Independent Forensic Mental Health Review: final report

7 Recommendations: Specific populations

7.1 People with learning disabilities

People in forensic mental health services who have a learning disability have specific and sometimes highly complex needs.  This should not have any discriminatory impact on how they are treated or the services they receive.  The Forensic Network’s annual census data shows that, on average, people with a learning disability spend a longer time in secure forensic services than people with a mental illness.  In 2019, people with a learning disability had spent 6.7 years in their current hospital, while people with mental illness had spent 4 years.  This raises human rights concerns because it suggests that people with a learning disability are likely to be subject to restrictions for a longer time than other people.  When in hospital, staff said that people with a learning disability are sometimes placed in conditions of greater security than are required to manage their risks.  They are also disproportionately affected by delayed discharge because of challenges finding appropriate support and accommodation in the community.  These delays are contrary to the principles of reciprocity and the least restrictive option because they keep people in conditions of excessive security.

The Review heard that people with a learning disability should be given more choice about what happens to them, like what accommodation they will return to in the community.  They should also be in environments that are adapted to their needs.

7.1.1 Supporting people to go through the criminal justice system

The Review heard concerns that people with a learning disability are diverted to secure inpatient settings for offences that might not have been severe enough to receive a prison sentence in the criminal justice system.  It also heard of people being subject to these restrictions in hospital for longer than any prison sentence that may have been imposed for a comparable offence.

Professionals agreed that people with a learning disability who are accused of offending should, by default, be supported within the criminal justice system.  This was endorsed by people with lived experience who spoke to the Review.  One person in medium security said they would have been able to stand trial if they had had a little more support to understand what was going on.  They also believed that had they gone to prison, they would have served their sentence long ago and been back in the community.  People with a learning disability should only be diverted to hospital if they are unable to participate in the criminal justice system despite reasonable support being provided.  Some people also said that people with a learning disability should receive ‘parity of disposal’.  This means that they should not be placed on criminal orders that last longer than for other people.

This Review is aware of the reports by the Equality and Human Rights Commission (2020) and the Law Society for Scotland (2019) that offer guidance on supporting vulnerable people within the criminal justice system.^[18]  These make clear that people with a learning disability require support to effectively communicate and participate in criminal justice processes.  Appropriate Adults services are there to ensure vulnerable people are helped to understand what is going on and supported during police procedures.  It is likely that Appropriate Adult or equivalent support will be required throughout the criminal justice process in order to allow people with a learning disability to fully participate.

Recommendations

Recommendation 43: There must be a presumption that people with a learning disability who are accused of an offence will be supported to go through the criminal justice system.  They should only be diverted to hospital where this has not been possible.

Recommendation 44: The Scottish Government should commission a study to examine the experiences of offenders with a learning disability compared with offenders in the general population and offenders with a mental illness.  This study should compare court ‘disposals’ for similar offences, including whether people are given prison sentences or diverted to hospital for treatment.  It should also explore what kind of restrictions are associated with these ‘disposals’ and the length of time people are subject to them.

7.1.2 Hospitals

Care and treatment

People in forensic mental health services should be managed in the least restrictive environment possible whilst meeting their care and treatment needs and risk management requirements.  Some professionals raised a concern that this does not always happen for people with a learning disability.  In particular, there was a feeling that the seriousness of a person’s offence could lead to incorrect assumptions about the level of security required to manage their risks.  Clinicians emphasised that the rehabilitation pathway for people with a learning disability is different to that for people with mental illness and that decisions about their care and treatment should not necessarily be made in the same way.  No specific change of procedure is required to address these concerns but there should be a culture of considering a person’s needs holistically when responding to a referral, alongside information about their offence.

The care and treatment of people with a learning disability requires a different approach to that for people with mental illness.  In settings where these populations may be cared for on the same units and/or by the same staff teams it is critical that staff are equipped with the skills to manage both groups effectively, and to switch between different approaches to care and communication as appropriate.  In Section 8.3, it is recommended that standards for staff skillsets and training should include best practice in relation to the care and treatment of people with learning disabilities.

Whilst all inpatient units should be designed as therapeutic environments (see Section 6.2.1), it is particularly important that services caring for people with learning disabilities are designed to accommodate different sensory needs.

