United Kingdom Journals

Sentenced to Treatment

Charlotte Walsh (M.Phil)

Lecturer in Law
Faculty of Law
University of Leicester

<ckw2@le.ac.uk>

Copyright © 1999 Charlotte Walsh.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This article offers a consideration of Drug Treatment and Testing Orders, a new sentencing option introduced by sections 61 - 64 of the Crime and Disorder Act 1998. This new community penalty aims to break the perceived link between drug use and offending and is currently being piloted in three areas. It offers an important alternative to imprisonment. This article examines the substance of these new orders, the aims behind their creation and the lessons to be learned from their trial implementation in the pilot areas to date.

It goes on to consider further important practical and ethical issues which, it is submitted, ought to be addressed prior to nation-wide implementation of Drug Treatment and Testing Orders. These issues include important targeting concerns, a discussion of potential interagency tensions, and an analysis of the validity of applying Drug Treatment and Testing Orders to those in the sixteen to seventeen year old age range. It concludes with an affirmation of the potential benefits to be gained from developing such a sentence but stresses the importance of realistically addressing the areas of concern raised.

Contents

Introduction
Drug Treatment and Testing Orders
The Aim of Drug Treatment and Testing Orders
Lessons from the Pilots
Further Observations on Drug Treatment and Testing Orders

(i) Targeting Issues
(ii) Interagency tensions

a. Confusion of the role of sentencers and the probation service.
b. The health / crime crossover

(iii)Drug Treatment and Testing Orders and Young Offenders

Conclusion

Bibliography

Introduction

This article discusses Drug Treatment and Testing Orders, a new sentencing option introduced by the current Labour Government. It examines the substance of these new orders, the aims behind them and the lessons to be learned from their trial implementation in the pilot areas to date. It goes on to consider the important practical and ethical issues surrounding their anticipated nation-wide implementation.

Drug Treatment and Testing Orders

Drug Treatment and Testing Orders (DTTOs) are a new community sentence as created by sections 61-64 of the Crime and Disorder Act 1998. These sections provide the Crown Court and magistrates' courts with the power to impose a DTTO on an offender aged 16 or over who is convicted of any offence other than one which is fixed by law or one to which the relevant sections of the Crime (Sentences) Act 1997 apply (s. 61(1)). DTTOs have effect for a period (specified in the order) of not less than six months and not more than three years (s. 61(2)(a)).

DTTOs incorporate two main requirements: first, a `treatment' requirement, and secondly, a `testing' requirement (s. 62). The treatment aspect of DTTOs may be either residential or non-residential, with the distinction being specified in the order; the court goes no further than this in specifying the nature of the treatment (s. 62(2). As regards the testing aspect of DTTOs, the court will also specify the minimum number of occasions on which samples are to be provided in order for testing to be conducted (s. 62(5)).

In addition to these treatment and testing components, an important feature of DTTOs is that the sentencing court must review the progress of the offender with regard to the order: such reviews must be carried out at intervals of not less than one month (s. 63). Failure to satisfactorily comply with any of the components of the order may result in the revocation of the order, in line with Schedule 2 to the Criminal Justice Act 1991, as amended. The offender will then be resentenced: ultimately, failure to comply with (or to consent to) a DTTO will almost certainly result in imprisonment.

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The Aim of Drug Treatment and Testing Orders

DTTOs should be viewed in the wider context of the Government's 10 year strategy to tackle the drug problem (see further, Home Office 1998a). The principal aim of DTTOs is to attempt to break the perceived connection between drug use and criminal activity (Home Office, 1998b). Research supports the view that certain types of drug use can lead to criminal activity beyond the drug offence inherently involved in such use. In his overview of the literature in this area, Hough concludes that a minority of individuals engage in offences of dishonesty to finance their drug use (Hough 1996). Hough also notes that certain types of drug use can lead to violent offences being perpetrated, either because the effects of the drug consumed contribute to violent behaviour or because violence is used in acquiring drugs. This connection between drug use and crime is further supported by more recent literature (for example, Bennett 1998).

There is also a significant body of research indicating that offenders are more likely to reduce their levels of drug use if they participate in treatment programmes (for example, HM Inspectorate of Probation, 1997). Furthermore, there is some evidence that reducing (or eliminating) offenders' drug use in some instances leads to a lessening (or an elimination of) their involvement in criminal activity. As well as developing in accordance with research findings such as these, DTTOs have also taken their lead from the success of home-grown projects such as `Get It While You Can', an arrest-referral scheme which has produced strong practical evidence that in some cases the link between drug use and crime can be broken: by focusing on the drug misuse, the pattern of offending behaviour alters (see further, Turnbull et al 1996).

