Adult Support & Protection (Scotland) Act 2007 Information Booklet March 2013 1 CONTENTS Course Objectives 3 Course Programme 3 The Facts of the Borders Investigation & Lessons to be Learned 4 Adult Support & Protection (S) Act 2007 7 When is an ‘adult at risk’ of harm 7 What do we mean by ‘harm’ Principles of Act – Ethical and good practice guide 7-11 11-12 Capacity & Consent 13 Duty to Report & Cooperate - What to do when concerns arise 14 Dilemmas in adult protection 15-16 Inquires and investigation 16 Protection Orders 16 Adult Protection Committee Useful Information 17-18 19 2 Course Objectives • Introduce the Adult Support and Protection (S) Act 2007 (ASP Act) • Introduce the overarching principles of the ASP Act • Develop and understanding of what we mean by an “adult at risk” • Explore signs and symptoms of an adult at risk of harm & context of harm • Know your role if you observe or suspect that an adult is at risk of harm • Explore the key processes and concepts in Adult Protection • Introduce the three Protection Orders of the ASP Act Course Programme Session 1 - AM 9.30 Registration & Introductions Session 2 - PM 13.30 Registration & Introductions Adult Protection Committee Adult Protection Committee Background to the Act Background to the Act The 2007 Act The 2007 Act Exercise - Threshold Exercise – Threshold Harm Harm 10.45 Break 14.45 Break 11.00 Duties and Cooperation 15.00 Duties and Cooperation 12.30 Principles Principles Exercise – AP1 Exercise – AP1 Processes in Adult Protection Processes in Adult Protection Protection Orders Protection Orders Questions and close 16.30 Questions and close 3 The Facts of the Borders Investigation & Lessons to be learned On 1 March 2002, a woman was admitted to Borders General Hospital after she went to the house of a neighbour who found her to be badly injured and called the police and an ambulance. She was taken to hospital and was formerly medically assessed and was found to have multiple injuries of a physical and sexual nature. A police investigation revealed a catalogue of abuse and assaults over the previous weeks and much longer. Three men were convicted of the assaults later in 2002. The woman was considered to have a learning difficulty. A series of events had led to her being cared for by one of the convicted offenders. Over many years dating back to early 70s, there were events and statements in records held by social work, health services and the police that raised serious concerns about this person's behaviour toward this woman. The police investigation identified that other individuals within the Borders area were receiving care under similar circumstances. The adults in these sitautions had varying degrees of learning disabilities, physical disabilities and mental health needs, which were largely neglected, to the point of becoming potentially life-threatening for some. Health and social work records contained numerous statements of concern about their care, including allegations of serious abuse and exploitation that were not taken seriously and acted upon. From late 2000, the lives these individuals became increasingly chaotic. They were neglected, lived in unsuitable and unsanitary conditions and were financially and sexually exploited. The people involved had numerous contacts with: Social Workers General Practitioners District Nurses The local Learning Disability Specialist Team General Hospital Services Dieticians Police In June 2003, the Minister for Education and Young People asked the Social Work Services Inspectorate (the Inspectorate) to carry out an inspection into the social work services provided to people with learning disabilities by Scottish Borders Council's Department of Lifelong Care. Within a similar timescale, the Mental Welfare Commission (the Commission) carried out an investigation into the involvement of health services in this case, paying particular attention to joint working between health and social work services. In order to protect the identities of the individuals involved, the Mental Welfare Commission does not usually publish full reports of its investigations. Reports are provided to the key agencies, in this case NHS Borders and Scottish Borders Council and in anonymous form to Scottish Ministers. 4 Despite the different scope and remit of the Inspectorate's investigation and the Commission's inquiry, the two organisations liaised closely throughout their respective investigations to ensure appropriate information-sharing and avoidance of duplication wherever possible. Set out below is a summary of the main findings of both investigations, followed by their recommendations in full. Border Inquiry Findings THE FINDINGS OF THE INVESTIGATIONS Listed below are the main findings from both investigations. Although some of the findings are common to both investigations and some are directed at the relevant service, they are listed together to emphasise the importance of joint working in cases such as this one. failure to investigate appropriately very serious allegations of abuse an acceptance of the poor conditions in which the people involved lived and the chaos of their lives lack of comprehensive needs assessments, including carers' assessments, or assessments of very poor quality, despite clear and repeated indications of need from the earliest point of agency contact lack of