Adult Support and Protection (Scotland) Act 2007
The Roles and Responsibilities
of
Council Officers and Other Specialists
Level 3 training
Adult Protection Training Framework
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.*
Level Three
Council Officers
& 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
Two-day training course
level 3
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Designed for: Council Officers & Specialists;
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’.
Fire exits and alarms
Breaks
Refreshments
Toilet facilities
Please switch off mobile phones
Group exercises
The course is designed to promote multi-professional consideration of the practice
issues arising from the implementation of the legislation.
The discussion groups may want to identify someone within the group to chair the
group discussion session, and will need to identify a note taker to report back.
Flipcharts are available to each group to record main points made.
It will be important to respect the contribution of all participants, and to ensure
that everyone within the group is encouraged and allowed opportunities to
contribute.
Session rules
• We will be discussing harm of adults during this training.
• This can be an emotive and difficult subject.
• It is therefore essential to create a safe learning environment for all
participants.
• Everyone’s comments will be respected.
• All personal information shared within the room is confidential unless
it raises concerns about an adult at risk.
Aims of training
This two day training course is intended to provide:
 detailed 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.
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 illtreatment or neglect.
The Adult Support and Protection (Scotland) Act (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
Those having a duty under section 48(5) to have regard to the Code Of Practice:
• Councils and Council Officers;
• Health Professionals.
Other organisations performing functions under Part 1 should have regard to
the code:
•
•
•
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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.
Course content
Day 1
Morning – Principles, Definitions and Inquiries
Afternoon –Investigations and the interface between ASP, AWI and MHCT
Day 2
Protection Orders
Morning – Assessment Orders and Removal Orders
Afternoon – Banning Orders and Offences
Day 1 – Course content
09.45 Principles
Section 1. General principle on intervention in an adult’s
affairs
S2. Principles for performing Part 1 functions
10.00 Definitions
S3. Adults at risk
S53. Harm
10.15 Group Exercise
10.45 Feedback
11. 00 BREAK
11.15 Inquiries
S4. Council’s duty to make inquiries
S5. Co-operation
S6. Duty to consider importance of providing advocacy and
other services
12.00 Group Exercise
12.30 Feedback
12.45 LUNCH
13.30 Investigations 1
S52-53. Definition of Council Officer
S7. and S36. Visits
S37, 38 and 40. Warrants for Entry
S8. Interviews
14.15 Group Exercise
14.45 Feedback
15.00 BREAK
15.15 Investigations 2
S9/52. Medical examinations
S10. Examination of records
15.30 Group Exercise
16.00 Feedback
16.15 ASP – AWI – MHCTA
16.30 Learning Outcomes
16.45 CLOSE
Adult Support and Protection (Scotland) Act 2007
Principles
ASP Sections 1 & 2
Principles of the Act
Sections 1 & 2
The ASP principles apply to ANY public body or office holder performing a
function. 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.
The following persons are NOT bound by the principles:
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the adult;
the adult’s nearest relative;
the adult’s primary carer;
independent advocate;
the adult’s legal representative;
and any guardian or attorney of the adult.
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 public bodies or office holders must also have regard to:
a) the adult’s ascertainable wishes and feelings (past and present);
b) any views of
• the adult’s nearest relative,
• any primary carer, guardian or attorney of the adult, and
• any other person who has an interest in the adult’s well-being or
property; and
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.
Section 2: Guiding principles
Public bodies or office holders must also have regard to:
a) 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;
b) the adult’s abilities, background and characteristics.
Adult Support and Protection (Scotland) Act 2007
Definitions
ASP Section 3
Section 53: Harm
Harm 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.
Section 3(2): Risk of harm
An adult is at risk of harm if:
a) another person’s conduct is causing (or is likely to cause) the
adult to be harmed, or
b) 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)
ASP Section 3(1): Adults at risk
The three point test:
“Adults at risk” are adults 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.
In terms of Section 53 of the Act, “adult” means a person age 16 or over.
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.
(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.
Considerations - harm
Types of Harm:
The Act sets out the main broad categories.
The list is not exhaustive and no category of harm is excluded.
Serious Harm:
What constitutes serious harm will be different for different persons.
A sheriff must be satisfied that an adult is at risk of serious harm before
granting any Protection Order.
