Adult Support and Protection (Scotland) Act 2007
The Duties, Roles and Responsibilities
of
Services and Staff under the Act
Detailed Course Programme
09.30 Aims of the Day
09.45 Principles, Definitions, Inquiries
13.30 Protection Orders
Section 1. General principle on intervention in an adult’s affairs
ASP – AWI – MHCTA
S2. Principles for performing Part 1 functions
Overview of ASP Protection Orders
S3. Adults at risk
S12/15/20 Serious Harm
S53. Harm
S35. Consent and Undue pressure
S4. Council’s duty to make inquiries
13.45 Group Exercise
S5. Co-operation
14.15 Feedback
S6. Duty to consider providing advocacy and other services
10.15 Group Exercise
14.30 Assessment and Removal orders
10.45 Feedback
S11-12-13. Assessment orders
S14-15-16-17. Removal orders
11. 00 BREAK
S40. Urgent cases
S18. Protection of moved person’s property
11.15 Investigations
S37, 38, 39, 40, 41. Warrants for entry
S52-53. Definition of Council Officer
S7. and S36. Visits
15.00 BREAK
S37, 38 and 40. Warrants for Entry
S8. Interviews
15.15 Banning orders
S9/52. Medical examinations
S19>27, 51. Banning and Temporary Banning Orders
S10. Examination of records
S25-28 to 34. Powers of arrest, Arrest and Detention
S49-50. Offences
16.00 Group Exercise
12.00 Group Exercise
16.30 Feedback
12.30 Feedback
Learning Outcomes
12.45 LUNCH
16.30 CLOSE
Fire exits and alarms
Breaks
Refreshments
Toilet facilities
Please switch off mobile phones
Adult Protection Training Framework
Training Levels
Training Outcomes
Level 3.
‘Council Officers’,
specialist staff in social
care (all sectors), police
and health services and
service managers, AP
Conf. Chairs, Trainers
Adult Protection Committee members,
national and local Advocacy staff, Care
Commission Regulators, Health Regulatory
Bodies (NHS QIS), SWIA, Mental Welfare
Commission, and other Regulators/
Inspectorates (e.g. HMIC, HMIE), Office of
the Public Guardian
Level 2.
Detailed knowledge
and understanding
All sectors - Home care, support and housing staff, day care and care
home staff, hospital and community nurses, allied health professionals,
police constables, advice workers, criminal justice and children/family
services staff -- and supervisory staff (all groups)
Awareness raising,
knowledge and
understanding
Other Groups: National and Local Advocacy staff, Benefits Agency staff, appropriate
College/University teaching staff, Adult Protection Committee clerical and administrative
staff, Case Conference minute takers
Level 1.
Councillors, NHS, CHP and Police Board members
Others with governance role in other bodies, e.g. Care Commission, Voluntary Organisation Board
Awareness raising,
basic knowledge
and understanding
National Training Material
Level
Briefing/Training Material Produced Nationally
Level One
Members
• A report for governance Committees or Boards
• A 20 minute briefing presentation to Committees or
Boards.
Level Two
General staff
• A one-hour briefing session for staff at Level 2,
including presentation material, which could be
potentially delivered by supervisors and managers, as part
of a cascade briefing process.*
• A one-day training course.*
Level Three
Council officers
and specialists
• A two day training course for people in Level 3 on the
legislation and its operational implementation, plus a half
day awareness raising course, for those who have not
previously attended such a course.**
* Requires to be supplemented by full awareness training
** Requires to be supplemented by specific skills training
One-day training course
•
Designed for: certain groups of general staff at Level 2
•
Intended for: multiagency and multidisciplinary use
•
Covers: Legislation and its operational implementation;
•
Developed by: staff from Scottish Borders, West Lothian,
Midlothian, and Perth & Kinross, with staff from the Scottish
Government’s Adult Support and Protection Team and Legal Services
•
Use and Delivery: local discretion
•
Customisation: can be customised as necessary with reference to local
protocols and procedures
•
Trainer notes: accessed via menu bar by clicking on ‘View’ and then ‘
Notes Page’.
Group exercises
The course is designed to promote multi-professional consideration of the
practice issues arising from the implementation of the legislation.
It is important to respect the contribution of all participants, and to
ensure that everyone within the group is encouraged and has an
opportunity to contribute.
All personal information shared within the room is confidential unless it
raises concerns about an adult at risk.
Aims of training
This one day training course is intended to provide:
• knowledge of the Adult Support and Protection (Scotland) Act
• the requirements of implementation; and
• an understanding of its practice implications.
The course is intended to complement other training dealing with issues such as:
• awareness of abuse indicators and responses;
• skills in communication and interviewing; and
• risk assessment and protection planning.
Course Content
Morning
Session One – Principles, Definitions and Inquiries
Session Two – Investigations
Afternoon
Protection Orders
Session Three – ASP/AWI/MHCTA
Serious Harm, Consent and Undue Pressure
Offences
Session Four – Assessment, Removal and Banning Orders
This one-day session will focus on
Part 1 of the Act
Protection of adults at
risk of harm
Existing legislation
The Adults with Incapacity (Scotland) Act 2000 provided means to protect those
with incapacity, for example through part 6 of financial and welfare guardianship.
The Mental Health (Care & Treatment) (Scotland) Act 2003 set out powers and
duties in relation to people with mental disorder including those who are subject to
ill-treatment or neglect.
The Adult Support and Protection (Scotland) Act 2007 (ASP) was passed by the
Scottish Parliament in February 2007, with Part 1 implementation due in October
2008.
The ASP Act was designed to fill in gaps in previous legislation related to the
protection of certain adults and concerns both adults with capacity and adults
without capacity, including adults with a mental disorder.
What does the ASP Act do?
The ASP Act introduces new adult protection duties and powers, including:
• Councils duty to inquire and investigate
• Duty to co-operate
• Duty to consider support services such as independent advocacy
• Other duties and powers - visits, interviews, examinations
• Protection Orders: assessment, removal, banning and temporary banning
• Warrants for Entry, Powers of Arrest and Offences
• Duty to establish Adult Protection Committees across Scotland
Code of Practice
Section 48
Certain groups have a duty under ASP section 48(5) to have regard to the Code
of Practice:
• Councils and Council Officers;
• Health Professionals.
The Code of Practice identifies other organisations performing functions under
Part 1, which should have regard to the code:
•
•
•
•
The Police;
The Care Commission;
The Mental Welfare Commission;
The Office of The Public Guardian.
It is also relevant to those working in the voluntary and private sectors.
Definition and interpretation
This course draws extensively and in detail from the ASP Act and the Code
of Practice.
Where the Act provides a definition then that should be the
interpretation. Otherwise, the dictionary definition or common usage
should be used.
