the adult support and protection (scotland) act 2007 (“the act”)
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DESCRIPTIONA. S. P. 0. 7. The Adult Support and Protection (Scotland) Act 2007 (“the Act”). A. S. P. 0. 7. Legislation drivers. National Reports The 1997 Scottish Law Commission ‘Report on Vulnerable Adults’ recommended new legislation. UK context - PowerPoint PPT Presentation
The Adult Support and Protection (Scotland) Act 2007(the Act)
Legislation driversNational Reports
The 1997 Scottish Law Commission Report on Vulnerable Adults recommended new legislation.
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 toolboxSocial 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 1To support and protect adults at risk of harm
Principles governing intervention in an adults 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
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 adults freedom;
And, if relevant, have regard to:
the wishes and feelings of the adult;
any views of the adults nearest relative, primary carer, guardian, attorney or other person, who has an interest in the adults 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 adults abilities, background and characteristics.
Harm is defined as all harmful conduct and, in particular, includes:
conduct which causes physical harm; conduct which causes psychological harm (e.g. by causing fear, alarm or distress); unlawful conduct which appropriates or adversely affects property, rights or interests (e.g. theft, fraud, embezzlement or extortion); conduct which causes self-harm.
Considerations; HarmTherefore, 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 peoples 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:
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.
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 riskThe 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 adults 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 1PRINCIPLES 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 investigationsstatutory dutiesInquiries
Councils have a statutory duty to make inquiries about a persons 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.
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 - dont 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 carers situation, if the allegation involves unpaid carer.
Keep adult fully informed at every stage of the process, unless this might prejudice investigations.
Duty to CooperateThe 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 acce