There were 10 questions in the consultation document which related to proposals for the delivery, training, quality assessment and oversight of the statutory service. The following analysis follows the layout of the consultation document.
One individual responded in the negative to all questions which sought a “yes” or “no” response and provided the following comment to all questions: “This is yet another power grab which undoubtedly comes from the same stable as the named persons act”. To avoid repetition in the following analysis, this is highlighted here as a concern to all of the proposals.
We propose to use the definition of vulnerable person as set out at section 42 of the Criminal Justice (Scotland) Act 2016, but extended to cover victims and witnesses. Do you agree?
At section 42 of the 2016 Act, a vulnerable person is described as a person who, owing to mental disorder, appears to the police unable to (i) understand sufficiently what is happening, or (ii) communicate effectively with the police.
“Mental disorder” is defined in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 as covering any mental illness, personality disorder; or learning disability.
Of the 86 respondents who agreed, 73 (66.9% of total respondents) fully agreed with the proposal and raised no concerns about it.
All respondents who are currently involved in Appropriate Adult service provision agreed with the proposal, while third sector organisations were the most divided respondent group.
The remaining 13 of the 86 respondents who agreed with the proposal highlighted potential issues that may need to be considered. The same concerns were also reflected in the answers from respondents who said they did not agree with the proposal or did not provide a definitive yes or no answer.
The concerns which were raised relate to the definition of “mental disorder” rather than the proposal to extend the definition of “vulnerable person” to victims and witnesses.
Is the definition wide enough?
Of the 23 respondents who did not agree with the definition or gave no definitive answer 14 said they were concerned that that the definition was not wide enough. A further four respondents who said they agreed with the definition also raised concerns along these lines.
A number of respondents questioned if this definition would cover neurodevelopmental disorders such as autism spectrum disorder, acquired brain injuries and foetal alcohol syndrome, all of which may cause a person to experience communication difficulties.
Academic Roxanna Dehaghani highlighted research which identified three additional types of vulnerability in suspects in addition to “mental disorder”, namely “mental states”, “intellectual functioning” and “personality”.
Some respondents took the view that the definition would not cover these conditions, others were unsure and some of those who said they believed that these conditions were covered questioned if those making the assessment of a person’s vulnerability would know this.
A total of 15 respondents raised a concern about the definition of “mental disorder” potentially excluding people with communication difficulties with no formal diagnosis or those who are unwilling or unable to disclose any diagnosis. Of this group, 12 respondents did not agree with or give a definitive answer about the proposed definition, while three said they did agree but wanted further consideration to be given to those who fell into the above category.
A number of respondents who raised this issue felt that people could be vulnerable and unable to communicate effectively for a variety of reasons, not just due to a “mental disorder”. Many of these respondents felt that vulnerability is often contextual and cannot be defined in such fixed terms.
The Faculty of Advocates highlighted comments made by Lord Bonomy in his 2015 Post-Corroboration Safeguards Review where he suggested that the real issue is the inability of a person to understand or communicate at the time rather than the underlying reason for their communication problems.
Both the Mental Welfare Commission and the Law Society of Scotland questioned if using such a definition could be problematic in terms of the UN Convention of Rights for Persons with Disabilities (UNCPRD). They both highlighted that there is currently a debate about whether it is “compatible with UNCPRD for specific rights or duties to be framed around a diagnostic label rather than the need for support” and made reference to amendments to the Social Security Bill where the right to advocacy was extended to all disabled people, not just those with a mental disorder.
There were 11 respondents who highlighted the fact that the Learning Disabilities and Autism Review is currently considering whether the provisions of the 2003 Act fulfil the needs of people with learning disabilities and autism. Respondents were concerned that this review may lead to a change in the definition of “mental disorder” which would in turn mean that those with learning disabilities and autism would no longer be eligible for Appropriate Adult support.
There were 11 respondents who felt that using such a definition could be problematic for police officers. Some respondents were doubtful that officers would be able to make an accurate assessment of when Appropriate Adult support was required for a variety of reasons: a lack of training or awareness about Appropriate Adults and the legislation; a lack of clarity about to whom the term “mental disorder” should be applied; and the simple fact that officers are not experts in health or communication needs.
The Scottish Commission for Learning Disability highlighted that, when considering the use of the term “mental disorder” in relation to support for vulnerable adults when in contact with the police, Lord Bonomy argued that it “imposes on a police officer the responsibility of making a diagnosis that he is not qualified to make”.
All of the above issues were particular concerns for third sector respondents and featured in many of the discussions at the two workshop events which involved those with lived experience of learning disabilities and mental health issues.
In terms of ways to help address the issues which were raised, it was suggested by some respondents that it would be useful for guidance to include explicit examples of conditions that could be covered by the term “mental disorder” to assist police officers, while others suggested that the wording of the definition could be expanded, for example to cover people who suffer seizures or to include the phrase “pervasive developmental disorder”.
Two respondents – the Faculty of Advocates and an individual - argued that it would be better to simply state who should be excluded from receiving Appropriate Adult support, i.e. those who have a temporary condition affecting their communication abilities due to drugs or alcohol.
The SOLD Network suggested that alternative definitions for people entitled to Appropriate Adult may be found at Section 3 of the Adult Support and Protection (Scotland) Act 2007 or by using the definition of disability in the Equality Act 2010.
