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Drug Treatment and Testing Orders: Evaluation of the Scottish Pilots

CHAPTER FIVE: TESTING, REVIEWS AND ENFORCEMENT

INTRODUCTION

5.1 Drug testing and the system of regular court reviews are features of the DTTO that distinguish it from other community-based social work disposals. In this chapter the roles of drug testing and reviews are examined from a variety of perspectives and the enforcement of DTTOs is discussed. The chapter concludes by identifying aspects of DTTOs that appear to facilitate or impede the successful completion of orders.

DRUG TESTING

5.2 Drug testing is obviously an integral part of DTTOs and, broadly speaking, the two pilot sites had similar procedures for carrying this out. The testing requirements were stated on the order and any changes to the frequency were officially amended at court reviews. Everyone on a DTTO was entitled to contest a result, in which case a laboratory test would re-analyse the sample that had originally been given.

5.3 In Glasgow, random drug testing took place initially twice per week if the offender was attending GDPS and twice or three times per week if attending Phoenix House, with these treatment providers carrying out the urine testing. When an offender received a methadone prescription from their GP, the latter provided the testing services. At the beginning of the pilot, dipstick tests were used. However treatment providers questioned the reliability of this method and laboratory tests were introduced, despite the extra cost and delay in obtaining results.

5.4 In Glasgow, five main drug groups were tested, namely opiates (heroin), methadone, cocaine, amphetamines and benzodiazepines. Before testing, which was observed, offenders were asked to disclose which drugs they had taken. There was no specific period of time in which those on DTTOs were expected to be drug-free, however the treatment providers notified the DTTO team of any positive test results received. Phoenix House rules also specified that no one could attend their services whilst intoxicated.

5.5 In the Fife pilot scheme, urine testing was generally carried out twice per week by the drugs workers, at various locations across Fife, though staff commented that in practice, because of workload, it was difficult to ensure that three days elapsed between the tests. Since the tests were observed, offenders were offered a male or female worker at the outset of their order. As in Glasgow, the offender was asked to disclose any drug use prior to testing. Drugs workers in Fife reported a high correlation between reported and actual use of drugs. A combination of dipstick and laboratory testing was employed to test for the presence either of individual named drugs or a combination of drugs, namely methadone, opiates, cocaine, amphetamines, benzodiazepines and cannabinoids.

5.6 Table 5.1 shows the percentage of drug tests conducted from the introduction of the pilots that showed positive for the range of substances tested. Because testing could be undertaken in Fife for individual drugs or for the full range, the data from the two sites are not directly comparable. It should also be noted that, especially in Glasgow, a not insignificant number of positive results for heroin (opiates) and benzodiazepines were produced by opiates present in legal painkillers and benzodiazepine prescriptions (such as Valium). The main observation to make about these findings concerns the relatively low use of amphetamines and cocaine and the relatively high use of benzodiazepines among the two groups of offenders.

Table 5.1: Percentage of urine test results showing positive for different substances

5.7 It was not possible to chart any changes in drug use strictly on a month by month basis, since offenders often did not turn up for testing. Instead, however, we can examine the percentage of tests showing positive, according to the number of the test (1 ^st, 5 ^th etc) to discern any changes over time. The relevant data are shown in Table 5.2. Overall, there was a steady decrease in the percentage of positive tests for opiates. This pattern of steadily decreasing opiate use over time was found in Glasgow but the data from Fife were less clear cut in this respect, possibly as a result of the low number cases in which longer-term data were available. We would certainly be reluctant on the basis of these data to conclude that the two sites had been differentially effective in this respect.

Table 5.2: Percentage of positive tests for opiates at different stages in the order

5.8 In both sites the number of tests per week was reduced where there was felt to have been sustained progress on the order. Where such progress had been made a reduction in testing was recommended to the sentencer in the court review report. This had resulted in testing being reduced in some cases to once per week or once per fortnight.

5.9 Refusal to provide a urine sample was viewed extremely seriously by DTTO staff (as it also was in the English pilots) since it represented a failure to comply with the requirements of the order. On the other hand, how a positive test result was dealt with would depend upon which stage of the DTTO the offender had reached. For example if someone attending the abstinence-based programme in Glasgow continually produced positive samples, they were swiftly reassessed for methadone treatment by GDPS.

5.10 Overall, offenders attended 67 per cent of appointments for drug testing. The levels of attendance for urine tests varied greatly between the two sites, with 62 per cent of appointments attended in Fife and 84 per cent in Glasgow. However, this may be explained by differences in the procedures by which offenders obtain their methadone in the two locations. In Fife, testing was carried out at various health centres or the DTTO office, but methadone was obtained from offenders' local pharmacies. In Glasgow, both the testing and the issuing of methadone took place at GDPS, therefore there was a greater incentive for offenders to attend scheduled testing appointments.

5.11 Social work managers in Fife were satisfied with the drug testing service and believed the frequency of testing to be appropriate, though one manager suggested that it would be useful if the tests were able to provide information about concentration levels to enable reductions in drug use to be monitored. Managers also pointed to the difficulty of identifying potential testing sites across the authority because hospitals and clinics were not 'geared up' to dealing with individuals who presented a high risk of re-offending and who could put staff or other patients at risk. Instead, testing was being carried out in two criminal justice social work offices and in the DTTO premises.

