THE ADULT SUPPORT AND PROTECTION (SCOTLAND) ACT 2007:
ENTRY AND REMOVAL POWERS
The provisions of the Adult support and protection (Scotland) Act 2007 ("the 2007 Act) are scheduled to come into effect on the 29th October 2008.
Under the 2007 Act, a justice of the peace may, in cases of urgency grant:
- warrants for entry in relation to a visit;
- removal orders which authorise an adult at risk who is being, or likely to be, seriously harmed to be moved to a suitable place.
The purpose of this minute is to provide a brief overview of the role of justices of the peace in relation to these powers.
Annex A provides background of the legislative provisions and the procedures to be followed.
Annex B contains the non-statutory forms which may be used for applications, warrants and removal orders. These are:
JP01 - application for a warrant for entry in relation to a visit
JP02 - warrant for entry in relation to a visit
JP03 - application for a removal order
JP03 - removal order - warrant for entry to be issued at the same time
Please do not hesitate to get in touch should you require any further information.
Lynn Anderson
Adult Protection Legislation Team
Adult Care and Support Division
Room 2 E(R)
St Andrews House
Regent Road
Edinburgh
EH1 3DG
Tel: 0131 244 3287
lynn.anderson@scotland.gsi.gov.uk
October 2008
ANNEX A
Background and description of legislative provisions
Background
The policy intention behind the Act has been developed over a number of years, particularly since the Scottish Law Commission published its position paper and draft Vulnerable Adults Bill in 1997. This report highlighted an increasing awareness of the abuse, deprivation and exploitation experienced by some vulnerable adults and a lack of appropriate legislation to tackle it effectively.
This new piece of legislation aims to protect adults from the many forms that harm can take whether this is physical or psychological harm, neglect, sexual abuse or financial exploitation. It applies to adults who are affected by disability, mental disorder, illness or physical or mental infirmity, who are more vulnerable to being harmed than other adults.
Section 4 of the Act requires a local authority to make inquiries if it knows or believes that the adult is an "adult at risk" and that it might need to intervene in order to protect the adult's well-being, property or financial affairs.
The intention of the Act is not to infringe on a person's independence but to offer support and, where necessary, protection to those who are at risk of harm and unable to act to protect themselves.
Definition of adult at risk
The Act defines "adult at risk" as:
"adult at risk"
Section 3(1) defines "adults at risk" as persons over 16 years of age who:
- are unable to safeguard their own well-being, property, rights or other interests;
- are at risk of harm; and
- 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
"risk of harm"
Section 3(2) makes clear that an "adult" is at risk of "harm" if:
- another person's conduct is causing (or is likely to cause) the adult to be harmed, or
- the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm
"harm"
Section 53 states harm includes all harmful conduct and, in particular includes:
- conduct which causes physical harm,
- conduct which causes psychological harm (for example by causing fear, alarm or distress),
- unlawful conduct which appropriates or adversely affects property, rights or interests (for example theft, fraud, embezzlement or extortion),
Note: The presence of a particular condition does not automatically mean an adult is an "adult at risk". Someone could have a disability but be able to safeguard their well-being etc. it is important to stress that all three elements of this definition must be met.
Visits - warrant for entry
An example of when a warrant for entry may be required would be where a neighbour alleges than an alcoholic daughter-in-law is using up all of the mother in law's resources. Social work visit and are denied access by the daughter-in-law, who is clearly drunk. A warrant for entry could be helpful when carers or others are obstructing access and support to adults who are at risk. By virtue of the power to get through the door for the initial visit, it may also become clear that other legislation is more appropriate for particular situations, for example, measures under Adults with Incapacity or Mental Health legislation.
Under section 7, a council officer has the power to enter a residence or other property where an adult at risk may be, to investigate whether any action is required to protect the adult. In many cases this will mean visiting the place where the adult normally resides but it also includes places where the adult is residing temporarily or spends part of their time, for example, health care institutions, care homes, private residences, day care centres etc. The council officer is allowed to access to all parts of the place visited which includes any adjacent places, such as sheds, garages and outbuildings.
