The Adult Support and Protection (Scotland) Act 2007
The following summarises the provisions of Part 1 of the Act other than those previously set out in this guidance. This should be read in conjunction with the Code of Practice.
Sections 1-2: Principles
The overarching principle underlying Part 1 of the Act is that any intervention in an individual's affairs should provide benefit to the individual and should be the least restrictive option of those that are available which will meet the purpose of the intervention.
This is supported by a set of guiding principles which, together with the overarching principle, must be taken account of in performing functions under Part 1 of the Act. These are:
- the ascertainable wishes and feelings of the adult at risk (past and present);
- the views of other significant individuals, such as the adult's nearest relative; their primary carer, guardian, or attorney; or any other person with an interest in the adult's well-being or property;
- the importance of the adult taking as active a part as possible in the performance of the function under the Act;
- providing the adult with the relevant information and support to enable them to participate as fully as possible;
- the importance of ensuring that the adult is not treated less favourably than another adult in a comparable situation; and
- the adult's abilities, background and characteristics (including their age, sex, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage).
Sections 3 and 53: Definition of adult at risk of harm
The Act defines 'adults at risk' as individuals, aged 16 years or 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 others who are not so affected.
Section 3(2) makes clear than 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
For the purposes of the Act, 'harm' includes 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); and
- conduct which causes self-harm.
Duties and powers of Councils, NHS, Police, and other bodies
The Act establishes certain duties and powers for Councils and other statutory bodies in relation to:
- Inquiries (including co-operation, the duty to consider independent advocacy and other services);
- Investigations; and
- Protection Orders.
Sections 4-5: Inquiries and co-operation
The Act places a duty on councils to make inquiries about an individual's well-being, property or financial affairs where the council knows or believes that the person is an adult at risk and that it may need to intervene to protect him or her from being harmed.
The Act requires the following public bodies to co-operate with local councils and with each other, where harm is known or suspected: all councils; Chief Constables of police forces; the relevant NHS Board; the Care Commission; the Public Guardian; the Mental Welfare Commission for Scotland; and any other public body or office holder that Scottish Ministers specify. The public bodies or officers must advise the relevant council if they know or believe that a person is an adult at risk and that action needs to be taken in order to protect that person from harm.
Section 6: Adult representation including advocacy and support services
Councils have a duty to consider providing appropriate services, including independent advocacy, to support adults where an intervention under the Act is considered to be necessary.
If a general inquiry progresses to an investigation councils require to take into account how to provide adults at risk of harm with the relevant information and support to enable them to participate as fully as possible. This needs to include consideration of their abilities, background and characteristics and ensure that their wishes and feelings are taken into account and that they are not, without justification, treated less favourably than the way in which any other adult (not being an adult at risk) might be treated in a comparable situation. Some people will be well able to represent their own views, either on their own or with existing forms of support. Having considered this issue in all cases, councils require to determine where independent advocacy or the provision of other appropriate services, such as support with communication, is needed.
The principles underlying the Act emphasise the importance of striking a balance between an individual's right to freedom of choice and the risk of harm. These must always be taken into account when an intervention under Part 1 of the Act is being considered, and in any legal proceedings including appeals, within which statements expressed in advance about an individual's preferred care or treatment must be taken into account in line with the guiding principles. The affected adult at risk may be accompanied at any hearing conducted in respect of an application by a friend, a relative or any other representative chosen by the adult.
Sections 7-10: Investigations
Regulations to be made under section 52 restrict the type of Council Officer who may be authorised by a council to carry out visits, conduct interviews or require health, financial or other records to be produced, in respect of an adult at risk.
The Act gives a Council Officer powers in relation to making visits, entering premises and carrying out interviews within investigations concerning adults at risk. If a Council Officer is accompanied by a health professional, he/she may carry out a medical examination of the adult. An adult has the right not to respond to questions, and to refuse a medical examination. The Act gives a Council Officer the right to require the provision of medical, financial or other documents or copies of them related to an adult at risk, although medical records can only be inspected by a health professional.
Sections 11-41 and 49-50: Protection orders and offences
The Act allows a council to apply to the sheriff for a warrant for entry or a protection order.
A protection order can take one of three forms:
- an assessment order;
- a removal order; or
- a banning or temporary banning order.
The sheriff may grant such an order only if satisfied that certain criteria are met, and these grounds are specified in the Act. A sheriff must not make a protection order if the sheriff knows that the affected adult at risk of harm has refused to consent to the granting of the order, unless the sheriff reasonably believes that the affected adult at risk has been unduly pressurised to refuse consent and there are no steps which could reasonably be taken with the adult's consent which would protect the adult from harm. That is the underlying principle. Section 35(4) gives an example of a situation where the adult may be considered to have been unduly pressurised as where it appears the action which the order is intended to prevent is being inflicted by a person whom the adult at risk trusts, otherwise the adult would consent. However section 35(5) makes clear that this is not the only type of behaviour that would constitute undue pressure.
The Act establishes powers of arrest in relation to Banning Orders; offences of preventing or obstruction of a protection order; and offences committed by bodies corporate etc. in breach of the Act.
Section 48: Code of Practice
Section 48 of the Act requires the Scottish Ministers to prepare a Code of Practice containing guidance about the performance of functions by councils and their officers and health professionals under the Act.
This provides information and guidance on the principles of the Act, and the measures contained within the Act, including when and where it would normally be appropriate to use such powers. The duty on councils, council officers and health professionals performing functions under Part 1 to have regard to the code of practice is not a strict duty to comply with the code in certain circumstances. However, there may be legal consequences arising from failure to observe the terms of the code.
The Code and this guidance should be read in conjunction with other relevant codes of practice as appropriate, such as the codes of practice for the Mental Health (Care and Treatment) (Scotland) Act 2003, the Adults with Incapacity (Scotland) Act 2000 and the Scottish Social Services Council's Codes of Practice for Social Service Workers and Employers of Social Service Workers