Local staff will often require to reach professional views, and should also
seek legal advice as appropriate.
This course will not therefore provide definitive answers about how to
interpret the legislation.
In their practice, local staff will require to consider each case on an
individual basis, using professional judgement and following local
procedures, often involving multidisciplinary discussion.
Adult Support and Protection (Scotland) Act 2007
Principles
ASP Sections 1 and 2
Section 1: Overarching principles
A public body or office holder must be satisfied that an intervention:
a) will provide benefit to the adult which could not reasonably be
provided without intervening in the adult’s affairs; and
b) is, of the range of options likely to fulfil the object of the
intervention, the least restrictive to the adult’s freedom.
Section 2: Guiding principles
In addition to the overarching principles, public bodies or office holders must have
regard to:
a) the adult’s ascertainable wishes and feelings (past and present);
b) any views of the adult’s nearest relatives, primary carers, guardian or
attorneys and any other person who has an interest in the adult’s well-being or
property;
c) the importance of :
•
the adult 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
d) 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; and
e) the adult’s abilities, background and characteristics.
Principles of the Act
Sections 1 and 2
The ASP principles apply to ANY public body or office holder performing a
function under the Act.
Any person or body taking a decision must be able to demonstrate that the
principles have been applied to their decision making and their interventions.
Certain people are NOT bound by the principles:
• the adult;
•
•
•
•
•
the adult’s nearest relative;
the adult’s primary carer;
an independent advocate;
the adult’s legal representative;
and any guardian or attorney of the adult.
Adult Support and Protection (Scotland) Act 2007
Definitions
ASP Section 3
Section 3 (1): Adults at risk
The Act defines adults at risk as:
Adults (aged 16 or over) who:
a)
are unable to safeguard their own well-being, property, rights or other
interests;
b)
are at risk of harm; and
c)
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.
All three of these criteria must be met before any action can be taken under
the ASP Act.
Section 3 (2): Adults at risk of harm
Section 3 (2) of the Act says that an adult is at risk of harm if:
a)
b)
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.
Section 53 of the Act states that harm includes all harmful conduct and, in
particular, includes:
a)
b)
c)
d)
conduct which causes physical harm;
conduct which causes psychological harm (for example: by causing fear, alarm
or distress);
unlawful conduct which appropriates or adversely affects property, rights or
interests (for example: theft, fraud; embezzlement or extortion); and
conduct which causes self-harm.
A sheriff must be satisfied that an adult is at risk of serious harm before
granting any protection order.
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.
Adult Support and Protection (Scotland) Act 2007
Inquiries
ASP Section 4
Section 4: Inquiries
A council must make inquiries about a person’s well-being, property or financial
affairs if it knows or believes:
(a) that the person is an adult at risk, and
(b) that it might need to intervene (by performing functions under Part 1 of ASP or
otherwise) in order to protect the person’s well-being, property or financial affairs.
Inquiry process
Initial 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 justified
Where an inquiry indicates that a criminal offence may have been
committed, the role of the police should not be undermined
Council responsibility to take any immediate protective action
Inquiries - practice implications
• 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.
Adult Support and Protection (Scotland) Act 2007
Cooperation
ASP Section 5
Section 5: Duty of co-operation
This section applies to:
• The Mental Welfare Commission for Scotland
• The Care Commission
• The Public Guardian
• All councils
• Chief constables of police forces
• The relevant Health Board
• Any other public body or office-holder as the Scottish Ministers may by order
specify.
They have the following statutory duties:
• They must co-operate with a council making inquiries and with each other where
that would assist the council; s.5(2)
• Where they know or believe that a person is an adult at risk, and that protective
action is needed they must report the facts and circumstances of the case to the
council. S.5(3)
Voluntary and private
organisations
Factors relevant to voluntary and private organisations, including providers:
• no specific legal duties or powers under the Act
• legal duty to comply with requests for examination of records;
• may be source of advice and expertise for statutory agencies;
• good practice that all relevant stakeholders co-operate with assisting
inquiries;
• have a responsibility to involve themselves where appropriate by contributing to
investigations.
Co-operation - practice implications
Duty 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.
Adult Support and Protection (Scotland) Act 2007
Support and Advocacy
ASP Section 6
Section 6: 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.
Section 6 applies where, after making inquiries under section 4, 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.
Advocacy and support
Independent Advocacy issues:
• ASP definition - independent advocacy is not provided by a local authority,
or NHS Board or a member of the local authority or NHS Board.
• There may be a conflict of interest within certain organisations providing
(non-independent) advocacy and also housing, financial advice and support
services.
• The adult should not be expected to pay for advocacy services.
Communication support considerations:
• Adult’s preferred format for communication; technical aids; interpreted and
translation; human aids to communication; the surrounding environment.
Other support services identified by the Code of Practice include:
•
•
•
•
Victim Support Scotland
Support through the Vulnerable Witnesses (Scotland) Act 2004
Appropriate Adult Scheme
Carers’ support services.
Advocacy and support - practice implications
Assistance or intervention must be well planned with the right support, to
enable people to express needs, consider options and make informed decisions.
Adults must feel that their perspective is being actively considered.
Good practice to inform carers, providing a substantial amount of care, of
their right to an assessment.
Other services should be considered:
• practical and emotional support provided by statutory/other providers;
• mainstream health and social care and housing services.
Group exercise
Group members should introduce themselves and say which organisation
they come from and what their job is.
They should agree a chair and identify group members to record on the
flip chart and report back at the plenary feedback session.
In every session the group should identify the three most important points
it wishes to report back.
Group exercise 1
Case example: Agnes
Agnes lives with her husband Ian in a ground floor flat. She has multiple sclerosis and
anxiety states. A couple of years ago her health deteriorated and now she cannot walk
very far. The only time Agnes goes out is when she attends a luncheon club twice a
week. Both an OT and a home care worker have been involved for some time. There
have been concerns in the past when Agnes has said he has not got any money left. She
has never said where the money has gone. Service staff see very little of Ian, who
seems to spend a lot of his time out of the house. There are often empty bottles of
spirits in the house -- Agnes does not drink alcohol -- and old betting slips left lying
around. During an assessment visit, Ian did say he did what he could for Agnes, but he
had worked all his life and paid his taxes and it was up to services to provide what
support she needed. Agnes has never been critical of him, and always seems highly
anxious to keep things in order in case he gets angry with her. Agnes's doctor has been
called out by a neighbour, who had heard Agnes shouting for help through the wall.
When the neighbour went in she found Agnes crying and saying she was starving. She
had not eaten for three days. She seemed to be extremely dehydrated and cried out
when the neighbour touched her arm. Her neighbour helped her to the toilet, and Agnes
said it was painful to pass urine. The neighbour phoned the health centre, but by the
time the doctor visited Ian had returned home, said his wife was fine and they did not
need any help. The doctor was only able to see Agnes very briefly, when she said she
was fine and did not need any help or want anyone else involved.