In relation to the police making assessments, some respondents felt that it would be useful to have experts in the police station to advise officers, or to ensure there is a comprehensive training package in relation to Appropriate Adults for all officers. North Lanarkshire Council highlighted a police custody assessment tool which had been developed by Dr Iain McKinnon from Newcastle University as something which could aid officers when making assessments about the requirement for an Appropriate Adult.
The National Autistic Society and Headway respectively highlighted Autism Alert Cards and Brain Injury Identity Cards, which can be carried by individuals who are affected by these conditions, as a way for officers to identify if an Appropriate Adult is required. Some participants at the two workshop events suggested that “personal passports” similar to those used in health care settings could be adopted so that an individual’s communication needs travel with them. It was acknowledged, however, that not everyone with lived experience of a condition which means they may require an Appropriate Adult may be willing or able to participate in these schemes.
As outlined in the consultation document, victims and witnesses are currently entitled to Appropriate Adult support and it is the Scottish Government’s intention to extend the definition in Section 42 of the 2016 Act to ensure that the legislation also applies to them.
None of the 23 respondents who said they did not agree with the proposal in Question 1 disagreed with the proposal to extend the definition to victims and witnesses.
The Faculty of Advocates and the Crown Office and Procurator Fiscal Service (COPFS) did not give a definitive yes or no answer to Question 1 and, although they agreed with the proposal to extend the definition to victims and witnesses, they highlighted concerns about this.
“intervention during the course of an evidential interview of a witness risks contaminating the evidence of the witness, will be subject to scrutiny, may impact on the admissibility of the witness statement, may be subject to testing and legal challenge during the judicial process and may impact on the credibility and reliability of the witness”.
The Faculty of Advocates highlighted that because a legal representative is not present during the interview of a witness there will be no one to check if the Appropriate Adult’s actions have affected the admissibility of the interview. The Faculty suggested that it may be wise to consider a staged process where the definition is not extended to victims and witnesses until it is clear that the statutory service is working for those in police custody and that the issue of the inadmissibility of evidence is carefully considered.
In relation to other issues for victims and witnesses, Central Advocacy Partners felt that the definition could be extended even further and consideration should be given to Appropriate Adults being provided to assist people who are making complaints against the police or Appropriate Adult procedures.
Renfrewshire Adult Protection Committee stated that it needs to be made clear if the support will also be extended to vulnerable victims and witnesses who are subject to police procedures under the Adult Support and Protection (Scotland) Act 2007 procedures.
We propose to use the definition of the type of support to be made available as set out at section 42 of the Criminal Justice (Scotland) Act 2016, Do you agree?
to facilitate effective communication between the person and the police.
Of the 87 respondents who agreed, 76 (69.7% of total respondents) fully agreed with the proposal and raised no concerns about it.
As with Question 1, all respondents who are currently involved in Appropriate Adult service provision agreed with the proposal, while third sector organisations were the most divided respondent group and the only group where more respondents disagreed with the proposal than agreed with it.
The concerns/suggestions in relation to this question can be broken down into two categories: where respondents have identified the key issues in relation to the specific role of the Appropriate Adult; and where respondents have identified gaps in support for vulnerable people in the criminal justice system.
Five respondents felt that further clarification and additional details were required in relation to the definition.
They summed up the role as being to observe, advise (not legal advice), support, assist, inform and intervene if required. They also said they felt the Appropriate Adult had a “holistic role” to offer reassurance, which they feel goes beyond what is outlined in the legislation.
“to advise police if at any time the person does not appear to understand”.
“1.7A The role of the appropriate adult is to safeguard the rights, entitlements and welfare of juveniles and vulnerable adults (see paragraphs 1.4 and 1.5 to whom the provisions of this and any other Code of Practice apply.
As mentioned above, the Law Society of Scotland said they felt that part of the Appropriate Adult’s role is offer reassurance to vulnerable individuals. This is something which was raised by another eight respondents and most of them felt that getting sufficient time with the Appropriate Adult was key to establishing trust and reassurance.
The Faculty of Advocates said they believed that both time and privacy was vital in this respect, saying “it is also important that time is given for Appropriate Adults to advise vulnerable persons, in private, of their role in the process and also to enable the development of trust and rapport between them”. A lot of participants at the workshop event held with the SOLD Network also felt strongly about the importance of being able to have time alone with the Appropriate Adult to build up trust with them.
Some of the People First groups, Edinburgh Advocating Together and participants at the two consultation workshops also touched on the issues of confidentiality and trust and said that it would be preferable if the Appropriate Adult was someone you know or from an organisation with which you were familiar. It was acknowledged that this may not be possible by some of the respondents, so many also highlighted the need for time and privacy with the Appropriate Adult as being important. Fife People First Group said that this should continue after the contact with the police as “you need support afterwards to debrief, calm down and go over any questions and understand what is happening next”.
One individual highlighted the need for investment to develop a range of communication tools and accessible information as part of a “National Appropriate Adult Toolkit” in order to ensure that communication needs are identified and that individuals understand procedures, processes and the roles of people they encounter.
As with the responses to Question 1, the importance of the police understanding the role of the Appropriate Adult was raised. Some respondents said that more clarity and greater support in terms of training and guidance is required for the police. South Lanarkshire Council Social Work Resources and North Lanarkshire Council highlighted that this was important to ensure that requests for Appropriate Adults are proportionate.