5.12 The arrangements for drug testing in Glasgow appear to have worked less smoothly. The issue of centralised testing sites arose in relation to offenders in the north of the city who often had to travel considerable distances to have their tests carried out. Managers also explained that GDPS had latterly become concerned about the accuracy of dipstick urine testing and had begun to send all urine samples to the laboratory for analysis. This was resulting in delays of up to two weeks before test results were being returned. This contrasted with the arrangements at Phoenix House where the volume of tests performed was lower and where laboratory results could be returned within two working days. Social work managers reported that lengthy delays made it more difficult to match treatment to offenders' needs and created gaps in the results being reported back to court at DTTO reviews.

5.13 One manager in Glasgow also indicated that the frequency of testing had attracted some comment from treatment providers. The frequency of testing was thought by managers to be appropriate for the purpose of monitoring progress and supervising the offender on the order but was thought by treatment providers to be too high to provide information that might be of use from a treatment point of view. One manager also questioned whether the frequency of testing at different stages in an order was appropriate. Whilst testing was more frequent at the early stages of the order and tended to be reduce as the offender's drug use began to stabilise, there was reason to believe that this might not be the most effective use of resources:

"I think it is worth noting that what we have done is built in very regular vigorous testing early on, when in actual fact the drugs teams will say really that it is only important at a later stage. Because early on you expect things to be quite kind of chaotic and there won't be significant change. But once they become stable that's the time when we will need to do it more regularly because that's the time they actually need more support."

5.14 One manager in Glasgow noted that some problems had been encountered in obtaining test results in a timely fashion at the assessment stage. This had occurred, it seems, partly because drugs workers were unfamiliar with the time constraints associated with court procedures and did not appreciate that the DTTO workers needed some time to consider the implications of test results before completing their assessment reports. The same manager observed that tensions had sometime arisen between treatment providers and DTTO staff because the former believed that their opinions had not been accurately represented in assessment reports.

PERCEIVED PURPOSE AND EFFECTIVENESS OF TESTING

5.15 Managers were divided in their views as to whether drug testing served to secure offenders' compliance with their orders. While one manager could not imagine "anybody not committing an offence or not doing what they want to do just because they are going to get a urine test", others suggested that testing could serve to reinforce the authority of the order and reduce the likelihood that offenders would try to mislead DTTO staff and treatment providers about their use of drugs.

5.16 DTTO workers perceived urine testing to be a marker of an offender's progress on the DTTO, both personally and for the different professionals involved in the order. The addiction workers reported that the frequency of urine testing worked well as part of the monitoring of progress on the DTTO but that delays between urine testing and the test results were unsatisfactory. For example, it was reported that in some cases it had taken three weeks for test results to be produced which left only one week prior to the next court review.

5.17 All of the treatment providers agreed that the urine testing was an important part of the DTTO (for example, among other things it encouraged people to be honest about their drug use) but expressed concern about the emphasis placed on the results. Treatment providers regarded testing as important for motivating people and maintaining their confidence when they were doing well but less useful when they were doing badly. As one treatment provider commented, "you don't really need sixteen urine results to tell the person how bad they're doing - they know they're really bad anyway". Treatment providers pointed to the potential for repeated testing to have a negative effect on the offender's motivation to comply with their order and to change, particularly since positive urine tests results for heroin are to be expected prior to stabilisation on methadone:

"I think you have to watch how many tests you have…sometimes you can make them feel punished because they're being tested continually."

5.18 The frequency of testing demanded by the DTTO was said by treatment providers to put pressure on the medical staff because they saw more positive results even though these results pertained to the same period of time as other service users who were tested less frequently.

"From our point of view there is probably too much drug testing in the initial stages and this hasn't proved to be very useful at all."

5.19 Staff at GDPS believed that testing offenders who were on methadone more than once per week was an unnecessary expense. The frequency of testing was also said by treatment providers to affect the turnaround times for test results. At the point of research interview GDPS were aiming to improve the turnaround times for test results from 10-14 days to 7 days. This compared with a turnaround time of two working days in Phoenix House and four in Fife.

5.20 Treatment providers in Glasgow believed that testing was useful in the context of abstinence based treatment but was less so where offenders had reduced their drug use but were still using. Some treatment providers believed that regular medical examinations were more important than testing while some questioned the accuracy of results and the amount of significance that was, apparently, attached to them:

"I think there's always the element of false positives and false negatives and personally also I think some of the results come through from urine analysis are sometimes questionable."

"I think the urine analysis should be used to enhance what you already know and I don't think it should be used as something definitive to find anything particular out, I think there is too much emphasis placed on the urine tests."

5.21 Treatment providers questioned, in particular, sheriffs' understanding of the role of testing and the significance of positive tests. There was particular concern about how sentencers might interpret positive test results:

"Maybe I am doing sheriffs a discredit here, but I am not sure what their knowledge base is with regard to the treatments. I would hate to think if there is a whole load of positive urine results going back then that's their measure of how effective the treatment actually is."

"You just wonder sometimes does the sheriff realise that, you would like the sheriff to know that this looks really bad but really it's no different to anyone else that is in a methadone programme."

"Maybe there should be some sort of education in there, some form of education to the sheriffs to say… that the important thing here is reduced days of use, number of days abstinent which might not be reflected by continual urine analysis."

5.22 entencers reported being content with the procedures for drug testing and with the frequency of testing, though one sheriff noted that offenders' non-attendance for urine tests was a problem in some cases. Two sheriffs, while satisfied that the current arrangements were operating effectively (that is, results were accurate and provided quickly), logistical problems might be encountered as the number of offenders subject to DTTOs increased.

5.23 Sentencers agreed that testing was an effective mechanism for monitoring an offender's progress on a DTTO but were more divided in their views as to whether or not testing helped to secure the offenders compliance with treatment. Some believed that regular testing helped to maintain offenders' commitment to reducing their drug use, though others questioned whether this was the case and suggested that offenders might find ways to 'beat the system'. Sentencers also tended to emphasise the importance of negative results rather than taking into account the fact that a substantial reduction in drug use could have been achieved even though the offender continued to have positive test results.

