The Adult Support and Protection (Scotland) Act 2007
(“the Act”)
Legislation drivers
National Reports
• The 1997 Scottish Law Commission ‘Report on Vulnerable Adults’ recommended new legislation.
UK context
• In England “No Secrets” Guidance was introduced in 1998.
• In Wales “In Safe Hands” was introduced in 2000.
Inquiries
• The 2003 Inquiry into a case in the Scottish Borders, both the Mental Welfare Commission for Scotland and the Social Work Services Inspectorate of the Scottish Executive recommended the need for new legislation.
Existing legislation; the ‘toolbox’Social Work (Scotland) Act 1968 as amended by NHS &
Community Care Act 1990 provides for assessment and care management with people who require care in the community.
The Adults with Incapacity (Scotland) Act 2000 provides the means to protect people with incapacity where decision making is at issue. Can include, for example, financial and welfare guardianship. Duty on local authority to act, if no other person is doing so.
The Mental Health (Care & Treatment) (Scotland) Act 2003 provides powers and duties to inquire in relation to people with mental disorder, including those who are subject to ill-treatment or neglect. Role of Mental health Officer.
The Adult Support and Protection (Scotland) Act 2007 provides powers and duties in relation to protecting adults at risk of harm. Part 1 of the Act came into effect in October 2008. Role of Council Officer.(Parts 2 and 3 of the Act introduce amendments to AWI and MHA)
Key elements of Part 1
• To support and protect ‘adults at risk of harm’
• 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
• Code of Practice
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 One of the Act.
• The principles to be followed in adult protection interventions
• The definitions of an ‘adult at risk’ and ‘harm’
• The new statutory duties to inquire and investigate
• The three types of protection order
Principles of Part 1 of the ActIntervention must:
• provide benefit to the adult;
• be least restrictive to the adult’s freedom;
And, if relevant, have regard to:
• the wishes and feelings of the adult;
• any views of the adult’s nearest relative, primary carer, guardian, attorney or other person, who has an interest in the adult’s well-being or property;
• the importance of the adult participating as fully as possible and providing them with such information and support to enable them to participate;
• ensuring the adult is not be treated less favourably than any other adults in a comparable situation; and
• the adult’s abilities, background and characteristics.
Harm; definition
Harm
Harm is defined as 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.
Considerations; Harm
Therefore, the Act deals with any harm (deliberate or unintended), such as financial and material harm, psychological and emotional harm, physical harm, sexual abuse and neglect. It may include ‘adults at risk’ subject to 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 or by carers, neighbours, friends, professional and service staff or others.
Adults at risk of harmAdults at risk; the ‘3-point test’
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; andc) 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.
An adult is at risk of harm if:
a) another persons conduct is causing, or is likely to cause the adult to be harmed; orb) the adult is engaging, or is likely to engage, in conduct which causes, or is likely to cause, self-harm.
Considerations - Adults at risk• The presence of a particular condition does not
automatically mean an adult is an “adult at risk”.
• A person could have a disability, physical and/or mental health problem and be able to safeguard his/her well-being etc.
• All three elements of the definition must be met i.e. unable to safeguard / at risk of harm / because they are affected by….
• It is the whole of an adult’s particular circumstances which can combine to make her/him more vulnerable to harm than others and this could be very different from individual to individual.
Group Exercise 1 PRINCIPLES AND DEFINITIONS
Consider the examples provided; Aileen, Alistair and Andrew in terms of the definitions and principles. Is there sufficient concern to deal with these situations under ASP, is there evidence of ASP.
What evidence would suggest that someone is unable to safeguard their own well-being, property, rights or other interests. What about sharing information, is there a need to inquire, who should be involved.
Consider; context, degree, outcomes. Do these factors influence the assessment?
Inquiries and investigations
statutory dutiesInquiries
Councils have a statutory duty to make inquiries about a person’s 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 actions.
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.
Councils have a duty to consider the importance of the provision of appropriate services to the adult, including, in particular, independent advocacy.
