about that risk of harm as opposed to another? I am not quite clear what you are asking me about. When we talk about risk assessment, what will always be foremost in someone’s mind is risk of harm to others, whether specific or to the public at large.

Is that harm clarified or caveated by a category of seriousness? Or does it refer to any harm to the public?

If we are talking about the HDC guidance, that caveat or clarification is not there. I have read through the guidance several times and it appears to me that the risk that is being considered is risk of harm to the public.

And that is the top priority or consideration.

At the beginning of the HDC guidance, there is a reference to there being three objectives or three guiding principles or considerations that must come into play: the protection of the public; the prevention of reoffending; and reintegration. In a situation where there was a choice to be made about one of those trumping the others, then risk of harm to others would win out. However, in reality, those working in that context must balance all three considerations, because reducing reoffending and promoting the safe reintegration of prisoners into the community are two of the best ways of protecting the public. There is therefore not an either/or choice in terms of those considerations. However, if there was a situation in which one consideration had to win out, it would be that of protecting the public; my reading of the HDC guidance suggests that that is the priority. I think, though, that there is scope for clarification of the guidance material along the lines that you are talking about in order to make it absolutely clear that risk of harm to others is the priority consideration.

I think that we would agree with that. Daniel Johnson has a supplementary question.

I want to follow on from points that John Finnie raised about the role of social work in assessment and information sharing, and particularly where he left off regarding the assessment of homes. Clearly, in the Craig McClelland case, where the individual who murdered him resided was in question. How is such information shared? Is that information acted on? When someone is not present at the address that they have given or concerns are raised about the likelihood of their reoffending in connection with that, is that information, or are those concerns, acted on? In addition, when people give addresses that are outside Scotland, which is a concern that was raised through the McClelland case, what happens in those circumstances? How is that assessed?

The guidance on the criminal justice social work role states very clearly that we must visit an address that is put forward for HDC. There are two caveats to that: one is where the individual is the sole keyholder of the address—that is, it is their own property; and the other is about remoteness, because there are significant geographical challenges in visiting addresses in some parts of Scotland.

The overriding focus is on visiting the address; that is clear. The word used in the guidance is “must”. If an assessment report is completed by the criminal justice social worker and is returned to the Scottish Prison Service and the home has not been visited and it has not been made clear why, the SPS is perfectly within its rights to contact the criminal justice social work service and ask for an explanation, and then seek further information and clarity about the address. There is absolute clarity around that.

11:30  

By implication, you do not necessarily know how that information is being used.

No, and that is perhaps one of the issues. It might be helpful to refer to the “Report on the Review of the Arrangements for Home Detention Curfew within the Scottish Prison Service” that was published in October 2018. A number of recommendations come out of that particular piece of work, one of which is:

“The assessment process should therefore be reviewed to ensure that it can satisfy the assertion within the guidance that:

‘… a robust assessment process has been developed …’

However, it must be recognised that the SPS is not currently funded or staffed to undertake a more detailed multi-disciplinary approach to HDC risk assessment, and as such the financial and resource implications would need to be addressed and appropriate funding provided”.

Recommendation 3 states:

“Specific training in risk evaluation and assessment must be provided to individuals or teams tasked with making the decision to release someone on HDC.”

It is an issue that, although information from criminal justice social work goes back to the SPS, it is the decision-making forum and we have no input into the final decision, which is made entirely internally within the SPS. There have been occasions, certainly within my local authority, when we have given information to the SPS and have taken issue with its decision, because we believed that the information that we provided was of significant concern and that HDC was not appropriate.

My reading of the recommendations is that there is a move towards having more of a multi-agency framework for decision-making and ensuring that SPS staff are properly trained in the tenets of risk assessment. I refer to Yvonne Gailey’s points. In Scotland, we all work to the risk assessment management and evaluation framework that sets out the core tenets of how we should approach risk assessment and risk management. It is about ensuring that the circle is closed.

I do not want to sit here and seem to be unnecessarily critical of the SPS. It is just about understanding the process and how all the parts of the journey link together.

That is helpful. I do not want to put you on the spot and ask you to characterise some of those situations, but if it were possible for you to provide some examples, bearing it in mind that there will be confidential elements to them, of your information not necessarily being acted on, that would be useful for the committee’s deliberations. Can I just touch—

Jenny Gilruth has a supplementary question, if you do not mind Daniel. It is on an area that Jenny has already indicated an interest in. If your question has not been answered after hers, I will bring you back in.

