The Adult Support and Protection (Scotland) Act 2007
Aims and Legal Duties in Adult Support and Protection
Briefing Report for Level 2
Aims of Part 1 of the Act
Part 1 of the Adult Support and Protection (Scotland) Act 2007 ("the Act") makes new provisions intended to protect those adults who are unable to safeguard their own interests, such as those affected by disability, mental disorder, illness or physical or mental infirmity, which adversely affects their ability to protect themselves from harm, exploitation or neglect.
The Adults with Incapacity (Scotland) Act 2000 provides the means to protect those with incapacity, for example through financial and welfare guardianship whilst the Mental Health (Care & Treatment) (Scotland) Act 2003 provides powers and duties in relation to people with mental disorder.
Although these Acts introduced some protective measures for those with a mental disorder or incapacity of some sort, there were still adults outwith the scope of these Acts that suffered harm. The Adult Support and Protection (Scotland) Act 2007 therefore completes the suite of protective measures available.
The Act was approved by the Scottish Parliament in February 2007, with Part 1 in force from October 2008.
Key elements of Part 1 of the Act - what does the new Act introduce?
principles governing intervention in an adult's affairs
definitions of an 'adult at risk' and 'harm'
statutory duties on councils to inquire and investigate
Duty to consider the provision of advocacy and other services
Duties of cooperation
offences
three types of protection order
duty to establish Adult Protection Committees.
What do staff need to know?
Staff in social work and social care, health, police, housing, independent advocacy and other services need to know about four key features in Part 1 of the Act:
the principles to be followed in adult protection interventions;
the definitions of an 'adult at risk' and 'harm';
the statutory duties to inquire and investigate;
the three types of protection order.
Principles
The principles apply to any public body of office holder authorising any intervention or carrying out a function in relation to an adult. For example, they apply to any social worker, care provider or health professional intervening, taking a decision or action under the act must be able to demonstrate that the principles have been applied.
Section 1 of the Act sets out the following overarching principles:
These principles are further developed in section 2 of the Act, which states that any public body or staff member must, if relevant, have regard to:
the wishes and feelingsof the adult;
the viewsof the adult's nearest relative, carer, guardian, attorney or other person who has an interest in the adult's well-being or property;
the importance of the adult's p articipation, and providing them withinformation and support to enable them to participate;
ensuring that the adult is not treated less favourablythan any other adults in a comparable situation;
the adult's abilities, background and characteristics.
These are important principles for anyone working with adults at risk.
Adults at Risk - definition
The Act defines adults at risk as Adults, aged 16 and over, who:
a)are unable to safeguard their own well-being, property, rights or other interests;
b)are at risk of harm; and
c)because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.
All three elements of the definition must be met for action to be taken under the Act.
It is the combination of an adult's particular circumstances which can combine to make him/her more open to harm than others.
Harm - definition
The Act says Harm includes all harmful conduct and, in particular, includes:
a)conduct which causes physical harm;
b)conduct which causes psychological harm (e.g. by causing fear, alarm or distress);
c)unlawful conduct which appropriates or adversely affects property, rights or interests (e.g. theft, fraud, embezzlement or extortion);
d)conduct which causes self-harm.
This means that the Act covers harm caused by neglect (deliberate or unintended), financial and material harm, psychological and emotional harm, physical harm, and sexual abuse. It may include ' adults at risk' experiencing domestic abuse.
The Act also covers harm that takes place in a variety of settings, for example in people's own homes, support, care or health settings, and whether the harm is caused by the adult themselves of by carers, neighbours, friends, professional and service staff or others.
Inquiries and investigations
The Scottish Government has published a code of practice containing guidance for those exercising functions under the Act. Those using the code are advised to check the relevant measures themselves and to seek their own legal advice as required.
Inquiries
Under the Act, Councils have a statutory duty to make inquiries about the well-being, property or financial affairs if they know or believe that the person is an adult at risk and that they might need to intervene to take protective action. Councils also have a duty to consider the provision of appropriate services to the adult concerned, including, in particular, independent advocacy.
Investigations
Council Officers have the power to carry out investigations through visits and interviews and through examination of records (except health records).
Health professionals have the power to carry out medical examinations as part of investigations and to examine health records.
Adults have the right not to answer any questions and to refuse to be medically examined, and must be told of these rights before the start of any interview or medical examination.
Councils also have a duty to consider the provision of appropriate services to the adult concerned, including, in particular, independent advocacy.
Protection orders
The Act introduces three types of protection order: assessment orders; removal orders; and banning orders or temporary banning orders. Decisions about any protection order must reflect the principles of the Act.
An assessment order allows for an adult at risk of serious harm to be taken to a more suitable place in order to conduct an interview in private or a medical examination in private.
A removal order permits an adult who is likely to be seriously harmed if not moved, to be moved to a suitable place for up to 7 days.
A warrant for entry must also be granted when either of these orders are made.
A banning order, or temporary banning order, bans the subject of the order from being in a specified place, or subject to specified conditions, for up to six months. The Sheriff can also attach a power of arrest to the order.
Note: Protection orders should not be granted where the adult refuses to consent. However the sheriff can ignore the refusal where it is believed the adult has been unduly pressurised to refuse consent and there are no other steps which could reasonably be taken with the adult's consent to protect the adult from the harm.
What do staff need to do?
All Local authority staff in social work, social care, housing and other Council services, NHS staff, and Police have duties under the Act. When they are involved with or are concerned about an 'adults at risk' who may be experiencing 'harm' then the Act defines how they should act in relation to:
Duty to cooperate
The Act sets out statutory duties of co-operation for certain public bodies and their office-holders: Councils; NHS Boards; the Police; the Care Commission; the Mental Welfare Commission; and the Public Guardian.
These bodies and their staff must:
This means that all staff must refer concerns to the council's social work service following local adult protection procedures, and must work with council, health service, police and care commission staff in assessments and decision-making about adults at risk who may need support and protection.
Offences
The Act makes it an offence to prevent or obstruct any person from doing anything they are authorised or entitled to do under the Act, such as making enquiries and visits, carrying out interviews and medical examinations, and implementing Protection Orders.
It is also an offence to refuse to comply with a request to provide information in relation to the examination of records, unless there is a reasonable excuse for not doing this .
This applies to organisations, people in control of organisations and people working for them. This offence therefore applies not only to public services, but also to organisations and persons providing voluntary and private sectors services, commercial, financial and other businesses.
It does not apply to the adult at risk him/herself.
Adult Protection Committees
The Act requires councils to establish an Adult Protection Committee (APC), whose role is to:
review procedures and practices;
give information or advice, or make proposals;
make, or assist and encourage the development of knowledge and skills; and
improve co-operation between public bodies concerned.
Membership of APCs must include representatives of the Council, the NHS Board, and the Chief Constable of the police force for the council area. Membership may also include the Care Commission.
The above bodies and also the Mental Welfare Commission and the Public guardian must provide any information reasonably required by the APC in carrying out its functions.
The Convener of the Committee must be independent of the Council and must prepare a biennial report on the work of the Committee.
Scottish Ministers and others must be sent a copy of the report.
Requirements for Staff
If you are working in social care, health, police, housing and other services, you require to:
provide information and records, including medical records, to council officers and medical professionals who are making inquiries or investigating concerns of this kind and are seeking those records;
Further Information
The Scottish Government website provides further information about the Act, the code of practice and other information about the implementation of the Act.