information-sharing and co-ordination within and between key agencies (social work, health, education, housing, police) disagreements between agencies at frontline and middle management level, with no mechanism for resolving these unsustained contact with the individuals by the specialist Learning Disability service failure by some members of the Primary Care Team (GPs and District Nurses) to act on information about poor home conditions and to make these concerns known to the social work service lack of risk assessment and failure to consider allegations of sexual abuse very poor standards of case recording, falling well below acceptable practice lack of care plans identifying the purpose of contact with individuals lack of understanding of the legislative framework for intervention and its capacity to provide protection failure to consider statutory intervention at appropriate stages failure to understand and balance the issues of self-determination and protection failure to protect the finances of vulnerable individuals inability and/or unwillingness to confront aggression and staff's consequent collusion with aggressors to the detriment of victims lack of understanding of the complexities of child/adult protection and of the need to explore all allegations of abuse and the possible reasons for retraction of these failure to communicate with service users or to engage them effectively in assessing their needs lack of compliance with procedures 5 infrequent, unstructured and poorly recorded supervision of frontline staff by managers serious deficiencies in training and development lack of clarity of roles and reporting responsibilities uninformed and inaccurate assumptions of individual staff expertise in particular areas and consequent dangerous reliance on this lack of senior management and leadership ineffective management of poor practice breaches of the Scottish Social Services Council Code of Practice for employers A total of 42 recommendations were made 12 refer to the need for better information sharing 13 refer to better interagency working 7 refer to agency or interagency training 10 refer to improvement in investigation recording and case conferences 5 refer to risk assessment 8 refer to issues of quality assurance and monitoring The Borders Inquiry findings and recommendations highlighted our responsibility as public organisations and professional people to support and protect those adults in our communities who are at risk of harm. In order to achieve this, we require to work closely with each other, across all the agencies communicating effectively and sharing appropriate information and concerns to raise awareness of adult harm and the forms this can take and provide support through the available legislation and the provision of appropriate responses and services. This is why we welcome the new Adult Support & Protection Act 2007 to sit alongside other adult legislation currently in place The Adults with Incapacity (Scotland) Act 2000 The Mental Health (Care & Treatment) (Scotland) Act 2003 The Adult Support & Protection Act Multiagency Level 2 training will advise of what the new Act does to further support and protect adults at risk of harm in our communities. 6 Adult Support & Protection (Scotland) Act 2007 Definition of an ‘adult at risk’ of harm The Adult Support and Protection (Scotland) Act 2007 (Section 53) defines an ‘adult at risk’ as: Any adult aged 16 years or over that can meet the three conditions set out in the 2007 Act Section 53 which defines an ‘adult at risk’. An adult at risk is an adult who: is unable to safeguard their own wellbeing, property, rights and other interests is at risk of harm; and because they are affected by disability, mental disorder, illness or physical or mental infirmity, is more vulnerable to being harmed than an adult who is not so affected All 3 points of the criteria above must be met for action to be taken under the Act It is important to note that the existence of a particular condition does not mean that adult is at risk. A person may have a disability and be able to safeguard themselves. For those aged 16-18 years this will also apply unless the person is the responsibility of the local authority under child care legislation What do we mean by ‘harm?’ The definition of harm/abuse can be wide and varied and has been defined as: "The physical, emotional or psychological abuse of an older person by formal or informal carers. The abuse is repeated and is the violation of a person's human & civil rights by a person or persons who have power over the life of a dependent." (Eastman 1984) "Abuse may be described as physical, sexual, psychological or financial. It causes harm to the older person either temporarily or over period of time. " (SSI Report 1997) "A single or repeated act or lack of appropriate action, occurring within a relationship of trust, which causes harm to an older person." (ACTION ON ELDER ABUSE Oct. 1997) 7 Harm or abuse, in terms of the Adult Support and Protection (Scotland) Act 2007 includes all harmful conduct whether it is intentional and/or non-intentional. The following list of types of harm is not exhaustive: Physical This involves actual or attempted injury. Examples include: Physical assault e.g. punching, pushing slapping, tying down, giving food or medication forcibly or covertly. Use of medication