Scottish Government

Chapter 10: Removal orders

1. This section provides guidance on section 14 of the Act which allows a council to apply to the sheriff for a removal order, which, if granted, allows the council to remove the adult at risk to a specified place. The purpose of a removal order is to assess the adult's situation and to support and protect them. This is a short-term order and, although effective for a maximum of seven days, it is envisaged that it will not be required to last that long in the majority of cases. A removal order will be granted only where the sheriff is satisfied that the adult is likely to be seriously harmed if not moved to another place and that there is a suitable place available to remove the adult to. The council must protect any property owned or controlled by an adult who is removed from a place under a removal order.

What is a removal order?

2. A removal order is one of three protection orders available under the Act. The other two are assessment orders and banning orders. A removal order permits the specified person to be moved from any place to protect them from further harm. The place from which the adult is to be removed is not specified. The place may be wherever the adult at risk is located after the order is granted. It may be for example, the adult at risk is currently being moved by the alleged harmer to avoid the consequences of the removal order. (For further information on assessment orders and banning orders, please see Chapters 9 and 11 respectively)

3. There is no requirement under the Act for the council to have previously arranged a visit under section 7, an interview under section 8, or medical examination under section 9 or to have applied for an assessment order. Protection orders may be applied for at any time in the process, depending on the individual case. Any proposed action must be judged on a case by case basis, including the use of other legislation, and be necessary to provide benefit to the individual.

4. Section 14 of the Act provides that a council may apply to the sheriff for a removal order which authorises:

• a council officer, or any council nominee, to move a specified person to a specified place within 72 hours of the order being made; and
• the council to take such reasonable steps as it thinks fit for the purpose of protection the moved person from harm.
• The adult at risk must however, be removed to a 'specified place' which has been assessed as both available and suitable for the purpose.
• The council must also protect any property owned or controlled by an adult who is removed from a place under a removal order.

Expiry of a removal order

5. A removal order expires 7 days (or such shorter period as may be specified in the order) after the day on which the person specified in the order is moved in pursuance of the order.

What to consider before applying for a removal order

6. Action can only be considered where the person is an adult at risk who is likely to be seriously harmed if not moved and there is available suitable accommodation to which to move that person. (For further information on what constitutes an adult at risk, please refer to Chapter 1)

7. Before the council or any person makes a decision or undertakes any function under the Act, they must have regard to the principles of the Act, impractical that any action will be the least restrictive action and is necessary to provide a benefit to the adult. The adult's wishes and needs must always be considered. (Further information on the principles of the Act are provided in Chapter 1)

8. Consideration must also be given as to whether the adult should be referred to an independent advocacy organisation or provided with other services. (Further information on adult support is provided in Chapter 3)

9. The removal order is for prevention of serious harm and not for some other purpose such as to facilitate a council interview or a medical examination. In a positive sense it may provide "breathing space" between the specified person and the alleged harmer. The removal order is primarily for protection and not for a council interview or a medical examination. The adult may consent to be interviewed or medically examined on a voluntary basis as if they were being visited under section 7.

10. It would be best practice to ensure wherever practicable the adult is kept fully informed at every stage of the process, e.g. whether an order has been granted, what powers it carries, what will happen next, whether they have the right to refuse, what other options are available etc. The council may consider discussing a Support Plan with the adult at risk or where appropriate, convene a multi-disciplinary meeting to discuss further care and protection issues.

11. The information gathered may point to further action being required, for example by providing the adult with support, advice or other services, or by taking further action under this Act or other legislation.

12. Removal will need careful consideration by all practitioners. If it is considered that the adult will refuse consent to the granting of the removal order, the council should re-consider the merit of the application. This may be in the form of a multi-disciplinary case conference. Protection orders should be only used when all other options have been explored and exhausted.

13. If the council decides to pursue an application where the affected adult has capacity to consent and has made known their refusal to consent, then the council must prove that the adult has been " unduly pressurised" by the person suspected of harming the adult. Where the adult does not have such capacity, then this requirement does not apply.

14. Where the adult is incapable of consent, it would be best practice to approach the Office of the Public Guardian to ascertain whether a guardian or attorney has powers to consent on their behalf. Where a guardian or attorney does not have such powers, consideration may be given to use the powers contained in the 2000 or 2003 Acts.

