2. Police responsibilities and procedures
2.1 The decision to request Appropriate Adult support lies with the police and local authorities must ensure that people are available to provide such support when the police request it.
2.2 The following sections set out steps that the police are expected to take in relation to Appropriate Adult requests and are included in this guidance for information for local authorities.
Criteria for requesting an Appropriate Adult
2.3 As set out in the 2016 Act and summarised in paragraphs 1.10 to 1.14, above, the police must provide support for persons in custody who are unable to understand sufficiently what is happening or communicate with the police because of a mental disorder. In practice, this support is provided by an Appropriate Adult.
2.4 While the duty on the police in section 42 of the 2016 Act relates specifically to vulnerable adults in police custody, the police also use Appropriate Adult services to provide the support outlined in section 42 of the 2016 Act for all vulnerable adults who require it during police investigations, including victims and witnesses.
2.5 The term “mental disorder” covers a wide range of illnesses and conditions, including autism spectrum disorder, attention deficit hyperactivity disorder (ADHD), acquired brain injury (including alcohol related brain damage) and dementia.
2.6 Appropriate Adults should not be requested for individuals whose communication and/or understanding is impaired solely due to the influence of alcohol or drugs at the time of involvement with the police, or solely due to physical impairments or language barriers (i.e. situations where an interpreter is required).
An Appropriate Adult should be requested, however, if a person who requires the assistance of an interpreter also meets the criteria set out in the relevant sections
of the 2016 Act.
2.7 It is recognised that not all individuals who may require Appropriate Adult support will have a formal diagnosis, nor may they be able or willing to share any diagnosis with the police. In circumstances where a diagnosis cannot be confirmed but it is clear that the individual cannot understand procedures or communicate effectively with the police, and that the cause of such difficulty is not solely because of substance use/intoxication, then Appropriate Adult support should be requested.
2.8 Communication or comprehension issues related to mental health can be fluid and change relative to circumstances, so an individual who requires an Appropriate Adult on one occasion may not require such support if they come into contact with the police again. Similarly, an individual who has a mental disorder may not experience any communication or comprehension difficulties during the course of their contact with the police, so an Appropriate Adult may not be required.
2.9 If an officer believes that a person requires an Appropriate Adult and that person declines this assistance, an Appropriate Adult should still be requested and given the opportunity to explain their role to the person. If, after meeting the Appropriate Adult, the person still refuses this service it is for the police to decide how to proceed.
2.10 In all cases where consideration has been given to an Appropriate Adult but one is not used, the reason for this should be recorded by the police.
2.11 Appropriate Adults do not provide support for children aged under 16, but should be used for 16 and 17 year olds who are deemed by certain legislation to be children while under the age of 18 (for example, under the Human Trafficking and Exploitation (Scotland) Act 2015), or are subject to Compulsory Supervision Orders, if they meet the definition of a “vulnerable person” as set out in the 2016 Act.
2.12 Appropriate Adults should not be requested for individuals who lack capacity, as defined in the Adults with Incapacity (Scotland) Act 2000. If an Appropriate Adult attends a request and feels that this definition applies to the person they are supporting the Appropriate Adult should relinquish their participation and the police should obtain assistance from a relevant specialist.
2.13 There is no exhaustive list setting out police procedures which an Appropriate Adult should attend and local authorities have a duty to meet all relevant requests from the police for Appropriate Adults.
2.14 Police Scotland is currently reviewing and updating the Standard Operating Procedures (SOP) document which relates to Appropriate Adults. This guidance will be updated to include a link to the relevant SOP when it is published.
2.15 Police should be present during all contact between the Appropriate Adult and the person who is being supported.
2.16 If a person requires Appropriate Adult support, the relevant police procedure should not begin until the Appropriate Adult is present, and the Appropriate Adult should be given an opportunity to speak with the person they are supporting, in the presence of the police, before any procedures begin.
2.17 Procedures should only commence before an Appropriate Adult arrives where a delay may lead to the interests of justice being defeated. If any procedures do commence before an Appropriate Adult arrives, any information about rights and entitlements should be repeated to the person who is being supported, in the presence of an Appropriate Adult.
2.18 Section 33(2)(c) of the 2016 Act provides that a person in custody who is entitled to Appropriate Adult support cannot consent to being interviewed without having a solicitor present. It is for the police to decide on what course of action to take if there are any issues in relation to this provision.
2.19 A witness statement should be noted by the police at the conclusion of the Appropriate Adult’s involvement in proceedings and any notes made by the Appropriate Adult should be taken as a production by the police. If the Appropriate Adult attends for proceedings that take place on another date or dates as part of the same case, then an addendum statement or statements should be noted.