A further influence in the development of DTTOs has been that of the Drug Courts in operation in many areas of the United States. The most far-reaching of the United States' Drug Courts, the Miami Drug Court, is described by Professor Bean as follows:

"Drug Courts do not allocate drug offenders to other agencies for treatment. Nor do Drug Courts sentence offenders when on the treatment programme to be punished or treated elsewhere i.e. to the probation service. They retain the offender within their control. They allocate the offender to the treatment agencies, which are directed and controlled by the Courts, and they provide the sanctions or rewards thought to be necessary ... All treatment programmes are backed up by frequent urine analysis with the results available to the Court within the hour." (Bean 1998, p101)

The United States' experience of Drug Courts is widely considered to be a (qualified) success (see further, Hall 1998). It is worth noting, however, that the implementation of DTTOs will bring into operation a somewhat diluted version of the Miami Drug Courts: the function of the courts in overseeing DTTOs is not so all encompassing as in the United States model. As an aside, it is interesting to note that two specialist Drug Courts, which more accurately mirror the United States' Drug Courts, are currently in operation in West Yorkshire.

Along with aiming to break the perceived link between drug use and criminal activity, a further hope for DTTOs is that they will reduce costs, with the funding required for each order being only approximately £6,000 per year, as opposed to the average £25,000 - £30,000 per year which is spent on imprisoning each offender (Fletcher 1999, p2). The benefits to be gained from developing community sentences in place of using custody for drug users clearly extend far beyond saving money: the chances of successful reintegration following treatment will increase where rehabilitation takes place in the community.

Thus, in principle, DTTOs appear to be a progressive development, with an admirable focus on rehabilitation. Indeed, they were largely welcomed by the broad selection of bodies who responded to the Drug Treatment and Testing Order Consultation Paper (Home Office 1997a). Accordingly, Drug Treatment and Testing Orders were introduced in September of 1998 in three pilot areas: Gloucestershire, Merseyside and Croydon. The expectation is that they will be extended nation-wide in the year 2000; however, national implementation is obviously dependent upon the success of the pilot schemes. This article aims to look at the progress of the pilot schemes to date and at the difficulties which have been encountered in practice. It also aims to identify various other potential problems with DTTOs which, it is submitted, ought to be addressed before such orders are implemented nation-wide if they are to be both successful and ethically sound.

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Lessons from the Pilots

The most notable finding from the information available from the pilot areas to date is the low number of DTTOs which have been made: as of 20 May 1999 the total amounted to 67 (HC Written Answers, 25 May 1999, Question Number 84891). This would indicate that DTTOs are only being used to deal with a tiny proportion of criminally-active drug misusers in the pilot areas. It is estimated that at least 1,200 such offenders passed through the pilot courts during the first six months of the piloting period, namely, from October 1998 to March 1999 (Fletcher, 1999): during this period, only 38 DTTOs were made (HC Written Answers 30 March 1999, Question Number 79204).

The low take up rate has been identified as resulting from two different sets of factors. The first set of factors centres around the fact that, prior to making a DTTO, the sentencing court refers the offender concerned to the probation service which will make an assessment (with input from the potential treatment provider) as to the suitability of the offender for such a programme. A high proportion of the cases referred in this manner have not resulted in a recommendation for a DTTO being made by the probation service. Indeed, in the first six months of the pilots, 130 offenders were referred for assessment for such an order but, as stated above, only 38 of them ended up being sentenced in this manner (HC Written Answers 30 March 1999, Question Number 79204).

In almost every case where the probation services recommended that such an order be made, the courts obliged (Bird, personal correspondence, 1999). Thus, it is a reluctance on the part of the probation services in the pilot areas to deem a high proportion of candidates as suitable which partially explains the low numbers of DTTOs made. This is not necessarily problematic however: it may simply be indicative of careful targeting. The National Association of Probation Officers offered such a justification: "the take up is low but it makes sound economic sense to target offenders who will comply" (Fletcher 1999, p2).

However, this perception that many offenders may not successfully comply with the conditions of a DTTO is related to the second set of factors which have been cited as contributing to the low take up rate of these new orders. This second set of factors focuses around a lack of willingness on the part of many offenders to consent to a DTTO being made. As with all community sentences, DTTOs may only be made once the general requirements of section 6 of the Criminal Justice Act 1991 have been satisfied. A further criterion to be satisfied before the passing of such an order is that the consent of the offender is obtained (s. 64(1)).