There may be times where the council officer is refused entry to the premises. An application may be made to the sheriff or a justice of the peace for a warrant authorising entry to premises. This will also allow a constable accompanying the council officer to use reasonable force to fulfil the object of the visit (section 37).
Application should be made to the sheriff wherever possible. However section 40 allows the council, in urgent cases, to apply to a justice of the peace instead of a sheriff for a warrant for entry in respect of visits under section 7. The council can only make application where they consider that:
- it is not practicable to apply to the sheriff and
- an adult at risk is likely to be harmed if there is a delay in granting the warrant.
Section 38(2) provides that the justice of the peace must also be satisfied that the council officer:
- has been or reasonably expects to be refused entry or otherwise unable to enter, or
- that any attempt to visit the place without such a warrant would defeat the object of the visit.
Under section 40(8), a warrant for entry granted expires 12 hours after it is granted.
There is no right of appeal to the sheriff against the grant of a warrant.
Removal Orders
A removal order authorises entry to a place and the removal of the adult at risk of serious harm to a suitable place. The purpose of a removal order is to assess the adult's situation and to support and protect them. The order does not authorise the detention of the adult therefore the adult is free to leave at any time.
One example of when a removal order may be applied for could be where the adult has complex care needs and their spouse is in the early stages of dementia and is clearly not coping with his/her caring responsibilities. Attempts have been made to put in services to support them but the spouse has refused. The adult is likely to suffer serious harm as a result. A removal order would allow the adult to be taken to a suitable place for the purpose of allowing a bath or re-hydration and a risk assessment and risk management plan to be put in place.
There is no requirement under the Act for the council to have previously arranged a visit under section 7 or any other order prior to making application for a removal order.
The council must protect any property owned or controlled by an adult who is removed under an order.
Under section 40 a justice of the peace can only grant a removal order if:
- it is not practicable to apply to the sheriff and
- is satisfied that the person for whom the application is made is an adult at risk and that person is likely to be seriously harmed if there is a delay in granting the order and the adult is not moved to another place, and that the place to which the adult at risk is to be moved is available and suitable.
Section 35 provides that where the adult at risk has refused to consent, the sheriff in considering making an order, or a person taking action to under an 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.
Undue pressure may be applied by an individual who may or may not be the person suspected of harming the adult. For example, a relative who is not suspected of causing the harm but does not, for whatever reason, wish the council to apply for an order may place undue pressure on the affected adult to refuse consent. Undue pressure may also be applied by a person that the adult is being threatened by or is afraid of.
The Act provides another example at Section 35(4) of what may be considered to be undue pressure:
- 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
- the adult at risk would consent if they did not have confidence and trust in that person.
The removal order authorises a council officer, or any council nominee, to move the specified person to a specified place. (However it should be noted that only a council officer or constable may enter any place under the warrant for entry in order to remove the adult, if necessary, under section 16)
A justice of the peace who grants a removal order must also grant a warrant for entry in relation to a visit under section 16, as applied by section 40(5).
Under section 37, a warrant authorises a council officer to visit any place specified in the warrant accompanied by a constable. The accompanying constable may use reasonable force where necessary to fulfil the object of the visit. This may include the constable opening lock-fast places.
Under section 40(8):
- A warrant for entry expires 12 hours after it is granted.
- The adult at risk must be removed within 12 hours.
- The removal order must specify a period of no longer than 24 hours within which it will expire after the adult is removed.
Under section 17 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. There is not right of appeal against the grant or refusal to grant a removal order.