other than as prescribed. Inappropriate restraint. E.g. using bedsides to prevent someone getting out of bed or locking doors to keep people in. Emotional/Psychological This results in mental distress for the adult. Examples include: Swearing, shouting, bullying, humiliation. Manipulation or the prevention of the use of services or facilities, which would aid or enhance life experience. Isolation or sensory deprivation. Financial or Material This involves the exploitation of the resources and belongings of an adult by paid or unpaid carers. Examples include: Theft or fraud. Misuse of money, property or resources e.g. spending a vulnerable adult’s benefit without their agreement or buying inappropriate goods that the adult will not benefit from. Removal of personal items and belongings Sexual This involves sexual activity where an adult cannot or does not give their consent. Examples include: Incest. Rape, indecent assault e.g. inappropriate touching. Acts of gross indecency. 8 Neglect (including self neglect) This involves severe exposure of a person to danger, or failure to fulfil basic needs whether on a single occasion or on a persistent basis. Examples include: Denial or lack of food, sleep, clothing. Failure to provide for warmth, shelter, medical treatment. Failure to provide for psychological wellbeing. Denial of medication. Failure to respect differences and resulting needs. Random Violence Random violence i.e. an attack by a stranger or strangers on an adult is an assault and should be reported to the Police. These assaults will not usually require the implementation of the procedures. However, there is a possibility that the violence may be part of a pattern of victimisation in a community or neighbourhood, and in this case, the Adult Protection procedures should then apply. Domestic Violence Police Scotland defines domestic violence as “any form of physical, non physical or sexual abuse, which takes place within the context of a close relationship, committed either in the home or elsewhere”. In most cases, this relationship will be between partners (married, cohabiting or otherwise) or ex partners. Clearly, there are strong similarities within this definition and the definitions of an adult at risk. However, not everyone who experiences domestic abuse will satisfy the 3 point criteria of the Act. The key factor in activating Adult Protection Procedures in situations of domestic abuse should be an adult at risk as defined within this guidance. Forced Marriage A forced marriage is not the same as an arranged marriage. A forced marriage is when one or both spouses do not freely give their consent, or in the case of some adults at risk, cannot consent to the marriage and duress is involved. Duress can include physical, psychological, financial, sexual and emotional pressure, threatening conduct, harassment, threat of blackmail, use of deception and other means. The duress may be from the parents, other family members and/or the wider community. Forced marriage is not a cultural issue, no culture condones the marriage of someone against their will without full consent. Some of the signs that someone might be being forced to marry could be: a change in behaviour from outgoing to withdrawn a change in dress from western to more traditional signs of anxiety and/or stress 9 self harming, eating disorders change of habits e.g. no longer attending extra curricular activities at school, not joining in other social groups etc. Some forced marriages take place in Scotland with no overseas element while others involve a partner coming from overseas, or a British national being sent abroad. The local authority can apply to court for a Forced Marriage Protection Order if they know or believe that a person who is now married was forced to do so. It can also be used for those currently being forced to marry against their will. Forced Marriage Protection Order make forced marriage a criminal offence carrying a 2 year prison sentence. Clearly, there could be some occasions whereby an adult, due to a certain condition, could have limited understanding of the nature of marriage, what is involved, the commitments and how their life may change thereafter. There may also be issues in terms of the adult having limited understanding in terms of sexual relationships, making an informed decision and being able to legally consent to a marriage. If you have any concerns, you must report these immediately to your line manager and Social Work Resources. Forced marriage procedures are now in place within South Lanarkshire Council. Self Directed Support (SDS) Self-directed support is the principle that people have informed choice about the way that their social care and support is provided to them. People can choose to take a lot of control over their support – for instance through a direct payment or individual personal budget – or they can decide to take less control and ask the local authority to arrange their support on their behalf or a combination of both. This legislation will change practice for professionals and will transform the way service users receive their care services. Some service users may decide to broker their own care services while others may choose to become employers and hire their own carers. Whilst this may improve service user choice and experiences it may also bring with it increased risks, for example: unregulated services no compulsory criminal records checks support staff working in isolation: limited supervision and monitoring If you have concerns about any adult who is in receipt of Self Directed Support you have a duty to report this to your line manager and Social Work Resources. 