OFFENDERS' VIEWS OF DRUG TESTING

5.24 At initial interview all offenders considered the primary purposes of drug testing as being to establish whether people were using drugs and whether they were being honest about their drug use. Some perceived testing as having a primarily deterrent function while others defined its role in terms of monitoring. A few respondents suggested that testing was a tool for ascertaining whether offenders on prescribed methadone were placing themselves at risk by continuing to use heroin on top of their medication. In this context one offender observed that testing was a useful means for establishing whether the level of methadone prescribed was adequate:

"[The purpose of testing is] to make sure you are not taking anything stronger and if you are they can talk to you and see if they are not giving you enough methadone or what."

5.25 At initial interview most offenders (22) were being tested twice a week and the remainder three times per week. One of the latter indicated that he could not understand why his testing had been increased from twice weekly since he had had no positive tests, but was reluctant to challenge the decision for fear of being considered unco-operative. On the whole, however, offenders were sanguine about the frequency of testing and some welcomed the fact that it gave them somewhere to go and something to do:

"People often moan about how many times you've got to see people in a week but I think that helps you…It keeps you occupied an' as long as you've got something to dae, in your heid you know you'll keep aff it."

5.26 Twice weekly testing was said by most offenders to be sufficient to detect any continued drug use (and, hence, to deter such use), since heroin remained in the body for 3-4 days if smoked and for longer if injected. As one offender commented, "it doesn't give you much room for complacency". However some believed that twice weekly testing, especially non-random testing, could fail to detect occasional heroin use because heroin could be flushed out of the system more quickly through the consumption of large quantities of fluid.

5.27 Six months into their orders, two offenders were being tested three time a week, four were being tested twice a week, two were being tested once a week and one was being tested fortnightly. One respondent - who was still using heroin, though less than before his DTTO - indicated that he had asked to be tested weekly on a random basis in the hope that that might help him to stop. On the other hand, those whose frequency of testing had been reduced were pleased that this had happened because it reduced the amount of time they had to spend travelling to and from the clinic and indicated that they were being shown some trust by staff. Offenders were still, in the main, sanguine about this aspect of their orders, though one expressed concern that offenders who repeatedly produced dirty samples were being let off too lightly by DTTO staff.

5.28 Some offenders suggested that testing was ineffective because it was unable to establish the amount of heroin used and could not, therefore, indicate whether the level of drug use was decreasing, increasing or remaining constant. However most of those who were interviewed towards the start of their orders considered testing to be useful as a means of monitoring progress and deterring potential drug use.

"It keeps me on my toes. I'm no' saying it stops me fae usin' but it's a deterrent to using 'cause you know you're going to let yourself doon and let everybody else doon roon aboot ye if you test positive."

"I don't mind being tested..I don't tell them lies. If my urine's going to be positive I'll tell them anyway..But, I'm no' saying I wouldnae tell them lies if it wisnae gettin' tested! Do you know what I'm talking about?"

5.29 Although a few offenders said that they had experienced some difficulty in producing urine samples, none reported having other concerns about the testing element of their order.

5.30 Four offenders indicated at initial interview that testing would have no effect on their drug use, two of whom suggested that what mattered was their personal motivation to come off drugs. However, most offenders (23) at initial interview indicated that testing would help them reduce their use of drugs. For many, the prospect of having their order revoked and being re-sentenced as a result of continued drug use was an important consideration:

"If you've got something like that in place, it's a kind of fear factor as well…I have been using once or twice a month. There's gottae be a cut off point where they say 'no more', you know what I mean?"

5.31 In other cases, regular testing was perceived as sustaining the offender's motivation to remain drug free. Some offenders also indicated that testing helped them to avoid further drug use because if they had positive tests they would let themselves and other people (including DTTO staff and treatment providers) down:

"It's taken me this long to get somebody that's actually willing to help me. I don't want to be letting them down…Also, I don't want to be letting myself down."

5.32 In a similar vein, most offenders believed that testing would increase their likelihood of co-operating with treatment, in some cases because access to certain resources and services was dependent upon offenders being able to demonstrate that they were drug free. One offender, however, thought that testing could have a mixed impact in this regard since having regular positive test results might make the individual dispirited and more likely to give up.

5.33 Most offenders did not, on the other hand, think that the fact that they were being tested would result in them changing the types of drugs they used. Those who continued to use other substances attributed this to personal choice rather than to the fact that they were being tested, with one offender commenting that "peeing in a bottle is not going to alter my choice of drugs if I want to take a drug". Several offenders indicated that they had no desire to replace heroin use with the use of other substances because heroin was their "drug of choice." As one respondent observed, "I'm not rattling, so that's good enough for me".

REVIEWS

5.34 The legislation requires that DTTOs are reviewed not less than monthly by the court, either through a review hearing or a paper review. The purpose of reviews is to enable the sentencer to monitor the offender's progress on an order. On the basis of these regular reviews the sentencer may, among other courses of action, vary the conditions of the order (such as the frequency of testing, the type of treatment or the frequency of attendance at treatment), revoke the order on the basis that satisfactory progress has been made or, in the event of non-compliance, revoke the order and re-sentence the offender for the original offence.