This `consent requirement' represents the second obstacle to the widespread implementation of DTTOs which has been encountered in the pilot areas: high numbers of offenders are refusing to consent to these orders, in spite of the fact that this generally leads to their being imprisoned. Harry Fletcher of the National Association of Probation Officers commented on this refusal by offenders to embark on treatment and testing programmes as follows: "They say that having to report every day for counselling and being tested several times a week is too tough. They would rather go to prison and stay on the drugs" (The Independent 1999, p13).

Thus, the problem appears to be that drug treatment and testing programmes are viewed by offenders as too intense. Indeed, the regimes in operation in the pilot areas do seem to be somewhat demanding: offenders reportedly have been tested for drug use on average between one and three times a week, as well as being obliged to attend lengthy therapy sessions on up to five days a week (The Independent 1999, p. 13). As DTTOs can be imposed for a period of up to three years, it is clear that they have the potential to be incredibly onerous.

To some extent, it is essential that DTTOs are demanding: if they were not, the courts would view them as a soft option and simply decline to use them. Indeed, this factor was influential in the lack of use of probation orders with requirements as to treatment for alcohol or drug dependency attached (Powers of Criminal Courts Act 1973, sch. 1A, para. 6(1)). As stated above, in their current form, the courts in the pilot areas have made a DTTO in almost every case where the probation service recommended such a course of action. Similarly, if drug-testing were not carried out frequently, hard drugs could pass through the offender's system undetected or, more worryingly, offenders could increase their usage of hard drugs at the expense of soft drugs to avoid detection (see further, Edgar & O'Donnell 1998).

However, the success of such programmes is dependent upon them being viewed as a viable option by both offenders and by the courts: the correct balance needs to be struck between the varying interests of the parties involved. Being sensitive to individual offender's differing circumstances and needs is clearly crucial in this area: for example, a lone mother with young children to support would find a rigorous treatment and testing programme more onerous than someone without equivalent responsibilities. Such differences in circumstances should be responded to with sensitivity; they should never effectively exclude certain groups from being sentenced to DTTOs.

It should also be recognised that there will always be a certain level of refusal to consent to DTTOs by offenders and that this is not necessarily problematic. Indeed, in many ways it is desirable. Prior to the experience of the pilots, the converse worry had been expressed, namely, that offenders would consent to DTTOs, not because they had a genuine desire to refrain from drug use, but simply because they would agree to almost anything in order to avoid imprisonment (see for example, Home Office 1997a, p15). Allowing offenders such as this to embark on these programmes would undoubtedly have led to high failure rates and a wrongful targeting of resources. Before DTTOs are implemented nationally, the requirements involved will need to be refined so that only those with suspect motivations are deterred, and not those who sincerely wish to be rehabilitated. Understanding the complex mind-set of drug addicts will be crucial to the successful operation of such programmes.

The widely held belief that drug-using offenders would agree to rehabilitative programmes in preference to custody was supported by evidence of the success of similar sentencing options in the United States (see further, Bean 1998). However, a crucial difference in the American experience is that courts often offer offenders drug treatment and testing options to enable them to avoid sentences of up to thirty years as a result of the `3 strikes and you're out' sentencing rules which are in operation in many states (Bean 1998, p102). Accordingly, it is hardly surprising that such programmes have a high uptake rate. Perhaps the problem of refusal to consent to DTTOs will dissipate somewhat with the coming into force of s. 3 of the Crime (Sentences) Act 1997 which creates a mandatory minimum sentence for a third domestic burglary.

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Further Observations on Drug Treatment and Testing Orders

Whilst the problems which have emerged with regard to the uptake rate of DTTOs in the pilots are clearly those which will require the most urgent attention, it is submitted that there are further issues which should be addressed in relation to these new orders before they are implemented on a nation-wide scale.

(i) Targeting Issues

An issue which raises some concern is with regard to the direction in which DTTOs will be targeted in practice. It would seem crucial that DTTOs are not used to monitor drug use and to attempt to enforce conformity to drug laws where no clear link has been established between the drug use and other types of offending. The following criticisms can be made of using drug treatment and testing programmes for such a purpose.