Group exercise 1
The group task is to agree a group view of the case study on the flipchart
What are the implications of the definitions of ‘adult at risk' and 'harm'?
In this case is there a duty to inquire, and what might be the issues,
dilemmas and challenges in relation to the duty of cooperation, and the
duty to consider advocacy and other services?
How should staff and agencies deal with the dilemmas concerning selfdetermination and reporting concerns raised in operational practice?
Please flipchart your comments, and identify three key points to feed back.
Adult Support and Protection (Scotland) Act 2007
Section 3:
Definitions:
Section 41
“adults at risk”
“risk of harm”
Section 1 & 2:
Applications
procedure
Principles
Sections 37-40
Warrants for entry
Section 4:
Duty to inquire
Benefit
Section 35
Least restrictive
Adult’s past &
present wishes
Section 5
Duty to
co-operate
Views of relevant others
Consent of adult
at risk
Section 19-34:
Banning &
Temporary
Banning orders
Adult’s participation
Section 6
Duty to consider
providing advocacy
& other services
Section 7:
Visits
Non-discrimination & Equality
Respect for the adult’s diversity
Section 8:
Interviews
Section 9:
Medical
examinations
Section 14-18:
Removal orders
Section 11-13:
Assessment
orders
Section 10:
Examination of
records etc
Adult Support and Protection (Scotland) Act 2007
Council Officer
Council Officer – draft definition
Council officers will be council employees (appointed under Local Government
(Scotland) Act 1973 S. 64.)
Council officers working under sections 7-11, 14, 16, and 18 of the Act will need, as a
minimum, to be registered as:
• social workers (SSSC); or occupational therapists (HPC); or nurses (NMC); and
• have at least 12 months post qualification experience identifying, assessing and
managing adults at risk
Additional flexibility will be provided in terms of council officers working under
sections 7-10 of the Act. As a minimum they will need to be registered:
• social service workers (SSSC); and
• have at least 12 months post qualification experience identifying, assessing and
managing adults at risk.
The assumption is that:
• registration standards for continuous professional development will assure the
necessary competence to identify, assess and manage adults at risk; and
• local authorities will ensure the competence of their council officers.
Definition of responsibilities
Council Registered Staff
Social
Workers, OTs,
Nurses
Social
Services
Staff
S7. Visits
√
√
S8. Interviews
√
√
ASP Act Section
Police
Doctors,
Nurses,
Midwives
Constable*
OIC**
√
S9. Medical examinations
S10. Examination - records
Health
Professionals
√
√
√
S10. Exam – health records
S11. Assessment orders
√
S14. Removal orders
√
S16. Right to move
√
S18. Protection property
√
S28. Arrest
√*
S29/30/31. Detention
√**
S37/40. Warrants for Entry
√
√
√*
Risk Assessment
Support and Protection Planning
Risk assessment/protection plans
The requirements of the ASP Act and the terms of the Code of Practice have
implications for risk assessment and protection planning, including:
•
•
•
•
•
•
•
•
•
taking account of the principles and definitions;
involving the adults at risk and others at all stages;
responding to their communication needs and capacity;
multidisciplinary and multiagency co-operation at all stages;
multidisciplinary and multiagency communication at all stages;
considering support as well as protection needs;
assessing and planning in a comprehensive holistic fashion;
reaching conclusions about immediate and longer-term needs;
weighing up the advantages/disadvantages, gains/losses to the adult’s quality
of life, or freedom, or independence which might result from actions; and
• defining comprehensive plans for support and actions, with clearly defined
Roles, Responsibilities, Timescales/Deadlines, Intended Outcomes.
The JIT/Glasgow/Tayside Risk Assessment And Protection Plan Formats take
account of all of these issues.
Adult Support and Protection (Scotland) Act 2007
Visits
ASP Section 7
Section 7: Visits
Powers
A council officer may enter any place to enable or assist an inquiry. s.7(1)
There is a right to enter any adjacent place for the same purpose. s.7(2)
Purpose
The purpose of a visit - s.7(1) - is to assist the council:
• 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.
Identity and authorisation
A council officer must under s.36(2):
• produce evidence of the officer’s authorisation to visit the place; and
• state the object of the visit.
Considerations - prior to visit
Before a visit, consideration should be given to the implications of:
• the principles of the Act;
• providing appropriate services to the adult, e.g. independent advocacy or
services to assist an adult, or other person in the household, to communicate;
• other legislation, e.g. AWI, MHCT or other;
• local inter-agency protocols and procedures; and
• ensuring staff are protected and supported (consider local procedures –
working in pairs – liaising with the police);
• the likelihood of barred entry and any need to apply for a warrant for entry.
Interdisciplinary discussion whenever possible of who, when and how.
Visits - Who? Where? When?
Who?
A council officer, making a visit, may be accompanied by another person. This could
help inquiries by enabling a joint investigation with e.g. key worker, police officer,
health professional, Care Commission officer or member of the Office of the Public
Guardian (OPG); improved assessment of the risk to the adult; or better
communication with the adult.
Where?
Section 7 allows a council officer to enter any place i.e.:
• the place where the adult normally resides such as their own home or care home; or
• a place where the adult is there temporarily or spends part of their time there such as
a day centre; hospital or commercial premises.
When?
Section 36 (1) states that visits should only be at ‘reasonable times’. There is a need to
consider timeous investigation; fully involving the adult and others; speaking to the
adult in private; urgency of assessing risk and, if necessary, taking protective action,
giving notice/possible prejudice to safety of giving notice.
Adult Support and Protection (Scotland) Act 2007
Warrants for Entry
ASP Section 37
Visits - if entry is refused?
Consider first how entry may be achieved without seeking an entry warrant.
Ensure delay would not increase risk to the adult.
Good practice - multi-disciplinary discussion and plan to co-ordinate action.
Decide whether to apply for a warrant.
Consider minimising distress and risk to the adult.
Take account of the views of any other persons who may be concerned for the
welfare of the adult.
Section 37: Warrants for entry
Only the council can apply for a warrant for entry.
The Sheriff (section 38(2)) must be satisfied:
• that a council officer has been, or reasonably expects to be refused entry or otherwise
unable to enter; or
• that any attempt by a council officer to visit the place without such a warrant would
defeat the object of the visit.
Council officer authorised to visit any specified place, with a constable, who can use
reasonable force as an absolute last resort to fulfil the object of the visit. S.37(1)
A warrant for entry expires 72 hours after it has been granted. S.37 (2)
Once executed, a warrant for entry cannot be used again.