Who can apply for a removal order?

15. Only the council can apply for a removal order.

16. An application for such an order must be made to a sheriff (or in urgent cases a justice of the peace) of the sheriffdom (or commission area) in which the relevant premises is situated.

17. Although the application for the order must be made by the council, the council may choose to nominate another person, for example some-one from one of the co-operating bodies, to actually move the adult at risk. This may be important, if, for example, the nominated person is more familiar to the adult at risk than the council officer. It may be more reassuring for the person being removed if this was done by someone who they already know rather than a stranger.

18. The removal order will specify where the adult is to be removed to. Best practice would suggest a protection plan could be completed by the council and submitted with the application.

What are the criteria for granting a removal order?

19. Under section 15, the sheriff may grant a removal order only if satisfied:

• that the person in respect of whom the order is sought is an adult at risk who is likely to be seriously harmed if not moved to another place; and
• as to the availability and suitability of the place to which the adult at risk is to be moved.

20. The place where the adult at risk is removed from may not necessarily be their own home. They could be in public, private or commercial premises. The adult can be removed from any place in pursuance of a removal order. The adult is to be removed to the place specified in the order. The place the adult at risk actually lives may however be a contributory factor in the harm.

21. Best practice would be that the council provides a suitability report of both the place and the person willing to care for the adult at risk. The council should also obtain a written agreement from the owner of the proposed specified place where it is, for example, a private home or independent care provider to confirm the owner's willingness to receive the adult at risk for up to 7 days. The place to which the adult should be taken will be specified in the order.

Can an order be granted without an adult's consent?

22. Where the affected adult has capacity to consent and has made known their refusal to consent, then the council must prove that the adult has been " unduly pressurised" by the person suspected of harming the adult. Where the adult does not have such capacity, then this requirement does not apply.

23. Section 35(1) states that where the adult at risk has refused to consent, the sheriff, or the person carrying out the order, may ignore the refusal where the sheriff reasonably believes:

• that the affected adult at risk has been unduly pressurised to refuse consent; and
• that there are no steps which could reasonably be taken with the adult's consent which would protect the adult from the harm which the order or action is intended to prevent.

24. Section 35(4) states that an adult at risk may be considered to have been unduly pressurised to refuse to consent if it appears that:

• harm which the order or action is intended to prevent is being, or is likely to be, inflicted by a person in whom the adult at risk has confidence and trust; and
• that the adult at risk would consent if the adult did not have confidence and trust in that person.

25. Removal order applications are likely to be best considered in a multi-disciplinary case conference

26. Before applying for a removal order, consideration should be given to resolving the issue by other means. If this approach is unsuccessful, the council can formally apply to the court for a removal order. If the council chooses to pursue an application without the affected adult's consent, it will have to satisfy the sheriff that the adult has been unduly pressurised from the person suspected of harming the adult.

27. The most obvious relationships to assume confidence and trust would be between parent-child, siblings, partnerships and friendships. The assessment of this would depend on the development of the relationship and how the present harmful circumstances have changed this into undue pressure for the affected adult to refuse consent. It is to be expected that given the nature of a removal order, it will be executed shortly after it has been granted.

28. The sheriff must grant a warrant for entry at the same time as a removal order is granted.

Notifications and hearing

29. The council should notify the affected adult in writing of the application. This notification should advise the adult of their right to be heard or represented before the sheriff and to be accompanied by a friend, relative or any other representative chosen by the adult.

30. The affected adult may be heard or represented before the granting of a removal order. The affected adult has the right to be accompanied in court by a friend, a relative or any legal representative instructed by the adult.

31. The sheriff may require the council to allow a specified person to have contact with the adult at risk subject to specified conditions. Before doing so the sheriff must have regard to:

• representations of the council as to whether persons should be allowed to have contact with the adult at risk; and
• any relevant representations made by:
• • the adult at risk
  • any person who wishes to be able to have contact with the adult at risk; and
  • any other person who has an interest in the adult at risk's well-being or property.

32. The council should, if appropriate, advise any other persons who are known to have an interest in the person's well-being or property that the application is to be made. This would enable any such person to enter the proceedings.