From a civil libertarian perspective, it is submitted that penalising drug use when it cannot be seen to have caused the offending behaviour for which the individual is actually in court is ethically questionable. However, in view of the fact that the taking of controlled drugs is in itself a criminal activity in our society, it is accepted that this argument may not be afforded significant weight. Therefore, strong practical reasons can be offered as to why using drug treatment and testing programmes to enforce conformity to drug laws would not be wise: the sheer prevalence of drug use in this country would make such a practice financially unfeasible (see further, Parker 1995).

In view of this, the vast differences between various drugs and their potential impact on an individual's propensity to engage in criminal activity needs to be clearly recognised in the legislation. To fail to do so will simply result in a squandering of resources. The area where the strongest link between drug use and propensity to criminal activity has been established (and, importantly, where treatment and testing programmes appear to have some effect) is in the propensity of heroin addicts to participate in acquisitive crime (see further, Hough 1996, ch. 2). It is therefore submitted that, to avoid the problem of DTTOs being used to monitor drug use of a much more generalised nature, they should be clearly targeted at repeat offenders with an addiction to hard drugs which is causally related to their offending behaviour. To what extent do DTTOs fulfil these desirable targeting criteria?

The signals in this area are mixed: a simple reading of the statutory provisions leads one to the conclusion that the ambit of the legislation is far too wide. However, a reading of the draft guidance which has been drawn up for those involved in implementing the pilot schemes creates a different impression (Home Office 1998c). An analysis of both the legislation and the draft guidance follows below.

First, in the legislation, no causal link between an offender's drug use and their offending need be proven for a DTTO to be made: all that must be established is 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 (s. 61(5)). Similarly, in the guidance, no causal link between drug misuse and offending need be proven; however, the guidance makes it clear that such a link should be sought before an offender is sentenced to a DTTO: "[t]he order was created in order to break the links between drug misuse and other types of offending" (Home Office 1998c).

Secondly, the legislation does not limit the type of offence for which the offender must have been convicted in order for the passing of a DTTO to be applicable (other than by the fact that it must satisfy the threshold requirements in s. 6 of the Criminal Justice Act 1991, as with any community penalty). In contrast, the guidance offers the following comment on the type of offending at which DTTOs should ideally be directed: "[i]t is envisaged that the vast majority of suitable candidates will be convicted of acquisitive crimes, committed in order to obtain money to buy drugs" (Home Office 1998c).

Thirdly, the application of DTTOs is not limited by the legislation to recidivists. However, the guidance does make it extremely clear that the primary aim of DTTOs is to combat persistent offending and as such should be targeted at recidivists (Home Office 1998c). Fourthly, the legislation does not specify the type of drug use which DTTOs would be appropriate in combating: DTTOs could potentially be directed at controlling all varieties of drug misuse. The guidance, however, states that "it is likely that the drug treatment and testing order will most appropriately be targeted on users of opiates, cocaine, and to some extent, amphetamines" (Home Office 1998c).

Thus, although the legislation leaves DTTOs potentially applicable to all drug users committing all types of offences - so long as they satisfy the community penalty threshold - without any causal link being required, the guidance is much more restrictive in its view of where making a DTTO would be an appropriate response. The Government clearly has a sophisticated view of where the real problem lies: with repeat hard drug using property offenders. This begs the question, why were the restrictions on how DTTOs should be targeted in order for them to achieve their aims omitted from the legislation itself?

In relation to the lack of a requirement for a causal link in either the legislation or the guidance, it may be that the answer lies in the fact that to conclusively establish a causal link between drug use and offending is notoriously difficult. As regards leaving the relevant type of offending behaviour open, it could be argued that whilst DTTOs may be most commonly appropriate when it comes to dealing with acquisitive crimes, they may also be beneficial in other cases where drug misuse can be seen to be causal to crime. An example of this would be to use DTTOs in an attempt to control violent behaviour which may result as a consequence of cocaine induced psychosis. With regard to the legislation's failure to specify that the order be used only in the case of recidivists, perhaps the criteria in s. 6 of the Criminal Justice Act 1991 fulfil this targeting aim to some extent.

However, it is submitted that similar arguments do not exist to justify the failure of the legislation to specify that this order should only be used in cases where offenders are dependent on specific drugs: namely, heroin, cocaine and - questionably - amphetamines. It is submitted that the reason why the legislation pertains to all types of forbidden drug use is due to a desire on the Government's part not to be seen to be downgrading the `dangerousness' of other drugs, most significantly, cannabis. Whilst this stance can be understood in terms of maintaining popular support, it is submitted that it is unwise not to limit the applicability of the legislation to the group for which it is truly intended.