I would like to drill down into some of the written evidence that we received ahead of today’s meeting.

I note from Social Work Scotland’s written evidence that it would have reservations about the use of electronic monitoring as an alternative to lower-tariff disposals. The submission goes on to say:

“there is a risk that a two-tier system would be created in which EM is used disproportionately with those on low incomes.”

Why might that be the case?

Social Work Scotland is not convinced by the argument that EM should be used for offences such as fine defaults, for example. Our concern is that there is a risk that EM would become the default option and that because someone cannot afford to pay, they would get EM. There are lots of ethical issues around EM and proportionality. It is a restriction of somebody’s liberty in a way that fining them is not. These things have to be taken into consideration when thinking about whether EM is a proportionate disposal or sentence for people who present a much lower risk.

I want to follow up with a question on any additional conditions that might be attached, other than the curfew. In your submission, you say that

“guidance for GPS monitoring should involve clearly defined boundaries for buffer and exclusion zones”

and that

“It is imperative that boundaries are unambiguous and clearly outlined for those subject to restriction.”

You then go on to talk about the implications of that in terms of resource and staffing. Are there any other issues with GPS in terms of rurality? I think that that issue is also alluded to in your submission. Further, has Social Work Scotland considered the issue of training?

With regard to GPS, there are issues about remoteness and whether the equipment will function consistently enough to enable it to do its job. Technology is developing all the time and so on, but I am not sure that we can be absolutely confident that problems will not arise.

The question of the resources around how GPS will be used is interesting because, to a certain extent, we do not know the answer to that from a Scottish perspective, although we can look at what is happening internationally.

The answer depends on the way in which GPS is used. For example, are we talking about active GPS monitoring or passive GPS monitoring? If we are doing active monitoring, which involves monitoring the movements of an offender in real time 24/7, there is clearly an issue in terms of resource, who does that, how the information is shared and so on. We can certainly learn from colleagues in other jurisdictions and internationally, but it would be hard to say that there would be no additional costs—indeed, I think that there probably would be. In such a system, resources have to kick in quickly when someone steps over an exclusion line, because there is an assumption that someone has breached that line with intention. It might be that there is a perfectly reasonable explanation for that breach but, until you know that, you have to assume that someone is potentially at risk—if that were not the case, obviously, an exclusion zone would not have been set up. Clearly, such a system would involve resource implications not only for criminal justice social work but for agencies such as Police Scotland and the courts service.

Passive monitoring involves a slightly different situation. It involves reviewing someone’s movements over the course of a day, for example, to see whether they have breached their exclusion zones, and then deciding what action to take.

Daniel Johnson has a follow-up question on the home detention curfew, and Liam McArthur wants to come in after that. After those questions, we will move on to release on parole. I am conscious that Dr Brown and Mr Watt have not spoken yet, but they will get a chance.

I am quite happy.

I have questions about Mr Maybee’s comment on developing a multi-agency response and, more broadly, about what Yvonne Gailey’s organisation is responsible for.

Mr Maybee talked about the details in the reports of HM inspectorate of constabulary in Scotland and HM inspectorate of prisons for Scotland. Further, HMIPS said that the processes that were in place were not what it would describe as being robust. What are your reflections on those reports, Ms Gailey? What do you think are the key issues that need to be developed, bearing in mind your direct perspective on multi-agency working and the development of risk management standards? What do you think is the gap that has been identified by those two reports?

I find myself in almost complete agreement with the recommendations on risk assessment in the prisons inspectorate’s report, although I come at the issues from a slightly different angle.

Last week, I shared with my colleagues my view that we have in place only part of the risk assessment practice. Essentially, we promote an approach that involves a risk assessment process that has three core steps: identifying the relevant information; analysing the meaning and the relevance of the information; and evaluating all that to inform the decisions that you are charged to make.

Currently, the risk assessment process sets out a range of information that the person who is doing the assessment is required to identify. The information that they are required to identify is very rational and is evidence-based. It involves the kind of behaviours that have happened in the past and the kinds of behaviours that can be taken into account currently that might suggest whether someone is likely or less likely to comply. However, the process does not then go to the next stage and give the person who is doing the assessment some guidance on what to do with that information.

One of the questions concerns whether there has been adverse behaviour in prison, and the assessor considers whether or not there has been. However, it then falls to the person doing the assessment to discern the meaning of that and then to decide the implications of that meaning for the recommendation about HDC.