ANNEX B
JP01
APPLICATION FOR WARRANT FOR ENTRY IN RELATION TO A VISIT UNDER SECTION 40(1)(b) OF THE ADULT SUPPORT AND PROTECTION (SCOTLAND) ACT 2007
Commission area of
At
I, (name) ,being an authorised council officer appointed by
(name and address of council)
,
hereby apply for a warrant for entry to the undernoted place, and any adjacent place, at (address)
for the purposes of inquiries being made by
(council)
under section 4 of the 2007 Act into the case of
(name and address of person)
[1]it is necessary to enter the above place, and any adjacent place, for the following reasons:
A council officer
has been/or reasonably expects to be refused entry to/*is otherwise unable to enter the place concerned/
or
*believes that any attempt by a council officer to visit the place without a warrant would defeat the object of the visit
because:
I consider that making an application to the sheriff is not practicable and that the adult at risk is likely to be harmed if there is any delay in granting such an order or warrant for the following reasons:
Applicant (Signed)
Address
Date
JP02
WARRANT FOR ENTRY UNDER THE ADULT SUPPORT AND PROTECTION (SCOTLAND) ACT 2007
Commission area of
At
Name of the person who is the subject of the inquiries
At (address)
I, (Justice of the Peace)
having heard evidence on oath from (name(s))
(council)
and being satisfied on the information provided that for the purposes of inquiries by said council under section 4 of the 2007 Act it is necessary to enter the specified place, and any adjacent place, at
(insert address)
By virtue of the powers conferred on me by section [2]40(5) / 40(6) of the above Act, hereby AUTHORISE
(1) Authorised council officer (name)
(name and address of council)
,
(2) Any constable of (name of the force maintained for the area in which the place is situated)
to enter the specified place, and any adjacent place.
Said warrant to remain valid for the period beginning from this date and time until (12 hours from the time of granting).
And further providing authority to any such constable, to do anything, using reasonable force where necessary, which the constable considers to be reasonably required in order to fulfil the object of the visit.
Signature (Justice of the Peace)
Date Time
NOTES - The Adult Support and Protection (Scotland) Act 2007 - Warrant for entry
"adult at risk"
Section 3(1) defines "adults at risk" as adults who:
- are unable to safeguard their own well-being, property, rights or other interests;
- are at risk of harm; and
- 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
"risk of harm"
Section 3(2) makes clear that an "adult" is at risk of "harm" if:
- another person's conduct is causing (or is likely to cause) the adult to be harmed, or
- the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm
"harm"
Section 53 states harm includes all harmful conduct and, in particular includes:
- conduct which causes physical harm,
- conduct which causes psychological harm (for example by causing fear, alarm or distress),
- unlawful conduct which appropriates or adversely affects property, rights or interests (for example theft, fraud, embezzlement or extortion),
Section 4 - Council's duty to make inquiries
This section places a duty on councils to make inquiries where the person is an adult at risk, and the council knows or believes it may have to intervene in order to protect the adult's well-being, property or financial affairs.
Section 7 - Visits
Permits a council officer to enter any place to make the necessary investigations. In many cases this will mean the place where the adult normally resides but this also includes places where the adult may reside temporarily or spends part of their time. The council officer is allowed to access to all parts of the place visited which includes any adjacent places, such as sheds, garages and outbuildings.
Section 40 - Urgent cases- Application to Justice of the Peace
This section allows the council, in urgent cases, to apply to a justice of the peace instead of a sheriff for a warrant for entry in respect of visits under sections 7. However, they can only do this if they think that:
- it is not practicable to apply to the sheriff and
- an adult at risk is likely to be harmed if there is a delay in granting the order or warrant.
Warrant for entry
A warrant authorises a council officer to visit any place specified in the warrant accompanied by a constable. The accompanying constable may use reasonable force where necessary to fulfil the object of the visit. This may include the constable opening lock-fast places.
The justice of the peace must be satisfied that the council officer reasonably expects to be refused entry, would otherwise be unable to enter or that the object of the visit would be frustrated without one.
A warrant for entry granted under this section expires 12 hours after it is granted.
JP03
APPLICATION FOR REMOVAL ORDER UNDER SECTION 40(1)(A) OF THE ADULT SUPPORT AND PROTECTION (SCOTLAND) ACT 2007
Commission area of
At
I, (name) ,
(name and address of council)
,
hereby apply for a warrant to enter the place, and adjacent place, at
(address)
and an order to remove (name of subject of the application)
by council officer/council nominee (designation, name and address of person to move subject)
to the following place (address)
[3]on the following grounds:-
[4]Statement or evidence to that effect on whether the adult at risk is considered to be incapable of consent or otherwise:
[5] The subject of the order does/does not consent to the order for the following reasons:
[6]I consider that the place to which the adult at risk is to be moved is available and suitable for the following reasons:
I consider that making an application to the sheriff is not practicable and that the adult at risk is likely to be harmed if there is any delay in granting such an order or warrant for the following reasons:
Applicant (Signed - Solicitor for the Pursuer)
Address
Date
JP04
REMOVAL ORDER UNDER SECTION 40(3) OF THE ADULT SUPPORT AND PROTECTION (SCOTLAND) ACT 2007
IN RESPECT OF:-
Name (the subject of the order)
I,
Having on this date examined the applicant on oath and being satisfied on the information provided
By virtue of the powers conferred on my by section 40(3) of the said Act, hereby AUTHORISE
(1) council officer
(name and address of council)
,
*council nominee (name and designation)
(address)
(2) To remove the subject of the order to the following place within 12 hours of the granting of this order.