5.35 Sentencers expressed satisfaction with the provisions for reviewing orders and with the content and quality of the review reports they received, though one sheriff commented that reports were, on occasions, not received until the morning of the review and indicated that he would welcome earlier receipt. Sentencers were likewise content, in the main, with the frequency of reviews, though one suggested that it might be useful to have the option of more frequent reviews (for example, weekly or fortnightly) in the early stages of an order.

5.36 The manner in which reviews were conducted differed across the two pilot sites. In Glasgow, review hearings were carried out in open court, though some sheriffs indicated that they would clear the court if issues of a sensitive nature were being discussed. In Fife, most review hearings were conducted in chambers in the presence of the offender, the DTTO social worker, the procurator fiscal and the defence agent. Review hearings would, however, be held in open court if it seemed likely that the DTTO would be revoked and an alternative sentence imposed.

5.37 Sentencers expressed a preference for face-to-face reviews via hearings, especially in the earlier stages of an order. Face-to-face contact with the offender could, they believed, serve to reinforce the authority of the order and also provided an opportunity for positive progress to be directly acknowledged. Paper reviews were considered appropriate only once sufficient progress had been made in stabilising the individual's drug use and offending. Most of the sentencers who were interviewed had had no experience of conducting paper reviews. As one sheriff explained:

"I think when orders are nearing their end and if the person did particularly well then there will be little point in having him or her back in front of me and then it could be done in chambers. I haven't done it yet - it depends on how well the order is doing. There is little point in having someone come back to you if he or she is at a level where there has not been many significant changes, nothing you can say or do is going to alter it any."

5.38 Sentencers identified advantages and disadvantages associated with conducting review hearings in chambers or in court. Those who advocated court-based hearings tended to do so on the basis that a DTTO is a court order and should, as such, be formally reviewed in a court setting. These sheriffs did not, on the whole, consider that the formality of a court setting inhibited the offender or detracted from the relationship between the sentencer and the offender. Indeed, one sheriff had been informed by DTTO staff that offenders may prefer to have review hearings conducted in open court rather than in closed court since the clearing of the court might be misinterpreted by the public as indicating that the offender had something to hide:

"In the cases where some sheriffs feel that they are entitled to close the court, the offender sometimes worries about this because he or she thinks that there is something wrong, that he or she is a sex offender or something of that nature and would actually prefer the matter to be in open court."

5.39 Sheriffs who conducted review hearings in chambers preferred this approach because it allowed for less formality and less distance between the sentencer and the offender. However, two disadvantages of this arrangement were also noted. First, in-chambers hearings were perceived to present a higher security risk than hearings held in open court. Second, the private nature of the hearings precluded wider recognition of the progress made by offenders which, in some instance, might motivate other offenders in similar circumstances to address their drug use and related problems.

5.40 One sheriff believed that the informality of in-chambers hearings was sometimes undermined by the number of people present. Sentencers had differing perspectives on the value of defence agents being present at hearings, particularly in light of their generally limited contribution to the process. Whilst some considered it appropriate that offenders should be represented at all hearings - and one postulated that courts might be in contravention of the European Convention on Human Rights if this did not occur - others questioned the necessity of defence agents being present at all reviews because of the associated costs. One sentencer suggested that defence agents should attend hearings only if revocation was a possibility and the offender was, therefore, likely to be re-sentenced for the original offence.

5.41 During observation of review hearings it was noted that when defence agents were present they introduced the report to the sentencer. Subsequent discussions concerning the report were conducted between the sentencer and defence agent, thus detracting from and restricting the interaction between the sentencer and offender. This also added to the formality of the reviews and was evident in both pilot sites.

5.42 Managers in both Glasgow and Fife were broadly satisfied with the arrangements for reviewing orders and with the frequency of reviews. However, managers in Glasgow observed that little use had been made of in-chamber, paper reviews and that that had implications in terms of staff time associated with attendance at review hearings. This was an issue particularly because reviews were sometimes rescheduled with the result that DTTO staff had to spent significant amounts of time at court waiting for the hearing to be convened. This was so even in the sheriff courts, where an agreement had been reached that reviews would be scheduled for 9.30 am (that is, before, the start of the court's other business). Managers speculated that sheriffs' reluctance to hold in-chambers reviews in Glasgow might have resulted from them confusing the concepts of paper reviews in chambers with face-to-face hearings involving contact with the offender in that setting.

5.43 With respect to the frequency of reviews, in two cases in Glasgow, sheriffs had scheduled reviews from the outset at three-monthly intervals and in both cases enforcement problems had occurred. Managers expressed a preference for monthly reviews in line with the legislation since this frequency of reviewing the order was considered appropriate for maintaining the offender's motivation and dealing timeously with instances of non-compliance.

5.44 Managers in Fife indicated that, following initial changes in procedures by the courts, the review process was settling down, though they also observed that sentencers varied in the way they dealt with offenders who appeared before them for review. Respondents suggested that some sheriffs perhaps felt less comfortable than did others with the less formal arrangements and greater sentencer involvement that was associated with reviews of DTTOs.

5.45 Social work managers, like sentencers, identified a number of advantages of face-to-face review hearings. They considered them a useful mechanism for conveying the seriousness of the offender's position, providing positive feedback on the offender's progress, building up a rapport between the sentencer and the offender and creating milestones for the offender throughout the order. Managers made reference to cases in which offenders had expressed a preference for face-to-face review hearings when it appeared that the court was prepared to consider changing to in-chamber reviews. Paper reviews, by contrast, were said by managers to provide no opportunity for discourse or discussion. However a shift from review hearings to paper reviews could give a clear message to the offenders that they had made good progress on their orders.

