Adult Support and Protection (Scotland) Act
2007: Principles, powers, protection orders and
practice
Kathryn Mackay
Fiona Sherwood-Johnson
University of Stirling
Aims of Session
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Discuss Scottish definition of adult at risk
of harm
Provide overview of the statute
Highlight key findings from research
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Apply statute to case study
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Adult Support and Protection (Scotland) Act
2007 (ASPSA)
• Perceived as filling gap between general adult care law
and mental health and adults with incapacity legislation
• The Act “raises difficult ethical issues about the role of
society to protect people who are vulnerable, even if they
themselves deny their need for help” (Patrick 2007,
p.11).
• Arguably the Act has again moved the boundary between
public intervention and private lives.
• It is (mainly) about short-term intervention, you need to
have some long-term ‘plan’
Definition of “Adults at Risk” S.3
a)
b)
c)
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Unable to safeguard 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
~
Neglect by inaction is also considered
Harm can be self inflicted or by another person
What constitutes serious harm will be different for
different persons
Discuss with your neighbour
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How does the definition of an adult at risk
of harm differ from the Welsh definition
What are the advantages and
disadvantages to this?
ASPSA Principles
Least restrictive
Benefit
Gaining views
Participation in decision making
Not treating less favourably than any other adult in
comparable situation
• Taking into account abilities, background and
characteristics
•
•
•
•
•
Duty of NHS, police &public bodies:
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Notify the council if they know or believe a person
is an adult at risk, and that protective action needs
to be taken
So far as is consistent with the proper exercise of
their functions, co-operate with the council making
inquiries and with each other
Adult Protection Committees
ASPSA Inquiries & Investigations
Duty for LAs to make inquiries (initial assessment)
Where adult may be at risk of harm,
 Duty to investigate (full assessment)
 Power to examine records, medical notes to be
read by health practitioner. Many banks now
complying with requests
 Powers to:
-visit the person’s home
- arrange medical assessment
-request private interview with person who may be
being harmed
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Protection Orders
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Assessment, removal to a place of safety and
banning orders are all considered to be
protection orders.
Threshold raised to risk of serious harm
Application by Council Officer to Sheriff Court
Can request Warrant of Entry (to be enforced by
police)
Must have person’s consent, unless
Undue pressure by third party can be proven
Mental incapacity does not rule out use of this
statute
ASPSA decisions and rights processes
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Evidence level: balance of probability
Sheriff can decide not to notify person about
proceedings if this is likely to cause harm
Sheriff can appoint a safeguarder to investigate
aspects of the person’s situation
Person has right to representation and legal aid
Council duty to consider the provision of
appropriate services including, in particular,
independent advocacy services to facilitate
person's participation in assessment and decisionmaking
Key findings from research project
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Complex, interconnected nature of harm
Skilled and open minded practitioners
Building and maintaining respectful relationships
Thresholds not as clear cut as we might like them to
be
Protecting needs support services
Interagency work is variable
Opportunities for justice through court are still
limited
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Multiple factors (harmer and/or harmed):
 Substance misuse in two thirds
 Poor mental health in half
 Person experienced more than one type of harm
More complex than neat phrases such as:
 Has capacity
 Unpicking ‘life style choice’
Complexity of relationship between
harmed and harmer
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Not always clear who is harmed and harmer
So, at that point we had gone right, who’s the victim
here? Well we’ve actually got two perpetrators and
two victims and they’re interchangeable….and, if we
hadn’t been talking about elderly vulnerable people,
if these had been a couple in their thirties, the police
might have been looking on this in a quite different
manner.
Practitioner
19
An interdependency
There was the question of whether they have a
relationship, if it was solely for financial gain or
emotional support, or caring support.
Practitioner 11
Skilled & open minded
practitioners
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Much time was needed to assess complex situations:
following up lines of inquiry, trying to establish
‘facts’, understanding different perspectives
Expert advice sought re communication and
understanding but mainly with people with learning
disabilities
Work can be emotionally demanding.
Practitioners appreciated good supervision and other
opportunities that supported them in this work.
