Justice social work - reports and court-based services: practice guidance

4. Role of the Court-Based Worker

4.1 Overview

The justice social work staff in court provide a critical social work function within the court setting. They are often the first point of contact with the justice social work service for many individuals and their families and will be skilled in balancing the demands from busy courts and the varied needs associated with the people they assist. In some courts, the court-based worker (CBW) will be a social worker, while in others they will be a para-professional.

The CBW needs to operate in a proactive way by providing information as required but also offering advice when requested to do so by the court. For example, if a sentencer requests a report to be delivered in three weeks' time but the CBW is aware that this information could be ascertained prior to the end of the court business, the CBW could offer to provide the information by the end of the day.

Other ways of providing a proactive service to the court could also be employed. For example, the CBW will be aware of when the last report was prepared on a person appearing. They could therefore advise the court that if a recent report (i.e. prepared within the past six months) was available then a shorter deferment for a supplementary report to address the current circumstances may suffice.

The ability to work well within a multi-professional setting is important to the liaison

and partnership approach required in order to deliver this service effectively. It is recognised that it is not always practical or necessary for every court or court hearing to have the services of a CBW each day. However, in order to fulfil the requirement of S27(3) of the 1968 Act, which places a responsibility on the local authority to provide officers to the court ,arrangements for attendance should be agreed with courts which makes best use of JSW resources. It is suggested that it would be good practice to ensure that cover is available at critical times such as for remand courts, or if a child or vulnerable adult is appearing from custody. If it is not possible to be based in the court building, staff can be on call from a local office and make themselves available to the court as required.

There are a range of tasks associated with providing information and advice to the court. These can include:

• providing information for the court when requested; including same day, oral or written reports.
• assessments of suitability for supervision and/or electronic monitoring (EM) whilst subject to bail. It is noted that in some areas these assessments are conducted by a separate team. Further guidance on supervised and EM bail assessments can be found at: https://www.gov.scot/collections/justice-social-work-guidance/
• explaining reasons to sentencers when reports are not available as requested. The court will receive reports electronically from the justice social work team, no later than midday on the day before the court hearing or earlier if specifically requested to do so, e.g. High Court may require report submission earlier. In many areas it will be business support staff who assist with this administrative function rather than the CBW, however, the latter ensures that the timescales are adhered to and can provide context to the court when this has not happened.
• liaising closely with report writers in more complex cases to ensure any further information required by the court is obtained from the social worker who compiled the report. The liaison role from the CBW is therefore crucial to the smooth running of the court in these circumstances. It should be noted that in exceptional circumstances the court can request that the social worker who prepared the report attend if specific information requires clarification.
• follow-up on any queries and feed-back any comments made by the court within one working day.

4.2 Post Appearance Interview – Deferment for JSWR/Community Based Disposal

Court based workers should, wherever possible, undertake an interview:

• where a JSWR has been requested, in order to ensure the person understands the court’s decision and any actions they require to take.
• when the court outcome is a disposal involving justice social work services such as community-based supervision or unpaid work.

The purpose of this contact is to confirm the person’s contact details and availability for interview, their consent to use of that information and to provide the contact details of the JSW office to which they should report for interview – in some areas it may be possible for the CBW to provide details of the first appointment with the social worker, information about any other appointments that have been arranged and provide the person with an information leaflet, if available.

Details of the interview should be recorded on the person’s case record in order that these can be shared with the allocated worker. It is important that details are recorded such as comments from the sheriff, defence solicitor or additional observations from the CBW that suggest potential barriers to compliance such as the person having communication difficulties or severe anxiety, for example.

4.3 Post Appearance Interview – Remand or Custodial Sentence

There is a duty on local authorities in Scotland to ensure the provision of “advice, guidance and assistance for persons who are in prison or subject to any other form of detention” (s27(1)(ac) of the 1968 Act).

In this case, it extends to people who have appeared at court and are awaiting transfer to an onward custodial location.

Remand or a custodial sentence may be distressing for the person concerned.

In addition, they may not have had an opportunity to deal with practical matters which require attention. It is therefore important to offer an immediate interview if possible, which aims to:

• clarify, if necessary, the decision of the court
• establish if any pressing problems should be dealt with immediately e.g. child-care arrangements or prescribed medication etc.
• ascertain if the person wishes anyone advised of the court decision, particularly where custody had not been anticipated
• advise of the voluntary through-care service (in the case of a short-term prison sentence under four years or where there is no post-custodial supervision)
• provide information about the prison-based social work service and how this can be accessed

The volume of cases in some courts may mean that it is impossible to interview every person remanded or sentenced to custody. The following should therefore be considered as a priority for interview:

• those considered likely to be a risk to themselves or others
• those with carer responsibilities
• young people under 18 years who are not accompanied by a social worker
• those for whom custody is likely to be particularly distressing
• persons facing their first experience of custody
• individuals receiving a life sentence or an order for lifelong restriction
• individuals convicted of offences involving children

4.4 Information Sharing Process in cases of potential self-harm or welfare/well-being issues

In this specific context, following interview if information of concern is disclosed there are broadly two situations where this can be shared with other agencies:

1. where there is an assessed level of immediate risk to the person (e.g. risk of suicide) or to others (e.g. where a specific threat against another has been made). Information should always be shared with relevant agencies under the auspices of protection and does not require the person’s consent to share.