5.46 DTTO workers similarly believed that reviews performed an important role in motivating offenders to comply with their orders:

"Going back to court every four weeks is good, especially if the sheriffs are taken on board you know, encouragement, that, I mean they get a buzz out of that, they really do, you know, and "he was really pleased with me", whereas before they were really dismissive of them. But I think sheriffs are starting to come round to that way of thinking, that "aye this person is doing well - so why not tell them?"."

"If somebody's not doing well and the sentencer points that out...I think that can have a beneficial effect as well."

OBSERVED REVIEWS

5.47 Forty-one per cent of the court review hearings (43/105 undertaken between 4/10/00 and 19/04/01) in Glasgow and 37% (7/19 undertaken between 28/11/001-25/01/01) of the review hearings in Fife were observed by the researchers. Brief details of those present and the interactions that took place were recorded. Several more reviews were attended but the review failed, for various reasons, to proceed. Offenders appeared at 96% of the reviews and where they failed to do so a warrant was issued for their arrest. This contrasts with the position in England and Wales, where the court does not have the power to issue a warrant in the even of an offender's non-appearance at a review.

5.48 Other key participants in the reviews were offenders' DTTO social workers (94% of reviews), solicitors (72%) and family members (22%). Although the number of reviews observed relating to the Fife pilot was small, on only a couple of occasions was the case reviewed in open court. This is in contrast to the Glasgow pilot where in 78 per cent of the observed reviews the offender was in the dock. Reviews were generally brief. In Glasgow the average review time was five minutes (ranging from 1 to 24 minutes duration) and in Fife the average length of review was two minutes (ranging from 1 to 3 minutes).

5.49 The majority of the 50 observed reviews (43) were conducted in sheriff courts. Six reviews were observed in the high court and one was observed in the stipendiary magistrates' court ¹⁶. A total of 18 sentencers presided over the reviews. Most offenders had 'their own sheriff' consistently. Research into Drug Courts in the USA found this to be a factor linked to their effectiveness (Goldkamp, 2000) though it was less evident in the English pilots. Although the average length of review was approximately 4-5 minutes (compared with around 8 minutes in England and Wales ¹⁷), distinct approaches did emerge. In some instances these related to the presiding Sheriff and in other cases to the progress of the offender. In seven reviews, there was no advance reading of the report by the sheriff and these reviews were generally longer because the DTTO staff briefed the sheriff instead.

5.50 There was interaction between the sentencer and the offender in the majority of cases, with the offender being talked about rather than being talked to in only 5 reviews out of the 50 observed. Most of the 45 sentencer-offender interactions were encouraging (on the sentencers' side) and responsive and co-operative (on the offenders' side), irrespective of whether the review reports showed positive progress or not, though this may be because one sheriff - who was positively disposed to DTTOs - was responsible for a high proportion of comments during the observed reviews.

5.51 For example, in one case the offender had achieved abstinence by the third review. The sentencer said to the offender at that review "this is obviously a completely successful report" . In many other cases the offender was continuing to use drugs but most likely in reduced quantities and with an associated reduction in expenditure. In cases such as these, sentencers' responses included: "you failed to engage…I'm not expecting perfection, but I am expecting some progress"; "still some drug use but greatly reduced…[I] hope to see continued progress"; and "you have obviously continued to abuse drugs.. I accept there has been some stability".

5.52 In some reviews, sentencers gave firm warnings. For example:

"I am quite satisfied this order should continue…It would be unrealistic that your drug problem would be solved within one month. However I wish to make it clear that compliance is essential...[otherwise there is]…a strong possibility you'll go to prison for a number of years."

"This doesn't make good reading.. there comes a time when the court says "enough is enough"…Unless you show substantial improvement and motivation in the next review you are likely to face a custodial sentence."

5.53 However, sentencers were generally encouraging, using a "keep up the good work" style of interaction with offenders. Offenders were noted as being "more than happy to continue the order", as "trying hard" to stabilise their lives and as "doing really well" on the DTTO.

OFFENDERS' PERSPECTIVES ON REVIEWS

5.54 When interviewed shortly after being made subject to a DTTO, most offenders (23) were subject to monthly reviews of their orders while five were having review hearings every three months. Most of those who were having monthly reviews were happy with the frequency of the reviews, believing it to be appropriate for monitoring progress and providing the offender with encouragement where progress had been made. Some offenders commented that the system of regular reviews helped to keep them "on their toes", though a few thought that their orders should be reviewed less frequently. Several offenders indicated that the sentencer had told them that the frequency of review hearings could be reduced if they continued to make satisfactory progress on their order:

"…the sheriff himself actually says that as it goes on, the longer it goes on, the less often it will be reviewed by the court, providing that I'm given positive reviews a' the time."

5.55 Offenders were aware that the outcome of reviews was dependent upon how well they were seen as complying with their order and making progress in dealing with their drug use, leading one offender who had had a series of negative tests to comment that he was "skating on thin ice". All those interviewed in the early stages of their orders were fully aware that if they repeatedly failed to comply with their DTTO, their order would be revoked and they would in all probability be imprisoned as a result. All were optimistic that they would comply with their DTTO, in some cases because they wanted to avoid a custodial sentence, but more commonly because they wanted to take advantage of the opportunity they had been given to come off drugs:

"I'm that desperate tae get aff the drugs an' I've no' had any help an' now I'm getting the help I've been lookin' for."

"I know for a fact that there'll be nae hitches in my order all the way through….I'm gonnae do this and I'm gonnae achieve something … I'm gonnae need a lot of support from them, but they'll give me it."