Management of low secure and community forensic learning disability services

People with learning disabilities within the forensic system are relatively small in number. The Forensic Network’s census of people in inpatient forensic services in 2019 identified 75 people with a learning disability and four with a learning disability and a mental illness.  Reflecting this, there are fewer forensic learning disability services than forensic mental health services and some areas do not have this specialist provision.  The Review heard that this had resulted in differences in practice and levels of expertise across Scotland and that there was a need for a more consistent approach.

The State Hospital provides the national high secure services for men with learning disability.  The National Medium Secure Intellectual Disability Service for men and women is hosted by Rowanbank.  Outwith these high and medium secure services, the management structures for forensic learning disability services vary.  Some low secure learning disability units sit under forensic mental health whilst others are located within generic learning disability services.  Similarly, the Review’s survey of community forensic mental health services found that some are managed by Health Boards whilst others are located within Health and Social Care Partnerships.

There is a concern that people with a learning disability in the community are not always able to access specialist forensic provision.  It is believed they are more likely than people with mental illness to be offered generic rather than specialist forensic services.

People with a learning disability have different rehabilitation needs to people with mental illness.  Clinicians felt that guidance provided for forensic mental health services overall did not always reflect these differences.  However, it is important that the needs of people with a learning disability are met throughout their journey within the forensic system, and particularly so when preparing for life in the community.  The Review heard that generic learning disability services have significant expertise in helping people with learning disabilities transition from inpatient to community services.

Reflecting the existing management structures of many low secure and community forensic learning disability services and the location of professional expertise about this group, the Review believes it may be preferable for forensic learning disability services to be managed by generic learning disability services rather than transfer to the management of the new Forensic Board.

Recommendations

Recommendation 45: Low secure and community forensic learning disability services should be managed under the local Health Board/Health & Social Care Partnership generic learning disability services.  This arrangement should be reviewed within 3-5 years of the new Forensic Board being established.

Recommendation 46: The new Forensic Board should collaborate with generic learning disability services to develop appropriate standards for forensic learning disability services.

Recommendation 47: In areas without forensic learning disability services, generic learning disability services should be supported to embed professionals with forensic training and expertise within their workforce.

Recommendation 48: The new Forensic Board should establish mechanisms to provide consultation, advice, and professional supervision for all staff involved in the care and treatment of people with learning disabilities who have forensic needs.

Delayed discharge and restrictions

People with a learning disability appear to be more severely affected by delays in discharge into the community than other groups.  This issue has been highlighted before in both the Coming Home report, published by the Scottish Government in 2018, and the Mental Welfare Commission’s No through road report in 2016.^[19]  The delays are attributed, in part, to the complexity of the support and accommodation packages that are often required.  However, the Review heard concerns that severely delayed discharges can be an ‘accepted’ part of this group’s experiences.  This represents a human rights concern that people remaining in hospital without clinical need are being held in conditions of excessive security.

The Review team recognises that it can take some time to arrange a community package for people with a learning disability.  In recognition of this, planning for a person’s community transition should begin when they first enter services, not simply within low secure services.  Forensic professionals in low secure should continue to work closely with colleagues in forensic community services, local authority housing officers, and community support providers to identify accommodation and support options appropriate to that individual.  As recommended in Section 5.3.1, delayed discharges within the forensic system should be subject to the same monitoring and standards as in acute health services and plans should be submitted to the Scottish Government which address the outstanding needs of anyone who has been delayed for over six months.

As noted above, people with learning disabilities have different rehabilitation needs to people with mental illness.  They should not be expected to follow the same discharge pathways.  Some people with learning disabilities may never be in a position to take unescorted leave or live independently, but this should not prevent discharge into the community where their risk can be managed with supervision.

Community accommodation

There is a need for high quality community accommodation for people with learning disabilities.  Community accommodation should be designed or adapted to offer a therapeutic environment that meets people’s sensory needs.  People should be given some choice over the accommodation that they are discharged to.  Whilst single person units may be suitable for some people, others may prefer shared accommodation options.  Those responsible for commissioning community accommodation for people with learning disabilities should also be mindful of offering ‘different solutions for different stages’ of a person’s rehabilitation in the community.