The council should ensure the security of the person's premises and belongings if
force has been required to enter the premises.
.
Warrants for entry – urgent cases
Section 40
An application must be made to a sheriff wherever possible.
An application can be made to a Justice of the Peace only if:
• it is impracticable to make the application to the sheriff; and
• an adult at risk is likely to be harmed if there is any delay;
A Justice of the Peace warrant for entry expires 12 hours after it has been
granted.
Once executed, it cannot be used again.
A warrant for entry by a sheriff or a Justice of the Peace does not entitle any
person to remain in the place entered after the warrant has expired.
Adult Support and Protection (Scotland) Act 2007
Interviews
ASP Section 8
Section 8: Interviews
A council officer, and any person accompanying the officer, may interview, in
private, any adult found in a place being visited under section 7.
The adult must be told of their right not to answer any questions before the
interview starts. Section 8 (2)
The adult, and any other person interviewed, can choose to answer some questions
but not others.
It is not necessary to have an assessment order to carry out visits and interviews.
Section 8 (3)
Interview – purpose
The aims of the interview will be 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.
Interview – who, where, how and when?
Who:
Need to consider who should be interviewed – adult at risk and others – whether in
private or supported – and whether council officer should be accompanied.
Where:
May take place within any place being visited, e.g. the adult’s home, a day centre, care
home or hospital.
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.
When:
Guided by the urgency of the situation, and a planned process in line with local interagency protocols and procedures.
Adult Support and Protection (Scotland) Act 2007
Medical Examinations
ASP Section 9
Section 9: Medical examinations
Section 9 of the Act allows a health professional (a doctor; a nurse; or a
midwife) to conduct a medical examination of an adult at risk in private.
A medical examination includes a physical, psychological or psychiatric
assessment or examination; and can take place at a place being visited; or can
take place where an adult has been taken under an assessment order.
Where it appears that a criminal offence may have been committed, the police
must be informed at the earliest opportunity.
Medical examinations – purpose
Possible reasons for a medical examination include:
• the need for immediate medical treatment for a physical illness or mental
disorder;
• a need to assess physical health, injuries, sexual abuse, neglect including selfneglect needs;
• to assess situations in which the explanation for injuries is inconsistent with the
injuries, or the adult is ill or injured and no treatment has previously been sought;
• to provide evidence of harm to inform a criminal prosecution under police
direction;
• to support an application for an order to safeguard the adult;or
• to assess the adult’s mental capacity.
Medical examination – consent
Section 9 (2) of the Act requires an adult to be informed of their right to refuse to be
medically examined before it is carried out.
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 the adult lacks capacity or has difficulty in communicating and consent is not
possible, the council will:
• contact the Office of the Public Guardian to identify whether there is a proxy;
• consider whether it is appropriate to use the AWI 2000 or MHCT 2003 Acts.
Adult Support and Protection (Scotland) Act 2007
Examination of Records
ASP Section 10
Section 10: Examination of records
Section 10
Council officers may require someone to give them health, financial or other records,
or copies of the records (audio, visual or other formats).
The requirement may be made during a visit or at any other time, but if at any other
time must be made in writing.
Inspection can be by the officer and any other appropriate person.
It is an offence for a person to fail to comply with a requirement to provide
information, except with reasonable excuse.
Examination of health records
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.
Health records may – s.10(5) be:
• sought and obtained by a council officer;
but
• inspected only by a health professional.
Health professionals holding records must act within their professional
guidance.
Records - practice implications
Records should be accessed and information shared, giving consideration and in
accordance with:
• the principles of the Act;
• the council officer providing authorisation to access records;
• action which is relevant and proportionate to concern involving those who
need to know;
• the need to consider relevant child protection information;
• the adult’s wishes and right to confidentiality;
• gaining the adult’s consent, wherever practicable and possible;
• seeking information where it is not possible to obtain consent or where there
are grounds for disclosure without consent;
• capacity issues and the need to contact the Office of the Public Guardian;
• whether there is a need for action under the AWI or MHCT Acts;
• making efforts to resolve disagreements, including the use of conciliation;
• the requirements of professional regulatory bodies;
• agreeing with the record holder how the records obtained are to be treated,
e.g. returned or destroyed.
Adult Support and Protection (Scotland) Act 2007
Offences
ASP Section 49
Offences - obstruction
Section 49
Offences
•
to prevent or obstruct any person from acting under the Act;
•
to refuse, without reasonable excuse, to provide information.
(examination of records etc).
An adult at risk cannot commit such an offence.
A person found guilty is liable on summary conviction to:
• a fine not exceeding level 3 on the standard scale; and/or
• imprisonment for a term not exceeding 3 months.
Offences – bodies corporate etc.
Section 50
Obstruction consent or connivance or attributable neglect can mean offence by:
•
•
a body corporate, partnership or unincorporated association;
a “relevant person”
A “relevant person” for the purposes of this section means:
• a director, manager, secretary or other similar officer of the body;
• a member, where the affairs of the body are managed by its members;
• an officer or member of the council;
• a partner in a Scottish partnership;
• a person who is concerned in the management or control of an unincorporated
association other than a Scottish partnership.
An unincorporated association is the most common form of organisation within
the voluntary sector in Scotland.
Group exercise 2
Case Example
Muhammad
Muhammad is a Scottish-Asian man, who has lived in Scotland for many years. He has
a number of physical and mental health issues and his behaviour can be quite difficult at
times. He has lived in a registered care setting for about a year. Staff are struggling to
manage his behaviour and a social worker is involved in reviewing his care needs. The
social worker is unhappy with the staff’s attitude to her client. Another registered
service has assessed Muhammad, with a view to him moving to their specialist service.
However, in their assessment, Muhammad does not need such a specialist unit. The
Care Commission also has a number of concerns about this service. Muhammad’s
cousin visits regularly, and has now reported to the social worker that as she arrived for
her last visit she saw one of the staff angrily pushing Muhammad along the corridor and
saying to him, " I told you -- you can't come along here – you people never learn". The
Senior officer later told the cousin about an accident that had happened to Muhammad a
few days before leaving bruising down one arm -- it was not a very convincing
explanation, but Muhammad was not able to tell her cousin what had happened. The
cousin also expressed concern that Muhammad never seemed to have much left from
his weekly income.
Group exercise 2
How do the legislative principles, definitions, and the legal powers and
duties in relation to visits, interviews medical examinations and the
examination of records relate to the case study?
Consider what dilemmas and challenges are posed in this case, and what
next steps should be taken?
Then, identify more broadly issues concerning implementing the legislation
when this concerns managed social care, health or housing settings.
Flipchart your views, and identify three key points to feed back.
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, 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?
