Drug Deaths Taskforce response: cross government approach

7. Public Health Approach in the Justice System

Taskforce Recommendation: As part of the implementation of the Scottish Government's new Justice Vision, the Scottish Government should make key changes to fully integrate a person-centred, trauma-informed public health approach to drug use in the justice system. Structured pathways for supporting individuals with problem drug use throughout their justice journey should be developed, making full use of critical intervention points and ensuring that people leave the justice system better supported and in better health than when they entered.

In 2018 19% of people who had a drug misuse death had been in police custody and 13% had been in prison in the six months prior to death^[50].

The Vision for Justice in Scotland^[51] published in February 2022 sets out a vision of the future justice system for Scotland, spanning the full journey of criminal, civil and administrative justice, with a focus on creating safer communities and shifting societal attitudes and circumstances which perpetuate crime and harm. It acknowledges the frequent interactions with the justice system by people who use drugs and the importance of working together to address the underlying causes of crime and supporting people to live full and health lives.

In addition, the Youth Justice Vision: A Rights Respecting Approach to Justice for Children and Young People: Vision and Priorities^[52] was published in June 2021. The Vision aims to build on the work of the previous youth justice strategy which concluded in 2020, as well as align with the objectives of the Promise, GIRFEC and the National Performance Framework in enhancing the wellbeing of children and young people, and offering positive support to children and families. This includes the continued delivery of the Whole System Approach, our programme for addressing the needs of young people involved in offending and those who are at risk of offending, initially rolled out across Scotland in 2011. It also includes the application of early and effective intervention, which seeks to prevent future offending by providing timely and proportionate interventions and by alerting other agencies to concerns about the child or young person's behaviour and well-being.

One of the key outcomes in the Vision is that children and families are supported at an early stage to improve their life chances with their wellbeing and mental health needs addressed. Work is ongoing through the delivery of the whole system approach across Scotland, working with children and families at an early stage.

7.1 A public health approach to policing

The Police Scotland Annual Plan (2022/23) recognises the need to develop partnership approaches to tackle drug-related deaths and drug related harm and the need for them to develop and support innovative ways to reduce the harm associated with problem drug use in Scotland, based on public health principles. To assist in this, Police Scotland have established a Drugs Strategy Board to bring together colleagues from a range of organisations, such as Scottish Ambulance Service, Scottish Drugs Forum, Public Health Scotland, and the Scottish Recovery Consortium, to develop and strengthen existing local partnerships to enhance service delivery.

Key actions

• Police Scotland is committed to training and equipping all officers, up to Inspector level, with intra-nasal naloxone kits for use in an opiate overdose situation and by early 2023, all 12,500 officers will be equipped.
• Scottish Government has provided over half a million pounds to Police Scotland for the initial pilot and for the national roll out.
• Police Scotland have played a key role in the development of a proposal to go to the Lord Advocate relating to the establishment of a safer drug consumption facility in Glasgow. In a statement given to the Justice Committee in November 2021, the Lord Advocate was clear that a proposal could be brought to the Lord Advocate "if there was a proposal for drug consumption facilities that was precise, detailed and specific, underpinned by evidence and supported by those who would be responsible for policing such a facility, and by Police Scotland, and if there was careful consideration in and around how those consumption rooms would impact on communities".
• Police Scotland have worked to integrate trauma informed practices in many of their key areas of business and have adopted the use of NHS Education for Scotland materials. They are committed to engaging with people with lived and living experience to help understand how their practices could make a positive impact.
• Recognising that use of drugs can be a contributory factor to under reporting of rape or sexual assault, the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021, which commenced on 1 April 2022, allows people aged 16 or over to access healthcare and request a forensic medical examination without first having to make a report to the police. Sexual Assault Response Coordination Service (SARCS) in each health board deliver this service and leads in each health board are encouraged to share information with a range of local healthcare partners to raise awareness of self-referral for those who may be concerned about police involvement. If someone attends a SARCS following a recent rape or sexual assault (under 7 days), the healthcare assessment form includes a question about problem substance use to help inform both the examination and any onward help or support the person might need.

7.2 Supporting people to avoid or limit contact with criminal justice services.

In line with the principles of the Vision for Justice in Scotland, we are taking action to prioritise early intervention within the criminal justice system diverting people away from the criminal justice system wherever possible. This includes a number of general improvement actions which are likely to have benefits in relation to supporting people with problem drug use as well as more specific drug-related actions.

