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Chapter Eight: Treatment And The Law

Introduction

1 One of the important features of the past two decades has been the gradual accumulation of evidence from research, first in the United States and more recently from the United Kingdom, showing that treatment is effective in reducing drug use and the criminal activity related to it, and that it is cost-effective. There is also research evidence to suggest that treatment can be effective even if there is some coercion involved. In this chapter we review this evidence and consider the various ways in which the law can best promote treatment responses to drug use. We also consider two issues that are linked to treatment provision: the extent to which doctors should be licensed to prescribe particular drugs and the changes needed to the Regulations governing prescriptions by doctors and their dispensing by pharmacists.

The case for treatment within the criminal justice system

2 A series of now well-known studies from the United States have compared the costs and benefits of treatment programmes. The U.S. Treatment Outcome Prospective Study [1] estimated that for every $6 spent on methadone maintenance programmes, benefits worth $13 were achieved. A RAND Corporation study [2] put the benefits from treatment at $7 for every $1 spent and found that treatment programmes for cocaine users achieved break-even savings, unlike other strategies for reducing the demand for and supply of cocaine.

3 In this country the largest such study is the National Treatment Outcome Research Study. It monitors the progress of 1,075 clients in four forms of treatment - two residential and two community. The residential treatments are specialist inpatient and rehabilitation programmes. The two community approaches are methadone maintenance and methadone reduction programmes. Broadly speaking, the residential treatment programmes are abstinence based, while the community programmes aim to reduce drug-taking and its related risk behaviours in the interests of harm reduction.

4 Impressive improvements in drug-taking and other behaviour as well as in psychological and physical health are indicated by the results of monitoring thus far [3]. At the one year mark, abstinence rates for the use of heroin and non-prescribed methadone had doubled. Injecting and sharing of equipment had more than halved. There was a marked reduction, albeit self-reported, in criminal activity, of which shoplifting was the most commonly reported crime before treatment. Burglary had come down by 87%. The researchers estimated that, for every £1 spent on treatment, £3 was saved to the criminal justice system.

5 At the two year follow-up [4] these improvements were substantially maintained, in abstinence rates, frequency and quantity of use and injecting. Rates of acquisitive crime approximately halved, with large reductions in the number of offences. There were also large decreases in drug supply offences, with only 13% of residential and 10% of community clients still involved in selling drugs compared with 36% and 24% at intake. While many questions remain to be resolved by the research, it leaves no doubt about the cost-effectiveness of treatment.

6 Arrest referral schemes put people arrested by the police in touch with drug treatment and advice services. Where these schemes provide drugs workers at police stations and support after referral, research has shown that they can reduce drug use and drug-related crime. Evaluations of schemes in Brighton, Derby and Southwark are described in a recent report [5]. Most of the sample reported reductions in their drug use at the 6-8 month follow up. Just over a quarter said that they were no longer using any form of illicit drug and just over a third that they were no longer using illicit opiates or stimulants. The number of those who injected drugs also fell significantly. Falls were also reported in expenditure on drugs and in the number of crimes committed. The researchers estimated that the savings to both the health services and the criminal justice system were significant. A later study [6] found that the benefits of arrest referral lasted in over a quarter of cases well into the second year following referral. This study also found that probation orders with treatment conditions attached had been particularly effective in retaining offenders in treatment and reducing their expenditure on drugs.

7 The Government's 10-Year Strategy for Tackling Drugs Misuse recognises strength of the accumulating evidence on treatment effectiveness, and places a strong emphasis on the role of treatment in tackling drug misuse and, in particular, on its role in protecting communities from drug-related antisocial and criminal behaviour. It sees the criminal justice system as having an important function in identifying drug users not receiving treatment services, facilitating their access to those services and ensuring their participation and continuance in treatment through formal and informal sanctions.

8 We welcome this emphasis on treatment in the national strategy and accept the rationale for using the criminal justice system to channel drug misusing offenders into treatment. We also welcome the opportunity this provides for offenders who are problem drug users who have not been reached by services. It is an approach which needs, however, to be tempered by several important caveats.