Learning
summary
Section 4
Duty to
inquire
Section 5
Duty to
cooperate
Section 10:
Examination
of records etc
Section 9:
Medical
examinations
Adult Support
& Protection
(Scotland)
Act 2007
Section 8
Interviews
Section 6
Duty to consider
the importance of
providing advocacy
& other services
Section 7
Visits
Adult Support & Protection (Scotland) Act 2007
Relationship
of the
Adult Support and Protection (Scotland) Act 2007
to the
Adults with Incapacity (Scotland) Act 2000
and the
Mental Health (Care and Treatment) (Scotland) Act 2003
Comparisons of ASP – AWI – MHCT
Comparisons can be made in relation to:
• Definitions of those covered
• Principles
• Duties to inquire and investigate
• Potential interventions
Subject of ASP – AWI – MHCT
ASP
Adults at Risk
Adults, aged 16 years or
over,
who are:
• unable to safeguard their
own well-being;
• at risk of harm (whether
from another person or self
harm);
• because affected by
disability, mental disorder,
illness or physical or
mental infirmity, are more
vulnerable to being harmed
than adults who are not so
affected.
AWI
Adults with Incapacity
Adults, aged 16 years or over,
incapable of :
• acting;
• making decisions;
• communicating decisions;
• understanding decisions; or
• retaining the memory of
decisions;
• because affected by mental
disorder or inability to
communicate because of physical
disability (this physical disability
incapable of being made good
through human or mechanical
aid).
MHCT
Mentally
Disordered
Adults
Adults and children,
with a mental
disorder.
The term
mental disorder
covers mental
illness,
personality
disorder or
learning
disability.
Principles of ASP – AWI – MHCT
ASP
AWI
MHCT
Adults at Risk
Adults with Incapacity
Mentally Disordered Adults
Intervention must:
Intervention:
Intervention must:
•benefit the adult;
•be the least restrictive option;
•will benefit the adult
•be the least restrictive
option;
•take account of adult’s
wishes and feelings (past
and present);
•take account of views of
adult’s nearest relative,
primary carer, guardian or
attorney, person (s)
identified by Sheriff and
any other person with
interest in adults welfare
or the intervention;
•adults should be
encouraged to use existing
skills or develop new
skills.
•provide maximum benefit to the
person;
•be least restrictive option
•take account of adult’s wishes and
feelings (past and present);
•take account of views of patient’s
named person, carer, guardian and
welfare attorney;
•do not treat the adult less favourably
than would a non-patient;
•ensure adult participates as fully as
possible, and provide information and
support to facilitate this;
•have regard to adult’s abilities,
background, and characteristics;
•reciprocity;
•have regard to other options available.
•Any body or person performing a
function must, if relevant, have
regard to:
• take account of adult’s wishes and
feelings (past and present);
•take account of views of adults
nearest relative, primary carer,
guardian or attorney and any other
person with interest in the adults
well-being or property;
•do not treat the adult less
favourably;
•ensure adult participate as fully as
possible, and provide information to
facilitate this;
•the adult’s abilities, background and
characteristics.
Under 18 – welfare of the child
Duty to inquire and investigate
ASP
AWI
MHCT
Adults at Risk
Adults with Incapacity
Mentally Disordered Adults
Councils have duty
to make inquiries:
Local authorities have a duty
to investigate:
• 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.
Local authorities should
cause inquiries to be made:
• 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.
Office of Public Guardian duty to
investigate financial concerns.
Mental Welfare Commission duties
to investigate under the Act.
• when it appears that a
person with a mental
disorder aged 16 or over is
in their area as and certain
circumstances apply;
• these circumstances
include, amongst others,
that 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.
Office of the Public Guardian
The Public Guardian (PG) has a duty to investigate:
•
complaints about the actions of those appointed under the AWI Act
concerning financial issues (financial attorneys, Access to Funds
Withdrawers, financial guardians or interveners); and also
•
any concern raised where there appears to be a risk to adult’s property
or financial affairs (i.e. there is no AWI appointment but funds do not
appear to be managed for benefit of adult).
PG can only intervene when an adult is deemed by medical professional to lack
capacity to safeguard his/her own property or financial affairs.
There is an overlap of investigative roles between council and OPG in relation
to ASP and AWI, and local arrangements are required to determine referral routes,
roles, communication and joint working.
Inquiry or investigation actions
ASP
AWI
MHCT
Adults at Risk
Adults with
Incapacity
Mentally
Disordered
Adults
Not specified
in the Act
other than
duty to
investigate
welfare
matters
Not specified
in the Act
other than
duty to
investigate.
(medical
examinations
not an MHO
role)
In order to decide if further action is required to protect
an adult at risk from harm, a council officer may:
• visit any place;
• interview anyone at the place visited;
• when accompanied by a health professional, the health
professional may conduct a medical examination of the
person known or believed to be an adult at risk;
• the council officer may request and examine any
records relating to the individual believed to be an adult
at risk of harm (except health records which can only be
examined by a health professional.
Further actions – ASP–AWI–MHCT
ASP
AWI
MHCT
Adults at Risk
Adults with Incapacity
Mentally Disordered Adults
Warrant for entry
Access to funds
Warrant for entry
Assessment order
Management of
resident’s finances
Warrant for detention to allow
medical assessment by doctor
Intervention order
Warrant for access to medical
records by doctor
Removal order
Banning order
Guardianship order
Temporary
banning order
Removal order
Warrant to enter premises for
purposes of retaking patient
Emergency detention certificate
Short-term detention certificate
Compulsory treatment order
Assessment Orders
Removal Orders
Banning Orders
Adult Support and Protection (Scotland) Act 2007
Section 3:
Definitions:
Section 41
“adults at risk”
“risk of harm”
Section 1 & 2:
Applications
procedure
Principles
Sections 37-40
Warrants for entry
Section 4:
Duty to inquire
Benefit
Section 35
Least restrictive
Adult’s past &
present wishes
Section 5
Duty to
co-operate
Views of relevant others
Consent of adult
at risk
Section 19-21:
Banning &
Temporary
Banning orders
Adult’s participation
Section 6
Duty to consider
providing advocacy
& other services
Section 7:
Visits
Non-discrimination & Equality
Respect for the adult’s diversity
Section 8:
Interviews
Section 9:
Medical
examinations
Section 14:
Removal orders
Section 11:
Assessment
orders
Section 10:
Examination of
records etc
Protection orders - introduction
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.
Protection orders - overview
An Assessment order allows a council officer to conduct an interview in private and/or
a health professional to conduct a medical examination in private. This may be required
to establish whether the person is an adult at risk and if further action is required to
protect him/her.
A Removal order allows the council to remove the adult at risk to a specified place in
order to assess the situation and to support and protect her/him.
Banning orders and Temporary Banning orders will ban the subject of the order
from a specified place. They may have other conditions attached, for example contact
under certain conditions.
