Kevin Kerrigan and Philip Plowden, Northumbria University

The Appropriate Adult: the impact of recent mental health

legislation

Our helpful message to you:

Arthur Dent: ‘I like the

cover. "Don't Panic". It's the first helpful or intelligible thing anyone's said to me all day.’ Hitchhiker’s Guide to the Galaxy, Douglas Adams

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Overview

Changes to the Mental Health Act definition of mental disorder: makes no difference to appropriate adults

The Mental Capacity Act in the police station – consolidates the common law position; focuses minds; provides a statutory process for reviewing capacity and acting in best interests BUT does not significantly alter or affect the role of the appropriate adult

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Mental Health Act 2007 – change to definition of mental disorder

• Old version MHA 1983 s.1(2)

• “In this Act ‘mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind and ‘mentally disordered’ shall be construed accordingly.”

• Specific categories defined: severe mental impairment, mental impairment and psychopathic disorder.

• New version MHA 1983 s.1(2), in force 3 Nov 2008

• “In this Act— ‘mental disorder’ means any disorder or disability of the mind; and

• ‘mentally disordered’ shall be construed accordingly

• Specific categories removed 4

Old or new test? Makes no difference

Old test includes:“any other disorder or disability of the mind”

New test is: “any disorder or disability of the mind”

The test remains broad and inclusive.5

Learning disability under the new definition of mental disorder

• Learning disability is defined: “learning disability” means a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning.

• Note: this is exactly the same definition as “mentally handicapped” in s.77 PACE

• For the purpose of longer term detention a person with LD does not fall within the definition of mental disorder unless the disability is associated with abnormally aggressive or seriously irresponsible conduct on his part.

• However, this does not affect the police station in any way. LD still falls within the definition of Mental Disorder for the purpose of triggering the calling of an AA6

Drugs /alcohol and mental disorder

“2(3):  Dependence on alcohol or drugs is not considered to be a disorder or disability of the mind…” for the purpose of MHA

This does not prevent a person falling within the definition of mental disorder due to problems associated with their dependence e.g. alcohol induced brain damage or drug-induced psychosis.

PACE Code C is silent about the effect of alcohol / drugs on access to an AA.Note for Guidance 9C: “A detainee needing or dependent

on certain drugs, including alcohol, may experience harmful effects within a short time of being deprived of their supply. In these circumstances, when there is any doubt, police should always act urgently to call an appropriate health care professional or an ambulance.”

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Mental vulnerability remains relevant

Recall that PACE Code C requires an AA even if the suspect does not have mental disorder if they are deemed to be mentally vulnerable.

Code C Note for Guidance 1G: • ‘Mentally vulnerable’ applies to any detainee

who, because of their mental state or capacity, may not understand the significance of what is said, of questions or of their replies.

• When the custody officer has any doubt about the mental state or capacity of a detainee, that detainee should be treated as mentally vulnerable and an appropriate adult called.

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Curiously, PACE Code C currently reflects the old definition of mental disorder

• PACE Note for Guidance 1G:• ‘Mental disorder’ is defined in the Mental Health Act 1983, section 1(2) as ‘mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind’.

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The Mental Capacity Act 2005

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Capacity: key principles (s. 1(1))

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A person must be assumed to have capacity unless it is established that s/he lacks capacity.

Steps must be taken to help a person make a decision before they can be deemed unable to do so.

A person is not to be treated as unable to make a decision merely because s/he makes an unwise decision.

Action under the Act where a person lacks capacity must be done, or made, in his/her best interests.

Action taken should be the least restrictive of the person’s rights and freedom of action.

Relevance to Appropriate Adults?

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MCA Code introduction: The Code applies to anyone: acting in a professional capacity for, or in

relation to, a person who lacks capacitybeing paid for acts for or in relation to a person

who lacks capacity. “However, the Act applies more generally

to everyone who looks after, or cares for, someone who lacks capacity to make particular decisions for themselves. This includes family carers or other carers.

Does the AA “look after or care for” suspects in police stations?

A reminder of guidanceYou have a positive and important role. You should not

expect to be simply an observer of what happens at the police station.

You are there to ensure that the detained person for whom you are acting as appropriate adult understands what is happening to them and why. Your key roles and responsibilities are as follows: To support, advise and assist the detained person,

particularly while they are being questioned.  To observe whether the police are acting properly,

fairly and with respect for the rights of the detained person. And to tell them if you think they are not.

To assist with communication between the detained person and the police.

To ensure that the detained person understands their rights and that you have a role in protecting their rights. 13

Mental Capacity: issues in the police station?Query whether the MCA has significant impact in

the police station – it is primarily aimed at protecting from legal liability those who take steps in the care / treatment of incapacitated adults (s.5)

Potential issues are:The AA as a safeguard to help a vulnerable

suspect have the ability to make decisionsThe AA as assessor of whether a suspect has

the ability to make decisionsThe AA taking action in a suspect’s best

interestsParticular decisions e.g:

Whether to exercise rights Whether to answer questions

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NB. The AA is a paternalistic role regardless of capacity“... they may, without knowing or wanting to do so, be

particularly prone in certain circumstances to provide information that may be unreliable, misleading or self-incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person’s mental state or capacity.” Code C Note E2

For example, the AA has a power to:be present at certain stages in the detention process

e.g. Interview, ID proceduresconsult the Custody Recordmake representations e.g. Detention reviewsrequest legal advice advise the suspectobserve whether interview is proper and fairfacilitate communication

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What is ‘Capacity’? (ss.2,3)

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“For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

“It does not matter whether the impairment or disturbance is permanent or temporary.”