Inquiry processInitial inquiries - duty to inquire
Information passed on under local adult protection guidelines
Inquiries are made under section 4 of the Act by the council
May consult with other agencies and conduct preliminary inquiries Others, e.g. police or health professionals, may be asked to assist
Next steps could involve a wide range of interventions, including under ASP and/or AWI 2000, MHCTA 2003, SWSA 1968
Intervention should be informal wherever possible and allow information, advice and support for the adult or a carer
No further action decisions should be fully recorded and justifiedWhere an inquiry indicates that a criminal offence may have been committed, the police must be informed
Responsibility to take any immediate protective action
Inquiries - considerations
Take seriously any adult at risk of harm report, including anonymous referrals.
Be open-minded in considering cases - don’t make assumptions.
Consider carefully all referrals - make measured responses.
Be flexible and professional, e.g. arrange an initial discussion with a familiar worker.
Assess the carer’s situation, if the allegation involves unpaid carer.
Keep adult fully informed at every stage of the process, unless this might prejudice investigations.
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 public bodies and their staff must:
• report the facts and circumstances to the local Council when they know or believe that someone is an adult at risk and that action is needed to protect that adult from harm; and
• cooperate with the Council and each other to enable or assist the council making inquiries.
Cooperation - considerationsDuty of confidentiality, but if ASP s. 5(3)
conditions met (person is an adult at risk, and protective action is needed), then facts and circumstances must be reported to the council.
All relevant stakeholders should co-operate with inquiries.
A multi-agency and multi-disciplinary approach to inquiries and training is appropriate.
Staff should also be clear who they have a duty to report to within their own organisations.
Co-operation and information sharing required in adult protection case conferences and risk management.
Duty to consider advocacy and other services
The ASP Act places as much of an emphasis on support as it does protection of an adult at risk.
Where, after making inquiries a council considers that it needs to intervene in order to protect an adult at risk of harm.
It places a duty on the council to consider the provision of appropriate services, including independent advocacy services, to the adult concerned. Communication needs must also be considered
• to express their own needs;• to gain access to information;• to explore and understand the options available;• to make informed decisions.
Definition of Council OfficerCouncil officers will be council employees (appointed under Local Government (Scotland) Act 1973 S. 64.)
Section 52(1) of the ASP restricts the type of individual who may be authorised by a council to perform council officer functions.
Regulations set out who will be able to undertake council officer functions under the Act.
Council officers who undertake functions set out in sections 7-11, 14, 16, and 18 of the Act will need, as a minimum, to be:
• registered with the Scottish Social Services Council (SSSC) as social workers and have 12 months relevant post qualification experience• (registered OTs and nurses may also be designated)
• In Ayrshire, only QSWs in community care teams (and certain child care teams) will be designated as council officers.
Visits, warrants and interviews
• Council officer inquiries
•to decide whether the adult is an adult at risk of harm; and
• to establish whether the council needs to take any action in order to protect the adult at risk from harm.
• A council officer may enter any place to enable or assist an inquiry.
• If refused entry, may consider need for a warrant
• interviews the adult and others present if necessary; to establish• if the adult has been subject to harm;• what is the source, nature and level of any risk to the adult;• establish if the adult feels his or her safety is at risk and from whom; • whether any action is needed to protect the adult; and to• discuss what action, if any, the adult wishes or is willing to take to protect
him or herself.
Visits & interviewsAny visit to inquire into an adult’s circumstances must be carefully planned to take into account;
Who?
A council officer, making a visit, should be accompanied by another person, for corroboration and staff safety. The second person may be from any appropriate other agency, known to the adult, etc
Where?
Any place where the adult resides or visits.
When?
At any reasonable time in the circumstances.
How?Communication or other support may be needed to ensure the adult can participate as fully and freely as possible.
Consideration should also be given to the adult’s capacity.
Interviews - considerations
State the object of the visit; andProduce evidence of the officer’s authorisation to visit the place.
Obligation to be clear the visit’s purpose is to investigate suspected risk of harm.
Council officer or person accompanying may request a private interview where• a person present is thought to have caused harm or poses a risk of harm;• the adult indicates that they do not wish the person to be present;• it is believed that the adult will communicate more freely;• there is a concern of undue influence from others.
Ask adult whether he/she wishes another person to be present.
Inform adult/s interviewed of the right not to answer any/all questions.
It may be in the interest of the adult for another person to be interviewed, e.g. some-one who shares the adult’s home or a care worker.
