Independent Review into the Delivery of Forensic Mental Health Services: progress update report 2024

6 Theme Five: Specific Populations

6.1 People with Learning Disabilities

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

Whilst decisions on procedure and disposal are for independent courts, the Scottish Government agrees that people with learning disability who are accused of an offence should be supported. We continue to provide funding for Supporting Offenders with Learning Disabilities (SOLD), a third sector network which aims to ensure that nobody in the justice system is at a disadvantage because they have a communication support need.

Recent work includes visual support cards to sit alongside the publishing of a "Practice Guide for Defence Solicitors in Scotland: representing clients with communication support needs" and a new easy read letter of rights for people in custody.

The Scottish Government is drafting a business case to commission research to examine the experiences of offenders with a learning disability compared with offenders in the general population and offenders with a mental illness.

The Scottish Government has also published proposals for a Learning Disability, Autism and Neurodivergence Bill (LDAN Bill) – the consultation closed on 21 April 2024. Those proposals include consideration of better identification of learning disability and neurodivergence in the justice system and consideration of mandatory training. It is important that the needs of individuals with these conditions are recognised and supported to ensure that they can be understood and that they understand the processes happening around them. The consultation was open for responses until 21 April 2024.

The Scottish Government's Programme for Government was published on 4 September 2024. Its legislative section sets out a commitment to continue developing proposals for an LDAN Bill and to publish draft provisions. These will take into account insights and views gathered through the consultation. Once published, we will seek additional views on the legislative provisions and how legislation should be framed.

It is clear from the consultation analysis that there remain strong and diverse views on key issues that we must continue to work through before making final decisions. Therefore, the additional time to refine our proposals and seek further stakeholder input will be beneficial.

Appropriate adults provide communication support to vulnerable victims, witnesses, suspects, and accused persons aged 16 and over during police investigations. Under section 42 of the Criminal Justice (Scotland) Act 2016, police are required to request support for vulnerable individuals in their custody. This requirement applies where police consider that the person is not able to sufficiently understand what is happening or communicate effectively due to a mental disorder. In these cases, communication support is delivered by an Appropriate Adult.

Under The Criminal Justice (Scotland) Act 2016 (Support for Vulnerable Persons) Regulations 2019, local authorities are responsible for ensuring that Appropriate Adults are available. The Scottish Government has published guidance for local authorities on this duty.

The statutory Appropriate Adults service came into force in January 2020, following a non-statutory service established in Scotland in 1991. The service is now well-embedded and in a "business as usual" state, although the Government expects to monitor it in collaboration with delivery partners to ensure sustainability and continuous improvement.

The Scottish Government has noted the possible read across between recommendations 43 and 44 and Recommendation 5.1 of the Mental Health Law Reform Review report (respectively, on a presumption that a person with learning disability accused of an offence be supported as they go through the criminal justice system, and the commissioning of a study to explore the experiences of offenders with learning difficulties); it intends to explore this connection and the scope for any joined-up approach between all three recommendations in tandem with the above-noted review work.

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.

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.

Recommendations 45-48 will be progressed as part of wider developments in forensic governance structures and should be considered as part of future service delivery planning by Health Boards.

Recommendations 49 and 50 are supported by complementary work to deliver the Coming Home Implementation Report recommendations to reduce inappropriate out-of-area placements and delayed discharges experienced by people with learning disabilities and complex care needs.

We recognise this isn't an easy task—we want people to be supported in a home and community of their choice that is right for them. This may mean special adaptions to the structure and fittings of this home and the right people around the person for when they need it. This often and rightly requires a bespoke design and build and the recruitment and training of a care team tailored to the person.

The Coming Home recommendations support local bodies, including the NHS, local authorities and Health and Social Care Partnerships (HSCPs), that have statutory responsibility for providing and commissioning appropriate services, including community accommodation, to meet their population’s needs.

The Scottish Government has also developed a Practitioner Peer Support Network and provided £20m under our Community Living Change Fund to Integration Authorities to design community-based solutions that avoid or limit future hospital use and out-of-area placements.

In addition, the Scottish Government has consulted on options for the development of a National Panel to support local areas as part of the consultation on the Learning Disabilities, Autism and Neurodivergence (LDAN) Bill.

Achieving the Coming Home vision requires strong and effective collaboration that cannot rely solely on the actions we can take nationally. There must be visibility and accountability for people with learning disabilities, and complex care needs at both national and local levels.

6.2 People with Neurodevelopmental Disorders

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.

As part of our published proposals for the Learning Disabilities, Autism, and Neurodivergence (LDAN) Bill, the Scottish Government consulted on a set of proposals that would apply across the justice system. These include better needs identification and mandatory training.

This recommendation should be considered under the responsibility of the new governance structure and as part of future service delivery planning.

6.3 Children and Young People

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.

The development of the National Secure Adolescent Inpatient Service (NSAIS), known as “Foxgrove”, is currently underway with estimated completion date of summer 2025. The NSAIS, commissioned by National Services Division, will be a medium secure inpatient service for children and young people with appropriate forensic Child and Adolescent Mental Health Services (CAMHS) needs.

In addition to NSAIS, the Scottish Government is working with key stakeholders to establish regional CAMHS pathways for those children and young people with forensic needs, in line with the requirements set out in the National CAMHS Service Specification. In doing this, Scottish Government has provided just under £1 million in 24/25 to the West of Scotland to support the planning and development of community Forensic CAMHS and CAMHS in Secure Care services and regional pathways.

We have also provided £500k for the development of a Learning Disability regional hub and bespoke services and pathways in the South and East of Scotland.

This includes the establishment of national clinical networks in relation to these priorities. These will all be vital additions to children and young people’s mental health services in Scotland.

6.4 Older Adults

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.

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

The New Dementia Strategy was launched on 31 May 2023. This strategy contains a section on education and training with useful links for those working across the sector, including healthcare workers, social care workers and unpaid carers.

Any specialist dementia training should be benchmarked against the Promoting Excellence Framework 2021. This framework is for all health and social services staff working with people with dementia, their families, and carers. A section in this framework is particularly aimed at the 'Dementia Skilled Practice Level', which describes the knowledge and skills required by all health and social services staff who have direct and/or substantial contact with people with dementia, including those who work in forensic mental health services.

6.5 Northern Ireland

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.

The Scottish Government attempted to source the historical financial agreement between The State Hospital and Northern Ireland. However, after a thorough investigation, we were unable to locate any previous contracts or arrangements agreed by both Countries.

Given the current financial challenges and ongoing conversations to discuss savings and ways to reduce costs for the State Hospital, it has been agreed that the State Hospital should develop financial plans to start introducing charges to Northern Ireland for costs associated with the care and treatment of their patients in Scotland. Until such plans or alternatives have been agreed upon, the current arrangements should remain.