10 Context of Harm For adults at risk, where harmful conduct and the potential for harmful conduct are from others, an unequal power relationship will exist. An unequal power relationship can potentially be found in: Someone’s own home A carer’s home Care Home Work setting Educational setting Hospital /treatment setting Social situations A hostel or temporary accommodation Accommodation with support. Harm can occur in any setting where someone: Can tell another what to do. Provides intimate personal care. Has status or credibility. Meets essential needs material, social, or emotional. Institutional harm is a familiar concept and involves conformity to routine, imposition of values and standards on users of the service to meet the needs of the institution and to the detriment of the individual. It should, however, be noted that it is possible for an adult at risk to personally experience harmful conduct in an institution without the institution as a whole being abusive. For adults at risk of harm from their own conduct this may potentially occur in any setting. Principles of Act There are certain rights enshrined within the Adult Support and Protection (Scotland) Act 2007 that must be respected when intervening in ‘adult at risk’ circumstances. The Act also has overarching principles which must be considered in relation to any intervention in the life of an adult at risk. A public body or office holder must be satisfied that any intervention will provide Benefit to the adult which could not reasonably be provided without intervening in the adults affairs and Is, of the range of options likely to fulfil the object of the intervention, the least restrictive to the adult’s freedom 11 In addition the public bodies or office holders must also have regard to the following principles: Honouring the adult’s ascertainable wishes and feelings ( past & present) Listening and acknowledging the views of adults nearest relative, primary carer, guardian or attorney and any other person who has an interest in the adults well being or property. The importance of the adult’s participating as fully as possible in the performance of the function and providing the adult with such information and support as is necessary to enable the adult to participate. Public Bodies or office holders must also have regard to: The importance of the adult not being, without justification treated less favourably than the way in which a person who is not an adult at risk of harm would be treated in a comparable situation The adult’s abilities, background and characteristics. That any self determination can involve risk, and that we will jointly ensure that such risk is recognised and understood by all concerned and minimised whenever possible. The safety of any adults at risk by integrating strategies, policies and services relevant to abuse within the legislative framework In practice this means that agencies should adhere to the following guiding principles. Actively work within the principles laid down by the Care Commission i.e. dignity, privacy, choice, safety, realising potential, equality and diversity. Actively work together within an inter-agency framework. Actively promote the empowerment and well-being of adults at risk of harm through the services they provide. Actively work within and adhere to the guiding principles of the Adult Support and Protection (Scotland) Act 2007 Act in a way that supports the rights of the individual to lead an independent life based on self determination. Recognise people who are unable to make their own decision and/or to protect themselves and their assets. Recognise that the right to self-determination can involve risk and ensure that such risk is recognised and understood by all concerned, and minimised whenever possible. Ensure the safety of adults at risk of harm by integrating strategies, policies and services relevant to abuse within the legislative framework i.e. the NHS and Community Care Act 1990, the Public Disclosure Act 1990, the Regulation of 12 Care Act 2000, the Mental Health (Care & Treatment) (Scotland) Act 2003, the Human Rights Act 1998, the Adult Support and Protection (Scotland) Act 2007 and the introduction of the Care Standards by the Scottish Commission for the Regulation of Care 2002. Ensure that when the right to an independent lifestyle and choice is at risk the individual concerned receives appropriate help, including advice, protection and support from relevant agencies e.g. independent advocacy .Ensure that the law and statutory requirements are known and used appropriately so that adults at risk of harm receive the protection of the law and access to the judicial process Capacity & Consent The 2007 Act concerns adults at risk who may have capacity or lack of capacity, and includes adults with a mental disorder. In relation to adults with incapacity, interventions may involve the Adult Support and Protection (Scotland) Act 2007 and The Adults with Incapacity (Scotland) Act 2000 or a combination of both. In practice it is likely there