The fact that the statutory service will only apply when individuals are in contact with the police was an issue for nearly a quarter of all respondents (26 of the 109). Both this question and Question 10 (any other comments) included suggestions and concerns about this issue (responses to all questions which raised this topic are outlined here).
While many respondents acknowledged the reasons why the proposals are focusing on one part of the criminal justice process, they felt that consideration must be given to extending it to other parts of the system and that the Scottish Government should clarify how it intends to address this issue.
The lack of in-court support was highlighted by the majority of these respondents as being a concern, while some respondents also highlighted the need for Appropriate Adults to be present when victims and witnesses meet with COPFS staff.
It was highlighted by some respondents that only a few areas provide Appropriate Adult support for individuals in court and until there is legislation about in-court support, they felt that this provision will continue to be inconsistent across the country, impacting on the rights of vulnerable people in the criminal justice system.
ENABLE Scotland also highlighted a gap in support for people nearing the end of custodial sentences. They acknowledged that this does not fall within the scope of the consultation but said they wished to raise awareness of this issue and asked the Scottish Government to address it “in light of its important role in reducing recidivism”.
The subject of intermediaries was also raised in response to this question (and also in response to the request for any other comments in Question 10 – all responses are again considered here).
Intermediaries are currently used in England, Wales and Northern Ireland and their role is defined in the Youth Justice and Criminal Evidence Act 1999 and the Criminal Evidence (NI) Order 1999. The legislation in England and Wales relates only to victims and witnesses, while in Northern Ireland it covers defendants as well.
The role of an intermediary is more specialised than that of an Appropriate Adult. An intermediary assesses an individual’s communication skills in detail, facilitates communication during the investigation and prosecution stages and assists in the planning of police interviews and pre-trial preparation – including advising lawyers on communication methods when taking evidence.
Seven respondents - the majority of which were fell under the professional organisation category - called for the Scottish Government to consider setting up an intermediary scheme similar to those in the rest of the UK. One individual cautioned against assumptions about intermediaries being the answer to in-court facilitation because only individuals with more serious communication needs would get such support, leaving many vulnerable adults without any support.
The suggestion that Appropriate Adults should be present during a solicitor consultation was made by nine respondents, with third sector organisations making up the majority of respondents calling for this.
All respondents making this suggestion acknowledged that consideration would have to be given to extending legal privilege to Appropriate Adults, or creating a duty of confidentiality for them.
The SOLD Network highlighted that because not all solicitors are “trained, familiar or experienced with dealing with clients who have learning disabilities, this is a stage where a number of people who have learning disabilities have stated they were unclear or confused about the process ahead”.
We propose to place the duty on local authorities for ensuring that people are available to provide Appropriate Adult support, do you agree?
Of the 85 respondents who agreed, 63 (57.8% of total respondents) fully agreed with the proposal and raised no concerns or specified reservations.
The majority of organisations currently involved in Appropriate Adult service delivery were in favour of the duty being placed on local authorities.
The two organisations currently involved in Appropriate Adult service delivery who disagreed were Glasgow Health and Social Care Partnership and South Lanarkshire Council Social Work Resources. The former stated that the duty should be placed on the police, while the latter did not suggest an alternative but highlighted concerns about funding, resources and conflicts of interest relating to the role. Appropriate Adults Tayside did not provide a “yes” or “no” answer but suggested that consideration could be given to the duty being placed on Community Justice Partnerships rather than the local authority.
This was the most popular suggestion as an alternative to the proposal in the consultation document. Nine respondents stated that it would be a preferred option, with third sector organisations and the two workshop events making up most of this number. The main reason for this suggestion was to ensure consistency in service provision, but respondents also cited concerns about funding being diverted to other local authority services or the role not being resourced properly by local authorities.
Some respondents who said they agreed with the proposal also touched on the idea of a national body. Both Epilepsy Scotland and Social Work Scotland said they felt that creating a new national body would be too expensive, while the Faculty of Advocates and North Lanarkshire Council both found the idea of a national body attractive as it would be more streamlined and promote consistency, but after consideration agreed it would be preferable to place the duty on local authorities.
Glasgow Health and Social Care Partnership said that having one agency responsible for delivery rather than 32 local authorities would result in a more affordable, consistent and better quality service. They felt that the duty should be placed on the police because the proposed statutory service would only be utilised by Police Scotland and there would be no conflict of interest, which there could be for local authorities.
COSLA – who said that local authorities could provide the Appropriate Adult service, subject to funding and as long as there are no conflicts of interest – also highlighted that it had been suggested that Police Scotland or the Scottish Police Authority could deliver the service.
In contrast to this view, some third sector respondents said that they felt the duty should definitely not be placed on the police as this could impact on the impartiality of the Appropriate Adult service.
Joint partnership between the local authority, the police and solicitor – this was suggested by an individual.
”conjoining several LA areas with similar needs…(which) would streamline administration, help to standardise training and its delivery, reduce cost, increase efficiency and effectiveness of response, enabling leaner governance, standardization and oversight”.
The idea that Appropriate Adults could come from the third sector was popular with participants at the workshop held with Support in Mind Scotland where it was suggested that the Mental Welfare Commission could oversee a bank of Appropriate Adults drawn from this sector, though it was acknowledged that this would have to be subject to increased funding and appropriate training.
Ensuring adequate funding and resourcing of a statutory service was the biggest concern for respondents.