Key actions

• Working with partners including the Crown Office and Procurator Fiscal Service (COPFS) and Police Scotland, undertaking a review of summary justice to consider what legislative and non-legislative measures are needed to support a modern, person-centred, trauma informed, justice system. This will include an examination of the current operation of police and fiscal powers to understand the opportunities to divert low level offending away from the potentially detrimental impacts of the justice system towards interventions and support which address individual's needs, leading to better individual outcomes. This will involve working closely with the Lord Advocate and Crown Office and Procurator Fiscal Service, given the Lord Advocate has responsibility for prosecution policy.
• Collaborating with key partners to support the updating of national guidance on the current use of Diversion from Prosecution, which will be informed by a thematic review (being undertaken by HM Inspectorate of Constabulary in Scotland, HM Inspectorate of Prosecution in Scotland, the Care Inspectorate, and HM Inspectorate of Prisons in Scotland) that will provide an overview of diversion practice from a policing, prosecution and justice social work perspective. This will highlight what is working well and explore any barriers to the more effective use of diversion. This work will be concluded in Spring 2023.
• Drug Courts: The aim of drug courts is to reduce drug use and consequent offending through sentences that include treatment requirements. Assessments and case reviews are an essential component and individuals are supported to sustain progress made, including through transition to voluntary services. There is already strong evidence for the effectiveness of drug courts from international evidence and their operation in Scotland. We will therefore explore, the feasibility of further expansions of drug courts, in consultation with key stakeholders, in particular the senior judiciary and Scottish Courts and Tribunals Service, who are responsible for the conduct and administration of court business.
• We will soon publish our Violence Prevention Framework. This Framework, the first of its kind, will set out what we need to do to more fully make the shift from reaction to prevention. Our aim is to prevent people from experiencing violence in the first instance and, when it does occur, ensure victims are safe and reduce harm. While there will always be a need for prison to protect the public from harm, as the Justice Vision for Scotland highlights, we must ensure effective rehabilitation and recovery for those who have offended to prevent reoffending. This will, of course, include people with a history of drug use and who may be at risk of violence. Working with Police Scotland, local authorities and a range of other partners, including the Scottish Violence Reduction Unit, the Framework will set out some key themes, all of which are interconnected, as well as a programme of activity for delivering and reporting on the Framework.

7.3 Custody for remand should be a last resort

As much as possible, the use of custody for remand should be a last resort, and greater focus needs given to the rehabilitation and reintegration of individuals leaving custody.

We have introduced legislation (Bail and Release from Custody (Scotland) Bill) which aims to refocus how remand is used so people are only remanded in custody if they pose a risk to public safety or, in certain cases, to the delivery of justice. The Bill also proposes changes to certain prison release mechanisms with an emphasis on providing more opportunities for reintegration and support for those released from custody. The approach taken in the Bill was informed, in part, by feedback from individuals with lived and living experience of the criminal justice system.

• Specific provisions with the Bill include:
  • Reforms to the legal bail test applied by the courts. Where there is a clear risk that someone poses a danger to other people or a danger to the delivery of justice, remand can be used. Otherwise, bail is to be the normal route used. We understand that decisions taken at the outset of the criminal justice process can impact the rest of a person's journey through the criminal justice system, including following conviction. The proposed new bail test may, therefore, lead to further decisions which help keep people safely in the community in the longer term by enabling them to demonstrate to the court likely compliance with possible community based disposals at the sentencing stage.
  • Enhancing the role of justice social work in informing critical decisions on a person's liberty – recognising their expertise and experience in risk assessment and management.
  • Ending liberation on a Friday or the day before a public holiday to increase opportunities for people leaving prison to be able to access the services they need in the community;
  • Introduces a pre-release planning duty on named public bodies to encourage earlier multi-agency involvement in release planning so that, increasingly, people are able to leave prison with the support they need in place from the point of liberation.
  • Introduces a duty on Scottish Ministers to publish statutory throughcare standards, or remand and sentenced prisoners, to improve the consistency of throughcare support available across Scotland.

While the Parliamentary timetable is not yet confirmed, it is expected the Bill will be concluded by mid-2023.

We recognise that legislation alone will not achieve the outcomes we want for individuals, their families and communities. Therefore, to support the aims of the Bill, a programme of work is underway to strengthen alternatives to remand, ensuring they are consistently available across Scotland. This includes additional investment in bail supervision and assessment services, the introduction of electronically monitored bail and consideration of the wider support which could be provided to individuals whilst they are on bail to address wider non-criminogenic needs.

Key actions

• We have invested substantial annual grant funding to third sector voluntary throughcare services which provide practical support and guidance to people leaving short-term prison sentences across Scotland. These are generalist services which can support people in line with their individual needs, and where appropriate will assist them to access more specialist services in the community, such as drug treatment services. We are currently working with justice sector stakeholders to review how these voluntary services are commissioned and delivered, to inform our plans for how best voluntary throughcare services could be delivered in the future.
• Continue to engage with people with lived and living experience of the criminal justice system, including those with problem substance use, to inform the approach to implementation of this legislation, if passed by Parliament.