Recommendations

Recommendation 49: Health and Social Care Partnership commissioners must ensure community accommodation can be adapted to meet the sensory and other needs of people with a learning disability

Recommendation 50: Health and Social Care Partnership commissioners must ensure that people with a learning disability have a choice about whether to move into single person or communal accommodation in the community.

7.2 People with neurodevelopmental disorders

There are people who have neurodevelopmental disorders, alongside co-existing mental illness or a learning disability, who are receiving care and treatment in the forensic system.  It is not possible to say how many people because no data is collected on this group.

As the interim report highlighted, there is no specific provision or forensic pathway for people with a sole diagnosis of Autism Spectrum Disorder (ASD).  It is criminal justice services, rather than forensic mental health services, that have the primary responsibility for addressing the offending behaviour of people who have ASD, but no mental illness or learning disability.  There are concerns that this arrangement means people with ASD, and people working with them, are not able to access specialist forensic mental health expertise and support when it is required.

The Review was made aware of two NHS Board areas where existing forensic mental health services sought to address this gap.  They both set up assessment and consultation services for people in criminal justice and other agencies working with people with ASD who would benefit from forensic mental health input.  The project in NHS Fife did not continue past its pilot phase.  However, there continues to be a multi-disciplinary team within NHS Greater Glasgow and Clyde’s, Specialist Treatment Addressing Risk (STAR) service.  It takes referrals from, and provides specialist support to, NHS colleagues, criminal justice social work, community mental health teams and others working with people with ASD.

After the publication of the interim report, the Review heard additional concerns about the lack of services for people with Attention Deficit Hyperactivity Disorder (ADHD) and/or Foetal Alcohol Syndrome Disorder (FASD).  Emerging research suggests that people with FASD may be overrepresented, unrecognised and vulnerable in the justice system.^[20]   Staff identified that the needs of these people are not being met in custody or recognised early enough in the community.  Clinicians in forensic mental health services argued that the needs of people with FASD need to be better understood and addressed, not only to ensure that they receive the correct level of support but as part of any overarching prevention of offending strategy.

Recommendation

Recommendation 51: The new Forensic Board should undertake a needs assessment related to neurodevelopmental disorders and forensic mental health services.  This should inform future service provision.

7.3 Children and young people

The interim report highlighted the lack of general or specific forensic mental health services for children and young people in conflict with the law.  In the community, only NHS Greater Glasgow and Clyde have a Forensic Child and Adolescent Mental Health Service (FCAMHS), and the in-reach of general Child and Adolescent Health Services into secure care was reported to be variable.  A lack of low secure inpatient care can result in young people being placed in adult Intensive Psychiatric Care Units (IPCUs).  Young people requiring medium secure care, including those with a learning disability, are currently placed in specialist provision in England which inevitably takes them away from their support networks.

The building of a new National Secure Adolescent Inpatient Service (NSAIS) was approved around the same time as this Review was commissioned.  The Review did not seek to review this decision.  The NSAIS will be a 12 bed unit situated within NHS Ayrshire and Arran for young people up to the age of 19.  It is a medium secure unit with some low secure provision to allow for step down.  Within its planning, there is capacity for three beds for young people with a mild to moderate learning disability that require secure care.  A national four-bedded unit for young people aged 12-18 years with moderate, severe or profound learning disability and co-morbid mental health disorder is also planned; this will be in NHS Lothian.

People had suggested to the Review that the 12-bed NSAIS unit may not meet current needs.  Recent needs assessment suggest there may have been a fall in previous demand as some of the young people are now in need of adult services.  It was also made clear to the Review that the unit would not address the known lack of intensive psychiatric care provision for young people, more generally.

The Review is pleased that work is underway to address some of the gaps in secure provision for young people in Scotland.  The new NSAIS represents a significant investment in inpatient care and the team in NSAIS have a vision for the shortest possible stay.  However, there will need to be clear pathways out of this unit.  These require, first, a corresponding commitment to investment in community mental health provision to support these young people to return to and thrive in their local communities.  The National Child and Adolescent Mental Health Service (CAMHS) specifications say local CAMHS teams must have access to forensic specialist expertise.^[21]  Community FCAMHS expertise can be found in NHS Greater Glasgow and Clyde and will develop within the new adolescent units.