A number of respondents said that they agreed with the proposal to place the duty on local authorities but made it clear that an increase in funding would be required. This view was particularly strong from those involved in Appropriate Adult service delivery. Others were concerned that, if funding was not “ring-fenced” it may be diverted from its intended use, and that if there was not adequate funding or resources for the service this would lead to inconsistencies in provision across the country.
A number of respondents agreed with the proposal to place the duty on local authorities but highlighted that the authorities should be allowed flexibility to tailor the services to suit local needs, for example by contracting out provision. Again, this view was taken by a number of organisations involved in Appropriate Adult service delivery.
Some respondents felt that it would be beneficial for local authorities to involve third sector organisations in the delivery of Appropriate Adult services as this would allow them to tap into expertise of networks already supporting vulnerable people and not place an additional burden on local authority staff.
Four respondents brought up the issue of Integration Joint Boards (IJB) in relation to the issue of flexibility. Renfrewshire Adult Protection Committee, Renfrewshire Health and Social Care Partnership and the Care Inspectorate all looked for clarification on whether or not the function will be delegated to IJBs or if it will remain solely with the local authorities, while Highland Appropriate Adult Service agreed with the proposal but highlighted that NHS Highland has the responsibility for delivery of Adult Social Care Services through the lead agency IJB model in their area.
This was a view that was echoed by many of the participants at the workshop held in conjunction with the SOLD Network, and potential conflicts of interest for social workers who carry out the role of Appropriate Adult was also raised by SOLD in its official response. A number of respondents also said they felt that the role of Appropriate Adult should not be an “add-on” to the duties of existing local authority staff because of the danger of conflicts of interest, and also because they felt that it would result in those taking on the role being unable to dedicate the requisite time to it.
City of Edinburgh – Appropriate Adult Service, who agreed with the proposal to place the duty on local authorities, acknowledged that there could be conflicts of interest if social workers perform the role of Appropriate Adults but said they believed that placing the service on a statutory footing would “prevent the blurring of boundaries where some staff and support workers believe they can act as an Appropriate Adult for their clients which is contrary to all guidance”.
We propose to keep details of the statutory duty at a high level but develop more detailed guidance to sit below this and to which those responsible for delivery must have regard, do you agree with this approach?
Those who did not agree with the proposal or gave no definitive answer felt that minimum standards should be set or were concerned that guidance would not be enforceable or widely understood. Some respondents who agreed with the proposal to keep the legislation high level said that they felt that it would be important for principles and values to be made clear so that there is no uncertainty about what the service should be delivering.
Eight respondents, all of whom are currently involved in the delivery of Appropriate Adult services, agreed with the proposal but said they wanted the legislation and guidance to make it clear there was flexibility for areas to set up service delivery tailored to local needs. All of these respondents already work in partnership with other agencies and they felt that it is important for the flexibility which allows for this to continue as part of the statutory service.
Some respondents were more cautious about too much flexibility being allowed, with Epilepsy Scotland reiterating concerns about consistency if funding for the service is not “ring-fenced”. One individual said that if “too much legislation is devolved locally this may result in diffusion of the impact of a statutory service returning to 32 modes of delivery” and they and two others felt that minimum standards could help to ensure that this does not happen.
Five respondents felt that the legislation should contain information about who can become an Appropriate Adult and specify any training and accreditation which is required to take on the role.
In respect of the guidance, which is proposed to sit underneath the legislation, the Police Scotland corporate response suggested that the Scottish Appropriate Adult Network (SAAN) guidance could be progressed and used to help develop the guidance for the statutory scheme. The Law Society of Scotland, however, questioned if such an approach was appropriate because solicitors had no input in the SAAN guidance and that “it is important not to follow what may have existed previously but to consider carefully who is involved in developing such guidance and to whom it applies or needs to refer”.
In a similar vein to this, some respondents said they felt that it was important that there was a wide range of input into the guidance, including from people with lived experience and those who have accessed Appropriate Adult services. Some respondents also highlighted the need for the guidance to be reviewed on a regular basis and, again, this should involve a range of stakeholders.
We propose to place a duty on local authorities to deliver training to Appropriate Adults. Do you agree with this?
Of the 85 respondents who agreed with the proposal, 58 (53.2% of the total respondents) fully agreed with it and raised no concerns or specified any reservations.
There was general agreement that it would be sensible for the duty for training to be placed on the same organisation who will be responsible for delivery.
Seven respondents felt that the duty would be better placed on a single national body. All but one of these respondents were third sector organisations and most felt that it would be preferable for the duty for delivery to also be placed on a single national body. The Faculty of Advocates – who agreed that the duty for delivery should be placed on local authorities – felt that there was a “strong case” for centralising training to ensure consistency. Orkney Islands Council suggested that Mental Welfare Commission could develop a national training programme, while the delivery of programme would be the responsibility of the provider.
Six respondents said that the duty for training should be placed on the police or on a partnership involving the police. Glasgow Health and Care Partnership said that while they saw local authorities or health and social care partnerships having a role to play to support the training, because they felt that the duty for delivery should be placed on the police, then the police (or alternatively the Scottish Government) should be responsible for delivering the training.
Most of the other six respondents also felt that the duties for delivery and training should be placed on the same organisation and they were in favour of this being a partnership approach involving local authorities and the police.
As mentioned above, Glasgow Health and Care Partnership said that the Scottish Government could deliver the training in a manner similar to “work currently underway within Criminal Justice whereby the Scottish Government are delivering training”.