In those two areas, there is a need for further guidance for the practitioner—generally, a middle management prison officer—who is undertaking the HDC assessments before they go to the governor for sign-off. It is perfectly achievable for us to work with the Scottish Government and the Scottish Prison Service to refine that process to make it that bit more robust by including that additional guidance and by determining, as the prisons inspectorate has recommended, what element of training is required to support that.

I also support the recommendation about the need for some analysis of the use of HDC in the past and currently.

When representatives of the SPS came to the committee recently, they told us that they were upholding the regulations, such as they were, up until the point when they changed. On the basis of the report that we have from HMIPS, do you think that that is correct?

When you talk about the change in the regulations, are you talking about the presumption against HDC being introduced?

Essentially, the representatives of the SPS told us that they were complying in full with the regulations, such as they were, and that no deficiencies had been exposed in terms of them following the regulations as set out. Do you agree with that?

You must understand that I do not have access to any of the details in that regard, but my understanding is that the SPS and the inspectorate found that the process was followed correctly.

It might be helpful to give a bit of context around risk assessment. For example, a criminal justice social worker must undergo a five-day training course—with pre and post-course evaluation—to gain accreditation and to be able to use the level of service/case management inventory, or LS/CMI, risk/need assessment tool. This is not a criticism of the SPS and the HDC process, but short-term prisoners—those who receive prison sentences of less than four years—might not have a criminal justice social work report prepared at the court stage; they might just go straight to prison for that short period without the sort of formal risk assessment that would previously have been carried out. It is therefore reasonable to ask whether all that information is being handled in a systematic and structured way that involves pulling the information together, assessing it and then evaluating it. For long-term prisoners—those who received prison sentences of four years and longer—there will be formal risk assessment that SPS can use as a basis for developing its judgment around HDC.

I stress again that I am not being critical of the SPS, and I do not doubt that the response that you got from the SPS was absolutely correct and that it is following the current process with regard to HDC. However, I think that we would not have the recommendations if there were not some gaps that we need to consider in order to improve and tighten up the system to ensure that we have the best possible decision making around HDC.

There are a number of reasons why HDC is a good thing. It tests out prisoners who are coming to the end of their sentences and it helps them to re-establish connections with their communities, families and friends and to start looking for work. However, we must ensure public protection and community safety, and we must have an absolutely robust system in place to do that.

As you say, we want the very best system.

11:45  

Currently, when a person breaches an HDC they do not commit an offence. The HMICS report from October states that there should be such an offence. Does the panel have a view on that? Do you agree?

Right, who wants to answer? Is the question directed at anyone in particular?

Not really, but perhaps James Maybee could answer. Should a breach of HDC be an offence, given what you said in answer to Daniel Johnson’s question?

I can give you a personal, not a Social Work Scotland response. I think that there would be merit in considering that. There is a cause and effect and there is an issue of personal responsibility in adhering to that. Breaches of, for example, community payback orders or prison licences have clear consequences in that an individual is held to account for a breach of such an order. It does not necessarily follow that a sanction is imposed—for breaching a CPO, for instance—but the person has to go back, state their case and be held responsible for the fact that they have not complied with the conditions of the order. It is right to consider making it an offence, but I would not argue that it necessarily follows that there would be a sanction in every case, although that may be a consideration.

I understand. The committee heard at a previous evidence session that, if a police officer suspects at 3 o’clock in the morning that a person has breached their HDC conditions, there is currently no power to arrest that individual. The police view that was given to the committee was that there should be a power to arrest that person, simply on suspicion of having breached an HDC. Do any of the panel members disagree with that view?

In my previous existence, I was a procurator fiscal. If a policeman suspects that there has been, or is likely to be, a breach of a bail order, they have the power to arrest without warrant. You can see parallels between an accused being on trust on a bail order and a prisoner being on trust in relation to a licence condition. I have forgotten who it was now, but I tend to agree with what the police service representative said—that without some kind of provision they feel powerless. There are arguments about what the police can and cannot do in certain circumstances without a warrant. Search without a warrant implies the power to break open lockfast places, for example, but in the 21st century there appears to be a reticence to do that. I can well see why the police would say, “Give us a statutory power,” and with a bit of luck they would be able to use it, and quickly.

Thank you. That is helpful.

We move on to questions about parole.

It is now accepted that there were weaknesses in relation to HDC, and the figures that John Finnie quoted about a 75 per cent reduction speak for themselves. Are there lessons to be learned about parole, risk assessment and returning to custody from the previous experience?