9 Drug misuse is first and foremost a public and individual health problem and second a crime problem. Although the scale of their offending is large, it is only a small minority of drug users, even problem drug users, who commit crime. It is important that diversion via the criminal justice system does not distort the use of current services and the allocation of future resources at the expense of the majority of problem drug users who do not commit crime and who can be prevented from committing crime by early access to treatment.

Resources

10 This is a particular danger when there is a shortage of services as at present. Long waiting lists are reported even though the evidence suggests that only a minority of problem drugs users are in touch with services. Moreover, research has found that two in three problem users identified by arrest referral workers are not currently in touch with drug services [7].

11 The first Annual Report on the national strategy, covering the year 1998/99, clearly recognises that 'the supply of effective treatment services is failing to match demand' [8] and that there has actually been a loss of residential treatment provision over the last few years. Significant additional resources have been allocated for drug services over the next few years to increase provision and speed of access. Nevertheless, in the short to medium term this situation means that capacity will not meet demand and the balance between the different routes to treatment needs to be carefully monitored. We see the need for a very substantial reallocation of resources and particularly the need to increase the provision of services for adolescents, women, people from minority ethnic communities and people with mental health problems.

12 Chronic shortage of drug services also means that the criminal justice system's capacity to divert offenders to treatment will often be a lottery - whether an offender receives treatment or punishment may depend on the availability of services. If, as is often the case, treatment services concentrate on heroin misuse, heroin users will be the chief beneficiaries of diversion or of sentences which include treatment while other problem users will not benefit in the same way. There is a further danger which must be guarded against in the enthusiasm to provide treatment via the law. This is the ratchet effect of failure in treatment resulting in a more punitive response than would have been the case without it.

13 Above all, it must be remembered that the key elements of effective treatment are the same whether delivered within the criminal justice system or not. It is important that treatment through the criminal justice system should encompass them. This means identifying those drug users for whom treatment is the appropriate response, getting them into treatment quickly and for long enough, providing incentives to achieve this, addressing the social as well as the clinical needs, and ensuring the provision of aftercare and support on which the success of rehabilitation depends. We have reservations about the possibility of delivering these objectives in prison, especially during periods of remand or short sentences. Where a response is sought to problem drug use, as opposed to the crime related to it, treatment in prison seems to us always likely to be a second-best option, and sentencers should not be attracted to it as a solution.

14 More far-reaching research is needed to provide a better understanding of the precise dynamics and causal links in the drugs-crime relationship, and better evidence about the factors that influence the effects of treatment. There is a particular need to evaluate the cost-effectiveness of different interventions, whether involving treatment or not. This is necessary to inform future decisions on what seems to us an unsatisfactory distribution of overall drugs expenditure, with 62% going on enforcement and only 13% on treatment services.

15 Subject to these reservations, we consider in the following paragraphs the treatment responses within the criminal justice system. In particular, we consider whether the criminal law, which was not designed to further treatment objectives, is sufficiently flexible to encompass them or whether changes are needed. These are not issues specific to the MDA but affect many offenders against it.

Treatment as part of the criminal justice process

Caution-plus

16 'Caution-plus' schemes provide an alternative to prosecution. They are not statutory, although the Government's 10-year strategy, in promoting them, implies that they are. These schemes vary between police force areas. It is therefore difficult to describe them in terms of a model that will necessarily be recognisable throughout England and Wales and Northern Ireland. (There are no cautions or caution-plus schemes in Scotland but referral to treatment agencies in lieu of prosecution takes place there too [9]). The essential feature is that, as part of the decision to caution, the offender agrees to seek treatment or counselling or is given appropriate information when the caution is administered on where to obtain such assistance.

17 Under the Police and Criminal Evidence Act 1984 (PACE), the police are in general required, if they are going to charge a person with a criminal offence, to do so as soon as they have sufficient evidence to support the charge. If they do not bring the charge at that point, they may be precluded from doing so later. Moreover, once the charge is brought, there can be no further questioning about the offence except in carefully defined circumstances.