A number of respondents felt that it was important that there was flexibility to allow whomever the duty is placed on to involve other agencies and professionals in the training, or contract it out if this is perceived to be the most appropriate way to deliver training. Argyll and Bute Health and Social Care Partnership, who commission CarrGomm to deliver their Appropriate Adult service, highlighted that this approach has allowed them to maintain a wide pool of Appropriate Adults and has alleviated pressure on statutory social work staff.
North Lanarkshire Council felt that “the statutory duty to deliver training must include the flexibility to commission services from independent providers", and for this option to be included in the statutory guidance” and Angus Health and Social Care Partnership said that, while the duty should be placed on local authorities, there should be a stipulation that “other agencies should support this training, e.g. NHS, Police Scotland”.
Some respondents also felt that it was important for there to be a wide range of input in the delivery of the training as well as in the creation of the training framework and the training oversight group. A number of third sector organisations and Social Work Scotland were of the opinion that it is important to ensure that people with lived experience and those accessing the service are included in all aspects of the training. Social Work Scotland also suggested linking with the National Trauma Training Framework developed by NHS Education for Scotland (NES).
While it was agreed by many respondents that flexibility in respect of delivering the training was important, a number of respondents also highlighted the need for consistency to ensure that Appropriate Adults received the same level of training regardless of where they are based and felt it was vitally important to get the training framework and oversight right. The Mental Welfare Commission felt that one way of doing this could be to link in the oversight of training with the oversight role proposed in Question 8, rather than make it a “freestanding function with no clear ownership and accountability”.
Seven respondents felt that it was important to have some kind of assessment or accreditation built into the training to ensure a consistent high standard of support for those accessing the service and also to provide a framework for Appropriate Adults to develop their skills on an ongoing basis. This was particularly important for the People First groups who responded and for participants at the workshop held with the SOLD Network.
Values into Action Scotland suggested that a national training programme could be included in the Scottish Credits and Qualifications Framework (SCQF) and validated by the Scottish Qualifications Authority (SQA).
The Law Society of Scotland highlighted training undertaken by Justices of the Peace and suggested a similar programme could be developed for Appropriate Adults.
Some concerns were raised about funding and resourcing, but to a much lesser extent than in relation to the delivery of the service with eight respondents highlighting this as a potential issue.
We propose to place a duty on the Care Inspectorate to carry out a quality assessment role in relation to the provision of Appropriate Adult services, do you agree?
Of the 87 respondents who agreed, 68 (62.4% of the total respondents) fully agreed and raised no concerns or made further suggestions about the proposal.
The Care Inspectorate agreed with the proposal, subject to the availability of agreed resources and further discussion about the scope of the functions which would be conferred on them. They also suggested that Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS) could be involved.
Four respondents said they did not agree because they felt the proposed quality assessment role was unnecessary. Two of these respondents are organisations involved in Appropriate Adult service delivery: Orkney Islands Council, who felt that there were already sufficient quality assessment functions in place; and East Lothian Health and Social Care Partnership, who argued that local authorities “need to become better at self-evaluation rather than introduce another thematic inspection” in addition to those which already exist.
The other two respondents who felt the role was unnecessary were individuals, one of whom argued that that there was no requirement for inspections since a solicitor would be present at the police station when an Appropriate Adult is requested, while the other felt that data protection and confidentiality would limit what could be assessed. East Lothian Health and Social Care Partnership also highlighted that confidentiality could also make it “difficult to audit” some police procedures.
While not saying that the role is unnecessary, Social Work Scotland and another individual disagreed with the proposal and said that although the Care Inspectorate may ultimately be responsible for strategic inspections, quality assessment or assurance could be done by local authorities. In this respect, Social Work Scotland said it was “important to make a distinction between inspection and quality assessment or assurance”.
As mentioned above, the Care Inspectorate suggested that there may be a role for Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS) as they “may be most likely to hear about and observe the provision of Appropriate Adult services for those being detained”. The Care Inspectorate highlighted that there is an existing mechanism for information sharing between them and HMICS.
HMICS having a role in quality assessment was also suggested by some other respondents. Social Work Scotland, who did not agree with the proposal, and three other respondents who did - Glasgow Health and Social Care Partnership and Highland Appropriate Adult Service and the SOLD Network – all suggested that HMICS could be involved alongside the Care Inspectorate.
Three respondents – North Lanarkshire Council, an individual and participants at the workshop event held with the SOLD Network – felt that it would be more appropriate for this role to be carried out by the Mental Welfare Commission for Scotland as they have a greater expertise in relation to the rights of adults with mental disorders and more knowledge of the justice sector.
This was suggested by two justice sector respondents: the Faculty of Advocates and the Law Society of Scotland. They both felt that the quality assessment role would be best carried out by an independent body which consisted of representatives from a number of areas, such as local authorities, health, the third sector and the legal sector. Both these respondents said they were concerned that the Care Inspectorate did not have the enough knowledge of or expertise in the justice sector to carry out the role effectively.
Values into Action, the SOLD Network and participants at the two workshop events felt that it was important to ensure that people with lived experience of mental health issues, learning disabilities or any conditions that could mean they require assistance from Appropriate Adults and those who have accessed the service are involved in the quality assessment function. The SOLD Network highlighted that the Care Inspectorate used to involve service users in its work, but were no longer sure if this is still the case. They suggested it might be worth looking at the Quality Checker service provided by Values into Action Scotland as a possible model for involving people with lived experience as part of the quality assessment function. This was also suggested as a possible feedback mechanism in response to Question 7 (feedback from service users) by Values Into Action Scotland itself.