This brings us back to the point of concern with which this argument opened: namely, that DTTOs could potentially be used to monitor general drug use, unconnected with offending. Although this is clearly not the aim of the current Government in enacting this legislation, their true aim should have been enshrined in the legislation itself, not just in the guidance. A change in policy - or a change in Government - could easily lead to DTTOs being targeted in the wrong direction and, consequently, this could result in an increase in the use of imprisonment, rather than a reduction. This is due to the fact that breach of a DTTO will lead to s. 1(2) of the Criminal Justice Act 1991 being bypassed: in order for a judge to impose a custodial sentence when resentencing, the custody threshold will not have to be crossed (Criminal Justice Act 1991, sch. 2 (as amended)).

Even without a change in policy or a change in government, the lack of concrete targeting in the legislation itself could lead to the orders being operated in disparate ways in different regions. A prime example of how DTTOs could be applied inconsistently is in the types of drugs which different treatment providers - in agreement with the supervising probation officer - will test for. The guidance to the Act makes it clear that it is open to treatment providers to test for a wide range of drugs - cannabinoids, opiates, cocaine, benzodiazepines, methadone, barbiturates and amphetamines (Home Office 1998c). Which drugs are tested for will vary from area to area.

Furthermore, different probation officers and treatment providers will react differently when drug-testing reveals that the offender has been taking a controlled drug - for example, cannabis - but does not show that they have been taking the drug which is thought to have been causal to their criminal activity, the index drug. Both the legislation and the guidance leave it to the discretion of probation officers and treatment providers to decide whether or not to treat the taking of a drug which is not the index drug as amounting to evidence that the DTTO has been breached (Home Office 1998c).

It is submitted that the Government has made a serious error in leaving such an important aspect of the operation of DTTOs to discretion. Disparate application will occur in different areas: considering the potential seriousness of the consequences of breaching a DTTO, such a lack of uniformity is unjustifiable. Heroin addicts who are controlling their opiate addiction but continuing to smoke cannabis should not be sentenced to imprisonment: only the index drug should be tested for and only its presence should be viewed as relevant. This should have been clearly stated in the legislation; the fact that it was not again increases the chances of DTTOs actually resulting in an increase in the use of custody.

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(ii) Interagency tensions

DTTOs are also potentially problematic in that they adopt an interagency approach to dealing with drug use. Whilst this is commendable, the difficulties inherent in such an approach need to be honestly recognised and responded to. The three main bodies who are involved in operating DTTOs are the courts, the probation services and the treatment providers. At the pre-sentence stage probation officers and drug treatment providers assess those offenders whom they feel would benefit from a DTTO and the probation officer then reports back to the court. If the court goes on to pass such a sentence, the probation service involved purchases treatment directly from the treatment provider. Tensions may arise due to the cultural differences which exist between these three agencies, with each prioritising their primary function somewhat differently: "[t]he success of any new legislation will depend on the availability of treatment and the resolution of cultural differences between the criminal justice system and treatment providers" (Home Office 1997b).

a. Confusion of the role of sentencers and the probation service.

Involvement in drug treatment programmes for offenders is by no means a new function for probation officers. DTTOs have many similarities with the requirement as to treatment for drug dependency which may be inserted into a probation order (Powers of Criminal Courts Act 1973, sch. 1A, para. 6(1)). Similarly, requirements for drug treatment can also be included as part of a combination order (Criminal Justice Act 1991, s. 11). However, relatively little use has been made of probation orders with the added requirement of treatment - and even less use has been made of the insertion of similar provisions into combination orders - this being one of the motivating factors behind the Government's development of this alternative (Home Office 1997b).

The probation services' previous reluctance to recommend the attachment of treatment requirements to probation orders and combination orders has been largely attributed to a belief on their part that treatment which was effectively coerced was unlikely to be successful (Home Office 1997b). Accordingly, in their pre-sentence reports, probation officers failed to recommend the attachment of such conditions to other orders with any great frequency (see further, Select Committee on Home Affairs 1998, para. 207). In an attempt to overcome this problem, the courts have an increased role in determining whether or not a DTTO is the appropriate measure to take in each case. However, whilst increasing the courts' power in this manner may ensure that more DTTOs are passed, it does not alter the fact that many probation officers may retain reservations as regards the coercion of treatment.