The experience of the failure of HDC?

Yes, in the light of recent tragic events.

It is a difficult question to answer. Any decision that is based on risk requires three considerations, as far as we are concerned—the interests of the prisoner, the interests of third parties, usually victims, and the public community safety interest. If one of those takes priority it is community safety, but it is a balancing exercise. It is almost impossible to answer the question without seeing a case, because each decision has to be case specific.

For example, you could have a prisoner who is a relatively high risk and you would need a very tough management programme to manage that risk in the community before you were satisfied that you could make a decision to release. On the other hand, you might have a prisoner who is a lower risk of reoffending but if he reoffended it would be catastrophically serious, and you probably could not have a management plan in place to deal with that. You could have management plans that involve all sorts of satellite surveillance, GPS and what not, but sometimes you get to a point at which, if you need all that, the prisoner is probably too dangerous to release anyway.

It is a question that we cannot answer in advance. I know that the European Court of Human Rights, for example, is very wary of broad statements such as, “We will not do this” in relation to a particular process, because that may breach someone’s rights under the convention. For example, if we were to say that we will not release anyone who has been accused of violence or sexual offending, that would be struck down immediately. That is why we cannot answer that question in advance. If you showed me a case, I could talk you through it and explain the risk assessment and what is relevant to that case and that person.

I understand what you are saying, but in the light of recent tragic events and two reports that have recommended quite sweeping changes, have you re-evaluated how you deal with parole cases?

No.

Okay. Dr Brown, what are your thoughts on whether a psychiatrist should still be involved and can you expand on the part of the bill that deals with that?

From our reading of the bill, we understand that psychiatrists would be precluded from being on the parole panel. However, we think that the presence of a psychiatrist is of benefit to the panel and that they should remain. Our written evidence outlines the reasons for that and the expertise that a psychiatrist would bring to the panel. Part of that is what we have heard about our involvement in risk assessment and part of it is our understanding of and experience in treating mental illnesses and the management of individuals within a prison setting and in the community.

Do you have any thoughts on that, Mr Watt?

I was asked a question like that the last time that I came to the Parliament and I am pretty sure that that was shortly after a recruitment process. We were recruiting legal, psychiatric and general members and we had two applicants who were psychiatrists, one of whom we appointed. There does not appear to be an appetite out there.

Not only that, but the board appoints members to particular hearings in accordance with their availability. Even if we had psychiatrists, they would not necessarily be available for those cases that we needed them for. We try to use the psychiatrists that we have for those difficult and awkward cases that are usually at the state hospital. It would be very difficult to recruit the number of psychiatrists that would be needed to sit on all the cases that they might be useful on. That is just a fact of life.

We have a lot of NHS psychiatric service members—many of whom are senior nurses or who have a nursing background—who have a firm understanding of the process. Beyond that, it is very difficult to say how we would be able to get the number of psychiatrists to get them on to the cases that we would need them on, unless there was a dramatic change and we could appoint on an ad hoc basis.

Would you like to respond, Dr Brown?

Within psychiatry in general, we are aware of recruitment issues at a variety of levels. We know that there have been difficulties in relation to the Parole Board and those difficulties remain. However, that does not necessarily mean that we should not be part of that process.

My final point on that is that if the board considers that it needs the assistance of a psychiatrist, it can instruct that a psychiatrist carry out some work with the prisoner and attend the hearing as a witness to assist the tribunal in working its way through before arriving at a conclusion. The board makes its decision on the evidence before it. In some ways, having the professional evidence of a psychiatrist who has seen the prisoner for a particular purpose is perhaps as valuable as having a psychiatrist on the panel. It is not as though, in certain cases, we do not have the benefit of psychiatric evidence. Far from it—if we need it, we will go out and get it.

Does that mean that you have psychiatric evidence for certain cases?

It is very unusual, but we do. I am going to the Orchard clinic tomorrow and I fully expect to have two psychiatrists there to explain the position.

Do you take that into account?

Oh yes, absolutely.

What do you think about the psychiatrist angle, Ms Gailey? Is it necessary for risk assessment?

At the point of the consultation on the changes to membership of the Parole Board, my view was that the previous arrangements, which required a number of people from different backgrounds, were quite helpful in maintaining a balance of views and expertise on the board. However, my view on that is from somewhat of a distance and I am sure that other witnesses know much more about it than I do.

