Victim Notification Scheme (VNS): independent review

Section 20: Scottish Government Mental Health Directorate

Scottish Government officials had already identified anomalies and shortcomings in the legislation concerning mental health cases which were helpfully brought to our attention on interview. These need rectification, but the greater point to note is that this illustrates the complexity of the Scheme, even for experts, and we conclude that this points clearly to the overwhelming need for victims to have access to someone capable of explaining things simply in lay terms. This is evident in the complexity of the process flow chart attached at Appendix G.

This report has recommended that the VNS move to an automatic referral system, whereby victims have an opportunity to discuss their options with a contact team and make informed choices. Adoption of such a process would address many of the scheme's shortcomings.

Officials have identified to us a number of areas within the existing process where it appears changes to legislation, regulations, registration processes and guidance for victims would be required to address issues with the entitlement to notification of victims registered with the VNS. We have listed these below:

Recommendation 8. Mental health procedures. Section 20.

We recommend that the 10 amendments to mental health procedures (outlined in Section 20 of this report 8(a) to 8(i)) be adopted

1 Transfers into and out of Scotland

In the case where the offender had originally been made subject to a CORO in proceedings in Scotland, one or more victims have registered for the VNS and the offender subsequently transfers out of Scotland and later returns to Scotland, Scottish Ministers would no longer be required to provide information under the VNS because the criteria in 16A(1)(b) would no longer be met (section 16A of the Criminal Justice (Scotland) Act 2003). In addition, where a person made subject to a CORO in respect of an offence perpetrated against a "natural person" has been transferred to a place outwith Scotland, it is unclear if this would include situations where the offender is not transferred by authorities but is, for example, on Conditional Discharge (CD) and chooses to move to a place outwith Scotland.

Recommendation 8 (a)

Consideration should be given to reviewing the information entitlements of registered victims in these circumstances. The review comments on other issues arising from cross border movements in section 23.

2 "No Order Made"

Is the most common order made by the MHTS (Section 16C(2)(f)). Section 16C lists the information disclosable to registered victims. Currently there is no provision to inform any registered victim directly of this fact.

Recommendation 8 (b)

"No Order Made" should be added to the list in Section 16C.

3 Appeal against conditional discharge or the outcome of that appeal.

Where the Mental Health Tribunal has made an order under section 193(7) of the Mental Health Act conditionally discharging, there is no provision for informing victims about an appeal against CD or the outcome of such an appeal, including that the appeal decision meant that the offender was no longer conditionally discharged or that the CD was final(Section 16C(2)(g)).

Recommendation 8 (c)

Consideration should be given to adding appeals and the outcome of appeals to the list of information entitlements.

4 Conditions on Conditional Discharge Relevant to the Victim

In relation to the terms of any conditions imposed on conditional discharge under section 193(7) or section 200(2) of the Mental Health Act (including under section 193(7) as applied by section 201(3) or 204(3) of that Act, the legislation provides that victims can only be given information about conditions that are relevant to them. It goes further to state that a relevant condition is:

(a) the condition is a restriction on the person referred to in the section in question contacting an individual or being in a place, and

(b) the registered victim has made a valid request to the Scottish Ministers to be informed about any condition which restricts the offender from (i) contacting that individual, or (as the case may be), (ii) being in that place or any wider area within which the place in question falls.

To establish whether a condition is relevant and can be shared, a registered victim must be first asked to provide information on persons and/or places. This can create confusion as victims believe they are providing information that will be used to determine the conditions of discharge being set for the offender rather than their relevance. (Section 16C(2)(h))

Additionally, in the team's experience victims do not always name themselves as an individual for the purposes of (b) above and without that, officials cannot inform them about conditions that restrict the offender from contacting them.

The place(s) that victims request to be informed about must be places where the victim or any member of their family is regularly. In practice, this has proven to be difficult with victims feeling that they should not have to justify the areas that they have asked about. In addition, officials are not in a position to independently check that the places are those where the family is regularly. Consequently, in view of the restrictions on relevance of information, officials are uncomfortable with having to accept the victim's request at face value. The requirement has, however, acted to limit the areas that registered victims ask to be informed about.

Separately in terms of places, for a request to be valid, it cannot cover an unreasonably large area. There is no definition in the legislation of an 'unreasonably large area'.

Recommendation 8 (d)

These provisions need to be clarified and relevant advice made available to registered victims.

5 Scottish Ministers recall the offender to hospital under section 202 of the Mental Health Act

The legislation does not currently allow for the eventuality that the patient or their named person makes an appeal to the Tribunal against Scottish Ministers' decision to recall the patient. There is no provision for informing victims about the appeal or the outcome of such an appeal (including that the appeal decision meant that the offender was no longer recalled or that the recall was final).