Additionally, if certain probation officers had reservations regarding probation orders with attached requirements as to treatment, such reservations are increasingly likely to surface in relation to DTTOs. DTTOs can be viewed as substantially more coercive than their predecessors. Not only do they contain a testing requirement, but they also fail to specify that a causal link must be established between the offender's drug taking and their offending, as was the case with probation orders with requirements as to drug treatment attached (Powers of Criminal Courts Act 1973, sch. 1A, para. 6(1)).

Whilst the coercive element of drug treatment programmes is magnified in DTTOs, the rehabilitative aspect - normally associated with the probation services' role - is somewhat diminished. This is the basis of a further criticism which can be made of DTTOs: namely, that they are inferior to the probation orders with conditions attached which they are succeeding.

The thrust of this criticism is that the orders only provide for the most minimal supervision from the probation service. The offender shall be under the supervision of a probation officer, referred to as `the responsible officer' (s. 62(7)(a)). However, this supervision extends no further than enabling the responsible officer to report on the offender's progress to the court, to report to the court any breaches on the part of the offender, and to supervision of matters relating to revocation or amendment of the order (s. 62(8)). Such reports will be given to the court by the responsible officer at each review hearing (s. 63(1)(d)). These reports will include the results of any tests the offender has undergone and also the views from the treatment provider as to the progress of the offender (s. 63(1)(e)).

The Government recognises the fact that DTTOs leave probation officers with only a minimal supervisory role but believe that this is an inherent aspect of DTTOs, which are not centred around supervision, but rather, around the provision of treatment (HL Deb, 24 February 1998 c645). However, this aspect of DTTOs could render them unlikely to succeed in the case of more serious addicts whose drug use is often rooted in wider factors, all of which need to be addressed if there is to be a realistic chance of breaking the perceived cycle between drug use and offending.

An approach which looks only to the drug misuse itself and not to its wider context will surely prejudice the chances of the offender completing their order successfully. This concern would seem to be borne out by the experience to date in the Gloucestershire pilot. At the time of writing, nine orders had been made in this pilot area: all nine had been breached (Fletcher, 1999, personal correspondence). One method of combating these related problems of minimal supervision and a narrow attitude to the causes of drug addiction inherent in DTTOs would be to combine DTTOs with a probation order. However, the situation is complicated somewhat by the fact that in those areas where arrangements for implementing DTTOs are in place, courts are specifically prohibited from making parallel probation orders with requirements as to treatment for drug dependency (Powers of Criminal Courts Act 1973, sch. 1A, para. 6(1) (as amended)).

It is submitted that any failure on the part of the courts to combine DTTOs with probation orders will result in an unnecessary shackling of the role of the probation services: limiting their input in this manner will go some way towards destroying the benefits upon which the whole model of interagency co-operation has been founded. If DTTOs are made in isolation, probation officers may feel that they are being forced into a role which the do not relish: namely, that of enforcer.

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b. The health / crime crossover

Cultural tensions are also likely to arise from the merging of health service provision and crime control effected by DTTOs. Whilst the criminal justice system views those individuals involved on such a scheme first and foremost as offenders, the treatment providers implementing DTTOs in practice will see such individuals predominantly as patients. Ethical codes of conduct governing the treatment provider's relationship with such patients do not fit neatly with the responsibilities which they will have to the criminal justice system if their services have been purchased in order to effect a DTTO.

A prime example of where the two functions of the treatment provider responsible for implementing DTTOs may conflict is with regard to the issue of confidentiality. It is normally the case that interactions between the health services and their patients are strictly confidential. However, where the services of the treatment provider have been purchased by the criminal justice system with a view to enforcing a sentence, the treatment provider will have a conflicting duty to report back to the criminal justice system's agents with information concerning the patient's progress.

The opinion of the treatment provider on their patient's progress, plus the results of any tests which have been carried out, will be included in the report which the probation officer presents to the court at review hearings (s. 63(1)(e)). Accordingly, not only will the ethical code of confidentiality have been breached but, if their patient's adherence to the requirements of the DTTO is considered by the reviewing court to be unsatisfactory, that breach could potentially lead to their being sentenced to imprisonment.

The draft guidance to implementing DTTOs recognises this dilemma and attempts to address it in the following ways. First, it lays down the requirement that offenders should be made aware of the fact that the principle of confidentiality has been partially displaced in such instances; secondly, the guidance states that the requirement for disclosure by the treatment provider should be `the minimum compatible with the purpose of the Order, and its successful evaluation' (Home Office 1998c). However, as has been previously noted, offenders who have been sentenced via a DTTO are rigorously supervised, the minimum information required of the treatment provider by the courts in order to enforce such orders will remain a substantial disclosure of information.