Individual Assessment:
The definition of “adults at risk” requires an assessment to be made about
the “risk of harm” to the individual at the outset.
Group Exercise 1
Group members should introduce themselves and say what agency they come
from and what their post title is.
The group should identify a chair, and a person to write the flipchart list and to
report back in the plenary feedback session.
The group task is to consider:
What are the implications, challenges and dilemmas in professional
practice from the definitions of ‘adult at risk' and 'harm'?
Use post-its on an individual basis to note words and phrases about the
definition of ' an adult at risk' and the definition of 'harm' and then share these
within the group to create a group list on the flipchart.
Identify cases on an anonymous basis, which illustrate the dilemmas and
challenges.
Please flipchart your examples and comments.
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
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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;
Where an inquiry indicates that a criminal offence may have been
committed, the role of the police should not be undermined;
• Next steps could involve a wide range of interventions.
Informal intervention
Intervention should be informal wherever possible and allow:
• Information to enable support to be put in place for adult or a carer;
• Assistance to be provided with suitable advice and support.
Intervention – other legislation
Adults with Incapacity (Scotland) Act 2000 or the Mental Health (Care and
Treatment) (Scotland) Act 2003, or under the Social Work (Scotland) Act 1968.
Criminal offence:
• Requires consultation, assistance and co-operation with the police;
• Council responsibility to take any immediate protective action.
No further action decisions
If, based on range of inquiries carried out, there is a decision that no
further action is required these actions need to be taken:
• a report needed on the circumstances, actions taken and NFA decision;
• report added to the person's case file; and
• where no case file, a record made of the referral.
Inquiries - practice implications
Take any adult at risk of harm report, including anonymous referrals seriously.
Consider cases with an open mind - don’t make assumptions.
Consider all referrals carefully - make measured responses.
Be professional and flexible, e.g. arrange an initial discussion with a familiar
worker.
If the allegation involves unpaid carer, the investigation should assess the carer’s
situation.
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: Co-operation
This section applies to:
a)
b)
c)
d)
e)
f)
g)
the Mental Welfare Commission for Scotland,
the Care Commission,
the Public Guardian,
all councils,
chief constables of police forces,
the relevant Health Board, and
any other public body or office-holder as the Scottish
Ministers may by order specify.
Duty of co-operation
ASP Act (Section 5) - statutory duties for those public bodies and office-holders:
•
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 & 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
Independent advocacy aims to support people:
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to express their own needs;
to gain access to information;
to explore and understand the options available;
to make informed decisions.
ASP definition -- independent advocacy is not provided by a local authority,
or NHS Board or a member of the local authority or NHS Board.
Potential conflict of interest with organisations providing (non-independent)
advocacy and housing, financial advice and support services.
The adult should not be expected to pay for advocacy services.
Communication support
Enabling adults to make their views and wishes known may require:
• Assistance or material appropriate to their needs;
• Adult’s preferred format for communication such as large print, audio
tape, Braille and computer disc;
• Technical aids to support communication or information;
• Material which is interpreted, translated or adapted;
• ‘Human aids to communication' such as British Sign Language
interpreters, lip speakers, Makaton, and deaf-blind communicators;
• Consideration given to the surrounding environment, e.g. noise levels,
provision of loop systems or lighting.
Other services
Support services that may help an adult include:
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Victim Support Scotland - emotional support, practical help and essential
information to victims, witnesses and others affected by crime;
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Support through the Vulnerable Witnesses (Scotland) Act 2004 appropriate support when they give their evidence to reduce any anxiety and
pressure (final decision on special measures rests with the sheriff in court);
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Appropriate adult schemes - to facilitate communication between a mentally
disordered person and the police and, as far as is possible, ensure understanding
by both parties;
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Carers’ support services - to enable them to continue to support the adult.
Advocacy and support - practice
implications
Assistance or intervention must be well planned with the right kind of support.
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 2
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 2
Agnes
In this case is there a duty to inquire?
Is there a duty of cooperation, and what might be the issues concerning
cooperation in this case?
What other factors and services may need to be considered, and in what
circumstances might advocacy be appropriate?
How should staff and agencies deal with the dilemmas concerning selfdetermination and reporting concerns raised in operational practice?