Recommendation 8 (e)

(Section 16C(2)(i))

Provision is needed for informing victims of appeals against recall to hospital or the outcome of such an appeal in these circumstances.

6 First Occasion of Unescorted Suspension of Detention

When a certificate has been granted, for the first time, under the Mental Health Act which suspends the offender's detention and it does not impose a supervision requirement, this first occasion may be within the grounds of the hospital. Officials consider it might be more relevant to the victim to receive information about the first occasion of unescorted suspension of detention outwith hospital grounds. (Section 16C(3)(c))

Recommendation 8 (f)

It is recommended that an amendment be made to allow victims to be notified of the first occasion of unescorted suspension of detention outwith hospital grounds.

7 Right to information after representations made

It would appear that Section 17D only allows Scottish Ministers to inform the victim that the decision has been taken. Not what that decision was. To provide this very limited information, the victim has to specifically intimate a wish to receive information under Section 17D.

Recommendation 8 (g)

The review heard from victims that being told of a decision but not what the decision was is frustrating and stressful. Consideration should be given to what information can be provided and when information cannot be provided, the reasons for that explained.

8 Hospital Direction (HD)

Where an offender is made subject to a Hospital Direction (HD) by the court, it is the VNS (SPS) scheme with which the eligible victim/s would register. Hospital Directions are not covered by the CORO Victim Notification Scheme.

SPS have highlighted a potential technical difficulty in registering such victims, as the offender does not enter the prison estate until after they have been treated in a hospital setting and are assessed as well enough to transfer to prison.

COPFS have confirmed that they send out VNS registration packs to victims of offenders given a Hospital Direction by a court. The Scottish Government officials who deal with COROs are sometimes contacted by victims and they will then liaise with COPFS to have the pack sent.

Victims would not receive information while an offender is in hospital and are not notified when an offender transfers from hospital to prison.

Currently, there are no VNS registered victims for an offender who is subject to a Hospital Direction (HD). When the first registration form is received for this type of case SG officials intend to work closely with SPS to avoid difficulties.

9 VNS (SPS) Registration Forms – No 'Opt In' Option

In relation to TTD and HD, the Mental Health Directorate is responsible for providing only very limited information: that i) a certificate has been granted, for the first time, under the Mental Health Act, which suspends the person's detention and does not impose a supervision requirement and that ii) the certificate mentioned has been revoked.

Victims can also intimate the wish to be given the opportunity to make representations before a decision is taken on the first occasion of unescorted suspension of detention.

The Mental Health Directorate can only provide this information where the eligible victim has registered with the VNS (SPS) and thereafter intimated that they wish to receive the additional information and have the opportunity to make representations, as provided for in the 2015 Act.

It appears that when the existing legislation was amended through the 2015 Act, the VNS (SPS) registration forms were not updated, leaving no option for a registering victim to 'opt in' to receive the increased information to which they are entitled. The current situation in relation to TTDs is that the registered victim does not get asked whether they would want to receive this additional information until a prisoner has transferred to hospital on a TTD.

With this occurring at this part of the process, it may highlight to the victim that the prisoner has moved into hospital, which is confidential information. It may also frustrate the victim receiving a question relating to scheme registration which could have been asked at initial registration.

If a victim of a patient subject to a HD was not registered via the VNS, then this victim would not be asked if they would want to receive the additional information to which they were entitled.

Recommendation 8 (h)

Registration forms should be reviewed and updated to ensure victims can opt to receive all the information to which they are entitled. Guidance for all victims needs to highlight the information entitlements that can only be met if registered with the VNS. This again highlights the need for an easier way for victims to navigate this system.

10 Earliest Date of Liberation

When the offender reaches their sentence end date in custody, the SPS write to the registered victim to inform them of this and that they will no longer receive information under the scheme. Once released from prison, the SPS notify a registered victim that the offender has been released at their EDL (earliest date of liberation).

For the time that an individual is subject to a HD or TTD, the Mental Health Directorate are responsible for providing a registered victim with information under the VNS. When an individual reaches their EDL, they may remain in hospital under a civil order but they are no longer a restricted patient; the HD or TTD comes to an end when the EDL is reached. At this stage, the Mental Health Directorate cease to have any authority to provide information.

A victim is not notified when an offender is subject to a HD or TTD at the time they reach their EDL.

When a person is no longer detained as a restricted patient, any disclosure of their health condition would amount to a breach of privacy.

Recommendation 8 (i)

In these circumstances, we recommend that victims are told formally that they will stop receiving information when the EDL is reached for those reasons.