While some respondents felt that more emphasis should be placed on self-evaluation, others said that they believed that inspections should feature more heavily than is currently proposed or be made mandatory. This view was adopted by a number of third sector organisations, as well as the Police Scotland Corporate Response and the Equality and Human Rights Commission.
The Mental Welfare Commission said further clarity was required about how the self-evaluation framework would be used and highlighted that the Community Justice framework which is mentioned in the consultation document is part of a wider system including a national statutory body. One individual also touched on the workings of the framework and highlighted that a co-ordinated response will be required to obtain information from all partners and not just the local authority. They also queried how the information which is required to be evaluated will be recorded and stored.
A number of respondents felt that whatever quality assessment model was adopted it was important to take a holistic approach which, as COSLA suggested, captures the individual’s journey through the legal/judicial process, and not just gauge whether or not the service is being delivered in isolation. These respondents argued that this meant that the quality assessment function should not be incorporated into or based on existing models but tailored to take specific recognition of the Appropriate Adult role. In contrast to this, some other respondents felt that the function could form part of existing self-evaluation and inspection processes.
How might we best engage with service users to understand their experience?
There was no general consensus about the best way to engage with people accessing Appropriate Adult services, other than it should not be a “one size fits all” approach and a variety of feedback mechanisms would be required.
The question of when to get feedback was one of the main issues for respondents, with 28 respondents offering views on when would be the most appropriate time for this to happen.
Of the 28 respondents who gave views about this topic, 10 felt that feedback should be sought immediately after contact with the Appropriate Adult or, in the case of a suspect or accused person, immediately after they were released from custody. The most popular method suggested for feedback at this point in time was through a questionnaire. Some respondents suggested that this initial feedback could be followed up at a later stage through interviews and via support agencies.
A further 10 respondents felt that trying to get feedback at the time an individual is in contact with the police, or immediately afterwards, would not work. Fife Health and Social Care Partnership said that they had previously tried to give individuals a simple questionnaire to complete following their involvement with the police but this was not successful.
Some respondents suggested that feedback should only be sought at the conclusion of any proceedings so as not to cause any further stress or anxiety to the individual while the case is ongoing. Waiting this long, however, was viewed as problematic by a number of respondents who said that there should not be a big gap between contact with the Appropriate Adult and feedback being sought as this may result in the individual not being able to remember everything that happened during the contact. This was a strong view amongst third sector respondents (Central Advocacy Partners and the People First groups) and participants at the workshop events.
The problems in identifying when would be the most appropriate time to ask for feedback were touched on by a number of respondents. Most agreed that asking for feedback immediately after contact with the Appropriate Adult could cause additional distress, but acknowledged that seeking feedback at a later date could be difficult as contact may have been lost with the individual or they may be unable or unwilling to revisit events from the past.
Some respondents felt that the best way of tackling this problem could be to signpost or refer individuals to resources that could assist them not only with the feedback but provide additional support if they required this. Support in Mind Scotland suggested that the Distress Brief Intervention pilot – where front line staff signpost/refer people in distress to third sector support agencies - may provide some learning for the proposed statutory service in the context of follow-up support.
A number of respondents considered the role of the Appropriate Adult in obtaining feedback and there were diverse views in relation to this.
Some respondents felt that there may be issues if an Appropriate Adult was involved in this part of the process: North Lanarkshire Council, Appropriate Adults Tayside and an individual said that this could result in the person accessing the service questioning the Appropriate Adult’s impartiality and may cause confusion about the role; Tayside also highlighted the risk of confrontation if the individual was not happy with their experience; and an individual respondent said that they did not think it would be appropriate to add more paperwork and questions into contact between the individual and the Appropriate Adult.
Other respondents, however, felt that the Appropriate Adult could play a role in gathering feedback. The Care Inspectorate, Support in Mind Scotland and some individuals said that the Appropriate Adult could signpost or refer individuals to resources for further support and to provide feedback. It was acknowledged for this approach to work other agencies would need to be involved in the feedback process, whether that be the networks mentioned in the consultation document or other organisations such as advocacy, and one individual suggested that a national data sharing protocol should be developed similar to that in England and Wales.
A number of respondents felt that it was important to ensure that the mechanisms for gathering feedback were in accessible formats so as not to exclude people from participating in the process.
Some respondents suggested using social media and online tools to help gather feedback, but it was highlighted that not everyone may have access to computers or smartphones.
The issue of individuals consenting to being contacted for feedback was raised by some respondents, with an individual and participants at the workshop held in conjunction with Support in Mind Scotland raising concerns about data protection.
We propose to place a duty on the Mental Welfare Commission to have oversight of how Appropriate Adults services are provided across Scotland, do you agree?
Of the 89 respondents who agreed, 77 (70.6% of the total respondents) fully agreed and raised no concerns about the proposal.
The Mental Welfare Commission for Scotland answered yes to this question but said that this was insofar as they were willing to consider if they are best placed to take on the oversight role, subject to the functions and resourcing.
Glasgow City Health and Social Care Partnership, a respondent from Police Scotland and two individuals felt that the duty for oversight should be placed on the Care Inspectorate, though one of the individuals said that the Mental Welfare Commission “would have a role through their current remit if the need arose in particular cases”.
