by Chris Bath
Appropriate Adults (AAs) are a critical safeguard for children and mentally vulnerable adults detained or interviewed by the police. However, there is no statutory provision of AAs for mentally vulnerable adults. Identification rates of mental vulnerabilities are historically very low but look set to increase with the Government's investment in Liaison & Diversion in custody suites. This will increase demand for AAs. At the same time, pressure on local authority budgets mean non-statutory services are under intense threat. If false confessions and other miscarriages of justice are to be avoided, cooperation around pooled budgets and regional co-commissioning is urgently needed, involving all parties with an interest in the welfare and rights of mentally vulnerable adults.
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Under the Police and Criminal Evidence Act 1984 (PACE) Codes of Practice, police custody sergeants must secure an Appropriate Adult (AA) to safeguard the rights and welfare of vulnerable people detained or questioned by the police. This is a critical safeguard in our justice system that arose in part due to vulnerable people confessing to crimes they did not commit.
Originally covering juveniles (10 to 16 year olds) and mentally vulnerable adults, the anomaly of 17 year olds being treated as adults in police stations enjoyed a high profile in 2013. Long a concern for NAAN, and many others, the issue was highlighted in the Criminal Justice Joint Inspection report Who’s looking out for the children (2011). Then, following a judicial review, PACE Code C was amended to ensure 17 year olds, and therefore all children, have the support of an Appropriate Adult.
Demand: the prevalence of mental vulnerability
Arguably a bigger concern (if only by sheer volume) is whether anyone is ‘looking out for the adults’. At any one time, one in six British adults (around 8 million) is experiencing at least one diagnosable mental health problem.[i] An estimated 1.2 million people in England have learning disabilities (2.3%), of which 75% are adults[ii]. Four per cent of the population have severe dyslexia.[iii] Some 39% of people in contact with probation have a current mental health condition, while in prison rates are much higher. Between 20 and 30% of offenders have learning difficulties or learning disabilities that interfere with their ability to cope within the criminal justice system. For example, a person may find it be difficult to understand and participate effectively during a police interview.[iv]
Supply: the lack of statutory provision
However, despite the requirement in PACE Code C, no agency has a statutory duty to provide AAs for vulnerable adults. Consequently, the existence of formal services, using trained, vetted individuals who attend when family or carers are unavailable, is limited. Some areas have ad-hoc arrangements. Social services emergency duty teams may respond if they have no higher priorities. In other areas services are entirely non-existent. In contrast, statutory provision, under the Crime and Disorder Act 1998, means Youth Offending Teams provide or commission a service for children in every local authority in England & Wales.
Historically, where provision for adults has existed it has typically stemmed from local authority adult social services and NHS mental health trusts. Some police forces, and more recently some Police & Crime Commissioners, have also provided financial support, though police employees are prohibited from acting as AAs for obvious reasons of independence. However, continued budget cuts mean any non-statutory service is under severe threat. NAAN has been contacted by several police forces and AA schemes that have been advised that local authority funding for AA services will end in April 2014.
Such cuts clearly affect the police’s ability to deal effectively with adults that are mentally vulnerable or experiencing mental illness. If AA schemes are lost, police will need to constantly source untrained individuals ‘off the street’ or try to create and manage their own schemes – raising issues of skills, resources, efficiency and most importantly, of independence.
The problem of identifying mental vulnerability
One possible reason why commissioners may not have may not have AAs for mentally vulnerable adults on their on their radar is an apparent lack of demand.
Rates at which mental vulnerabilities are identified in police detention are extremely low. Given the prevalence of mental vulnerability in society, and the justice system, in particular, annual demand for AA call outs ought to be much higher than it is. One study, which analysed over 21,000 police custody records, found an AA was used in only 38 (0.016%) cases.[v]
There are around 1.2 million arrests in England & Wales for recorded crimes annually. A NAAN survey of police forces in 2009/10 found that only 12 regional forces (of 34 respondents) reported any call outs of AA services for vulnerable adults. Of these, the Metropolitan police accounted for 54% of the reported 14,436 call outs annually. Excluding the Met, the South West (Dorset, Devon & Cornwall and Avon & Somerset) accounted for 50% of the remaining 6,636, with call out rates ranging between police forces from 4 to 120 per month.