33. There may also be times when a person who is concerned for the adult's welfare would wish to enter the proceedings and be heard by the sheriff, for example to ask that the adult be taken to a place other than that chosen b y the council as the "suitable place". Or where a hearing is disapplied there could be individuals who would wish to then apply for recall or variation of the order,)

34. Where the adult concerned has indicated that they do not wish legal representation, or it appears that they do not understand the process, this should be indicated to the court

35. Under section 41(6), the sheriff also has discretion to appoint a safeguarder to safeguard the interests of the affected adult at risk before deciding the application. The role of the safeguarder is to safeguard the interests of the affected adult at risk in any proceedings relating to an application. The sheriff may instruct the safeguarder to report on the issue of consent.

36. In cases where the sheriff has decided that a hearing should be held and the council becomes aware that the person suspected of harming the adult may also attend, for example where the adult wishes to be accompanied by that person, it would be best practice for the council to inform the sheriff prior to the hearing being held. The sheriff will then be able to decide whether to apply the provisions available under the Vulnerable Witnesses (Scotland) Act 2004.

Can conditions be attached to a removal order?

37. Section 15(2) provides that the sheriff may attach conditions to the grant of a removal order. This may require a council to allow any specified person to have contact with the adult at risk to whom the order relates:

• at any specified time during which the order has effect, and
• in accordance with any specified conditions

38. The sheriff may specify whether a named individual can have contact with the adult during the period of the removal order, and whether this should be subject to specified conditions. A purpose of such conditions would be to allow contact between the moved person and the person suspected of harming the adult at risk, or any other person, perhaps under supervised conditions, possibly as a first step to resolving the issue. It could also be that the adult is cared for in a domestic situation by a member of the family who ha become unable to care for them through exhaustion, stress of some other cause. Contact could be appropriate and reassuring to both parties. It should be borne in mind that representations may be made to the sheriff by any of the parties, either orally or in writing, for contact to be granted.

39. It may be inappropriate to have the adult at risk exposed to the alleged harmer during the period of the removal order, but contact with other persons may be beneficial, for example, relatives or friends. This issue could be addressed in advance with the adult.

40. Where a council is arranging conditions for contact, best practice would be for these to be clearly specified, for example through the preparation of an Access Plan. This would include dates/times and could provide that any contact takes place in an alternative location from where the adult has been moved to prevent further harm to the adult.

Must a hearing always be held?

41. The sheriff may disapply the requirement for notification and a hearing where they sheriff is satisfied that by doing so this will:

• protect the adult from serious harm, or
• not prejudice any other person affected by the disapplication.

42. Where the council considers that it would be prejudicial to the person's welfare for a hearing to be held by the sheriff, then the council may ask the sheriff to dispense with intimation to the adult who is the subject of the application and other parties (see also paragraphs 29 to 36 on notifications and hearings). The council should provide the sheriff with their reasons to assist the sheriff in reaching a decision. Best practice would be that the council should advise any person with an interest in the adult's welfare that the adult has been removed.

Warrant for entry

43. The sheriff (or justice of the peace) must grant a warrant that authorise a police constable to use reasonable force in order to achieve the purpose of the visit. Wherever possible, entry to premises should first be attempted without force. It must be borne in mind that the use of force is an absolute last resort, to be used in very exceptional circumstances, and only when all other options have been exhausted.

44. It is important that a multi-disciplinary plan be prepared in advance on how to carry out the entry and removal of the person. In order to minimise distress and risk to the adult at risk, the procedure should be carefully planned and co-ordinated with all those involved in the process. The plan should also include contingencies in case the adult or a person present does not respond as expected. Where it is anticipated that the use of force may be necessary to execute the order, a multi-disciplinary assessment of the risk should similarly be undertaken. In such circumstances, management of the process should be passed on to the police to enable them to address the issue of safety of all parties concerned. However, all parties involved should bear in mind the general principles in sections 1 and 2 of the Act.

