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On 30th December 2014, the Ministry of Justice (MoJ) published its revised guidance on Mental Health Treatment Requirements (MHTR) in light of the changes to probation in England and Wales. The newly published document provides direction on the roles, responsibilities and contributions of the agencies involved in the commissioning and delivery of MHTR. Broadly speaking, the parties it concerns are probation providers, health agencies, mental health assessment providers and sentencers. 

Here at Sanctuary Criminal Justice, we’re pleased that the first wave of guidance has been released as we enter the New Year. 

The MoJ has boldly stated that it is the aim of the document to address the complexities of inter-agency roles, contributions, responsibilities and relationships necessary to deliver MHTRs effectively.

In particular, the guidance reflects the changes to responsibility for probation services in England and Wales from 2014 as part of the Government’s Transforming Rehabilitation reforms and the Offender Rehabilitation Act 2014.

A Mental Health Treatment Requirement is one of three possible treatment requirements which may be made part of a Community Order. Simply put, a MHTR is sometimes given to offenders where the crime they are convicted for is below the threshold for a custodial sentence. The offender will also have a mental health problem that does not require secure in-patient treatment. 

It’s understandable then that the changes to probation have a direct impact on how MHTRs are delivered. 

Currently, the uptake of MHTRs is low, for less than 1% of all requirements of orders. To put it into context, the numbers of MHTRs made over the past couple of years has ranged from 1,100 in 2009 to fewer than 800 in 2012/13, against a total average number of community and suspended sentence orders of more than 183,000 during that year.

This, the MoJ suggests, is despite evidence that shows offenders to be much more likely to have mental health problems than the non-offending general public. 

In part, it appears that the limited usage of the requirement has been down to some very real and practical obstacles at a local level, which the new non-statutory guidance hopes to go some way to resolve.

As we’ve discussed in a number of our blogs, probation is now split with 21 Community Rehabilitation Centres (CRCs) and the National Probation Service (NPS). For the purpose of the MHRT delivery guidance though, the term ‘probation services’ is applied to both the CRCs and NPS. 

Although, to clarify our understanding, in the new probation environment, NPS manage court services and high risk cases, while CRCs manage low and medium risk offenders, working in custody and the community.The NPS are therefore responsible for recommending an MHTR to the courts prior to sentencing. If accepted, the offender management of the requirement is carried out by either the NPS or CRC, depending on the risk assessment of the offender.

The changes to probation however, are unlikely to have an immediate impact on the number of MHTRs being made. There is a lot of work required to address the difficulties on a local level. In some areas across England and Wales there is still a lack of suitable mental health community services available and there has been some reluctance from both offenders themselves and various practitioners to embrace the requirement. 

The main barriers reported by practitioners, according to NOMS and MoJ are lack of guidance on delivering the MHTR and limited access to mental health services. In addition, unrealistic waiting lists for services and delays in processing have been reported, together with numerous issues concerning offender consent.

So what does this mean for probation? 

The MoJ states that probation providers should ensure that the role of the probation is understood by the mental health treatment provider. This is to make sure that the requirement is delivered and that breaches are properly managed. The probation provider’s role includes, for example:

- Supervising the offender’s attendance at the specified treatment activity appointments
- responding appropriately to the offenders’ failure to comply with the terms of the MHTR
- managing breach or recall to court activity
- maintaining day-to-day communication with mental health treatment providers

A lot of this, probation will already be aware of in any case. Whether the guidance will address the local variation in how receptive partner services are to committing an offender to an order is yet to be seen. After all, there is only so far that probation can go to ensure the correct treatment will be available at a specific time, as providers of mental health services are also experiencing an increase in demand for support in general. 

It is a step in the right direction though with probation services being directed to the‘Support Delivery of Mental Health Treatment Requirement service specification’ for further clarification.

For those looking for a refresher on how the MHTR should ideally work, the latest document does provide a useful Pathway Tool with narrative, defining the roles of each agency or provider. 

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