Glasgow City Health and Social Care Partnership said that the role is better suited to the Care Inspectorate because “it is not only people with mental health issues that access the Appropriate Adult function”. In relation to this point, the SOLD Network agreed with the proposal for oversight role but highlighted that there is the possibility that learning disabilities may be removed from the definition of “mental disorder” in the 2003 Act, so this may mean that those with learning disabilities would no longer fall under the Commission’s remit.
COSLA, who did not give a definitive answer to the proposal, said that further clarification is required about the oversight role. They suggested that the role could possibly be undertaken by the Care Inspectorate or national co-ordinator(s) alongside the regulatory functions of the Care Inspectorate.
The Faculty of Advocates and the Law Society of Scotland both felt that the duty should be placed on the same independent body which they would like to be responsible for the quality assessment function.
As highlighted above some respondents felt that the same organisation that undertakes the quality assessment role should also be responsible for oversight, whether that be the Care Inspectorate or another standalone independent organisation.
A number of other respondents felt that further clarification about the oversight role and, specifically, how it works in relation to the quality assessment role needs to be clear. Some respondents felt that the two roles must be distinct, for example, Shetland Islands Council raised a concern that there could be areas for cross-over which could result in those involved in Appropriate Adult service delivery providing the same or similar information to the bodies responsible for quality assessment and oversight.
Seven respondents mentioned SAAN in their answers to this question. Most of them highlighted that there could be overlap between the oversight function and SAAN’s role and said there needs to be clarity in respect of this.
As stated above, the Mental Welfare Commission felt that a managed network could be a possibility for the oversight role but acknowledged that it should not continue to be undertaken by “an informal network with no legal status”, a view that was echoed by the Law Society.
North Lanarkshire Council and Roxanna Dehaghani said that the oversight role could be taken on by the Mental Welfare Commission, but the former questioned if the Commission has capacity to take on extra duties and, if not, the “role of SAAN could be bolstered through legislative frameworks or guidance and SAAN could provide or contribute to the oversight role”; while the latter said that SAAN could facilitate the oversight role.
City of Edinburgh – Appropriate Adult Service agreed that the Mental Welfare Commission should take on the oversight role but said there could be a conflict of interest as the Commission is currently “an equitable member of SAAN”. They have suggested that the Commission could chair SAAN, as did Fife Health and Social Care Partnership and one individual.
As mentioned above, COSLA suggested that a national co-ordinator may have a role as part of the oversight function and this was also suggested by Social Work Scotland. They suggested that such a role, which would be similar to the national co-ordinator role in Adult Support and Protection, “could co-ordinate with all relevant stakeholders and users of services” as part of the oversight function.
Three respondents felt that it was important for the Commission to have input from people accessing the Appropriate Adult service. One individual felt that the Commission would need to rely on advocacy services and other similar organisations for this input, while Support in Mind Scotland suggested that the Community Justice Voluntary Forum could play a part by helping to gather feedback, contributing to guidance and other similar functions.
The Police Scotland Corporate Response highlighted that other agencies, particularly those in the criminal justice sector, would be required to support the Commission if the duty for oversight is placed on them.
The Mental Welfare Commission response highlighted that their willingness to take on the role was subject to funding and resources and this issue was also raised in some other responses. Highland Appropriate Adult Service questioned if the Commission has the resources to take on the oversight role, while the Equality and Human Rights Commission said it was vital that the Mental Welfare Commission be “provided with the relevant powers and resources to ensure this role is carried out effectively”.
Do you agree with the proposed functions of oversight role?
Of the 92 respondents who agreed with the proposed functions, 52 (47.7% of total respondents) had nothing further to add to what was suggested.
Both COSLA and Glasgow Health and Care Social Partnership said the oversight role should have a wider context than what was proposed and that the Scottish Government should provide a definition of what Appropriate Adult service delivery should be. The latter also felt that the Scottish Government should be more involved in the oversight and guidance functions, and reiterated that they felt that one organisation should “take forward the administration, logistics, service delivery and training of Appropriate Adults”.
One individual who did not agree with the proposed functions said that the purpose of Appropriate Adult services should be defined in legislation, rather than in guidance.
Fife Health and Care Partnership said they did not agree because SAAN fulfils most of these functions. Just as some respondents who agreed with the proposal for the oversight role suggested in Question 8, Fife suggested that the Mental Welfare Commission could chair SAAN and produce a national annual report on the various functions of the statutory service.
Although not a specific function, ensuring that there is involvement from a wide range of stakeholders with the oversight body was the most popular suggestion with 10 respondents mentioning this.
Again some respondents highlighted the work already carried out by SAAN and the network of links that they have established but acknowledged the need for a statutory body.
“It has an advisory board to provide national oversight, structures to support collaborative development of regional services, delivers training, has working groups to take forward policy and practice development, supports research and data gathering and analysis, and maintains a quality improvement framework.
This example ties in the suggestions made by a number of respondents in relation to the wide range of stakeholder input they would like to see as part of the oversight function.