18 Arguably, therefore, as soon as the evidence to support the charge becomes available, interviews should not be prolonged or further questioning take place to discuss whether or not offenders are prepared to seek treatment. Also, charges cannot be delayed until offenders produce, or fail to produce, proof that they have entered a programme of treatment or counselling. There are no powers to enforce any conditions attached to a caution and Home Office guidance warns the police not to imply in any way that a caution is in any sense a reward for agreeing to seek treatment. It follows that the police are also powerless to follow up offenders in order to ensure that any undertakings given by them are carried out.

19 These difficulties also apply to arrest referral schemes in general and we set out our recommendations below for changing the law in order to remove the present doubts over whether they can operate lawfully. As far as caution-plus is concerned it seems to us sensible that a statutory framework and guidelines governing the conditions that may be attached to a caution should be part of the same legislation that, as we have recommended earlier [10], would put cautioning of those over 17 on a statutory basis [11]. That should significantly improve the ability of the police service to contribute to such schemes. We do not, however, envisage that every police force would operate caution-plus schemes on a uniform basis across the country, at least initially. Much will depend on the available resources and the extent to which such schemes, demanding as they do cooperation with a variety of other agencies, have been worked out. Nor do we wish to see such arrangements used in cases which are satisfactorily dealt with now by a normal caution. That should be avoided by suitably worded guidance under the new statutory scheme.

Arrest referral

20 'Caution-plus' is a variant of schemes known generally as 'arrest referral'. Its main effect is to keep the offender out of the courts (and in England and Wales the case will not be referred to the prosecuting authority). Other arrest referral schemes are designed to encourage an offender to obtain help and advice while the criminal justice process of charge, bail, trial and sentence continues. They fall into two basic categories. In one the custody officer simply hands out information, for example a list of names, addresses and telephone numbers of local drugs services, leaving it to the arrested person to make contact with the services. In the second type of scheme drugs counsellors work in close cooperation with the police, usually with direct access to suspects in the police station and sometimes continuing to support those who enter treatment as a result of arrest referral. All schemes have to avoid offering the possibility of dropping or not preferring charges as an inducement to compliance. None are on a statutory basis.

21 The main difficulties faced by arrest referral schemes have already been described in our discussion of caution-plus. The difficulties of reconciling them with the demands of PACE are more serious given that some candidates clearly suitable for arrest referral may be denying the offences for which they have been arrested. It seems to us that the present restrictions unduly inhibit the ability of the law to support the Government's declared policy in favour of caution-plus and arrest referral schemes. We therefore make the following recommendations, subject to the reservation that we do not regard the benefits of treatment as sufficient reason for providing a power of arrest where that would not otherwise be justified:

i) It should be made clear (by amending PACE if necessary) that further questioning to establish willingness to undergo treatment is permissible after the evidence to support a charge has been obtained. But this should take place only with the suspect's agreement. If further evidence of criminal offences then emerges, the full procedures relating to interviews of suspects should again apply.

ii) The relevant PACE Code should be redrafted so as to draw a clear distinction between questions designed to establish guilt and question's designed to establish an offender's willingness to undergo treatment. The Code could then go on to lay down at which point each type of questioning could take place - there are already similar exceptions in the present Code.

iii) The police should be given statutory powers to attach conditions to a caution, including the power to charge the offender with the original offence if the conditions are not met.

iv) The power to attach conditions should be supported by statutory guidelines making it clear what sort of conditions are permissible and how compliance should be assessed.

v) The police should be given powers to release offenders on police bail while arrangements for treatment are made. If such arrangements are not made the offender could be charged for the offence.

Pre-sentence

22 Although inducements must not be held out to defendants to agree to undergo treatment in the hope of charges being dropped, it is possible that as a result of arrest referral evidence will emerge before trial of factors that may indicate that the prosecution should be dropped in the public interest. Arrangements therefore need to be in place to ensure that any such information is passed to the Crown Prosecution Service for consideration. The main source of such information is likely to be the probation service.