Please flipchart your examples and comments.
Adult Support & 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
Definition of Council Officer
Council officers will be council employees (appointed under Local Government
(Scotland) Act 1973 S. 64.)
Section 52(1) of the ASP restricts the type of individual who may be authorised
by a council to perform council officer functions.
Regulations are being prepared along the following lines to set out who will be able
to undertake council officer functions under the Act.
Council officers who undertake functions set out in sections 7-11, 14, 16, and 18 of
the Act will need, as a minimum, to be either:
• registered with the Scottish Social Services Council (SSSC) as social workers in
the register maintained under section 44(1) of the Regulation of Care (Scotland) Act
2001; or
• occupational therapists registered with the Health Professions Council; or
• nurses registered with the Nursing and Midwifery Council; and
• have 12 months relevant post qualification experience.
Council Officer definition cont.
The assumption is that:
•
the standard for continuous professional development required by the
SSSC and the continuing registration requirements of both the Health
Professions Council and Nursing and Midwifery Council would ensure that
council officers have the necessary competence to identify, assess and
manage adults at risk;
and
• local authorities have an overall role in ensuring the competence of
those they employ to undertake council officer functions within the general
parameters to be set down for appointments in regulations.
Council Officer definition cont.
• Additional flexibility is to be provided by specifying social care and
other health professionals, in addition to social workers and
occupational therapists, who might undertake those investigative
functions set out in sections 7-10 of the Act.
• The intention is to do this by also including council officers who are
registered social service workers on the SSSC register under section
44(1) of the Regulation of Care (Scotland) Act 2001 and have at least 12
months post qualification experience identifying, assessing and
managing adults at risk.
• Again local authorities will have a role in ensuring the competence of
those they employ to undertake council officer functions. That role will be
exercised within the legislative parameters set down in relation to
appointments.
Definition of Responsibilities
Council Registered Staff
Social
Workers, OTs,
Nurses
Social
Services
Staff
S7. Visits
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S8. Interviews
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√
ASP Act Section
Police
Doctors,
Nurses,
Midwives
Constable*
OIC**
√
S9. Medical examinations
S10. Examination - records
Health
Professionals
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S10. Exam – health records
S11. Assessment orders
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S14. Removal orders
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S16. Right to move
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S18. Protection property
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S28. Arrest
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S29/30/31. Detention
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S37/40. Warrants for Entry
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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:
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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
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.
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)
Entry may also require consideration of the need to apply for a warrant for
entry.
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).
Visits - who?
A Council officer, making the visit, may be accompanied by another
person.
A joint visit with another person could assist inquiries by enabling:
• joint investigation with 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
• communication with the adult.
Visits - where?
Section 7 permits a council officer to enter any place:
The place where the adult normally resides:
• the adult’s own home or home with carers;
• a registered setting, such as a care home.
Premises where the person is residing temporarily or spends part of their time:
•
•
•
•
•
a day centre;
a place of education, employment or other activity;
‘respite’ residential accommodation ;
a hospital or other medical facility;
commercial premises.
All parts of the place which might have a bearing on inquiries into the welfare,
care and safety of the adult at risk.
Visits - when?
Visits only at ‘reasonable times’. S.36 (1)
Balance needed -- timeous investigation and fully involving the adult and others.
Timed maybe to speak to the adult in private.
Immediate visit may be needed to assess the risk and, if necessary, take protective
action.
Professional judgement about the suspected risk and about any imminent
physical harm.
Interdisciplinary discussion whenever possible and consideration of likely
impact on the adult and any carer.
Good practice to give notice of the proposed visit, where this would not be
prejudicial to the safety or welfare of the adult at risk.
Visits – authorisation and
explanation
A council officer must under s.36(2):
• produce evidence of own identity, following local APC adult protection
procedures, and of any person accompanying;
• state the object of the visit; and
• produce evidence of the officer’s authorisation to visit the place.
Obligation to be clear the visit’s purpose is to investigate suspected risk of harm.
Wherever possible, other people in the household should also be offered an
explanation as to what is happening and why, without breaching confidentiality.
Seek to ensure that any information provided is in an appropriate form.
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.