5.56 All of the offenders who were interviewed after completing six months of their DTTOs were still having their orders reviewed monthly, though in one case at least half of the reviews had taken place in chambers without the offender present. Reviews were perceived both as a means of informing the court of progress and as a deterrent to further drug use and offending, though fewer than half of those interviewed believed that reviews in practice made much impact on their willingness to comply. Practical arrangements for reviews attracted some comment. One offender, for example, stressed the importance of successive reviews being conducted by the same sentencer since this enabled them to assess over time how much progress the offender had made. Another offender - from Fife - expressed support for review hearings in chambers rather than in court because, as he explained:

"I don't want everybody to see what my lifestyle is…and you get to know the sheriff better as well."

5.57 A third offender noted that at one of his review hearings the sentencer had offered to change the arrangements to in-chambers paper reviews but that he had requested that his reviews continued to take place in court because going to court helped to "keep him on his toes".

5.58 After six months, the offenders were mostly still happy with the length of DTTO they had received and did not anticipate major obstacles to completing their orders. One offender, however, who had received a concurrent probation order, complained that in his eyes he was "getting punished twice" while another, who was generally disappointed with the services he had received while on his DTTO, indicated that he would had preferred with hindsight to have gone to prison since his sentence would already have been served.

AMENDMENT AND REVOCATION OF ORDERS

5.59 Sentencers have the option of amending a DTTO to reflect the progress or lack of progress made by an offender on an order. This might involve varying the frequency of testing or the frequency or nature of treatment specified in the order. It might also involve reducing the length of the order (that is, discharging the order early) in the event of satisfactory progress having been made. In practice, the sentencers who were interviewed indicated that they had rarely amended orders in this way, possibly because few orders had yet been in force long enough for the sentencer to be satisfied that treatment goals had been achieved. All of those interviewed indicated, however, that any decisions in this regard would be guided by the information and advice contained in the DTTO review reports.

5.60 Social work managers indicated that recommendations that orders be amended were unlikely to be contained in review reports in the first six months. They believed that it was appropriate for social workers to recommend amendments to orders if these were seen as necessary to head off relapse or to provide some additional momentum to progress already being made. Managers also indicated that the frequency of testing could be reduced if the offender was making satisfactory progress and that courts were prepared to endorse changes of this kind and make a formal amendment of the order.

5.61 Managers suggested that revocation of an order could be pursued for positive reasons, that is, because the offender had made enough progress that further supervision and treatment were not required. However, a recommendation that a DTTO be revoked was more likely to follow on from sustained reluctance on the part of the offender to comply with the order.

5.62 Revocation of an order - and re-sentencing for the original offence - would be considered when the offender was clearly not complying with the requirements of the order, though several sheriffs qualified this position by explaining that they would be reluctant to revoke a DTTO without first giving the offender a further opportunity to co-operate with the order:

"Basically if they are not compliant I tend to give them at least one further chance to do it, if they are not turning up I don't expect miracles, I don't expect people in the first few months to become completely drug free that would be being unrealistic. They will lapse because of the nature of them but if it's apparent after a couple of reviews they are just not engaging with the order and it's not doing anybody any good I will revoke it."

"Well, if I keep notes on each order at each review and if there has been a failure to attend a significant number of meetings I would warn him or her that if that doesn't improve over the next review period then the alternative will be considered, that is the order will be revoked… So I will take a considerable amount of time before I will revoke an order: only if I see that the offender is seriously not following the instructions and is clearly not committing any more to the order."

5.63 One sheriff indicated that a DTTO would be revoked if the offender received a lengthy custodial sentence for a different offence, because it would be impractical for the order to continue in these circumstances. In both Glasgow and Fife, however, orders continued to be reviewed in the event of an offender being remanded in custody for a further offence (or for an old offence) since it was possible that, if convicted, they may receive a short prison sentence or a non-custodial disposal, either of which would enable the DTTO to continue.

5.64 entencers identified two key respects in which revocation of DTTOs differed from revocation of a probation order with a drug treatment requirement. First, further offending constituted an automatic breach of a probation order but was not in itself a necessary ground for breach of a DTTO. Second, the delays inherent in the processing of breaches of probation meant that several months were likely to have elapsed between the incident resulting in the breach action and it being dealt with in court. In contrast, the system of reviews associated with DTTOs meant that issues that might point to revocation could be dealt with swiftly. In these circumstances the issuing of a timely warning at the next scheduled review might be sufficient to motivate the offender to comply and forestall the need for the order to be revoked.

5.65 Sentencers indicated that when revoking a DTTO and re-sentencing the offender, they would take account of the nature and gravity of the original offence and other relevant factors such as the offender's criminal and sentencing history. The most likely outcome of revocation would be the imposition of a custodial sentence, given that the DTTO had, effectively, been the offender's 'last chance':

"…custody has been hanging over them right from the start, and that was probably what would happen if the order was revoked. …There may be an indictment, they may be facing serious charges or they may have so many summary complaints that have piled up that really your room for manoeuvre at that stage is going to be very limited."

Some sheriffs, however, emphasised that although a custodial sentence was the likely outcome it was not always inevitable.

ENFORCEMENT

5.66 Broadly speaking, attitudes towards the enforcement of DTTOs were similar at both sites, though the absence in Fife of detailed records of instances of non-compliance and responses to them makes it difficult to comment on the similarity or otherwise of actual enforcement practices. The researchers were informed that in cases of non-compliance (such as non-attendance for treatment or testing), members of the DTTO team would telephone, home visit, or write to the offender, and ensure that every effort was made to help them stabilise and to access treatment. The amount of leeway and, for instance, the number of letters sent, would vary depending on the offenders' attitude, previous compliance and current circumstances, such as any bereavements or family problems. In Glasgow, treatment providers communicated instances of non-attendance by offenders to the DTTO workers in writing. In Fife, DTTO staff received verbal notification of non-attendance for treatment or testing by treatment providers.