23 In Scotland there are various diversion schemes, with the participation of social work departments and other agencies, for offenders whose behaviour appears to be the result of some underlying cause such as alcohol or drug dependence. These schemes operate on the basis of either deferral or waiver of prosecution. The offender's consent is required for participation in such schemes.

Sentence

Community orders

24 If they find offenders guilty, the courts may make one of a variety of orders (known collectively as community orders) which will result in them being supervised by the probation service. These include probation orders, community service orders and combination orders. Since the Criminal Justice Act 1991 the courts have been able to attach to probation orders a requirement that the offender undergoes treatment. Where this is not done, it is still open to the probation officer, where treatment seems to be needed, to encourage the offender to seek it.

25 5,149 people found guilty of drugs offences were sentenced to probation or supervision in 1997. 1,970 of them were required under the 1991 Criminal Justice Act to undergo drug or alcohol treatment as part of the order. No information is available on the numbers of people encouraged by probation officers to seek treatment in the absence of a specific requirement attached to the order. We believe that attaching treatment conditions to probation orders remains a credible option for a wide range of drugs offences. There is now emerging evidence of their effectiveness [12]. As we have already said in our discussion of possession offences [13], it may be possible to use them more often. As we also point out in the same context the removal of this sanction under the Crime and Disorder Act l998 where drug treatment and testing orders become available is a mistake which should be reversed at the earliest opportunity.

Drug treatment and testing orders

26 Drug treatment and testing orders may be made from autumn 2000 under section 61 of the Crime and Disorder Act 1998. The court may make an order in any case where the sentence is not mandatory. Orders may last from three months to three years. They can only be made if the court has been notified by the Secretary of State that arrangements for implementing them are available in the area. The court has to be satisfied before making the order that the offender 'is dependent on or has a propensity to misuse drugs and that this dependency or propensity is such as requires and may be susceptible to treatment’.

27 The order may specify who is to administer or supervise the treatment and where and whether the treatment is to be residential or non-residential. Apart from this the court has no powers to specify the nature of the treatment. The order can only be imposed if the offender expresses his willingness to comply with its requirements. It is accompanied by arrangements for testing for the presence of drugs as the supervision progresses. Offenders who do not stay the course because they fail these tests or in other ways risk more severe penalties.

28 The orders are not primarily directed against drugs offenders as such; they were created to break the links between drug misuse and other types of offending. As the Home Office guidance to pilot areas makes clear, the orders are primarily designed for those convicted of acquisitive crimes committed in order to obtain money to buy drugs. The guidance notes, however, that 'offenders convicted of drug supply who are themselves habitual misusers, and are otherwise suitable for a community sentence...should also be considered'. We believe that this general approach to the use of the new order is correct; it is most appropriate for those whose offences are drug-related but not drugs offences as such.

29 The interim findings on three pilot areas where drug treatment and testing orders have been introduced were published in late 1999 [14]. It is too soon to draw firm conclusions particularly as the 55 offenders interviewed, over half of whom had been convicted of shoplifting, had only been on the order for one month. The findings show substantial reductions in the amount spent on drugs and in acquisitive crime, although they also show a high level of failure in meeting the conditions of the order. There were large differences between sentencers in their expectations of the speed with which results can be delivered. If greater consistency is to be achieved clear guidelines will be needed on when breach proceedings are appropriate and also to ensure a better match between treatment and the individual's needs.

Controls over prescribing

30 The MDA and its associated Regulations govern what can be prescribed and by whom. They also regulate many other aspects of the distribution, production, storage and dispensing of controlled drugs.

31 Section 10 of the MDA enables the Secretary of State to make Regulations governing:

i) safe custody;

ii) the documentation of transactions and the keeping of records;

iii) packaging and labelling;

iv) transport;

v) methods of destruction;

vi) prescriptions;

vii) notification by doctors of persons suspected of addiction (this is not a current requirement but the power remains);

viii) licensing of doctors to prescribe certain drugs to addicts.