Adult Support and Protection (Scotland) Act 2007
Warrants for Entry
ASP Section 37
Section 37: Warrants for entry
Only the council can apply for a warrant for entry.
The Sheriff – s.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, it 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.
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 of 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.
Adults must be told of their right not to answer any questions before the interview
starts. S.8 (2)
It is not necessary to have an assessment order to carry out visits and interviews.
S.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 – where, how and when?
Where:
May take place within any place being visited, e.g. the adult’s home, a day
centre, care home or hospital.
Will involve a judgement based on:
• the wishes of the adult him/herself; and
• ensuring that the adult can participate as fully and freely as possible.
How:
Communication or other support may be needed.
When:
Guided by planned process through local inter-agency protocols and procedures.
Interview – the adult’s rights
The adult must be informed of the right not to answer any questions before the
interview starts.
The adult can choose to answer some questions but not others.
Even with an assessment order the adult can refuse to be interviewed or medically
examined.
Consideration should also be given to:
•
•
•
•
proactively seeking the consent of the adult to be interviewed;
considering the adult’s capacity;
giving reasonable opportunity and encouragement to answer questions;
promoting the adult’s participation in the interview.
Interview - others present?
A council officer, or person accompanying, may interview the adult in private
if this would assist the investigation.
Any other adult found in a place being visited may be interviewed.
Other people interviewed also have a right not to answer any questions and
must be informed of this at the outset.
The adult’s capacity
Some factors for consideration where there is doubt about the adult’s mental
capacity:
•
•
•
•
Does the adult understand the nature of what is being asked and why?
Is the adult capable of expressing his or her wishes/choices?
Does the adult have an awareness of the risks/benefits involved?
Can the adult be made aware of his/her right to refuse to answer questions as well as
the possible consequences of doing so?
The possible ASP interview scenarios will include the following:
•
•
•
•
the adult is assumed to have capacity and agrees to be interviewed;
the adult is assumed to have capacity and declines to be interviewed;
the adult is assumed to lack capacity and is unable to consent to being interviewed;
the adult is assumed to have capacity but is thought to have been influenced by some
other person to refuse consent.
The adult’s participation
The council has to promote the adult’s participation in the interview by taking
account of the adult’s needs where these are identified, for example:
•
•
•
•
communication skills or attention span;
sensory impairment;
the adult’s first language being other than English;
any other relevant factors.
This could include the use of:
•
•
•
•
•
a specialist in sign language or other form of non-verbal communication;
a language interpreter;
an independent advocate;
an appropriate adult where police are interviewing an adult with a mental disorder;
a family member or carer to help communication.
Interview - practice implications
Ask adult whether he/she wishes another person to be present.
Council officer or person accompanying may request a private interview where:
•
•
•
•
a person present is thought to have caused harm or poses a risk of harm;
the adult indicates that they do not wish the person to be present;
it is believed that the adult will communicate more freely;
there is a concern of undue influence from others.
Inform adult/s interviewed of the right not to answer any/all questions.
It may be in the interest of the adult for another person to be interviewed, e.g.
some-one who shares the adult’s home or a care worker.
Group exercise 3
Case Example
David
David, who has learning disabilities, mobility problems and a severe hearing
impairment, was admitted to hospital having sustained a head injury. The meals on
wheels person found him unconscious and called an ambulance. Over the past 6
months, David has had numerous admissions with falls, fractures and unexplained
major bruising. David says he has become clumsy lately, but no physical evidence
has yet been established as a cause. A range of social care, health and housing
services have been involved with David over a number of years. At present,
David’s support includes domestic help, housing support, meals on wheels and a
treatment involving a district nurse. After being discharged, as the nurse was
changing a dressing, David disclosed to her that his son had actually caused the
injury as well as the previous injuries. David went on to say his son had a drugs
problem and became physically violent towards him on pension days, when he
refused to give him more money. He insisted the nurse keep this information
confidential as he did not wish his son to get into trouble.
Group exercise 3
How do the legislative principles, definitions, and the legal powers and
duties in relation to visits, interview and warrants for entry relate to the
case study?
What issues are raised about confidentiality and consent, and how should
they be dealt with, both in this case and more broadly in operational
practice?
What other dilemmas and challenges are posed in this case, and what next
steps should be taken?