will be a switch between one to another. The only way a person can be determined not to have capacity is through legal intervention and the decision of a Sheriff who will request Medical and Psychological evidence of this state. It is therefore not possible for other professionals to make a definitive judgement but they can use their professional judgement initially to assess the adult’s ability to have the capacity to consent to any situation they may find themselves. Some factors to consider and check out may be: Does the adult understand the nature of what is being asked and why? Is the adult capable of expressing his/hers wishes and make informed choices? Does the adult have awareness of the risks/benefits involved? Can the adult be made aware of his/hers rights to refuse to answer questions as well as consequences? 13 Duty to Report & Cooperate What to do when concerns arise The 2007 Act sets out duties of co-operation for public bodies, Councils, NHS Boards, the Police, the Care Commission, the Mental Welfare Commission and the Public Guardian. The Act also states there is a duty for all employees within the named public bodies to report the facts and circumstances to the local council when: involved with or concerned about an ‘adult at risk’ who may be experiencing ‘harm’ they know or believe that someone is an adult at risk and that action is needed to protect that adult from harm What you must consider and remember The wellbeing of the ‘at risk’ Adult must be your first consideration. Each agency, Health, Police, Social Work, Education, Voluntary and private organisations have a responsibility for Protecting ‘at risk’ Adults. Every individual in every agency has a duty to Report concerns. You have a duty to share those concerns, with your line manager/supervisor or another appropriate person in your agency or directly with your local Social Work service or the Police or both. When you have concerns it is your duty to ensure that appropriate action is taken. You should not pass on concerns and not accept responsibility for this. The person and their carers, where relevant, will need to know what is happening and you may well be expected to tell them that you have /have had concerns and that it is/has been your duty to pass these on to the local social work service. If a person has capacity and chooses to remain in a potentially abusive situation, it may not be possible or appropriate to intervene. However, we can advise and provide support where accepted. You must still Report this to your line manager. It is crucial to report and record any suspicions and or incidents of abuse or harm. Support to you is crucial and is your right. Any involvement in protecting at adults at risk is a joint responsibility. You should expect and feel confident to seek support from your agency. It is important that you read carefully the following sections on Duty to Report, Rights/Self-determination, Consent/Confidentiality/ Disclosure, Risk taking and Whistle blowing in your pack under the title Dilemmas in Adult Protection. 14 Dilemmas in adult protection The protection of adults, like the protection of children, raises a variety of complex issues. There may be a number of conflicts that must be considered. Some of these are discussed in a little more detail below. Duty to report Employees from the main public bodies, namely the council, police, NHS etc have a legal duty to report suspicions or disclosures made about any at risk adults. While this may cause the individual worker difficulties, a failure to report is a failure in their duty of care and you are breaking the law. Staff must report any concerns of suspected or actual abuse or harm to their line manager and social work resources. Rights/Self determination There is a tendency for society to believe that at risk adults need to be protected and that their right to choose is secondary to this. Adults are individuals in their own right and, if they are able and have the mental capacity, must be allowed to exercise these rights even if that means they choose to remain in a situation which other people consider to be inappropriate or abusive. Every effort should be made to inform the at risk adult of the consequences of the choice he/she may be making. Consent/Confidentiality/Disclosure All professionals who have contact with at risk adults have a responsibility to refer concerns/anxieties/disclosures to the appropriate agency. However, it should be recognised that, at times, this may pose a dilemma for staff who may feel that by so could erode the relationship and the potential for preventative work. To do nothing or to promise confidentiality and then report the concern is not acceptable. The recommended procedure is to openly and honestly discuss with the individual and/or family the intention to report the information given and to advise them of the possible action or intervention. Risk taking Concern over risk taking can stifle and constrain providers of care leading to an inappropriate restriction of the individual’s rights. All adults have rights to take risks in accordance with Human Rights legislation. Therefore there is a challenge for people working in all care settings to identify ways in which service users are able to take calculated, acceptable risks. Whistle-blowing Most organisations have developed policies on whistle