Application may only be made for any of the orders, where the adult is at risk of
serious harm.
When the adult at risk does not consent to the making of any of the orders, evidence
is required that the adult has been subject to ‘ undue pressure’.
Provision is made for situations, where immediate protective action is needed.
Protection Orders
Assessment Order
Removal Order
Banning Order
ASP Principles
Yes
Yes
Yes
3 Point Test - Adults at Risk
Yes
Yes
Yes
Serious Harm
Yes
Yes
Yes
Incapacity, consent or undue
pressure
Yes
Yes
Yes
Council
Council
Adult, Other
with occupancy
right, Council
Notification - Adult at Risk
Yes
Yes + others
Yes + subject
Ad. represented/ accompanied
Yes
Yes
Yes
Protection of Property Duties
No
Yes
Where specified
in the order
Appeal
No
No
Yes
Variation or recall
No
Yes
Yes
Disapply notification
Yes
Yes
Yes
Safeguarder - Curator ad Litem
Yes
Yes
Yes
Use Vuln. Witnesses Act 2004
Yes
Yes
Yes
Access Conditions to Order
No
Yes
Yes + other
Application
Protection orders – considerations
Protection orders may be applied for at any time in the process.
Application only if no steps could reasonably be taken with the adult’s
consent, and all other options have been explored and exhausted.
Where the adult is incapable of consent, approaching any known proxy,
who may be authorised to consent, or the Office of the Public Guardian.
Need to consider demerits of non-compliance against potential benefits of
order and opportunities from separating adult at risk from source of
harm.
Need to take account of the use of other legislation, for example, child
protection, mental health, civil law or criminal justice legislation.
Definition of harm
Harm (Section 53) includes all harmful conduct and, in particular, includes:
a) conduct which causes physical harm;
b) conduct which causes psychological harm (for example: by causing fear,
alarm or distress);
c) unlawful conduct which appropriates or adversely affects property, rights
or interests (for example: theft, fraud; embezzlement or extortion); and
d) conduct which causes self-harm.
An adult is at risk of harm – s.3(2) - if:
a)
b)
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
N.B “conduct” includes neglect and other failures to act (Section 53)
Protection orders – lack of consent
or incapacity
(Section 35) If the affected adult has capacity and refuses to consent, the council
must prove that the adult has been “unduly pressurised” to refuse to consent to the
granting of an order.
The sheriff may ignore the refusal of consent if he/she reasonably believes:
• that the affected adult at risk has been unduly pressurised to refuse consent; and
• that there are no steps which could reasonably be taken with the adult’s consent
which would protect the adult from the harm which the order or action is intended
to prevent.
Where the adult does not have the capacity to consent, the requirement to prove
undue pressure does not apply. However, evidence of lack of capacity will be
required by the Sheriff.
“undue pressure”
Undue pressure can be applied by an 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.
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.
Group exercise 3
Serious Harm
How would you distinguish 'harm' from 'serious harm' within the context of the
Adult Support and Protection Act?
Create a group list after sharing and discussing these ideas, and identify three
key points to report back.
Undue Pressure
The ASP Act allows consent to be dispensed with in certain circumstances and
with evidence of 'undue pressure'.
Create a list identifying what the group believes would constitute and evidence
'undue pressure' and any issues concerning this concept, and note 3 key points to
report back.
Note on flipcharts 3 key points about harm and undue pressure to report back.
Protection Orders
Assessment Order
Removal Order
ASP Principles
Yes
Yes
3 Point - At Risk and Serious Harm
Yes
Yes
Council
Council
Yes
Yes
Warrant for Entry automatic
Yes
Yes
Place specific entry Warrant
Yes
Yes
Constable – reasonable force
Yes
Yes
Council right to take to place
Yes
Yes
Order identifies specified place
Yes
Yes
Council right to detain at place
No
No
Use Order more than once
No
No
To not answer some/all questions
Yes
Yes
To refuse medical examination
Yes
Yes
To leave place at any time
Yes
Yes
To be informed of rights
Yes
Yes
Application
Identify/evidence suitable place
If Order granted:
Adult’s rights:
Assessment and removal orders
practice implications
Consideration will require to be given to:
• the views of those concerned, the principles, alternative options, and urgency;
• what is the least restrictive alternative;
• keeping the adult fully informed of rights, options, events;
• minimising distress and risk to the adult;
• providing independent advocacy, support, advice or other services;
Assessment and removal orders - practice
implications cont’d
• a plan on how to carry out the order in the shortest time practicable;
•
•
•
•
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;
use of reasonable force to fulfil the object of the visit;
• a plan for what happens after order expiry or adult chooses to leave;
•
Council duty of care to return the adult safely to the place from which they
were removed or to a place of their choice, within reason;
• a Support Plan for the adult at risk beyond the order;
• convening a multi-disciplinary meeting on care and protection;
• taking further action under the ASP Act or other legislation.
Adult Support and Protection (Scotland) Act 2007
Assessment Orders
ASP Section 11
Assessment orders - purpose
The purpose is to ascertain – s.11(2) whether:
• the adult is an adult at risk; and
• there is reasonable cause to suspect that the adult at risk is being, or is likely to
be, seriously harmed.
The council may take an adult at risk of serious harm to a suitable place specified by
the sheriff, so that – s.11(1):
•
•
a council officer or council nominee may conduct an interview in private; or
a health professional may conduct a medical examination in private.
An Assessment order is valid for up to 7 days after the date specified in the order (may
not be date order granted) – s.11(3), and can only be used on one occasion.
The adult must only be taken to the place specified on the order.
Assessment orders - grounds
Application only if not practicable to carry out the interview or examination at the
place of the visit. s.13
The sheriff must be satisfied – s.12 - that:
• the council has reasonable cause to suspect the subject of the order is an adult
at risk who is being, or is likely to be, seriously harmed;
• the order is required to establish whether the person is an adult at risk who is
being, or is likely to be, seriously harmed; and
• the place at which the person is to be interviewed and examined is available
and suitable.
Any proposed action must be judged to be of benefit to the individual, and reflect the
principles of the Act.
Council should detail the type of assessment and estimated length of time needed.
Adult Support and Protection (Scotland) Act 2007
Removal Orders
ASP Section 14
Removal orders – purpose
Only the council can apply for a removal order, which authorises - s.14(1):
• council officer, or a council nominee, to take someone from any place
(at home or in public, private or commercial premises);
• to move person to a specified place;
• the council to take reasonable steps to protect person from harm.
The purpose of a removal order is primarily for protection and:
• to assess the adult’s situation and provide support and protection;
• not primarily for a council interview or a medical examination;
• permits the person named to be moved from any place;
• requires return to own environment as soon as possible.