Academic studies have suggested multiple factors affecting whether AAs are called out for vulnerable adults. These include: the skills, training, experience and attitudes of the arresting ofﬁcers and the custody sergeant; the offence type; the arrest circumstances; the presentation of the individual, and pressures in the custody suite. This is supported by the findings of the joint thematic inspection on learning disability published in January 2014. Inspectors found that Appropriate Adults were not always called, even when it was recorded that the detainee had a learning disability. They concluded that, "The identification, assessment, referral and diversion of offenders with learning disabilities, and the provision of Appropriate Adults, depend on the ability of police officers and other custody staff to recognise learning disability. This is, in part, dependent on the level of training provided to officers and other staff."[vi]
It is not that the police don’t have strong incentives to call an AA. Breaches of PACE risk rendering evidence gained during interview inadmissible in court, not to mention disciplinary action. PACE Code C is clear that anyone “mentally disordered or otherwise mentally vulnerable” has the right to an AA. The threshold is intentionally set very low to reflect the fact that police personnel are not, and cannot be expected to be, experts in mental vulnerability. Custody sergeants are directed to call an AA whenever they have any doubt about the mental state or capacity of a detainee. PACE is clear that, once someone is identified as being mentally vulnerable, the police cannot proceed without an AA present.
This is a critical point. Once a custody sergeant recognises that an individual might be mentally vulnerable, the whole process stops until an AA can be found. Where there is a high-quality, reliable, quick-response AA scheme to call on, this does not cause a problem. However, without such provision, and in a busy custody block with over-stretched officers, there is a powerful disincentive to identify.
A vicious circle therefore exists in which the lack of supply creates an apparent lack of demand, which in turn fails to generate pressure to increase in supply.
Liaison & Diversion: an opportunity for change
In England, the Department of Health has announced a welcome £25 million to further develop liaison and diversion services for children and vulnerable adults in police custody. Their purpose is to identify and assess individuals suspected of having, amongst other conditions, mental ill health or learning disabilities, to ensure support, and to help inform criminal justice decision making. The Government’s commitment is that liaison and diversion services will be in every police custody suite by 2017, run under the auspices of NHS England.
The good news is that this investment will do much to solve the issue of chronic under-identification of mentally vulnerable individuals. The bad news is that, just as the vicious circle is broken, AA provision for vulnerable adults may be almost non-existent. This presents a risk to the liaison and diversion programme, and to efficient police custody processes.
With the exception of the vulnerable people themselves, it is frontline police who will feel the lack of AAs most keenly. Set neatly between a rock and a hard place, local stations are already in debates about setting up their own schemes. This is both entirely understandable and deeply concerning. Appropriate adults are a critical part of the checks and balances of our justice system, protecting the most vulnerable from potential abuses of police power. Even well intentioned police run schemes are at risk of breeding compliant AAs, creating distrust in the mind of the person being detained, and damaging public perceptions of independence.
Due to their historical support in some areas, one option is to look to adult social services or mental health trusts to avoid retrenchment and increase spending to meet the demand. Another possibility is that, since it impacts significantly on an NHS England project, they should find the money. Alternatively, it might be argued that, because the duty arises out of PACE, the police, Police & Crime Commissioners or the Home Office are solely responsible.
Ultimately, the answer is to place appropriate adult provision for mentally vulnerable adults on a statutory footing, as envisaged by Lord Bradley in his 2009 report. This approach would ensure parity with children’s AA services, provide clarity and accountability, and prevent mentally vulnerable adults from ‘slipping through the cracks’ between agency responsibilities. It would also ensure independence from the police, allowing them to focus on their core role, avoiding conflicts of interest, reinforcing the need for challenge and encouraging public confidence.
In the meantime, it is critical to act now to save existing provision. The cost of an appropriate adult scheme is small, with the role often fulfilled by parents, carers or volunteers, and opportunities to expand existing schemes. To replace such experience and knowledge will be far more expensive.
However, to place responsibility with a single agency would be to ignore the complexity of mental vulnerability and the harsh reality of the current economic climate. The range of needs (and therefore agency budgets) is broad including: mental health, learning disabilities, ADHD, autistic spectrum disorders and Asperger’s syndrome. If any one agency were given the choice between funding it all, and not funding it at all, they would likely find it impossible to do the former. Even a small cost is currently burdensome for any single commissioner.
So, if false confessions and other miscarriages of justice are to be avoided, and if the massive investment in liaison and diversion is to be successfull, cooperation is required. Discussions about pooled budgets and regional co-commissioning are urgently needed and should involve: adult social services, mental health trusts, NHS area teams, Clinical Commissioning Groups, Health and Wellbeing Boards, police forces, Police & Crime Commissioners and any other party with an interest in the welfare and rights of mentally vulnerable adults.
The National Appropriate Adult Network (NAAN) is a charity working to ensure that the rights and welfare of every child and vulnerable adult detained or interviewed by police are safeguarded effectively by an appropriate adult. Our mission is to inform, inspire and support effective policy and practice. As the national hub, we collect, develop and share knowledge and skills, as well as setting national standards for appropriate adults.
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[vi] Criminal Justice Joint Inspection (2014) A joint inspection of the treatment of offenders with learning disabilities within the criminal justice system - Phase 1 from arrest to sentence. London: HM Inspectorate of Probation