Meeting the 3 point test:
‘
’clearly’, ‘a fine balance’ or ‘a bit iffy’
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Most challenging parts of definition:
 More vulnerable than adult not so affected
 Unable to safeguard
It was certainly two. He had a disability, he was at
risk of some type of harm…..Whether he was unable
to protect, I mean, that was in doubt …I think he
was unable to hold back from the urges that he
would have to react in a certain way
Practitioner 17
Thresholds: Defined as more
vulnerable to being harmed, if
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More severe impact of disability
Impaired decision making due to poor mental and/or
physical health, cognitive impairment
Person feels they have no choice but to accept harm
Severity of harm
Physical and emotional, as well as financial harm
Police investigation
Health crisis forces contact with services
Protection plans:
Protective measures
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Practitioner/adult AROH relationship was a key
instrument of change
Support for harmer as well as harmed
Housing: re-housed, cleaned, made secure, use of
CCTV and panic alarms
Financial: securing bank cards, budgeting,
appointeeship, financial guardianship for people with
dementia,
Others: charging harmers, neighbour chasing
harmers away and alerting agencies, police
identifying offenders who target isolated older and
disabled people.
Protection Plans :
Emotional and social
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Positive and encouraging relationships with care staff
Support with daily living and decision- making
Helping people to review negative risk taking
Specialist counselling around trauma or addiction
Promoting opportunities for wider involvement in
community
Supervising access between harmer and harmed.
Use of protection orders
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No assessment order used: seen as of limited value
Removal order: one discussed in sample- a last
resort
Banning orders: three discussed, one lapsed, some
debate about their effectiveness if harmer breaches
it
In sample, 7 out of the 32 case instances involved
mental health or capacity legislation.
Positive outcome
From a woman who experienced ongoing harm from a
son who lived with her and now lives on her own
with support:
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It takes me a while to get to know
somebody……Well, in a way it was good. Although I
was scared……but I know it was good because I was
hoping they could help me.
I was always terrified. But I’m getting more
confidence now.
Adult AROH 1
Not so positive outcome
From a man who got into difficulties ( not
specified) and whose money is managed
through social work but who would now like to
regain more direct control of his own money
 I can see it’s been helpful in one way but in
another way it’s not helpful.
About going to the office to pick up his money:
It’s begging money…
Adult AROH 4
Loss and change
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Whilst feeling safer there was often a sense of loss about
the changed relationship where harmer was a relative.
I think that’s the time …he did, he put his hand up, but it
wasn’t a bad, you know what I mean. But it’s the thought;
aye, your boy doing that to you, you know; he couldn’t
have done anything worse… and I miss him terrible. He
was never a bad bairn, you know, it was just the going to
the pub. And I still miss him terrible.
Adult AROH 5
Police and Justice
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Police receive very positive feedback for work during
investigation and protection planning
Less so around ‘vulnerable person reports’: nature and
number
Concern that Procurator Fiscals deem cases not in the
‘public interest’ where people are older or have cognitive
impairments
Danger is that issue of societal justice ( see offender
punished ) becomes issue of individual protection ( for
the harmed)
Also might bail and probation be more effective than
banning orders?
NHS Awareness and Assistance:
Real mixed picture
NHS staff vary in degree of awareness of nature of harm
 NHS staff vary in fulfilling their duties under the ASPSA
 NHS staff vary in their willingness to work alongside
social work staff
Recommendations
 Promote awareness of nature of harm
 Responsibilities in relation to ASPSA
 Joint events to improve cross agency understanding and
collaboration
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Paired discussion
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A)
B)
C)
Select a situation of adult concern you are
working with/aware of Discuss in pairs:
What would you do now under Welsh law
and policy
Would an equivalent ASPSA help?
Why/why not?
Recommendations: Practitioners
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Review increased paper work –repetitive
Clarify distinction between inquiry and investigation
Residential staff not wholly grasping ‘harm’, not reporting, and
not following agreed plans.
Support with 3 point test and thresholds
Good supervision
Peer support
More time to discuss, share and compare work
Building up agency’s own ‘like for like’ comparisons to build a
shared knowledge base
Continued support for relationship-based work
Recommendations: Adult at risk of harm
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Growing self determination and positive risk
taking
Involving adults AROH more effectively in case
conferences
Recognising and reducing their stress
Recognising losses as well as gains
Promoting choice and control-remember people
grow in skills and confidence
Consider different ways of communicating
Improving access to justice
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Adult at risk of harm