2. where there are concerns about the welfare and/or well-being of the person. In these cases where the concerns are of a broader, welfare based nature then the lawful basis of "legitimate interest" might be available so consent is not always required. For a fuller explanation and to assist decision making the following provides additional information: Legitimate interests | ICO. It may be agreed within the local authority that best practice would be to obtain consent to share the information from the person. However, JSW should take advice from their local authority's data protection team on whether they can rely on legitimate interest to share information which is not about an imminent risk to life and which the person does not consent to being shared.

Both types of information would be shared with the purpose of ensuring that, for example, on reception to custody, Scottish Prison Service (SPS) staff have the most accurate and relevant information when making their own assessments for the safety and well-being of those received into the prison estate. As a result, this meets the test outlined on the necessity for sharing information.

In order for the information sharing to be lawful, the content must demonstrate proportionality. This means the data controller sharing the minimum amount of relevant information which allows partner agencies to undertake their legal requirements. As this situation relates to the individual circumstances of people leaving court, it would be impossible to define every aspect or potential impact as each person has unique needs and risks. It will be a matter of professional judgement about the nature and content of the information that is shared, however this will be based on the principles outlined above. In most cases, this will be ‘risk-relevant’ information and/or critical information about the well-being of the person.

It can be the case that in the course of completing a post sentence interview a person will disclose certain information of concern and social work staff are skilled at assessing and determining the appropriate response in such a situation. When addressed properly and effectively, this will make the sharing of the information proportionate to the purpose for which it is intended.

In the case of people leaving court to be conveyed to prison, given the speed of the process and sensitivity of the information, the use of a single form which incorporates both the risks and needs information that then travels with the person from court to the place of custody would be suggested.

The information is collated by justice social work staff (and appropriate consent obtained where required) and recorded on the agreed pro-forma see annex 6, passed to custody care service staff and then conveyed to SPS staff in the receiving establishment

This would also address the issue of information being shared beyond any standard working day cut-off (e.g. 5 pm).

Custody care staff will provide justice social work staff at court with a copy of the completed form which can be scanned into the person’s social work file to provide a record of the information shared should this be required for evidential purposes at a later date.

In some cases, it may be considered that the person is suffering from a mental disorder. It is vital to establish good liaison processes and procedures with local mental health services and to draw on the skills of staff qualified as accredited mental health officers. If concerns have been raised about the mental health of a person (perhaps due to behaviour while in the cells) it may be that that the CBW in consultation with the Procurator Fiscal and defence solicitor can bring options involving alternative statutory measures to remand/sentence to the court’s attention. This will potentially require liaison with local Forensic Mental Health Services (where available), Adults social work teams and local third sector support services in order to assess and check the mental health history and ascertain whether the person may be more appropriately detained within a hospital setting.

In complex situations such as this, early identification of potential issues is crucial, i.e. in the morning of the court hearing rather than later in the day. This will enable the CBW to have time to meet with the person and liaise with other agencies as appropriate. A plan can then be put in place to ensure the person can be supported and the court is properly informed with regard to any potential safeguarding issues and an informed decision taken by the court on appropriate action to be taken.

4.5 Additional court-based social work assistance

There are a number of other tasks which the CBW may provide associated with

offering a social work service to a wide range of people where it is appropriate and lawful to do so. This can include:

• providing practical information and advice to families and friends of individuals who have been sentenced. Individuals frequently attend court and are often under stress as well as being distressed by the outcome of court proceedings. CBW should try to be as accessible as possible and responsive to their needs. There will be limitations to the direct work which can be undertaken by the CBW. They are, however, likely to have knowledge of local third sector support organisations and are best placed to offer advice to families and friends on where and how to seek support.
• the provision of information and advice to witnesses and/or victims where no victim service is available in court. Referrals can be made to victim support services as appropriate. In cases involving domestic abuse, the Crown Office Procurator Fiscal Service (COPFS) Victim Information Advice (VIA) service can also be contacted.
• being in a good position to identify particular problems faced by individuals and their families particularly in situations where, for example, the person has been released from custody unexpectedly. In these situations, and if advised of the person’s imminent release and potential issues they can signpost individuals and their families on to appropriate services e.g. substance misuse, mental health, housing, welfare rights organisations etc. In cases of domestic abuse or other offences where there is an identifiable victim, it is important that Scottish Courts and Tribunals Service (SCTS)/COPFS/JSW have information sharing protocols in place so that the CBW is aware of who to contact to ensure victim safety when a person is unexpectedly released from custody.
• having a quality assurance role when representing their service in court. They should advise JSW managers of any relevant comments made by the court in relation to reports or other aspects of the service.