A number of respondents reiterated that they agreed that the oversight role should provide a definition of what the statutory service should deliver and that centrally produced good practice guidance would be vital for consistency across the country. Some respondents felt that a formal structured document would be a good way of ensuring quality and consistency: Roxanna Dehaghani said that the oversight body could produce National Standards and suggested that those produced by the National Appropriate Adult Network (NAAN) could be used as a model; while the Faculty of Advocates said that consideration should be given to a Code of Conduct. Clackmannanshire Health and Social Care Partnership and the Forth Valley Appropriate Adult Steering Group also both suggested that there should be a Code of Conduct in their answer to Question 10 (“Additional comments”).
Appropriate Adults Tayside took a different view and queried if the proposed good practice guidance should be approved by the oversight body rather than produced by it. This was partially echoed in the responses from the two Renfrewshire organisations involved in Appropriate Adult service delivery who said that the good practice guidance should clarify the functions of the oversight role.
As well as setting standards in the form of guidance and codes, a number of respondents felt that there should be a link between the oversight function and training, with suggestions that the oversight body could have a role in the development of the framework and then be responsible for monitoring, reviewing and updating the framework.
Three respondents said that the oversight function should incorporate the recruitment, retention and development of Appropriate Adults. ENABLE Scotland felt that the oversight body should include ongoing assessment of individuals who apply to take on the role and Central Advocacy Partners said that more supervision and support should be given to Appropriate Adults.
An individual said that protocols and strategies in relation to recruitment and retention strategies should be part of the oversight role, but that the role should be carried out by the Care Inspectorate.
Four respondents suggested that the oversight role should incorporate functions relating to complaints and feedback. Deafscotland said that the role should be customer focussed and take suggestions/be a point of contact for complaints. Argyll and Bute Health and Care Social Partnership highlighted that the Mental Welfare Commission, as the oversight body, could undertake investigations into complaints and allegations of poor practice. One individual felt that it was important for the oversight role to confirm that Appropriate Adult services are independent and transparent when interacting with people accessing and using the service.
The Forensic Network did not think that the oversight body should undertake such work itself, but said that it could highlight cases to the Care Inspectorate (if it is the quality assessment body) where there have been issues in court proceedings due to individuals not understanding their rights despite the presence of an Appropriate Adult.
Three respondents felt that there should be a specific function relating to oversight of the police and their procedures in relation to Appropriate Adults. The Care Inspectorate reiterated the role that Her Majesty’s Inspectorate of Constabulary in Scotland (HMICS) could play in relation to this.
Two individuals felt that the oversight role should also make sure that paperwork is fit for purpose in relation to vulnerable adults. They both highlighted sections in the “Police Interview – Rights of Suspects” (PIRoS) form that they had experience of causing issues because of the format and content.
North Lanarkshire Council said that there is limited Scottish research in relation to Appropriate Adults and surrounding issues and suggested this is something that could become a function of the oversight role, and such research could then be used to develop policy and contribute to good practice guidance.
One individual and participants at the consultation workshops highlighted that there is not always clear information about the role of the Appropriate Adult and the oversight body could play a part in relation to raising awareness of the service.
A number of respondents discussed the need for communication support at other stages in the criminal justice process - including the use of intermediaries - and suggested that Appropriate Adults should be allowed to be present during solicitor consultations. These responses are included in the analysis of Question 2 as a number of respondents also raised these issues when answering that question.
The Centre for Youth and Criminal Justice highlighted that they would welcome further attention as to how best to provide communication support for those aged under 16.
There was agreement that a statutory service is a positive development in terms of creating and maintaining consistency. There was also a general consensus that if the duty for delivery is to be placed on local authorities it will be important to ensure that any guidance and frameworks are clear and are developed with input from all relevant stakeholders.
Some respondents acknowledged the need for consistency, but also stressed the importance of flexibility for areas to tailor services to suit the needs of the local population and take into account geographical factors. The issue of cross-border requests was raised by some respondents and sought clarification on this as they said it could have a disproportionate effect on areas where there are more custody centres.
The importance of the right level of funding was raised, with many respondents stating that additional funding would be required. A number of respondents highlighted issues they have experienced or of which they are aware in relation to resources and the availability of Appropriate Adults, in terms of providing the service and also in terms of training provision.
Some respondents also highlighted that they felt that there was a current ongoing issue in relation to resources as long periods of time could be spent waiting on solicitors to arrive at the police station.
A number of respondents said that raising awareness of the service was vital. It was suggested that this could be done by ensuring that there is specific training for police officers, that third sector organisations could play a part in raising awareness and that there should be a wide input from organisations representing a variety of sectors in relation to service delivery. Many respondents felt that it would be important for people with lived experience and those who had accessed the service to be involved in the setting up and oversight of the service.
Some respondents who currently carry out the role of an Appropriate Adult said they felt that not enough had been done to engage with Appropriate Adults themselves in developing the models for the statutory service and wanted steps to be taken to increase their involvement in taking things forward.
Some respondents said that they had issues with some of the language used in relation to the service. This was raised in response to Question 10 and also to Questions 1 and 2.
ENABLE Scotland and participants at the workshop held in conjunction with Support in Mind felt strongly about the name “Appropriate Adult” was not suitable for the service, with the former describing it as “patronising and anachronistic” and a number of participants at the workshop calling the name “offensive…patronising…condescending… disgusting”.
The SOLD Network highlighted an incident of which they were made aware when an individual with autism spectrum disorder refusing Appropriate Adult support because he felt “patronised by it” and this resulted in difficulties during the police interview.
Roxanna Dehaghani said that she felt the term “vulnerable adult” should not be used because it is “disempowering, outdated and offensive”.