5.67 As at the end of February 2001, Glasgow had submitted a total of seven breach applications: according to a statistical update supplied by the Glasgow scheme five of the breach applications were a result of non-compliance and two in response to re-offending ¹⁸. Five of the breaches were outstanding, one had been extended by three months, and one had been revoked and the offender given a custodial sentence. By 18 ^th April 2001, Fife had had two breaches, both resulting from non-compliance and resulting in the offender receiving a custodial sentence. There had also been two revocations of orders: one had been requested by the offender and the other was a result of the offender's failure to comply and to provide samples. This offender was given a deferred sentence in order that an assessment could be made of his suitability for a probation order with a condition of drug treatment. The position in the Scottish pilots contrasts strongly with the breach rate observed in the DTTO pilots in England and Wales, where between 28 per cent and 60 per cent of orders were revoked. We will reflect further on these differences in the final chapter of this report.

5.68 The enforcement of orders in both Glasgow and Fife was said by managers to have progressed smoothly in most respects. In Glasgow, however, as the number of DTTOs had grown, so had the DTTO social workers found it difficult to respond immediately to reports of non-compliance by treatment providers by locating the offender and, where appropriate, issuing a warning. In some instances the addiction workers had had to step into this role, despite enforcement being outwith their remit. A manager in Glasgow suggested that additional resources were required to ensure that enforcement practices could consistently accord with the protocol that had been developed, possibly through the appointment of staff with an explicit responsibility for dealing with instances of non-compliance. The actual breach rate in Glasgow had been low but managers indicated that non-compliance with DTTOs was dealt with more swiftly by the courts in comparison with breaches of probation.

5.69 Managers in Glasgow also indicated that some difficulty had initially been encountered in convincing treatment providers of the necessity of providing swift notification of non-attendance and positive test results and, in the case of GDPS, of establishing effective enforcement protocols involving addiction workers, treatment providers and DTTO social workers spread across a number of locations. The rapid notification of non-compliance was easier with Phoenix House because the number of orders involved was low. However, DTTO staff had recently been made aware by staff at Phoenix House that the latter were disappointed not to receive feedback about the DTTO social worker's response to non-compliance. Social work managers now recognised that communication between DTTO social workers and treatment providers needed to be a two-way process and were taking steps to rectify this situation.

5.70 Treatment providers in Glasgow indicated that they would welcome the opportunity to be more involved in DTTO reviews because, despite having more ongoing contact with offenders on orders, their recommendations were often not included in review reports and this left them confused about enforcement procedures. As one treatment provider commented, "I am not sure what you have to do to get taken off the DTTO sometimes, put it that way". In Fife, on the other hand, the court review report was authored jointly by the social worker and drugs worker and this arrangement was reported to be working satisfactorily.

5.71 Overall, treatment providers had anticipated the courts being stricter with offenders who failed to comply with their DTTOs than they had actually been. Treatment providers were fairly satisfied with the enforcement procedures that had been adopted by the DTTO schemes but some expressed the view that, on occasion, they had expected stronger action to be taken by DTTO staff in the event of an offender's failure to comply:

"I think there have been two or three cases where I personally felt that stronger action should have been taken, however, it is a team decision."

5.72 Two offenders who were interviewed after being on a DTTO for six months expressed a similar view. Both were critical of what they perceived as the unnecessary leeway that was given to offenders who continued to use drugs while on their orders and suggested that enforcement practices should be tighter in this respect.

5.73 Treatment providers also suggested that there was a time limit on how long treatment could be provided when it was apparent that it would not succeed. In these circumstances, revocation of the order might be a more appropriate course of action:

"I think it's fair to say that there are people who have been on an order three, four, five, six months and got to the stage where you think "no, there is not a lot we can do for that person"."

"It becomes clearer I think within two or three months usually whether they are seriously addressing their problems. Attendance on time is a big factor in that. If they attend, they don't attend on the day when it's just a urine sample that… they're coming for a prescription, you have doubts about the motivation."

5.74 Sentencers, on the other hand, had had little experience of enforcement procedures in relation to DTTOs but most were satisfied that the social work department would take appropriate steps to enforce orders if problems arose. The system of reviews was said by some sentencers to circumvent the delays that arose because of the administrative difficulties that were associated with getting breaches of probation to court. One sheriff, however, suggested that it would be useful to have an option of more frequent reviews if problems were arising in relation to compliance with a DTTO. Another respondent suggested that the process of DTTO reviews meant that the sentencer had more opportunity to initiate revocation of an order in comparison with probation, where the onus was upon the social worker to submit a breach application. Indeed, the potential for the sentencer to have an enhanced role in the enforcement of orders represented an important departure from traditional practice. However this remained an opportunity which, by the time the research was completed, had not been fully exploited.

BARRIERS AND BRIDGES TO COMPLETION

5.75 Social work managers identified a range of factors that they believed helped offenders to complete a DTTO. These included recognition by sentencers and by supervisors of the complexities associated with the provision of treatment to offenders with long-standing and deep-seated drug problems, in order that goals were realistic and expectations of success were not unrealistically high. One manager suggested that the DTTO differed importantly from other community-based social work disposals in the extent to which it was capable of enabling a flexible response to inconsistent progress. Other factors included: a degree of stability in offenders' personal circumstances (for example, a stable address); consistency of approach between different professionals involved in the supervision and treatment of offenders on DTTOs; the provision of encouragement and support from sentencers through the review process; and the development of self-understanding and self esteem.