32 Sections 12 - 16 of the MDA give the Home Secretary powers to give directions withdrawing from individual doctors, vets, or pharmacists their authority to possess, prescribe, administer, manufacture, compound and supply specified controlled drugs. These powers are subject to various rights of appeal to tribunals, advice from professional panels and other procedures.

Doctors

33 Under regulations made under the MDA, a doctor cannot prescribe heroin, cocaine or dipipanone to addicts unless he has been licensed to do so by the Home Secretary, or the drugs are supplied or prescribed for the treatment of organic disease or injury.

34 Other controlled drugs can be prescribed by any doctor to a problem drug user. The evidence suggests there are wide divergences in prescribing practice, particularly between private and NHS prescribing. A survey of prescription records [15, 16], has shown that prescriptions from private doctors were more likely to be for larger amounts, at higher doses, to be dispensed in weekly, fortnightly or monthly instalments, and that the drugs concerned, particularly in the case of methadone, were more likely to be in injectable form. Although the MDA lays down an independent tribunal system for dealing with doctors who prescribe irresponsibly, it is cumbersome and inflexible and has not been used for the last three years.

35 It seems to us that private prescribing to problem drug users is always likely to raise particular difficulties, being based as it is on the payment of a fee by patients who will often have very limited incomes. Such patients will always wish to minimise both the number of consultations and the number of prescriptions, for which they also have to pay. The risks to patients of large prescriptions for relatively long periods dispensed at one time are obvious and underlined by the increase in methadone-related deaths, from 230 in 1993 to 421 in 1997. There is also evidence [17] that drugs from such prescriptions, particularly of injectable methadone and amphetamine, are spilling out onto the illicit market in significant quantities. The Advisory Council on the Misuse of Drugs expressed its concern about the private treatment of problem drug takers as long ago as 1982 [18].

36 There is a strong case, that in our view needs urgent consideration, for extending the licensing system under the MDA so that doctors in private practice and NHS doctors who prescribe privately have to be licensed if they wish to prescribe any Class A drug to an addict. Such licences should be based on criteria which include the doctor's training and links to specialist support. The existing tribunal system should be abolished. A national register of private prescriptions should be set up, probably by an extension of the present NHS system to include private prescriptions, and arrangements made to scrutinise and monitor them. The licensing system and rights of appeal should be under the control of Directors of Public Health, who are also best placed to judge local needs for availability of services for problem drug users.

37 We think that the abolition of the requirement for doctors to notify their addict patients to the Chief Medical Officer at the Home Office has created a new obstacle to responsible prescribing for problem drug users. There is now no national information system to provide general practitioners and other prescribers with up-to-date information on prescribing, in particular of Class A drugs to problem drug users, so as to minimise the risks of double prescribing. This gap needs to be filled and we support the recommendation by the British Medical Association in 1997 [19] for a ‘national, comprehensive, confidential information system... to provide up-to-date prescribing information on individuals, accessible to general practitioners and other prescribers, available out-of-hours, including weekends.'

Pharmacists

38 As for the other issues covered by sections 10 - 16 of the Act, the Inquiry has been sent a report with 59 recommendations by the Royal Pharmaceutical Society of Great Britain. The overall aim is to remedy the practical problems that community pharmacists face because the current Misuse of Drugs Regulations make it very difficult to manage efficiently the provision of instalment dispensing services to drug misusers. Pharmacists face many difficulties with customers, especially when they present incorrectly written prescriptions. They therefore need a more relevant legal framework that allows them to exercise professional judgement when dealing with trivial or clerical errors or omissions in prescriptions for controlled drugs. We urge the government to give urgent and sympathetic consideration to this report. It is, for example, a curious anomaly, and one that adds to the risks to patients, that in England and Wales drug misusers may obtain only a limited range of drugs [20] in instalments. In Scotland, however, doctors may use one form to prescribe any drug in instalments. We support the recommendation that arrangements should be standardised throughout the United Kingdom to enable patients to obtain medicines other than Schedule 2 controlled drugs, for example amphetamines, temazepam and the other benzodiazepines, in instalments.