Interview – the adult’s rightsThe adult must be informed of the right not to answer any questions before the interview starts.
The adult can choose to answer some questions but not others.
Even with an protection order the adult can refuse to be interviewed or medically examined.
Consideration should also be given to:• proactively seeking the consent of the adult to be
interviewed;• considering the adult’s capacity;• giving reasonable opportunity and encouragement to
answer questions;• promoting the adult’s participation in the interview.
Other people interviewed also have a right not to answer any questions and must be informed of this at the outset.
The adult’s capacity
Some factors for consideration where there is doubt about the adult’s mental capacity:
• Does the adult understand the nature of what is being asked and why?
• Is the adult capable of expressing his or her wishes/choices?• Does the adult have an awareness of the risks/benefits involved?• Can the adult be made aware of his/her right to refuse to answer
questions as well as the possible consequences of doing so? The council has to promote the adult’s participation in the
interview by taking account of the adult’s needs where these are identified
• communication skills, sensory impairment, language, etc.• advocacy, interpreter, signing, appropriate adult.
Medical Exams - considerations
A medical examination, by a doctor, nurse or midwife, should be considered when:
• there may be the need for immediate medical treatment• the adult has a physical injury stated as inflicted by another person;• where the explanation for injuries is inconsistent with the injuries;• there may be physical evidence of sexual abuse;• the adult appears to have been subject to neglect or self-neglect; • the adult is ill or injured and no treatment has previously been sought.• the adult’s mental state is thought to be a factor.• evidence may be required for a protection order or other legal application• an assessment is required to consider a treatment or protection plan
* where it appears that a criminal offence may have been committed, the police must be informed immediately.
Medical examination – consent
Requirement to inform the person of her/his right to refuse medical examination.
Emergency treatment considerations:
• can provide if to save life or avoid significant deterioration in health;• need to tell the patient what has been done, and why, asap;• need to respect any valid advance refusal.
If adult lacks capacity or has difficulty in communicating and consent not possible:
• Council to contact the OPG – whether welfare power of attorney;• Consider whether it is appropriate to use the AWI(S) Act 2000 or MH(CT)(S) Act 2003• Doctor may need to consider AWI S47 cert.
Examination of records
Council officers may require someone to provide health, financial or other records, in any format, for inspection by the officer or other appropriate person.
Requirement may be made during a visit or at any other time in writing
An offence for a person to fail to comply with a requirement to provide information, except with reasonable excuse.
Health records defined - s.10(7) – as:• relating to an individual’s physical or mental health;• made by or on behalf of a health professional.• sought, identified and obtained by a council officer; but • inspected only by a health professional.
Consent should be obtained wherever practical and possible, depending on urgency of situation. If adult lacks capacity, check with OPG.
Information sharing – no consent
Confidentiality is important, but it is not an absolute right.
It may not be possible to obtain consent where:
• the adult lacks the mental capacity to consent;• the adult is unwilling to consent because of undue pressure by
someone else;• the person acting with powers is unavailable or unwilling to give
consent; or• the situation is so urgent that obtaining consent would cause
undue delay.
Existing law allows information to be disclosed without consent:
• where such disclosure is required by law (either a court order or statute);
• where such disclosure is for crime prevention, detection and prosecution;
• where such disclosure is in the public interest.
Councils should make reasonable efforts to resolve disagreements.
Informal or independent conciliation might be considered.
Group exercise 2INVESTIGATIONS – VISITS - INTERVIEWS
Consider the examples; Azeem, David and Agnes
What should be considered prior to a visit? Also consider the principles, needs, supports and services so as to promote the adult’s participation. What might the implications of the assessment of capacity be for the planning of the interview. Are there particular issues to be addressed when visiting an institutional setting.What issues are raised about confidentiality and consent, and how should they be dealt with, both in this case and more broadly in operational practice?Might statutory intervention be considered
What other dilemmas and challenges are posed in the case examples, and what next steps should be taken?