Discuss in your groups and flipchart your examples.
Adult Support and Protection (Scotland) Act 2007
Medical Examinations
ASP Section 9
Medical Exams - considerations
A medical examination should be considered when:
•
•
•
•
•
the adult has a physical injury stated as inflicted by another person;
where the explanation for injuries is inconsistent with the injuries;
There may be physical evidence of sexual abuse;
the adult appears to have been subject to neglect or self-neglect;
the adult is ill or injured and no treatment has previously been sought.
* Where it appears that a criminal offence may have been committed,
the police must be informed at the earliest opportunity.
Medical examinations – purpose
A medical examination may also be required for other reasons including:
• immediate medical treatment for a physical illness or mental disorder;
• to assess the adult’s physical health needs;
• to provide evidence of harm to inform a criminal prosecution under
police direction;
• to support an application for an order to safeguard the adult;
• to assess the adult’s mental capacity.
Section 9: Medical examinations
During a visit, under section 7, a health professional may conduct a medical
examination in private. S.9(1)
The examination can be carried out during a visit even if an assessment order
has been granted to enable a medical examination elsewhere. S.9.(3)
A person must be informed of his/her right to refuse to be examined. S.9(2)
Medical examinations - what,
where and by whom
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.
A health professional is defined – s.52(2) - as:
• a doctor;
• a nurse;
• a midwife.
Medical examination – consent
Requirement to inform the person of her/his right to refuse medical examination.
S.9(2)
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 adult lacks capacity or has difficulty in communicating and consent not possible:
• Council to contact the OPG – whether welfare power of attorney;
• 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 provide health, financial or other records.
This includes records held in audio, visual or other formats.
Requirement may be made during a visit or at any other time.
Requirements made at any other time must be made in writing..
Inspection can be by the officer and any other appropriate person.
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.
Information sharing - consent
The adult’s consent should be obtained, wherever practicable and possible.
If consent cannot be obtained (e.g. if the situation is urgent and obtaining consent
would cause undue delay), the adult should, if possible, be informed about the
information sharing retrospectively.
If adult lacks capacity or has difficulty in communicating and consent not
possible:
• Council to contact the OPG – whether welfare power of attorney;
• Consider AWI 2000 or MHCT 2003 Acts where no guardian or attorney.
Information sharing – no consent
Confidentiality is important, but it is not an absolute right.
It may not be possible to obtain consent where:
•
•
•
•
the adult lacks the mental capacity to consent;
the adult is unwilling to consent because of undue pressure by someone else;
the person acting with powers is unavailable or unwilling to give consent; or
the situation is so urgent that obtaining consent would cause undue delay.
Existing law allows information to be disclosed without consent:
•
•
•
where such disclosure is required by law (either a court order or statute);
where such disclosure is for crime prevention, detection and prosecution;
where such disclosure is in the public interest.
Councils should make reasonable efforts to resolve disagreements.
Informal or independent conciliation might be considered.
Records - practice implications
Records should be accessed and information shared:
• in accordance with the principles of the Act;
• after careful consideration of the adult’s wishes and right to confidentiality;
• after the council officer has demonstrated authorisation to access records;
• only where it is relevant and proportionate to concern;
• only with those who need to know;
• in line with the requirements of the regulatory body.
Records - practice implications
Council may have nominated person for decisions on accessing records.
Links need to be maintained with child protection information. Transitional
arrangements and procedures should be in place.
Good practice to agree with record holder when records obtained on how their
records are to be treated, e.g. returned or destroyed.
Group exercise 4
Case Example
Ermina
Ermina is a Scottish-Asian woman, who has lived in Scotland for many years. She has
a number of physical and mental health issues and her behaviour can be quite difficult
at times. She has lived in a registered care setting for about a year. Staff are struggling
to manage her behaviour and a social worker is involved in reviewing her care needs.
The social worker is unhappy with the staff’s attitude to her client. Another registered
service has assessed Ermina, with a view to her moving to their specialist service.
However, in their assessment, Ermina does not need such a specialist unit. The Care
Commission also has a number of concerns about her present service. Ermina’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 Ermina along the corridor and saying to
her, " 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 Ermina a few days
before leaving bruising down one arm -- it was not a very convincing explanation, but
Ermina was not able to tell her cousin what had happened. The cousin also expressed
concern that Ermina never seemed to have much left from her weekly income.