Second, there must be a clear pathway for young people to transition to adult forensic mental health services if required.  The Review heard that FCAMHS clinicians have previously struggled to move young people into adult forensic mental health services.  This is because the risk assessment for adult services are based around offending histories, which meant that these young people were ‘not forensic enough’.  The Review agrees with the families we spoke to that this is counter to a proactive preventive health promoting approach.  Nonetheless, it is important to emphasise that the NSAIS should not been seen as an extension of, or stepping stone to, adult forensic mental health services.  For this reason, the Review does not consider it to be appropriate for the service to be managed under the new Forensic Board.

The latest estimates provided to the Review are that the building work for the NSAIS would start in April/May 2021, with the first young person admitted in April 2022.  The Learning Disability CAMHS unit in NHS Lothian should open in 2022/3.  In March 2020, the Mental Welfare Commission recommended that clear protocols be developed in the interim for young people who require forensic or learning disability inpatient facilities to address the current gap in provision.^[22]  The Review was not made aware of any such protocols being under development and clinicians remained concerned about the lack of provision meantime.

Recommendations

Recommendation 52: The Review recommends that the National Secure Adolescent Inpatient Service does not fall under the remit of the new Forensic Board.  This position should be reviewed within 5 years of the National Secure Adolescent Inpatient Service opening to ensure this continues to provide the best pathway for young people.

Recommendation 53: The National Secure Adolescent Inpatient Service should set up a service to provide access to forensic specialist expertise for local CAMHS teams to support clear pathways into and out of the National Secure Adolescent Inpatient Service.

Recommendation 54: A clearly defined pathway should be agreed between the new Forensic Board and the National Adolescent Secure Inpatient Service for young people who do need to transition to adult forensic mental health services.

Recommendation 55: Clear interim arrangements need to be put in place for young people in Scotland who require forensic or learning disability inpatient facilities prior to the National Adolescent Secure Inpatient Service facility being opened. This should be actioned by the end of 2021.

7.4 Older adults

The forensic population is ageing and the Review heard that there is an increase in older adults entering the system for the first time as a result of historic offences.  The Scottish Government’s census found 9% of people receiving forensic mental health services in NHS Scotland facilities in March 2019 were 65 or older.^[23]  The Forensic Network’s annual inpatient census data indicates that the number of over-65s has risen by 50% in the years from 2013-2019, from 14 to 21 individuals in total.  Over the same time period, the number of people aged 56-65 has risen by 27%, from 48 to 61 individuals.  The number of older adults under the care of forensic community services is unknown.

At present, there is no upper-age limit for admission to forensic mental health services.  Decisions to admit are made on a case by case basis and clinicians emphasised that they would not refuse a referral for someone with forensic needs on the basis of age alone.  This is because it is possible to manage the needs of some older adults well within inpatients units, with some preferring to live, and indeed thriving, in a mixed-age environment.  Where older adults are cared for in forensic mental health services, it was felt that it is good practice to work with old age psychiatry and old age medicine colleagues to identify and support them with any additional mental and physical health needs. However, there is a gap in specialist provision for people who have more significant age-related physical or cognitive difficulties who also require a secure care setting.  This remains manageable while the number of people involved are low but, as with the general population, this cohort of people within the forensic system is likely to increase.

It was highlighted to the Review that people in forensic mental health services can have an older ‘biological age’ than their ‘chronological age’.  This means they can face age-related difficulties earlier than the general population.  These include cognitive deterioration through dementia, physical frailty, and communication difficulties through hearing loss.  Some staff in the forensic system told the Review that they do not feel equipped to recognise and respond to these issues.  They also felt that existing forensic units are not currently set up for an ageing population.  There is a need to make adaptations to accommodate this group, but staff said that the physical make-up of some buildings can make this challenging.