5.76 DTTO workers believed that avoiding a prison sentence was the main incentive for the offender at the beginning of a DTTO. Thereafter the emphasis was upon providing offenders with enough support to enable them to become "stable", with the surveillance element of the order being regarded by some DTTO workers as facilitating the management of the offender in the community.

5.77 Regular attendance for appointments was interpreted by DTTO workers as a marker of "things going well" on the order because if offenders were using drugs on a daily basis this would negate a desire to attend the DTTO office:

"We will encourage them to give negative samples, and that can be quite difficult for people if they have been using tremendous amounts, but are now only using maybe once or twice a week, and you can see the difference in them, and they're not offending, they're looking better and they're looking after their self and they're keeping appointments."

5.78 However, addiction workers also stressed the subtleties of support networks to offenders on a DTTO at their frequent meetings with the offender:

"The network's got to be there or the framework for that network, its got to be put in motion where that person has a support network… cause… we're a nine to five organisation,… five days a week and its not too good where that person is on their own, you know they cannae come into the office and cannae pick the phone up…a good support network…would be part of your assessment…Long term, people get bored…if there's nothing happening, things are no' changin', it's the same person, you know...you've got to speak, say you look great the day, you know you only seen him last week but…you look a lot of different, you got tae reinforce an say that you're doin' well and you've got to let them know there is change and that change is continuing."

5.79 The demanding nature of the order, including the commitment required of offenders to comply with its various requirements and the willingness of the offender to change, were identified by managers as making it more difficult for offenders successfully to complete a DTTO. Managers also identified instability in other aspects of offenders' lives - such as the existence of other problems and stresses (including mental health problems or low self esteem) or living in a household where others are involved in the misuse of drugs - as likely to detract from an offender's ability to complete an order.

5.80 The intensity of the commitment that was required from offenders on a DTTO was thought by DTTO staff to present challenges to family members or partners:

"You know they've got to be at a lot of places throughout the week. Got to be, should be at group-work, they should be at [name of treatment provider] twice a week, they should be at counselling twice a week. That might make it difficult because if they've...got a partner and...they were normally around for them to help with kids and different things like that, but they've now got to do that, the partners and mothers and fathers have got to be aware...that they've got to do this. That can be quite difficult for some people."

5.81 However, family support was felt by DTTO workers to be a key to successful completion of a DTTO because the DTTO teams could not provide round the clock cover.

SUMMARY

5.82 Drug testing is an integral part of DTTOs. Glasgow used laboratory testing (which meant that delays of up to two weeks for the receipt of results sometimes occurred) while a combination of laboratory and dipstick testing was employed in Fife. The percentage of positive tests for opiates decreased over time, especially in Glasgow.

5.83 Around two-thirds of drug testing appointments were attended, with higher rates of attendance in Glasgow, where the testing and the issuing of methadone took place at the same location. Testing was thought by managers to reinforce the authority of the order and to provide a more accurate indicator of offenders' drug use. However, treatment providers expressed concern that the frequency of testing, especially in the early stages of an order, might serve to decrease offenders' motivation to become drug free. Testing, moreover, could tell if a drug was being used, but could not show how often it was being used or in what quantities.

5.84 Offenders were generally sanguine about the frequency of testing to which they were subjected and most believed that testing would help them to reduce their use of drugs. Testing was viewed by offenders both as a deterrent to continued drug use and as an incentive to becoming and remaining drug free.

5.85 DTTOs must be reviewed by the court not less than monthly, either through a review hearing or a paper review. The dialogue between the offender and the sentencer is a distinctive feature of the DTTO and sentencers expressed a clear preference for face-to-face review hearings. In Glasgow, the majority of review hearings were conducted in open court, with the court being cleared if issues of a sensitive nature were likely to be discussed. In Fife, sheriffs conducted the majority of review hearings in chambers, though the number of people present tended to undermine the informality of the process. Sentencers were divided in their views as to whether defence agents should be present at all reviews. When they were present, the dialogue between the sentencer and the offender was usually restricted.

5.86 Professional respondents regarded reviews as an important mechanism for motivating offenders to complete their orders and in the majority of cases there was continuity of sentencer across reviews, a factor shown in US research to be associated with the enhanced effectiveness of Drug Court orders. The majority of reviews that were observed by the researchers were encouraging on the part of the sentencer and responsive on the part of the offender. Offenders were generally content with the frequency of reviews, believing that it kept them 'on their toes'. Reviews, like testing, were perceived by offenders both as a 'carrot' and as a 'stick'.

5.87 Sentencers had rarely made amendments to DTTOs at reviews and few orders had been revoked or breached. Sentencers stressed that they would be reluctant to revoke a DTTO without first giving the offender another opportunity to comply with the order. The DTTO was perceived by sentencers and by other professionals as a high tariff option and the former indicated that the likely outcome of revocation of a DTTO would be the imposition of a custodial sentence.

5.88 The breach rate in the Scottish pilots was low in comparison with the relatively high breach rates observed in the English pilot schemes, with only two offenders each having been breached in Glasgow and Fife. However, the enforcement procedures were somewhat unclear and some sentencers, treatment providers and offenders were concerned that too much leeway was given to offenders who failed to comply. Managers, on the other hand, believed that the flexible response to offenders on DTTOs was a strength of the scheme. Other features of the new orders that were thought to facilitate completion included stability in offenders' circumstances, a consistent approach by the different professionals involved in the DTTO and features of the order itself. Addiction workers stressed the importance of support networks to assist offenders in the longer term.

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