Relationship of theAdult Support and Protection (Scotland) Act 2007
to theAdults with Incapacity (Scotland) Act 2000
and theMental Health (Care and Treatment) (Scotland) Act 2003
Principles are very similar in terms of benefit, minimal intervention, inclusion, participation, etc
Process in ASP is much more prescriptive and detailed
Duty to inquire and investigateASP AWI MHCT
Adults at Risk Adults with Incapacity People with a Mental Disorder
• any circumstances made known to them in which the personal welfare of an adult seems to them to be at risk; and • any complaints with respect to the exercise of functions relating to the personal welfare of an adult in relation to welfare attorneys, guardians or persons authorised under intervention orders.
OPG duty to investigate financial concerns.
• if they know or believe that a person is an adult at risk; and• that it might need to intervene in order to protect the person’s well being property or financial affairs.
• when it appears that a person with a mental disorder aged 16,and•the person has been subject to ill treatment, neglect, some other deficiency in care or the safety of some other person may be at risk.
Further actions – ASP–AWI–MHCT
ASP AWI MHCT
Adults at Risk Adults with Incapacity
People with a Mental Disorder
Warrant for entry
Assessment order
Removal order
Banning order
Temporary banning order
Access to funds
Management of resident’s finances
Intervention order
Guardianship order
Warrant for entry and for detention to allow medical assessment by doctor and access to medical records
Removal order and warrant to enter premises for purposes of retaking patient
Police ‘place of safety’
Emergency detention certificate & Short-term detention certificate
CTO & CO & CORO
The terms of the ASP Act and Code about definitions, principles, co-operation and support apply as much to Orders as inquiries and interviews.
Protection orders do not depend on a linear process. They can be applied for at any time in the process depending on the individual’s circumstances.
It is anticipated that the bulk of the work under the Act will be initial inquiries and investigations and putting support in place where needed.
However it is still important to know what further action we can take – what we can do if we need to.
Effective assessment and care management will remain the cornerstone of good adult support and protection.
Protection orders - Introduction
Protection ordersThe Act introduces three protection orders: sheriff summary
application
• 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 and/or a medical examination in private. Includes warrant for entry.
• A removal order permits an adult who is likely to be seriously harmed to be moved to a suitable place for up to 7 days. Includes warrant for entry.
• 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. Consider occupancy rights and power of arrest.
Decisions about protection orders must reflect the principles of the Act and should not be granted where the adult refuses consent.
However the sheriff may ignore a refusal to consent 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.
“undue pressure”
Undue pressure can be applied by another individual:
• who may not be the person suspected of actually harming the adult; or
• who the adult is afraid of or who is threatening her/him and the adult does not trust.
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 council must plan:
• to minimise distress and risk to the adult;• always on the basis of the principle of “least restrictive alternative”; • to keep adult fully informed of rights, options, events • where the adult is going to moved to;• how the move is to be carried out;• transport arrangements if applicable.
Good practice:
• multi-disciplinary plan to co-ordinate action, including contingencies;
• where use of force may be necessary multi-disciplinary risk assessment;
• if force, management of the process should be passed on to the police.
.
The adult has rights:• to refuse to answer all or some of the questions when interviewed;• to refuse a medical examination;• to leave the place at any time;• to be informed of these rights.• the adult can be taken to, but not detained at, place specified on the order
Protection Orders – implementation
Protection orders – considerations• How person meets 3 point test for “Adult at Risk
• Type of harm and risk assessment
• Views of adult, family, carers professionals and interested parties, which may possibly include the person who has harmed them
• What other options have been considered and tried and how urgent is action needed. Consider the merit of the application; will it work ?
• Prepare plan on how to carry out protection order and on expiry of order
• Case conference to get multi-disciplinary view.
• How will their property be protected and secured?
Adult Protection CommitteesCouncils have a duty to establish Adult Protection Committees.
Functions are to:
• review procedures and practices;• give information or advice, or make proposals• make, or assist and encourage the development of knowledge and skills• improve cooperation between public bodies concerned.
Membership of Adult Protection Committees must include representatives of the Council, the NHS Board and the Chief Constable of the police force in the council area and may include a representative of the Care Commission.
The above bodies and the Mental Welfare Commission, the Public guardian and the Care Commission must provide any information reasonably required by the Adult Protection Committee for the purposes of it carrying out its functions.
The Convener must not be a member or officer of the council. Every two years the Convener must prepare a report on the work of the Committee.