The order may only be used for very specific purposes, such as:
• resolving issues between the adult and person suspected of harming;
• relieving carer stress.
The order may provide for contact under specified conditions.
The removal must be for the purpose of preventing serious harm.
Removal orders – grounds
Council applications and sheriff decisions based on certain grounds:
•
•
•
•
•
•
•
adult is likely to be seriously harmed if not moved to another place; and
there is a suitable place available to remove the adult to. S.15 (1)
is to be used for very specific purposes;
will reflect the principles of the Act;
will be the least restrictive action;
is necessary to provide a benefit to the adult;
takes account of the adult’s wishes and needs.
Variation or recall has to be justified by a change in the facts or circumstances.
Removal orders – implementation
Timescales
The removal order:
•
•
•
•
•
must be executed i.e the adult must be removed within 72 hours - s.14(1);
will expire up to seven days after the day the adult was moved – s.14(2);
cannot be extended beyond seven days;
can be specified by the sheriff to expire in a shorter period;
as short a removal period as possible.
Who
Council officer and constable have right to enter premises to remove adult. s.16
Council may arrange another person (maybe more familiar) to move the adult. The
nominee should be specified in the application.
Good practice to advise any person with interest in adult’s welfare of the removal.
Removal orders – urgent cases
Section 40
In emergency situations council can apply to Justice of the Peace on the basis that:
•
•
•
•
adult is likely to be seriously harmed if not moved to another place; and
there is a suitable place available to remove the adult to;
it is not practicable to make application to the sheriff; and
an adult at risk is likely to be harmed if there is any delay in granting the order.
Removal within 12 hours of order - expires after 24 hours.
Council should advise any person with interest in adult’s welfare of removal.
Adult Support and Protection (Scotland) Act 2007
Banning Orders
ASP Section 19
Banning orders – purpose
Banning orders are intended for circumstances where banning the subject from a
specified place or area is likely to:
• better safeguard the well-being and property of adult at risk of serious
harm more effectively than would the removal of the adult; and
The ‘subject’ of the order can be banned from being in a specified place or area
for up to 6 months.
Application can be made for a temporary banning order where inadvisable to wait
for a full hearing on the banning order application.
The “subject” may be a child.
A banning or temporary banning order can be varied, recalled or appealed.
Banning orders – terms
A banning order may – s19(2):
• ban the subject from a specified area in the vicinity of the specified place;
• authorise ejection of the subject from the place and area;
• prohibit the subject from moving any specified thing from that place;
• direct any specified person to take measures to preserve the moveable
property of the subject;
• have specified conditions; and
• require or authorise any person to do, or to refrain from doing, anything else
which the sheriff thinks necessary for the proper enforcement of the order.
Application for order must be accompanied by a plan clearly identifying the
place and area from which the subject is to be banned, and any conditions sought.
Order may allow the subject to be in a place or area from which banned s.19(3):
• only in specified circumstances; e.g.
• while being supervised by another person or during specified times; or
• to allow the subject access to the adult at risk’s children or family.
Could be in Access Plan, with dates, times, location, and purpose e.g. mediation.
Banning orders – timescales
A Banning order – s.19(5):
•
•
•
period will be specified by the sheriff;
can last for any period up to a maximum of six months;
should be the shortest period possible in line with ASP principles;
Temporary Banning order expires on – s.21(4):
•
•
•
the date a banning order is made;
the date on which it is recalled; or
any specified expiry date.
A banning or temporary banning order may be recalled or varied (s.24),
but not extended beyond six months.
Banning orders – grounds
Under Section 20 of the Act, the sheriff may grant banning order or temporary
order only if satisfied that:
• an adult at risk is being, or is likely to be, seriously harmed by another person;
• the adult at risk's well-being or property would be better safeguarded by
banning the other person from a place occupied by the adult than it would be
by moving the adult from that place; and that either:
• the adult at risk is entitled, or permitted by a third party to occupy the place
from which the subject is to be banned; or
• neither the adult at risk nor the subject is entitled, or permitted by a third
party to occupy the place from which the subject is to be banned.
It is necessary to provide benefit to the affected adult that the subject will be banned
from a specific place.
Will usually be from where adult lives, but subject not necessarily living there, and
may be used in respect of public places.
The adult at risk must be entitled to occupy the place (sections 20 and 23)
Banning orders - breaches
Breaches - failure to comply with an order of court can be dealt with by:
•
•
the applicant raising an action for breach; or
the adult at risk, where not the applicant, raising an action for breach.
An adult at risk is not required to report any breach of an order.
With power of arrest attached, constable can arrest subject if the constable – s.28:
•
•
reasonably suspects subject to be breaching, or have breached, order; and
considers that there would be a risk of the subject breaching the order
again, if the subject were not arrested.
The constable cannot simply arrest subject for having breached the order alone.
Banning orders - power of arrest
Section 25
The sheriff can attach a power of arrest, to the banning or temporary order.
Evidence -- likelihood of the subject breaching order or conditions.
The power of arrest becomes effective only when served on the subject of
the order and will expire at the same time as the order.
If conditions breached subject may be arrested without warrant:
• if constable reasonably suspects breach of the order; and
• likely to breach the order again if not arrested.
If no power of arrest with original order, application may subsequently be
made to the sheriff to attach a power of arrest.
Banning orders – detention
The ASP Act and Code of Practice set out further requirements concerning
detention and further action concerning Banning orders:
•
•
•
•
•
•
•
•
Duties after arrest - s.29.
Notifications about detention – s.30
Police duty to keep record of detention – s.31;
Duty to bring detained person before sheriff – s.32;
Information to be presented to sheriff – s.33;
Authorisation of further detention period by Sheriff – s.34;
Conditions of Banning order continue until expiry unless varied;
Application can be made for further banning order
Banning orders – practice issues
•
•
•
•
•
•
•
•
•
•
•
•
If the applicant is an adult at risk, does he/she need assistance?
Who is to be banned?
Is the person to be banned a child?
What area does the ban cover?
What length of ban is requested ( up to 6 months)?
Should there be contact between the adult and the subject of the order?
What conditions to be attached to ban e.g attach a power of arrest for breach
of ban?
Are the powers required immediately?
Purpose of ban – what is going to be achieved?
If banned person living in same accommodation, how is their property
going to be secured and protected?
What is the likelihood of appeal?
Any impact/risk to others by banning person from the premises, e.g.
rehousing of banned person?
Group exercise 4
Identify cases in which the use of an Assessment order, a Removal order or
a Banning order would have been of benefit to an adult at risk.
Then create a group list with three columns noting the circumstances in
which an Assessment order, Removal order, or a Banning order would have
had such benefits.
You may also wish to note the potential difficulties and drawbacks of using
orders in these circumstances.