7.4 Remove barriers to accessing services and treatment on release from prison

Transition from prison is a high risk time for two reasons: disrupted routine elevates a person's risk of disengagement from treatment, and the preceding period of abstention typically lowers their drug tolerance, elevating risk of accidental overdose. When people are released on Fridays, it is difficult or impossible for them to access all the services they need in the crucial days following their release, increasing the risk they may relapse or disengage from treatment over the weekend. Friday releases also cause inefficient caseloads across the week for treatment, social work and other services because anyone with a Saturday or Sunday release date is also added to this group, placing a large proportion of releases on the week day least well-suited to absorb them.

Key actions

• The Bail and Release from Custody (Scotland) Bill will end liberations on a Friday or in advance of a Public Holiday removing a barrier to accessing services on liberation.
• The Prisons to Rehab pathway became operational in 2020 and funds placements of up to 12-weeks. Although the pathway was intended to be an emergency response to the covid pandemic, a number of referrers continue to support its use. The implementation of the policy is supported by prison staff, residential rehabilitation providers and third sector organisations. In 2021‑22, 24 placements were approved through the pathway. In addition, there have been 18 approved placements in the first half of this financial year^[54]. A new iteration of the Prisons to Rehab protocol is being developed to inform referrers, providers and individuals. It will include an increased number of participating providers.
• Implementation of the Medication Assisted Treatment standards in prison settings brings new investment and improvement to healthcare in prisons and helps give clarity on accountability for services in prisons. Local drugs services will work more closely with Scottish Prison Service (SPS) to ensure access to treatment is improved as a result.

7.5 Provide opportunities for people who have offended to address the underlying causes of their behaviour and to receive support in their recovery.

The Scottish Government is committed to driving a decisive shift away from the use of imprisonment, in particular short-term imprisonment, towards greater use of community-based interventions. We know that short-term imprisonment does not provide the opportunity to address the underlying causes of offending – and community sentencing options are more effective at supporting rehabilitation.

Key actions

• We are providing around £134m a year to support community justice services in Scotland.
• The revised National Strategy for Community Justice, published in June 2022, is intended to support a shift towards greater use of community sentences and other interventions. It highlights key areas for partners to focus on including the provision of support for substance use issues.
• A Delivery Plan to drive the ambition behind the strategy is in development and is expected to be published in early 2023. This Delivery Plan will drive actions at a national, as well as local, level.
• Key areas of the strategy include:
  • Collaborating on the embedding and mainstreaming of the MAT standards in justice settings.
  • Building upon referral opportunities from police custody and ensuring that a person centred, trauma informed approach is taken including in relation to substance use.
• In response to action 98 of the Drug Deaths Taskforce Report, Scottish Government Justice Analytical Services will carry out a review of drug treatment and testing orders, community payback orders and other community sentencing options to assess how they have been used, their outcomes and whether they are the most effective mechanism to support an individual's recovery and reduce recidivism rates. The aim is to report in spring 2023.
• Publication of updated operational guidance for delivery of statutory throughcare services and review the provision of third Sector Voluntary Throughcare services to support those who may require additional support to re-engage on release from custody.

7.6 Ensure those with very complex needs including those who experience problems with substance use in the prison estate, access the support they need.

Prison Health needs assessments relating to social care, substance use, mental health, and physical health, were externally commissioned by the Scottish Government and published in September 2022^[55]. It found that drug use and supply remain intrinsic to living in prison, both in terms of how some people choose to cope with living in prison, and their role and status within the prisoner community.

We continue to support the Scottish Prison Service (SPS) and Police Scotland's joint efforts to tackle the use of drugs within prisons, and to prevent contraband from entering them. The SPS deploys a variety of operational and technological responses to mitigate against this, and continues to invest in new technology and devise new practices in response to this continuously evolving issue. A range of robust security measures are in place, including the use of body scanners and Rapiscan machines, which detect substances that may be concealed in items of mail and personal property. The introduction of routine photocopying of prisoner mail has led to a significant reduction in drug taking incidents (down by 22% from October 2021 to October 2022), and drug-related calls for emergency ambulances (down 58% over the same period).

Key actions

• We are working closely with key partners, including the Scottish Prison Service (SPS) and NHS boards, to review the recommendations, determine where work is already underway and take additional action where this is required.
• Local partners are working to implement the Medication Assisted Treatment standards in all prisons which will bring together drugs treatment with primary care and mental health and assure advocacy for housing, welfare and benefits as well.
• We are working to embed naloxone administration as part of a standard emergency response for SPS staff across the whole prison estate. Funding has been provided (£20,000 in 2022/23) to allow 'crash packs', or emergency first aid boxes, in all 15 prison establishments to be supplied with Nyxoid (intra-nasal) kits for use in the event of an overdose.
• We will support a cross-portfolio approach to addressing the underlying issues in prison healthcare by working collaboratively across portfolios, Scottish Government directorates, and with SPS and NHS representatives. A new strategic oversight group will report collectively, and to all relevant Ministers on progress made against the recommendations from the Prison Health Needs Assessments.
• As part of this collective approach, we will also introduce additional asks within the annual delivery planning and reporting process for Health Boards to ensure appropriate accountability for prison healthcare.