If I understood you correctly, Mr Watt, you were saying that if you think that you need a psychiatrist, you can call in that forensic expertise. That relies on you knowing and recognising that need. If there is a statutory obligation for the psychiatrist to be part of the team, the expertise is there from day 1, as soon as a case—

It is—

Please let me finish. We are looking at risk assessment, and highly emotive issues are involved. I, for one, would not want to leave the situation to chance; without the statutory obligation, we would in effect be leaving it to chance.

It is not leaving it to chance. All members have very broad experience of the criminal justice system.

I understand. You have made that point.

We have 2,500 cases a year and one psychiatrist. It is hard to see how a system like the one that you have described—in which a psychiatrist looks at all the cases to make sure that we do not miss the one that needs a psychiatrist—would be possible. I spent a lifetime in the prosecution service identifying cases where there were peculiar issues, or in which one would seek a report from a psychologist or psychiatrist on a precautionary basis. If there is doubt about a case, we have enough members who could be approached. However, each case is informed by a dossier that one would expect to throw up a clue—a history of psychiatric illness, or something very peculiar about the case. That is where we look.

I am not conscious that there has been an issue—not in my time on the board, anyway—where we have misinterpreted a case and missed a prisoner who required some kind of psychiatric input. Usually, those cases are transfers from prison to secure or middle-secure psychiatric hospitals and a psychiatrist has been involved in the prison. We deal with long-term prisoners on sentences of four years or more, and there is usually an opportunity in prison for that kind of problem to be identified. The problem may not be resolved, but it will almost always be identified.

We are returning to my initial point about the system being reliant on the board thinking that there is an issue. You think that you have enough general expertise with people who have some kind of psychiatric background. I want to bring in Dr Brown. It seems to me that your very specialised knowledge would be useful to have on a statutory basis, more generally, and certainly to pick up the expertise where it is required.

That is the position that the Royal College of Psychiatrists in Scotland holds. As the panel knows, risk assessment is a very broad area. Psychiatry is part of that, as are many of our multidisciplinary and multi-agency colleagues. The specific knowledge and expertise that we bring is broader than that. Mr Watt mentioned the role of other health experts, including psychiatric nurses and clinical psychologists. Psychiatry brings knowledge of the treatment of illness—of what we can expect people to agree to, and to be involved with, in terms of their care. Looking forward to time in the community, it also looks at integration within community mental health teams and at whether they should be forensic led, and it defines the involvement of the Mental Health (Care and Treatment) (Scotland) Act 2003, should that be required. We have outlined a variety of levels of expertise, which we think should remain part of the Parole Board in a statutory way.

I certainly found your submission compelling.

Miss Gailey, when you do risk assessment, does a person’s mental health not come into that? Is the presence of a mental health issue part of your decision on what the risk will be? If you do not know that, how can you do a proper risk assessment?

12:00  

Mental health is certainly a factor that would need to be considered when someone undertakes a risk assessment. The extent to which it is suspected that there are mental health issues would very much determine the kind of professional who needs to be involved in the assessment.

Who makes the judgment? Do you call in professional services because you think that there might be mental health issues? How does it work?

I will draw on the social work experience. If a criminal justice social worker was interviewing somebody to undertake an assessment, and if they felt that there were aspects of that person’s presentation that suggested that there might be mental health issues, it would be incumbent on them to approach a mental health professional.

A criminal justice social worker would do that.

Yes, or they would say to the person for whom they were providing the report, “I have concerns about certain issues, but I don’t have the competencies to assess them.” We either need to live with those issues being unassessed, or they need to be referred to the correct mental health professional.

Forgive me, but that sounds quite arbitrary—it might happen or it might not. Is it not essential to know whether someone has a mental health issue?

It certainly is, but that does not mean that there is always the resource to address that matter. What is central is that somebody does not attempt to assess something that they do not have the experience and expertise to assess.

If I am following the discussion correctly, the argument is that it is not for members of the board or for social workers to identify whether an individual is, or might be, suffering from a mental illness; a psychiatrist should make that assessment. Am I following the discussion correctly?

I am putting the question to you. Do you think that that should happen?

As I have said, experienced and seasoned professionals ought to be able to spot an issue and then follow it up. If you are not with me on that, the only solution that I can see is that every prisoner has a psychiatric assessment that goes into their dossier before it comes to the board.

We are all at risk of experiencing mental illness. One in four people will experience it, and that applies within the prison setting, too. Mental health difficulties may or may not have been identified prior to someone coming into prison. Prison is not an easy experience, and many people develop different symptoms during their time in prison. There might not have been historical concerns; there might be more recent concerns.

