Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 30

APPROPRIATE ADULTS

The appropriate adult scheme

1. Where a mentally disordered person comes into contact with the criminal justice system, whether as a witness to a crime, a victim, or a suspect, it is important that his or her particular needs are recognised. We discuss vulnerable witnesses giving evidence in court in Chapter 19, and in this chapter we consider the needs of mentally disordered people being interviewed by the police. In June 1998 a Code of Practice was issued by the Scottish Office, intended to promote the development of 'appropriate adult' schemes⁷³.

2. An appropriate adult is an independent person who is present during a police interview to support and assist a mentally disordered person during the interview (and in some cases afterwards). They are not intended to represent the person in the way that a defence lawyer would do, but to help to make sure that, so far as possible, the person understands the questions the police may ask, and is able to respond.

3. Guidance had been issued to Chief Constables in 1990, recommending that appropriate adults be called on where a mentally disordered person was to be interviewed. However, the earlier guidance gave little advice as to how police officers should identify appropriate adults and arrange for their attendance during the interview. In some areas, notably Fife, appropriate adult schemes were developed as a result of local initiatives by the police, working with health and social work agencies.

4. The 1998 Circular set out the expectation of the Government that appropriate adult schemes should be developed throughout Scotland. It also gave practical guidance on matters such as how the police might identify that a person might require an appropriate adult, and what the role of the adult should be during the interview.

5. The approach in Scotland has been to develop appropriate adult schemes on a non-statutory basis. This contrasts with the position in England, where the provision of an appropriate adult is a statutory requirement under the Police and Criminal Evidence Act 1984. This does not necessarily mean that, in Scotland, the presence or absence of an appropriate adult has no legal effect. It is possible that a court may regard the failure, in an individual case, to provide an appropriate adult as materially affecting the fairness of a police interview, which could lead to evidence being ruled inadmissible.

6. In June 2000, the Scottish Executive published the 'Towards a Just Conclusion Action Plan'. This set out the Executive's response to the recommendations of a working group considering the needs of vulnerable witnesses, including those with mental disorder. In the Action Plan, the Executive stated that they had confirmed that Appropriate Adult schemes have been established by all Scottish local authorities. It stated an intention to review the operation of the schemes against the terms of the original guidance, and to consider what further guidance may be appropriate in relation to the role of the appropriate adult in court. The review of current schemes is to be achieved by March 2001.

7. We took the view that the provision of support to mentally disordered people being interviewed by the police was extremely important, and considered whether steps could be taken to improve the arrangements, particularly by placing the appropriate adult on a statutory footing.

8. There was a considerable degree of support for this in responses to our second Consultation. Several respondents, including the British Association of Social Workers (BASW) and the Scottish Association for Mental Health (SAMH), commented that the implementation of the current arrangements was patchy. ENABLE commented that it was dealing with a number of cases where the current arrangements had failed people with learning disabilities, and considered that the scheme needed to be formalised on a statutory basis. BASW also commented that there were difficulties in ensuring that people with learning disabilities or mental illnesses were identified when they came into contact with the police, and this raised issues of training and awareness raising for police officers.

9. We heard oral evidence on the current arrangements from the Association of Chief Police Officers (Scotland) (ACPOS). They were generally enthusiastic about the scheme, but felt that there were a number of issues arising in practice which should be clarified. In particular, it was felt that the role of the appropriate adult should be more clearly defined, especially where the adult may go on to participate in a subsequent court hearing; either to support the mentally disordered person, or as a witness. Statutory arrangements might help in providing this clarity.

10. Against that, there was some concern that putting the scheme on a statutory basis could create other problems. It was commented that it would be unclear what effect this would have on the general doctrine of fairness which applies in Scottish courts in determining admissibility of witness statements. The Scottish system is different from the English system in relying more on such broad principles, which can be applied by judges in individual cases, rather than setting out statutory requirements for police interviews. The Law Society supported consideration being given to the scheme being formalised on a statutory basis, but also felt it was necessary to review the categories of people who could be regarded as appropriate adults. The Society considered that this role should only be held by professionally qualified people who knew the adult in a professional capacity. This would be a significant change from the current arrangements.

11. On balance, we have decided that it would be premature to recommend that the appropriate adult arrangements be placed on a statutory footing. We understand that the schemes vary considerably, and there is still considerable debate about questions such as the extent to which the appropriate adult can participate actively in the interview, and the role the appropriate adult should play in subsequent proceedings, up to and including the court hearing. Making the appropriate adult a statutory requirement might provide greater consistency, but could add an element of rigidity, before a consensus has developed on the best way to operate such schemes.

12. Indeed, although the scheme is a legal requirement in England and Wales, we understand that there have been difficulties such as too few people being identified as requiring an appropriate adult, and unsuitable people being asked to carry out the role, purely so that the police can confirm that the statutory requirement has been met.

13. We do, however, believe that more needs to be done to encourage the further development of such schemes, and the identification of best practice. The limited review by the Scottish Executive of existing schemes is a start to this process. In our view, this requires to be supplemented by research into the operation of the existing schemes, an ongoing degree of oversight of local arrangements, and support for networks which can disseminate good practice and share information.

14. We also believe that the option of placing the scheme on a statutory footing should be kept under review.

Training

15. The issue of better training for police officers is a common thread that runs through both the responsibilities of the police under s118 (removal of a mentally disordered person to a place of safety), which we discuss in Chapter 20, and the arrangements for appropriate adults. In its 1995-1996 Annual Report, the Mental Welfare Commission recommended as follows:

'As a general issue, the development of community care requires that the training of police be appraised to ensure that there is adequate preparation for recognising mental illness and dealing with members of the public who are mentally ill'⁷⁴.

16. Guidance issued on dealing with potentially violent persons in the community states that national training for police has been reviewed by ACPOS, and police training has been revised in the light of experience of incidents involving mentally disordered persons⁷⁵.

17. The Code of Practice on appropriate adults also emphasises the need for training for police and appropriate adults, and recommends the development of courses approved by local multi-agency working groups.

18. We believe that better training is of crucial importance. Police officers are not, and should not attempt to be, mental health professionals. However, it is important that all police officers dealing directly with the public have a basic understanding of mental illness and learning disability including:

• being aware of how to identify that a person may have a mental disorder
• knowing how to deal with such a person sympathetically and safely
• understanding the relevant legislation and guidance, and
• being aware of the appropriate services to call on for assistance if required.

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