Chapter 2: Council duties and powers, definition of council officer, duty to co-operate and role of voluntary organisations
1. This chapter sets out the duties and powers of councils. It explains out who may act as a council officer undertaking investigations and other duties under the Act. The chapter concludes with information about the duty of other bodies to co-operate with the council and a short overview on the role of voluntary organisations.
General principles
2. Sections 1 and 2 of the Act set out the principles and other matters which those who propose to perform functions under the Act require to take into account. Section 1 only allows a person to exercise a function under the Act to where that is reasonably required to provide a benefit to the adult concerned and is, from the options available, the least restrictive to the adult's freedom. (For further information on the principles, please refer to chapter 1)
What are a council's duties under the Act?
3. The Act places duties on the council to:
- make inquiries to establish whether action is required, where it is known or believed that an adult is at risk of harm and that intervention may be necessary to protect the adult (Section 4);
- co-operate with other councils and other listed (or prescribed) bodies and office holders (Section 5);
- have regard to the importance of the provision of appropriate services (including, in particular, independent advocacy services), where the council considers that it needs to intervene in order to protect an adult at risk of harm (Section 6);
- inform any adult interviewed that they may refuse to answer any question put to them (Section 8);
- inform an adult believed to be at risk that they may refuse to consent to a medical examination (Section 9);
- protect property owned or controlled by an adult who is removed from a place under a removal order. This may include moving property belonging to the adult from that place, where this is considered reasonably necessary in order to prevent the property from being lost or damaged. The council must ensure the property is returned to the adult concerned as soon as reasonably practicable after the relevant removal order ceases to have effect (Section 18);
- visit a place at reasonable times only, to state the object of the visit and produce evidence of authorisation to visit. Council officers may not use force to facilitate, or during, a visit. However, a sheriff or justice of the peace may authorise the police to use force (Sections 36 to 40);
- set up an Adult Protection Committee to carry out various functions in relation to adult protection in its area, and to review procedures under the Act (Section 42). The Adult Protection Committee may cover more than one council area. (For further information on the involvement of independent providers in Adult Protection Committees please refer to Chapter 3).
What are a council's powers under the Act?
4. The Act enables a council to:
- visit any place necessary to assist inquiries under section 4. Council officers may interview, in private, any adult found at the place being visited, and may arrange for a medical examination of an adult known or believed to be at risk to be carried out by a health professional. Health, financial and other records relating to an adult at risk may be requested and examined. Only a health professional may inspect health records (Sections 8 - 10);
- apply to the sheriff for the grant of a protection order. This may be an assessment order, a removal order, a banning order or temporary banning order (Sections 11 - 22); and
- in pursuance of a protection order, enter any place where the adult at risk is and to remove that adult where this is authorised by a removal order (Section 16).
Who can act as a council officer for the purposes of the Act?
(Guidance on who can act as a council officer to be inserted after consultation exercise)
5. Where it is known or suspected that an adult is at risk, the Act places a duty on the council to make the necessary inquiries to establish whether or not action is required to stop or prevent harm occurring.
6. Council officers have rights of entry to places where adults are known or believed to be at risk of harm. If, following inquiries or investigations, a council officer believes that action is required, the council can apply to the sheriff for a protection order. The range of protection orders include assessment orders (which may be to carry out an interview or medical examination of a person), removal of an adult at risk and the banning of the person causing, or likely to cause, the harm from being in a specified place.
7. Given the need to act with sensitivity and professionalism in situations where interventions must be carried out, it is important that those authorised to intervene are suitably qualified and trained to do so.
8. Section 53 (1) of the Act defines a council officer as an individual appointed by a council under section 64 of the Local Government (Scotland) Act 1973. Section 52(1) of the Act enables Ministers to restrict the type of individual who may be authorised by a council to perform council officer functions.
Duty to co-operate
9. Section 5 provides that certain bodies and office holders must, so far as is consistent with the proper exercise of their functions, co-operate with a council making inquiries under section 4 and with each other where such co-operation is likely to enable or assist the council making those inquiries and where this is consistent with the proper exercise of their functions. A proper exercise of a public body's functions may include being bound by a duty of confidentiality however, it should be noted that under section 5(3) if the public body or office holder knows or believes that a person is an adult at risk and that action needs to be taken under Part 1 of the Act to protect them from harm then the facts and circumstances of the case must be reported to the council for the area in which it considers the person to be.
The bodies and office holders listed in section 5 are
- the Mental Welfare Commission for Scotland;
- the Care Commission;
- the Public Guardian;
- all councils;
- chief constables of police forces;
- the relevant Health Board; and
- any other public body or office-holder as the Scottish Ministers may by order specify. (Scottish Ministers have not specified any other bodies at the time of publication)
10. Where a named public body or office-holder knows or believes that a person is an adult at risk and action needs to be taken in order to protect that person from harm, then that public body or office-holder must report the facts and circumstances of the case to the council for the area where they believe the person to be located. Staff should also be clear who they have a duty to report to within their own organisations.
Co-operation between bodies
11. What one person or public body may know may only be part of a more worrying picture. Best practice would be that all relevant stakeholders would co-operate with assisting inquiries, not only those who have a duty to do so under the Act. Councils may therefore wish to review their contract agreements with voluntary or private sector providers to ensure that their services are consistent with the principles of the Act. (For further information about information sharing and confidentiality, please refer to Chapter 8)
Multi-disciplinary approach
12. Many different professionals in statutory agencies and other organisations have contact with adults at risk of harm including social workers, medical and nursing staff and other health professionals, psychologists, staff delivering care services, Procurators Fiscal, the police and staff of voluntary organisations. A multi-agency and multi-disciplinary approach to inquiries, investigations and training between the council, other bodies and specialist voluntary organisations is therefore desirable. (For further information on Adult Protection Committees, please refer to Chapter 13)
The role of voluntary and private organisations
13. A wide range of voluntary and private organisations in Scotland work with adults and provide a range of services. While these organisations do not have specific legal duties or powers under the Act, as care providers they have a responsibility to involve themselves with the Act where appropriate by contributing to investigations. These organisations should discuss and share with relevant statutory agencies information they may have about adults who may be at risk of harm. They may also be a source of advice and expertise for statutory agencies working with adults with disabilities, communication difficulties or other needs. Bodies will also have a legal duty to comply with requests for examination of records.
14. Adult Protection Committees will establish mechanisms for developing policies and strategies for protecting adults at risk of harm which should be formulated, not only in collaboration and consultation with all relevant agencies, but to also take account of the views of service users, families, carer representatives and local voluntary and private providers.
15. The voluntary sector may also be represented on Adult Protection Committees, after consideration is given to the balance of membership.