blowing. Such policies allow staff to alert organisations to matters of suspected or actual malpractice. This procedure provides guidelines, protection and reassurance to staff in order to encourage such disclosures. Please consult your local organisation’s policy and procedure in this area. 15 Challenging Behaviour/Restraint There are some adults at risk who present with challenging behaviour which needs to be managed, for example within their own home, day care setting or care home. These behaviours can result in staff using inappropriate restraint and/or medication being disguised within food and drink. These issues require to be carefully thought through. Any action undertaken to manage an adult with challenging behaviour could be misinterpreted, potentially leading to an allegation of abuse or harm. Organisations should have clear practice guidelines to assist staff members who work in settings where challenging behaviour is likely to be a feature. Any decision to invoke any form of restraint or the “disguising” of medication in food or drink should not be made by a single individual In all such cases a case conference should be held and attended by family/Guardian and multi agencies. The Care Inspectorate and health services need to fully agree with any proposed plans whilst ensuring regular on going monitoring and review. Inquires and investigation ‘Council Officers’ will be the lead officers in any inquiry or investigation. They will be council employees, Social Workers or Occupational Therapists who are registered with a professional body and have at least 12 months post qualifying experience of assessing and managing risk. There is a further requirement that Council Officers will complete advanced Level 3 Adult Protection training. 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 action Protection Orders The Act introduces three types of protection order. Serious harm must be evidenced and consent from the adult is required to access the following: 1. 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. 2. 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 A warrant for entry must also be granted when either of these orders is made 3. 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. The sheriff may attach a power of arrest to the order. 16 A sheriff can grant an order without the consent of the adult if serious harm is evident and there is ‘undue pressure’ being applied. An example of undue pressure could be an adult not willing to consent to protective measures as they are frightened of repercussions from the perpetrator. Adult Protection Committee The Act requires councils to establish an Adult Protection Committee (APC) to: – Review adult support and protection procedures and practice – Give information or advice, or make proposals about practice improvement – Promote the development of knowledge and skills – Improve co-operation between the public bodies concerned. An Adult Protection Committee has is established to cover the South Lanarkshire area and is headed by an independent chair appointed by the Council under the terms set out by the Scottish Government within the Adult Protection & Support (Scotland) Act 2009. The Committee has as member’s representatives from each of the key agencies as set out below. Independent Chair Jim Cameron Adult Protection Co-ordinator Julie Stewart Adult Protection Development Officer Steven Logan Crown Office and Procurator Fiscal Service Catriona Bryden National Health Service Lanarkshire Margaret Serrels, Service Development Manager. Maria Docherty, Associate Director of Mental Health and Learning disabilities Jim Grierson, NHS Adult Protection Co-ordinator. 17 South Lanarkshire Council Brenda Hutchison, Head of Adult and Older Peoples Services. Nadia Ait-Hocine, Adult and Older Peoples Service Manager. Jim Watters, Legal Services Advisor. Carol Lee, Policy Co-ordinator. Val McIntyre, Area ICS Co-ordinator, Education. Jenny Hatton, Resource Worker, Doorway. Cathie Russell, Corporate Communications Manager. Margaret Campbell, Child Protection Advisor. Councillor Jim Handibode Councillor John Menzies Police Scotland Elaine Ferguson Strathclyde Fire and Rescue Service Peter O'Brien State hospital Stephen Malloy, Nursing Director. Peter Di Mascio, Team Leader, Social Work General Practitioner representation Dr Tyra Hogben Advocacy services Patricia Kearns, Speak Out Advocacy Project Carers Robert Anderson, Member, South Lanarkshire Carers Network Kyrle Murray, Member, South Lanarkshire Carers Network 18 Useful Information .Links to Legislation Human Rights Act 1998 Social Work (Scotland) Act 1968 Local Government (Scotland) Act 1973 Adults with Incapacity (Scotland) Act 2000 Mental Health (Care and Treatment) (Scotland) Act 2003 Vulnerable Witnesses (Scotland) Act 2004 Adult Support and Protection (Scotland) Act 2007 Protection of Vulnerable Groups (Scotland) Act 2007 Data Protection Act.1998 Race Relations (Amendment) Act 2000 Equalities Act 2006. Disability Equality Duty 2006 Gender Equality Duty 2007 Regulation of Care (Scotland) Act 2001 Forced Marriages etc (Protection and Jurisdiction) (Scotland) Act 2011 Guidance ASPA 2007 Adult Support and Protection (Scotland) Act 2007 Part 1 -Codes of Practice October 2008 Adult Support and Protection (Scotland) Act 2007 Part 1 - Guidance for Adult Protection Committees 19