39 We draw particular attention to the following recommendations (the numbering is ours, not that of the report) made by the Royal Pharmaceutical Society which fall within the remit of our Inquiry:

i) the rules for prescribers' handwriting exemptions on controlled drugs prescriptions should be reviewed by the Home Office

ii) pharmacists should be able to amend instalment prescriptions after contacting the prescriber

iii) the Misuse of Drugs Regulations relating to instalment dispensing need updating and amendment to facilitate action when a client fails to collect

iv) the Regulations should be amended to allow an instalment scheduled for supply on a day when the pharmacy will be closed to be supplied on the preceding day

v) there should be a review of the legality of dispensing prescriptions for methadone mixture where the client asks for variation from the formulation prescribed

vi) the maximum number of days' treatment on any prescription for drug misusers should be 14 days

vii) the facility for instalment prescribing in England and Wales should be extended, as is the case in Scotland, beyond Schedule 2 drugs so that it is possible to dispense instalments of other drugs liable to misuse such as benzodiazepines.

Footnotes:
1. Cited in D. Gerstein, ‘The Effectiveness of Drug Treatment’. In C. O'Brien and J. Jaffe (eds.) Addictive States, New York, Raven Press 1993.

2. C. Rydell and S. Everingham, ‘Controlling Cocaine: Supply versus demand programs’, RAND Drug Policy Research Center, Santa Monica 1994.

3. M. Gossop, J. Marsden, D. Stewart. ‘NTORS at One Year: Changes in substance use, health and criminal behaviours one year after intake’, London, Department of Health 1998.

4. M. Gossop, D. Stewart, A. Rolfe and T. Marsden 'NTORS: Two Year Outcomes. Changes in Substance Use, Health and Crime’, London, Department of Health 1999.

5. 'M. Edmonds, T. May, I. Hearnden, M. Hough. ‘Arrest referral: Emerging lessons from research’, Drugs Prevention Initiative Paper 23, London, Home Office 1998.

6. M. Edmonds, M. Hough, P. Turnbull, T. May. ‘Doing Justice to Treatment: referring offenders to drug services’, DPAS Paper 2, London, Home Office 1999.

7. Page 8 of the report cited at footnote 6.

8. The United Kingdom Anti-drugs Co-ordinator, ‘First Annual Report and National Plan’, Cabinet Office 1999. Page 8.

9. See paragraph 23 below.

10 Chapter Six, paragraph 31

11. For those under 18 cautions will be replaced from April 2000 by the new system of reprimands and warnings introduced by the Crime and Disorder Act 1998. See Chapter Six, paragraphs 22 to 24.

12. See paragraph 6.

13. Chapter Five paragraphs 17 and 18.

14. P. Turnbull. ‘Drug Treatment and Testing Orders Interim Evaluation’, Research, Development and Statistics Directorate Research Findings No. 106, London, Home Office 1999.

15. J. Strang, J. Sheridan and N. Barber. ‘Prescribing injectable and oral methadone to opiate addicts: results from the 1995 national postal survey of community pharmacies in England and Wales.' British Medical Journal, 313, pages 270-272, 1996.

16. J. Strang and J, Sheridan. ‘National and regional characteristics of methadone prescribing in England and Wales; local analyses from the 1995 national survey of community pharmacies.' Journal of Substance Misuse, 3, pages 240-246, 1998

17. M. Edmunds, M. Hough and N. Urquia. ‘Tackling Local Drugs Markets’, Police Research Group, Crime Detection and Prevention Series Paper 80, London, Home Office 1996.

18. ‘Treatment and Rehabilitation;. London, Department of Health and Social Security 1982.

19. ‘The Misuse of Drugs’, Amsterdam, Harwood Academic Publishers 1997. Recommendation 12, page 146.

20. These include heroin, cocaine and most of the drugs in Schedule 2 to the Misuse of Drugs Regulations 1985 but not the drugs in other Schedules, notably the benzodiazepines.