In Scotland, we are very fortunate in that there are mental health teams in prisons. For the most part, people who experience mental illness are identified readily by the experienced staff in the prison and then directed to the mental health teams. There should be access to professionals—not just psychiatrists but trained mental health nurses, too. That information could be made available if it is required. That said, that information might not be part of the original dossier, so having access to a psychiatrist on the Parole Board would be of benefit in order to follow up on the information and to have access to it in a way that could inform.

That is exceedingly helpful.

My questions are directed at James Maybee. Can you outline the role of social work in informing decisions about release on parole? Taking into account earlier questions, can you tell us about how mental health services are accessed and the role of mental health officers in that respect?

As far as parole is concerned, there is a clear process that includes a community-based element and a prison-based element. Every prison has a social work unit, and it produces a parole report that goes into the dossier to be considered by the Parole Board. A separate report is provided from the community-based element.

A process called throughcare assessment for release on licence—or TARL—has just been evaluated, and there has been a pilot to look at streamlining that process and bringing together the prison and the community-based parole reports into one assessment. There are good reasons for having one assessment rather than two separate ones—for example, it can bring together the best of both worlds. After all, prison-based social workers’ view of risk and risk management is sometimes different from that of the community, which simply reflects the different perspectives that people bring to the task.

Interim guidance has been issued and signed off by chief social work officers through Social Work Scotland in respect of how the current arrangements should work if there is any difference of opinion. In the very small number of cases where that happens, the default position is that the community gets the final say, given that it will be managing the risk when an individual gets back into the community. We therefore have a very clear process for submitting assessments and engaging with the parole process.

That was a good outline, but the previous question was about mental health. I think that colleagues around the table are concerned that mental health issues are perhaps not being considered in the risk assessment process. Can you tell us anything about social work risk assessments and the tools used, which you identified earlier? How do they specifically address mental health, and how are other agencies—mental health officers, for example—brought into that process?

I can absolutely tell you something about that. The issue of mental health would be considered in any social work assessment, from the original criminal justice social work report that goes before the court onward. Although a social worker might not be a mental health officer, they could have that qualification, which would mean that they would have an additional degree of knowledge and expertise compared with a normal social worker.

However, when a social worker has concerns about someone’s mental health, at whatever level, they will certainly seek to refer that individual to the specialist mental health services for an assessment. For example, even at the court report stage, it is not beyond the realms of possibility for a social worker to suggest to the court that it needs a further psychiatric report or psychological assessment in order to inform the sentencing decision.

Social workers are therefore very alive to the issue of mental health, and that process will continue during someone’s journey through the prison estate. If somebody is being considered for parole, the prison-based social worker and, indeed, the community social worker involved in the individual’s integrated case management will always consider the individual’s mental health. As Dr Brown said, we know that there is a high prevalence of mental health issues among those individuals. Social workers are not experts in the same way that psychiatrists or forensic psychologists are, but they will always seek to make referrals for further assessment and information to inform their decision making and will include that information in their report. I would be very surprised if a prisoner with a mental health problem got to a Parole Board hearing and that information had not been flagged up in some shape or form.

Would that surprise you because the risk assessment would have already identified that there had been a history of mental illness being diagnosed or that there was currently such a diagnosis?

Yes. The social worker would always look for any previous involvement with mental health services and would seek to put that information together. It is a critical part of the overall assessment.

That is helpful. What is the role of social work in monitoring parole conditions? What might be the areas of difficulty and where is there good practice?

Do you mean with regard to someone actually being in the community?

Yes.

Somebody who is subject to a statutory prison licence will be monitored and supervised in accordance with the national outcomes and standards and the associated guidelines. It is fair to say that the current throughcare guidance for criminal justice social work is very out of date; it was written in the late 1990s or early 2000s, and since then there have been significant developments in the way in which we do business. It is generally accepted that we need a more up-to-date set of throughcare guidance to follow.

However, the high-level national outcomes and standards set out very clear guidelines for how often an individual should be seen in relation to their risk. Certainly, the task of social workers is to ensure that prisoners are seen in accordance with those guidelines and are very strictly monitored.

I am happy with that, convener.

That concludes our questioning, and I thank all the witnesses for attending and presenting their evidence in person to the committee.

I suspend the meeting briefly to allow the witnesses to leave.

12:10 Meeting suspended.  

12:10 On resuming—