Identify one key reason for each order to report back to the plenary session.
Adult Support and Protection (Scotland) Act 2007
Part 1: Adult Support and Protection (Scotland) Act 2007
Protection of adults at risk of harm
Introductory
Section 1 General principle on intervention in an adult’s affairs
Section 2 Principles for performing Part 1 functions
Section 3 Adults at risk
Inquiries
Section 4 Council’s duty to make inquiries
Section 5 Co-operation
Section 6 Duty to consider importance of providing advocacy and other services
Investigations
Section 7 Visits
Section 8 Interviews
Section 9 Medical examinations
Section 10 Examination of records etc.
Adult Support and Protection (Scotland) Act 2007
Assessment orders
Section 11 Assessment orders
Section 12 Criteria for granting assessment order
Section 13 Restriction on exercise of assessment order
Removal orders
Section 14 Removal orders
Section 15 Criteria for granting removal order
Section 16 Right to move adult at risk
Section 17 Variation or recall of removal order
Section 18 Protection of moved person’s property
Banning orders
Section 19 Banning orders
Section 20 Criteria for granting banning order
Section 21 Temporary banning orders
Section 22 Right to apply for banning order
Section 23 Banning orders: occupancy rights of adult at risk
Section 24 Variation or recall of banning order
Section 25 Powers of arrest
Adult Support and Protection (Scotland) Act 2007
Notification to adult at risk etc.
Section 27 Notification to police
Section 28 Arrest for breach of banning order
Section 29 Police duties after arrest
Section 30 Notification of detention
Section 31 Duty to keep record of detention
Section 32 Duty to bring detained person before sheriff
Section 33 Information to be presented to sheriff
Section 34 Criteria for authorising longer detention
Protection orders and visits: supplementary
Section 35 Consent of adult at risk
Section 36 Visits: supplementary provisions
Section 37 Warrants for entry
Section 38 Criteria for granting warrants for entry: section 7 visits
Section 39 Duty to grant warrants for entry: removal orders
Section 40 Urgent cases
Section 41 Applications: procedure
Section 7
Visit any place
necessary to
assist enquiries
under Section 4
Section 8-9
Section 16
In pursuance of a Protection
Order, enter any place
where the adult at risk is
and to remove that adult
where this is authorised
by a Removal Order
Section 11-22
Apply to the Sheriff for the
grant of a protection order.
This may be an
Assessment Order
Removal Order
Banning Order or
Temporary
Banning Order
Council’s
powers
under
ASPA 2007
Council officers may interview,
in private, any adult found at
the place being visited &
arrange for a medical examination
of an adult at risk to be
carried out by a
health professional
Section 10
Health, financial and other
records relating to an adult
at risk may be requested
and examined. Only a health
professional may inspect
health records
Section 4
Section 42
Duty to Inquire
Section 5
Set up Adult Protection
Committees to carry out
various functions
in its area and to
review procedures
under the Act
Duty to cooperate
with other
prescribed
bodies
Sections 36-40
Visit a place at
reasonable times only;
state the object of the visit;
produce evidence of
authorisation to visit;
Council officers may not use force
to facilitate or during a visit
(but Sheriff or JOP may
authorise Police
t o use force)
Council’s duties
under
ASPA 2007
Section 18
Protect property owned
or controlled by an adult
who is removed
from a place under
a removal order
Section 6
Duty to consider
the importance of
providing advocacy
& other services
Section 8
Section 9
Inform an adult
believed to be at risk
that they may refuse
to consent to a
medical
examination
Inform any adult
interviewed that
they may refuse to
answer any question
put to them.
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/ProtectingVA
Adult 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/awi
Adults with Incapacity- communication and assessing capacity
http://www.scotland.gov.uk/Publications/2008/02/01151101/0
Child Protection
http://www.scotland.gov.uk/Topics/People/Young-People/Children-Families/17834
Appropriate Adults Scheme
http://www.scotland.gov.uk/Topics/Justice/criminal/18244/Appropriate-Adult
Mental Health (Care and Treatment) (Scotland) Act 2003
http://www.scotland.gov.uk/Topics/Health/health/mental-health/mhlaw
Vulnerable Witnesses (Scotland) Act 2004 – information guide
http://www.scotland.gov.uk/Publications/2005/04/04143522/35246
Scottish Courts – Rules and Forms
http://www.scotcourts.gov.uk/library/rules/index.asp
Data Sharing: Legal Guidance for the Public Sector
http://www.scotland.gov.uk/Publications/2004/10/20158/45768
Office of Public Sector Information (Acts and Statutory Instruments):
http://www.opsi.gov.uk/
Survivor Scotland
http://www.survivorscotland.org.uk
Counselling, mediation, and victim support:
www.victimsupportsco.demon.co.uk
Criminal Injuries Compensation Scheme ( CICS), 2001:
www.cica.gov.uk
Links to Issues and Agencies referenced in the training sessions:
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.pdf
Office 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.uk
Scottish Independent Advocacy Alliance
http://www.siaa.org.uk/
The Mental Welfare Commission ( MWC) for Scotland
www.mwcscot.org.uk
The 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_serv
ice=Content.show&
Learning outcomes
Poor
1
2
3
4
5
6
7
Excellent
8
9 10
Evaluate the degree to which the training has been effective in
enabling you to achieve the following learning objectives:
a) Understand the principles of the ASP Act and their implications for
practice
b) Understand what is meant by the terms “adult at risk” and “harm”
c) Understand the Council’s duty to make inquiries, about the duty
of Co-operation, the duty to consider the importance of providing
advocacy and other services and some implications for practice
d) Understand the functions of a council officer, health professional,
police constable, and police officer in charge under the ASP Act
e) Understand the duties and powers in relation to visits and
interviews under the ASP Act and some practice implications
f) Understand the duties and powers in relation to medical
examinations and the examination of records under the ASP Act
g) Understand some of the practice implications of applying the ASP
Act in relation to adults within managed or registered services
Learning outcomes
Poor
1
2
3
4
5
6
7
Excellent
8
9 10
h) Understand the offences of obstruction under the ASP Act and
refusal to provide information related to the Act
i) Understand in broad terms the key distinctions between the ASP
Act, the AWI Act and the MHCT Act
j) Understand the terms ' serious harm' 'undue pressure' and how
they might be applied in applications for Protection orders
k) Understand the requirements for consent and the term 'undue
pressure' and how they apply to applications for Protection orders
l) Understand the potential uses of Assessment orders, Removal
orders, and Banning orders the arrangements for them and the
practice issues involved
m) Understand that there are police powers of arrest and duties of
detention under the ASP Act
Please rate the value of the training overall
Please note any other comments:
Adult Support and Protection (Scotland) Act 2007