Address of place:
(2) Period within which order no longer has effect (not exceeding 24 hours)
Signature (Justice of the Peace)
Commission Area
Date _____ Time _________________________
NOTES - The Adult Support and Protection (Scotland) Act 2007 - Removal order
"adult at risk"
Section 3(1) defines "adults at risk" as adults who:
- are unable to safeguard their own well-being, property, rights or other interests;
- are at risk of harm; and
- 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
"risk of harm"
Section 3(2) makes clear that an "adult" is at risk of "harm" if:
- another person's conduct is causing (or is likely to cause) the adult to be harmed, or
- the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm
"harm"
Section 53 states harm includes all harmful conduct and, in particular includes:
- conduct which causes physical harm,
- conduct which causes psychological harm (for example by causing fear, alarm or distress),
- unlawful conduct which appropriates or adversely affects property, rights or interests (for example theft, fraud, embezzlement or extortion),
Section 7 - Visits
Permits a council officer to enter any place to make the necessary investigations - allowed access to all parts of the place visited including any adjacent places, such as sheds, garages and outbuildings.
Section 35 -Consent of adult at risk
A justice of the peace can only grant an order without the adult at risk's consent where it can be shown that where the adult at risk has capacity to consent and has refused consent, the refusal can be ignored where the justice of the peace 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.
Undue pressure may be applied by an individual who may or may not be the person suspected of harming the adult. For example, a person who is not suspected of causing the harm but does not, for whatever reason, wish the council to apply for an order may place undue pressure on the affected adult to refuse consent. Undue pressure may also be applied by a person that the adult is being afraid of. Another example is given at Section 35(4); 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 the adult at risk would consent if they did not have confidence and trust in that person.
Section 40 - Removal orders - Urgent Cases
A justice of the peace can only grant a removal order if it was not practicable for the council to apply to the sheriff. In addition, a justice of the peace may only grant a removal order if satisfied that the person for whom the application is made is an adult at risk and that person is likely to be seriously harmed if he or she is not moved and that the place to which the adult at risk is to be moved is available and suitable.
Warrant for entry
A justice of the peace who grants a removal order must also grant a warrant for entry. In addition, he or she must be satisfied that the council officer reasonably expects to be refused entry, would otherwise be unable to enter or that the object of the visit would be frustrated without one. A warrant authorises a council officer to visit any place specified in the warrant accompanied by a constable. The accompanying constable may use reasonable force where necessary to fulfil the object of the visit.
Timescales
The adult at risk must be removed within 12 hours. The removal order must specify a period of no longer than 24 hours within which it will expire after the adult is removed. A warrant for entry granted under this section expires 12 hours after it is granted.
[1] Continue on separate sheet if necessary.
Delete as appropriate
[2] Delete as appropriate.
40(5) - warrant for entry in relation to removal order
40(6) - warrant for entry granted in relation to a visit under section 7 of the Act
Delete as appropriate
[3] Continue on separate sheet if necessary.
[4] Where appropriate, evidence produced
[5] Delete where appropriate. Where the adult has capacity to consent and does not consent, evidence that the subject has been unduly pressures, per section 35 of the Act, must be provided.
[6] Additional written evidence may be attached to this application
Delete as appropriate
NOTE - SECTION 40(5) PROVIDES THAT A WARRANT FOR ENTRY MUST ALSO BE GRANTED AT THE SAME TIME AS THE REMOVAL ORDER