The lack of a specific forensic pathway for older adults with additional age-related health needs means they can remain inappropriately in mixed-age inpatient units due to a lack of alternative provision.  These settings are not always best-placed to meet these needs, nor to support the individual to live well as these needs increase.  It was also not clear whether older adults who have additional mental or physical health needs should be cared for within forensic mental health services at all.  In particular, people identified a lack of clarity around which part of the health service should have lead responsibility for the care of adults with a diagnosis of dementia.

There is a second distinct cohort of forensic patients who require age-related care. This is people who could be considered for discharge to the community if appropriate accommodation was available.  Moving older adults on from forensic inpatient services is challenging.  Risk management issues and the stigma associated with forensic mental health services can make it difficult or inappropriate to discharge this group of older adults into general older adult mental health services or care homes in the community.  Where people experience deterioration in cognitive ability they may also require further risk assessment.  Care homes may feel unable or unwilling to take in people with restriction orders and to manage their risks.  This is a particular issue for people with a history of sexual offending.

Clinicians considered that the creation of bespoke solutions was the most appropriate course of action for older adults who were ready to be discharged into the community where numbers remain low.  This was felt most likely to enable people to reside in their local area or near to friends and family.  If this option is adopted the new Forensic Board would need to consider facilitating arrangements between community forensic mental health teams and individual care homes on a local or regional level, to support care homes to accommodate people from forensic inpatient services and to safely manage their risks.

As the number of people requiring secure age-related care increases there may be a business case for developing specialist provision such as a secure nursing home(s) at a national or regional level.  Research into secure services for older adults has identified they would require a specialised multi-disciplinary approach.  It was also suggested that older adults within forensic mental health services may have overlapping needs with older adults in the prison population who are on longer sentences and unlikely to be discharged.

Recommendations

Recommendation 56: The new Forensic Board should make an assessment of age-related needs across all forensic mental health services and, based on current and projected demand, develop an older adults’ pathway that reflects the care and risk management needs of this group.

• The new Forensic Board should work with the Scottish Prison Service to consider whether older adults in prison would also benefit from age-related care in an alternative secure setting.

Recommendation 57: The new Forensic Board should conduct an assessment of staff training gaps around the age-related health needs of older adults, particularly around dementia, and make provisions to improve staff skills and confidence in this area.

7.5 Northern Ireland

There is no high secure forensic provision in Northern Ireland.  High secure services for men from Northern Ireland are currently provided through an arrangement with The State Hospital.  Northern Ireland has a relatively small population requiring high secure care.  There has been an average of six men from Northern Ireland in the State Hospital between 2015 and 2020.  Overall numbers have reduced over this time from 10 to four.

Officials in Northern Ireland reported that this cross border arrangement works well and is supported by good relationships with The State Hospital and the Scottish Government.  The current legislation in Northern Ireland and Scotland works relatively well together, but transfer between jurisdictions requires very robust information that must be reviewed against legal tests.  The information gathering process can cause some delays.  The Review was also told that on occasion legal issues have made it difficult for people to return to Northern Ireland.

Whilst Northern Ireland is in the process of developing its forensic infrastructure for people with mental illness or learning disability, officials told the Review that there is no long term plan to provide high secure services, although consideration might be given to developing this in the future.  However, it would take some years to develop and represent a very high cost given the small numbers involved.  As such, they do not have the resources, expertise or facilities to provide high secure care locally at the moment.

The current arrangement is acknowledged to be less than ideal in respect of the distance placed between people and their families.  However, both parties to the arrangement consider that continued access to the specialist therapeutic input available in the secure environment of the State Hospital is in the best interests of the small population requiring this care.  The Review agrees that this arrangement should continue, as capacity allows, until a high secure alternative is available in Northern Ireland.

The State Hospital does not charge Northern Ireland for these high secure services.  The Review found this surprising given the length of time some people have been cared for in the State Hospital, the current out of area and exceptional circumstances cross-charging taking place internally across NHS Scotland, and the charges NHS Scotland pay for women’s high secure care in England.

Recommendation

Recommendation 58: The Review recommends that the State Hospital introduces charges for the care and treatment of people from Northern Ireland.  These costs should be benchmarked against the costs incurred by NHS Scotland for the high secure care and treatment currently provided to women from Scotland at Rampton Hospital.