• the establishment of Adult Protection Committees; • revision of local policy and procedures in line with the Act and Code of Practice;• provision of detailed training on the legislation and practice implications for council officers, specialist staff in social work, health and police services, for the managers who will be supervising those staff and for adult protection conference chairs;• establishing a longer term training strategy for all relevant staff on adult support and protection issues and practice;• making other social care, health, police, housing and other relevant staff aware of the provisions of the legislation, and their roles and responsibilities under it;• providing information for the general public, adults who may be at risk, and carers about the terms of the Act and how to take up concerns with local agencies; and• the development of existing information and performance systems to record data about actions and events so that activity and outcomes related to the implementation of the legislation can be monitored and reviewed.
Local implementation requirements
If you are working in social care, health, police, housing and other services, you require to:
• be aware of your responsibilities to identify when adults you come into contact with may be at risk of harm and to discuss this with your supervisor/manager;
• communicate to the local council any concerns you have when you know or believe that someone who may be an adult at risk is, or is possibly, being harmed and might need protection;
• co-operate with Council Officers, medical professionals and police officers in any inquiry or investigation about an adult at risk of harm;
• provide information and records, including medical records, to council officers and medical professionals who are making inquries or investigating concerns of this kind and are seeking those records;
• support adults at risk you are in contact with to express their views and participate in ways which recognise their rights and are consistent with your job and role.
Summary; Requirements for staff
Overarching Practice decisions
• Do they adhere to the principles of the Act?• Was the adult fully supported to participate?• Have consent and capacity issues been discussed ?• Have other professionals been consulted, e.g MHO, as
necessary?• How will intervention benefit the adult?• Have the consequences of intervention been considered?• Has all relevant past and current information (especially
in relation to adult protection history) been gathered from inter-agency colleagues and appropriate family & interested parties?
• Has comprehensive risk assessment been completed?• Have all options been considered – voluntary and statutory?
Links to Issues and Agencies referenced in the training sessions:
Scottish Government:Adult Support and Protection (Scotland) Act 2007 http://www.scotland.gov.uk/Topics/Health/care/VAUnit/ProtectingVAAdult Support and Protection (Scotland) Act 2007 - code of practice http://www.scotland.gov.uk/Publications/2008/07/17115228/0 Adults with Incapacity http://www.scotland.gov.uk/Topics/Justice/Civil/awiAdults with Incapacity- communication and assessing capacity http://www.scotland.gov.uk/Publications/2008/02/01151101/0Child Protection http://www.scotland.gov.uk/Topics/People/Young-People/Children-Families/17834Appropriate Adults Scheme http://www.scotland.gov.uk/Topics/Justice/criminal/18244/Appropriate-AdultMental Health (Care and Treatment) (Scotland) Act 2003 http://www.scotland.gov.uk/Topics/Health/health/mental-health/mhlawVulnerable Witnesses (Scotland) Act 2004 – information guidehttp://www.scotland.gov.uk/Publications/2005/04/04143522/35246Scottish Courts – Rules and Forms http://www.scotcourts.gov.uk/library/rules/index.asp Data Sharing: Legal Guidance for the Public Sectorhttp://www.scotland.gov.uk/Publications/2004/10/20158/45768Office of Public Sector Information (Acts and Statutory Instruments):http://www.opsi.gov.uk/
Links to Issues and Agencies referenced in the training sessions: Survivor Scotland http://www.survivorscotland.org.ukCounselling, mediation, and victim support: www.victimsupportsco.demon.co.ukCriminal Injuries Compensation Scheme ( CICS), 2001: www.cica.gov.uk
Office of the Information Commissioner's framework code of practice for sharing information http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/pinfo-framework.pdfOffice of the Public Guardian http://www.publicguardian-scotland.gov.uk/Public Concern at Work - provides legal, practical and policy advice on whistle blowing http://www.pcaw.co.ukScottish Independent Advocacy Alliance http://www.siaa.org.uk/The Mental Welfare Commission ( MWC) for Scotland www.mwcscot.org.ukThe Princess Royal Trust for Carers http://www.carers.org/Victims of Crime in Scotland http://www.scottishvictimsofcrime.co.uk/exec_ccc/VC_FirstPage.jsp?pContentID=275&p_applic=VC_CCC&p_service=Content.show&
