3. The Duty To Cooperate
3.1 Section 10 (3) of the 2005 Act states 'the responsible authorities must act in cooperation with such persons as the Scottish Ministers may, by order made by statutory instrument, specify'. This is known as the "Duty to Cooperate" (DTC).
3.2 The 2005 Act, Section 1 (2) (a) states 'to cooperate may, without prejudice to the generality of that expression, include to exchange information'. The DTC is reciprocal, requiring two-way cooperation between responsible authorities and DTC agencies.
3.3 The DTC persons or bodies in Scotland are listed within The Management of Offenders etc. (Scotland) Act 2005 (Specification of Persons) Order 2007.
3.4 As Scottish Ministers have prescribed persons or bodies with a DTC in the 2007 order, the duty can only be extended or removed by amending that order.
3.5 There is no legislative requirement to involve other agencies which are not DTC agencies, however, the responsible authorities should consider whether the involvement of other agencies is necessary for the effective operation of the MAPPA. Such cooperation must be compatible with the exercise by those agencies of their statutory functions and be cognisant of information sharing legislation.
Health boards and Special Health Boards
3.6 Health boards and Special Health Boards are a responsible authority (within the meaning of section 10 of the 2005 Act) in relation to the assessment and management of mentally disordered offenders and restricted patients who meet the criteria in section 10(1) of the 2005 Act.
3.7 Additionally Health Boards and Special Health Boards have a duty to cooperate with other agencies for non-restricted mentally disordered offenders who are subject to the SONR, or being managed under MAPPA by virtue of any other category of offender.
Department for Work and Pensions ( DWP)
3.8 Albeit that the DWP is not a DTC agency, The Management of Offenders etc. (Scotland) Act 2005 (Disclosure of Information) Order 2010 sets out the conditions under which information may be disclosed between the Secretary of State for Work and Pensions (Department for Work and Pensions), the responsible authorities and duty to cooperate agencies in the MAPPA.
3.9 The DTC is underpinned by memoranda prepared by the responsible authorities and the DTC agencies in each local authority area, and other relevant DTC agencies (including The State Hospitals Board for Scotland), in accordance with section 10(5) of the 2005 Act. The purpose of the memorandum is to enable the practicalities of cooperation to be agreed locally to ensure that there is a clear and agreed understanding by all involved of their roles and responsibilities. This allows those involved to take account of the variations in the structure and relationships between all the agencies concerned, which may differ from one part of the country to another.
3.10 The memorandum should be supported by protocols on sharing information. Guidance on developing protocols can be found in Data sharing code of practice and checklists (see link below), and chapter 8 of this guidance.
Memorandum of understanding
3.11 The memorandum drawn up by the responsible authorities and the DTC agencies at local level should at a minimum cover the following areas:
- Legislative provision;
- Principles and purposes of the DTC;
- Agencies to which the memorandum applies;
- Roles of agencies involved;
- Local protocol(s) on sharing information;
- Media handling strategy;
- Disclosure arrangements and responsibilities;
- Annual report review arrangements.
A model memorandum is provided in the Annex 4 attached to this guidance.
The practicalities of cooperation
3.12 One of the most important means by which cooperation is achieved is by sharing information. Further detail on the subject of information sharing can be found in Chapter 8 of this guidance.
3.13 The memorandum should describe the ways in which the agencies agree to cooperate, however, the specific activities involved in cooperation will be determined by the circumstances of each case. The type of activities this will involve can be broken down into four areas:
- Providing a point of contact for other agencies; while much of the formal business of cooperation will be conducted at MAPPA Level 2 or Level 3 meetings, cooperation may also entail informal contact. To enable that informal contact and to channel the more formal engagement, it is important that each agency provides a single point of contact ( SPOC);
- Providing general advice about an agency's role including the type of services it provides and how they can be accessed;
- Providing specific advice about the assessment and/or the management of the risks presented by an offender;
- Coordination: this key partnership function requires each agency to perform its' role and to carry out its responsibilities in a way which complements the work of the other agencies.
3.14 Additionally further information on partnership working can be found in Standard 4 of the Standards and Guidelines for Risk Management (Risk Management Authority 2013).
3.15 For clarification and reassurance, it may be helpful to refer at each stage to the statutory definition of the duty and the principles outlined above.