Adult Protection and the Law in Scotland

Margaret Burns

Adult Protection Coordinator

Legislation Relevant to Adult Protection• Human Rights Act

• Criminal Law

• Community Care/Housing Law

• Civil Remedies

• Anti Social Behaviour Law

• The Adults with Incapacity Act

• The Mental Health (C&T) Act

• The Adult Support and Protection Act

Adult Support and Protection (Scotland) Act 2007

Who is Covered ?

• An adult at risk is a person aged 16 or over who :-– Is unable to safeguard their own well being, property,

rights or other interests – Is 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 not so affected.

• Note : All 3 points must be satisfied. Sometimes referred to as the 3 point test .

Risk of Harm

• An adult is at risk of harm if– Another person’s conduct is causing (or likely

to cause ) the adult to be harmed.

– The adult is engaging (or is likely to engage) in conduct which causes self harm.

– Types of harm can include:

– Physical, Sexual, Financial, Psychological, Neglect, Institutional, Discriminatory, Self Harm, Self Neglect .

Powers of the ASP Act 2007

• Visit, make inquiries, interview, investigate.• Request medical examinations (adult needs

to consent).• Access to Records (Only a health

professional may inspect health records).• Cooperation.• Statutory Orders.• Adult Protection Committees.

Co-operation. Practice Implications• Section 5(3):-

– “Where [public bodies and office holders] know or believe that a person is an adult at risk of harm, and that protective action is needed they must report the facts and circumstances of the case to the council”.

• Duty of confidentiality unless the above applies.

Rights and Choices – NHS Glasgow and Clyde Guidance

• Regardless of the adult at risk’s wishes immediate appropriate action requires to be taken if– The adult is at immediate risk of significant

harm.– There is a public safety issue.– The situation involves a service provider.– The adult does not have capacity to understand

their choice or its consequences.– There is a responsibility to report suspected or

actual criminal acts to the police.

Potential Use in Adult Protection

• Harm suspected but individual has capacity to make decisions and refuses to cooperate.

• A third party is obstructing investigations.

• There is a real risk of immediate harm.

Mental Health (Care and Treatment) (Scotland) Act

2003

Mental Health (Care and Treatment) (Scotland) Act 2003

• People who have a ‘mental disorder’.

• Certain characteristics such as sexual deviancy, drug or alcohol dependence or failure to act as a prudent person would do not, in isolation, indicate mental disorder.

The Scope of the Legislation

• Investigation• Cooperation• Detention• Mental Health Tribunals• Advance statements

Potential use in Adult Protection• Where a person needs treatment for a

mental disorder and is suffering harm.• Where someone is already under a

compulsory treatment order.• Where person has mental disorder and

needs detained for his/her own protection or protection of others.

Adults with Incapacity (Scotland) Act 2000

Who is covered?

Adults who are unable to • Act;• Make decisions;• Communicate decisions;• Understand decisions; or• Remember decisions.

The Scope of the Legislation

• Attorneys.• Investigations.• Financial management.• Medical decisions.• Intervention/Guardianship orders.

Potential use in Adult Protection• Where welfare, finances or property is at risk

and adult is unable to make decisions or protect own interests.

• Where guardian/attorney already appointed.• Financial abuse.

Remedies Self Harm/Neglect

• Assessment Order and/or Removal Order under ASP.

• Application under MH (C&T) Act.• Guardianship or intervention order under the

AWIA.

Remedies – Unable to Manage Welfare/Finances• Planning for future - power of attorney,

advance statement and living will.• Guardian, appointee or attorney.• Compulsory powers under the MH (C&T)

Act.

Remedies – Harm From a Third Party• Criminal prosecution.• Order against abuser, including interdict,

banning order under ASP.• Remedies under matrimonial legislation.• Antisocial behaviour order.• Removal of Department for Work and

Pensions appointee.

Remedies – Harm From a Third Party• Removal or supervision of person with

powers under Adults with Incapacity Act.• Reporting health or social care professional

to professional body.• (In the future) placing a worker on local

authority list prepared under Protection of Vulnerable Groups (Scotland) Act.

General Principles

.Principle ASP MH(CT) AWI

Benefit √ √ √

Least restrictive option √ √ √

Find out and consider the adult’s views √ √ √

Consider the views of significant others √ √ √

Encourage use and development of skills √

Involving carers √

Child welfare √

Non discrimination √ √

Reciprocity √

Respect for diversity √ √

Support adult to participate in decisions √ √

Questions/Comments

Case Studies

• What would you do or could you do?• Who would you contact?• What pieces of legislation might be

appropriate if required?• Does such a scenario create any dilemmas?• Any other comments.