A person is unable to make a decision for him/herself if s/he is unable:

a) To understand the information relevant to the decision

b) To retain that informationc) To use or weigh that information as part of the

process of making the decision, ord) To communicate his/her decision [‘Information’ includes information about the

reasonably foreseeable consequences of either deciding one way or the other, or of failing to make the decision.]

Examples of impairment / disturbance of mind / brain functioning

Conditions associated with some forms of mental illnes

DementiaSignificant learning disabilitiesThe long-term effects of brain damagePhysical or mental conditions that cause

confusion, drowsiness, or loss of consciousness;

DeliriumConcussion following a head injuryThe symptoms of alcohol or drug use

MCA Code 4.12

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Capacity example

George has a learning disability. He has a very low IQ and significant impairment of social functioning.

He is detained to be questioned on suspicion of sexually assaulting a child at a local swimming pool.

The custody officer calls an Appropriate Adult and then informs George of the following rights:S.58 right to a solicitorS.56 right to have someone informedRight to remain silent

What capacity issues might arise?18

The AA as a safeguard of capacity?

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S.1(3): A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

MCA Code 2.6: People with an illness or disability affecting their ability to make a decision should receive support to help them make as many decisions as they can. This principle aims to stop people being automatically labelled as lacking capacity to make particular decisions.

E.g. AA explaining procedures or facilitating communication

The AA as an assessor of whether a suspect has capacity?

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“The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual at the time the decision needs to be made. This means that different people will be involved in assessing someone’s capacity to make different decisions at different times.

For most day-to-day decisions, this will be the person caring for them at the time a decision must be made. .. (MCA COP 4.38)

The police are clearly covered by the MCA as “the person caring for them” in the police station. Could the AA also be covered?

Don’t assume that all mentally disordered suspects lack capacity

If you assess capacity you should take practical steps to record your reasoning, the AA should nevertheless be willing to express concerns over capacity where appropriate.

‘Best interests’ (s.4)

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No statutory definition

Instead a checklist of factors to be considered

The person taking action must reasonably believe that it is in the best interests of the person concerned.” (s.4(9))

Factors to be taken into account in deciding ‘best interests’ s.4

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The decision-maker(s) must “consider all relevant circumstances” when deciding what is in a person’s best interests, and in particular:

•Consider whether (and if so, when) the person will have capacity;

•permit and encourage participation by the person;

•Consider the person’s past and present wishes and feelings, his/her beliefs and values which would be likely to influence his/her decision if s/he had capacity, and other factors s/he would be likely to consider;

•Take into account the views of certain concerned people e.g. carers, or person interested in his/her welfare

Assessing best interests: example

Michael suffers from bipolar disorder. He failed to take his medication and has been arrested on suspicion of causing grievous bodily harm for allegedly hitting his wife with a claw hammer. Dieter is an experienced volunteer who is appointed as Michael’s appropriate adult.

Michael is taken to hospital where he is given an intramuscular injection of Olanzapine. He sleeps in the hospital for several hours and is brought back to the police station. He is calmer but Dieter is still concerned about his capacity.

The police intend to interview Michael about the assault and ask him in Dieter’s presence, whether he wants a solicitor. Michael declines, saying he wants to get everything off his chest without interference; Michael’s mother has telephoned asking if Michael can have a solicitor.

If Michael lacks capacity is it in his best interests to have a solicitor? What if Dieter thinks Michael does have capacity?23

The AA taking action in a suspect’s best interests?

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The MCA covers acts in connection with the “care or treatment” of a person

It is unclear to what extent the role of the AA is concerned with the care or treatment of a suspect in the police station

Examples may include:Providing confidential information to third partiesRequesting a second opinion about clinical mattersMaking representations to the policeInstructing a lawyer

NB the AA has very little power over how the suspect is treated whereas the police have significant powers

Taking action in best interests - example

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Jade suffers from schizophrenia. She is detained on suspicion of manslaughter. She is alleged to have thrown a stone at a car, causing it to crash. Asha, a social worker, is called as Jade’s appropriate adult.

Jade is suffering from paranoia and will not speak to any police officer. She tells Asha that the police assaulted her when they arrested her and that they have threatened to get her sent to prison if she does not come clean.

What steps, if any, should Asha take?

Should a suspect be interviewed?Fitness for interview is not the same as incapacity.The police cannot interview a suspect if it would

cause significant harm to their physical or mental health.

Otherwise, the police are permitted to interview if they determine the risks and necessary safeguards under Code C and Annex G.

In theory the police may seek to interview someone whom the AA feels lacks capacity to understand questions or replies or to understand the right to silence.

The custody officer determines fitness for interview following advice from a health care professional

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Fitness for interview: example

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John has a learning disability. He is detained on suspicion of aggravated arson. He is alleged to have set fire to his sheltered accommodation putting other residents at risk.

The police surgeon sees John and advises the police that he is fit to be interviewed. The custody officer agrees to an interview taking place if there is an AA present.

Colleen is John’s AA. She asks John if he understand the caution and he says, “Yes, it means I have to tell the truth or I will go to prison.” Colleen forms the view that John cannot understand, retain and use or weigh information about his right to answer or not answer police questions.

What steps, if any, should Colleen take?