45. Once a warrant has been executed, it cannot be used again.

Timescales within which an order must be carried out

46. Given the nature of the order, it is to be expected that it will be executed quickly. The removal must, in any event, be executed within 72 hours. The order will expire up to seven days after the day the adult was actually moved, not counting the day the adult was moved, and would expire at midnight on the final day. The order can be specified by the sheriff to expire in a shorter period. The adult at risk cannot be returned home and then removed again within this period.

47. A further application for a removal order must not be made with a view to extending the order. This is to avoid the unintended consequence of an adult being out of their home for longer than is necessary. For example, if someone has been harmed it may be necessary to take them to another place temporarily so that they can be given food and rehydrated. The intention as far as is practically possible would be to return them to their own environment as soon as possible.

48. The council should always consider as short a removal period as possible in line with the general principles of benefit, least restriction and the adult's wishes. This removal period is a very short time interval so may only be used for very specific purposes. It may be that the removal order can be used for to resolve any issues between the affected adult and the person suspected of harming the adult. In some cases this could be carer stress. The removal must be for the purpose of preventing serious harm.

What can be done in cases of urgency?

49. Section 40 of the Act provides that a council can apply to a justice of the peace of the commission area in which the adult is located, where:

• it is not practicable to make application to the sheriff; and
• an adult at risk is likely to be harmed if there is any delay in granting the order.

50. The justice of the peace must be satisfied that the person is an adult at risk who is likely to be seriously harmed if not moved to another place and that the adult is to be removed to a place that is suitable and available. However given that applications to a justice of the peace are only made in emergency situations, the justice does not have to be satisfied that the adult consents to the removal or that any refusal is due to the adult being unduly pressurised. The justice of the peace must also grant a warrant for entry.

51. The adult at risk must be removed within 12 hours of the grant of the removal order and the order expires after 24 hours.

52. Best practice would be that the council should advise any person with an interest in the adult's welfare that the adult has been removed.

What if the adult at risk has moved location before the removal order can be carried out?

53. It may be that the adult at risk has either left the premises or been moved by another person to avoid the consequences of the removal order.

54. The removal order does not specify the place from which the adult must be removed, however the warrant for entry does. This means that if a person is moved to a second place in the period between the removal order and warrant being actioned, and it is anticipated that entry by warrant will be necessary, then a fresh application for a warrant must be made to either a sheriff or justice of the peace.

Can a removal order be varied or recalled?

55. Section 17 provides that an application may be made to the sheriff to recall or vary a removal order. Application may be made by:

• the adult at risk
• any person who has an interest in the adult at risk's well-being or property; or
• the council.

56. The sheriff may vary or recall the removal order if satisfied that the variation or recall is justified by a change in the facts or circumstances in respect of which the order was granted or, as the case may be, last varied.

57. The removal order may not be varied so as to authorise the council to do anything seven days after the day on which the adult at risk is moved in pursuance of the order.

58. Where the sheriff has recalled the removal order, the sheriff may direct the council to:

• return the adult to the place from which the adult was removed; or
• take the adult to any other place which the sheriff, having regard to the adult's wishes, may specify.

59. As with the initial application, the sheriff has the discretion to disapply the notification requirements and hearing where the sheriff considers that by doing so it will protect the adult at risk from serious harm or will not prejudice any person affected by the disapplication.

Who has responsibility for caring for the adult's property?

60. Section 18 deals with protecting the adult at risk's property, whether owned or controlled, from being lost or damaged.

61. The Act provides that the council must take reasonable steps to prevent any property owned or controlled by person moved in pursuance of a removal order to:

• prevent it from being lost or damaged [section 18(1)];
• enter any place to remove the property [section 18(2)];
• take any reasonable steps to safeguard the property.[section 18(4)].

62. Property could include the contents of a house, vehicles, animals, livestock, cash, bank accounts, credit cards and clothing.

63. The council is not entitled to recover any expenses it incurs in relation to property owned or controlled by the adult removed whilst the removal order has effect. The council has to return the property to the adult at risk as soon as is reasonably practicable. This could be agreed in advance with the adult at risk in the form of a Protection Plan.

What happens after the order expires or the adult wishes to leave?

64. Although the Act does not make explicit what happens after an order expires or the adult chooses to leave, the council continues to have a duty of care to return the adult safely to the place from which they were removed or to a place of their choice, within reason.