In addition to this confidentiality conflict, treatment providers may feel a certain unease as regards operating treatment programmes in which the patient has been effectively coerced into participating. Indeed, the other key reason identified as being behind the reluctance of probation officers to recommend probation orders with conditions for treatment for drug use attached was a "perception of lack of enthusiasm on the part of treatment providers to operate mandatory programmes" (Home Office 1997b, para. 2).

The coercive element of DTTOs is brought into stark relief by the mandatory testing aspect of the order: mandatory testing and therapeutic rehabilitative programmes do not sit easily together. As this testing requirement was not part of the old style probation orders with conditions attached it seems likely that reticence to be involved in DTTO treatment programmes could be heightened further. The inclusion - albeit necessary - of the testing element of DTTOs could jeopardise the relationship between the treatment provider and their patient: "[r]egardless of the official position, treatment providers would be perceived as being an arm of the courts, particularly where the same organisation also carried out the testing" (Home Office, 1997a, p. 14).

To overcome this problem, it is crucial that the testing is viewed by both the treatment provider and by their patient as part of the `health side of the equation' (John Hicks, speaking to the Select Committee on Home Affairs, 20 January 1998, qu. 117). Whether or not this could ever be the case in practice is questionable. However, if the fact that treatment and testing were coerced (at least to a certain extent) did not seem to affect the chances of an offender successfully complying with the requirements of a DTTO, would this alleviate the potential role conflicts which treatment providers may experience?

There is strong evidence available, predominantly drawn from research projects in the United States, that those who embark upon drug treatment programmes as a result of a certain amount of legal pressure are no less likely to succeed than those who embark upon such programmes completely voluntarily. In his overview of the research into legally coerced treatment programmes in both the United States and Australia, Wayne Hall concludes: "[o]n balance, there is reasonable evidence that all major forms of community based treatment for heroin dependence are effective in reducing heroin use and crime, regardless of whether they are provided under `legal pressure' or not" (Hall, 1997, p. 113).

In his analysis of the ethics of coercing treatment, as opposed to of the evidence of its effectiveness, Hall comes to the following conclusion: "[t]he most ethically defensible form of legally coerced treatment for drug dependent offenders is probably the avoidance of imprisonment as an incentive for treatment entry" (Hall 1997, p. 115).

It would therefore appear that DTTOs are reflective of the style of partially coerced treatment adjudged to be the most ethically acceptable. If they are also shown to succeed in terms of offender rehabilitation, treatment providers should not find their duty to test and to report too onerous. Their assistance is, after all, crucial in helping the offender concerned to avoid imprisonment in the first instance: "[t]he most plausible argument for legally coercing drug offenders to enter drug treatment is not that it is an extremely effective intervention but because the alternative of imprisonment is so expensive and ineffective in reducing drug use and crime" (Hall, 1997, pp. 114-115).

If treatment providers failed to carry out mandatory tests and to report breaches of DTTOs to the probation services, the courts would soon lose faith in these new measures. Therefore, full compliance with all the requirements of DTTOs should not make treatment providers feel they are betraying their patients: such compliance is crucial to the continuation of such schemes and, therefore, of benefit to offenders.

One final point to be made here is that treatment providers will only be willing (and able) to run such programmes for sentenced offenders if they are adequately funded. If such programmes are insufficiently resourced, their operation could lead to the potential displacement of patients whose desire to participate in treatment programmes is purely voluntary. The current signs for funding of DTTOs are hopeful: the pilot projects have been fully funded and, whilst there has been no firm promise on the expenditure available for nation-wide implementation, the Government appears to recognise the importance of this issue.

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(iii)Drug Treatment and Testing Orders and Young Offenders

A further issue worthy of consideration in relation to DTTOs concerns their application to young offenders. DTTOs are available as a sentencing option for offenders of the age of 16 years and over (s. 61(1)). Reservations regarding the inclusion of 16 and 17 year olds within the ambit of such orders were raised during the Bill's passage through the Lords (HL Deb, 24 February 1998, cols 635-640). Whilst there would appear to be no inherent problem in having a drug treatment and testing sentence available for this age group, it is submitted that the application of DTTOs should be modified to provide for 16 and 17 year olds as a special category.

However, this does not appear to be the case. DTTOs apply to young offenders in exactly the same way in which they apply to adult offenders, with one caveat: it is actually easier for a young offender to be deemed suitable for a DTTO than it is for an adult offender. This is due to the fact that the targeting requirements included in the draft guidance are altered slightly in the case of 16 and 17 year olds, removing the requirement of recidivism: "[i]f a young offender clearly has drug misuse problems which are linked to a pattern of offending, they should not be excluded from consideration on the grounds that they do not yet have a long criminal record" (Home Office 1998c).

The purpose of relaxing this requirement of repeat offending is clear: it is based on the premise - evident throughout so many of the measures included in the Crime and Disorder Act 1998 - that early intervention is of paramount importance in responding to young offenders. It should be remembered, however, that significant breaches of DTTOs - or any refusal to consent to a DTTO in the first instance - will normally result in the offender being resentenced, most commonly to a period in custody. By lowering the targeting criteria of DTTOs in the case of 16 and 17 year olds, the Government has effectively made it easier for offenders in this age range to end up in custody should they fail on such programmes.

Furthermore, failure rates for young offenders on DTTOs will be high if the wide variety of other factors which may have caused or contributed to the young offender's drug use are not recognised and responded to. If there is any group where the problems underlying the offending behaviour are much more fundamental than simple drug misuse itself it is offenders in this age range (see further, Arnull 1998).

It is therefore submitted that the application of DTTOs to 16 and 17 year olds should be dealt with differently than their application to adult offenders: wider social factors should be acknowledged and it should be made clear that refusal or breach of the order should never result in what effectively amounts to automatic imprisonment. The presence of such special provisions would ensure that DTTOs were used progressively for the benefit of young offenders: in their absence, the application of DTTOs to this age group may result in an increased number of young offenders ending up serving custodial sentences.

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Conclusion

Operating drug treatment and testing programmes in the community as an alternative to custodial sentences would seem to be a fundamentally sound practice. However, in order for DTTOs to work, it is crucial that they are applied correctly, with full recognition of the many practical and ethical issues involved. Most importantly, the experience from the pilots has demonstrated the need to ensure that the requirements of individual DTTOs are not overly coercive: if they are too demanding, offenders will simply refuse to consent to them. In response to this, a full and sensitive understanding of drug addiction will need to be applied by all agencies involved in the construction of the contents of these orders.

It is also crucial that DTTOs are targeted correctly: namely, at offenders with a serious drug addiction which is causal to their offending, as opposed to at offenders who simply happen to use controlled substances. It is unfortunate that more stringent targeting requirements have not been incorporated in the legislation. Resources will be squandered and civil liberties unnecessarily invaded if DTTOs are incorrectly targeted.

DTTOs should normally be used in combination with orders that address the more complex bases of drug use. Failure to recognise the broader issues involved will cause anxieties for those in the probation services that will, in turn, be detrimental to the success of DTTOs. Similarly, the importance of retaining the good will of the health service treatment providers should not be overlooked. The adoption of a multi-agency approach in this area is both commendable and necessary; however, with such conflicting outlooks in existence between the courts, the probation services and the treatment providers, it is an approach which will need to be handled with great sensitivity in order for it to succeed. As with all such measures, adequate funding will be of paramount importance.

As regards the ethics of treatment under what amounts to partial coercion, it would seem that such an approach should not be overly problematic, so long as the drug treatment and testing programme in which the offender is participating is suitable. Such programmes should offer a full and varied range of help. It is also important that success in conquering addiction is measured in terms of progress, rather than in terms of absolutes, due to the fact that addiction is a chronic, relapsing condition. The signs in this area are good, with success in relation to DTTOs being measured in terms of reduction of drug use as well as elimination of drug use.

Finally, it would seem wise to recognise that those in the 16 and 17 year old age category are special cases. The pattern and nature of their drug use will differ markedly from that of adult drug using offenders, as will their chances of rehabilitation. A far more sensitive, `treatment-centred' approach should be adopted for this age group, as opposed to the coercive, `testing-centred' model which may be more appropriate for adult drug using offenders. It is particularly important that imprisonment is not virtually automatic upon breach for those in this age range.

If all these issues are satisfactorily handled, the nation-wide implementation of DTTOs will hopefully be a progressive step towards decarceration, rehabilitation and reintegration. However, if these issues are not addressed, the Government run the risk of DTTOs failing, whether that failure be on practical or ethical grounds.

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Bibliography

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