Group exercise 4
Identify the implications of the Adult Support and Protection Act in this
case in relation to medical examinations and the examination of records,
and any other relevant considerations.
Then, identify more broadly issues concerning implementing the legislation
when this concerns managed social care, health or housing settings.
Discuss in your groups and flipchart your examples.
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
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
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, e.g MHO, 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 Outcomes – Day One
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 and the
implications for practice
d) Understand about the duty of Co-operation and the implications
for practice
e) Understand the duty to consider the importance of providing
advocacy and other services and the implications for practice
f) Understand the functions of a council officer, health professional,
police constable, and police officer in charge under the ASP Act
Learning Outcomes – Day One
Poor
1
2
3
4
5
6
7
Excellent
8
9 10
g) Understand the duties and powers in relation to visits and
interviews under the ASP Act and the practice implications
h) Understand the function and arrangements for Warrants for Entry
to support visits and interviews under the ASP Act
i) Understand the duties and powers in relation to medical
examinations and the examination of records under the ASP Act
j) Understand some of the practice implications of applying the ASP
Act in relation to adults within managed or registered services
k) Understand in broad terms the key distinctions between the ASP
Act, the AWI Act and the MHCT Act
Please rate the value of the Day One training overall
Please note any other comments:
Adult Support & Protection (Scotland) Act 2007
The Roles and Responsibilities
of
Council Officers and Other Specialists
Day 2
Fire exits and alarms
Breaks
Refreshments
Toilet facilities
Day 1 – Course summary
Principles
General principle on intervention in an adult’s affairs
Principles for performing Part 1 functions
Definitions
Adults at risk
Harm
Inquiries
Council’s duty to make inquiries
Co-operation
Duty to consider independent advocacy and other services
Investigations
Medical examinations
Examination of records
Adult Support & 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
Day 2 – Course content
09.30 Protection orders
Day one summary
Overview of Protection Orders
S12/15/20 Serious Harm
S35. Consent and Undue pressure
9.45 Group Exercise
10.15 Feedback
10.30 Assessment orders
S11-12-13. Assessment orders, Criteria, Restrictions
Purpose, Procedures
Notification, Grounds, Evidence, Consent
S37, 38, 39, 40, 41. Warrants for entry
11.00 BREAK
11.15 Removal orders
S14. Removal orders
S15-16-17-40. Criteria, Right to move, Variation, recall,
Urgent cases
S18. Protection of moved person’s property
12.00 Group Exercise
12.30 Feedback
13.30 Banning orders
S19-20. Banning orders and criteria
S21. Temporary banning orders
S22-23-24-51. Right to Apply, Occupancy rights,
Variation or recall, Appeals
S26-27. Notifications
S25-28 to 34. Powers of arrest, Arrest and
Detention
14.15 Group Exercise
14.45 Feedback
15.00 BREAK
15.15 Offences
S49-50. Obstruction and Offences
15.30 Learning Outcomes
Course Summary and Information Sources
Training implications, incl. local protocols and
procedures
Learning Outcomes
16.15 CLOSE
12.45 LUNCH
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.
These matters need to be taken into account in the Group exercises.
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.
Assessment Orders
Removal Orders
Banning Orders
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.
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) another person’s conduct is causing (or is likely to cause) the adult to
be harmed, or
b) 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)
Assessment order – lack of consent
(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 a 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 5
Serious Harm
How would you distinguish 'harm' from 'serious harm' within the context of
the Adult Support and Protection Act?
Use post-its individually for five minutes to note personal words and
phrases identifying what would constitute serious harm, and then in 10
minutes create a group list after sharing and discussing these ideas.
Undue Pressure
The ASP Act allows consent to be dispensed with in certain circumstances
and with evidence of 'undue pressure'.
Use post-its individually for five minutes to note personal words and
phrases identifying what you believe would constitute and evidence 'undue
pressure' and any issues concerning this concept, and then in 10 minutes
create a group list after sharing these ideas.
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.
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.
Assessment orders - evidence
The evidence presented:
• needs to satisfy the grounds for making an order;
• needs to show a suitable place will be available to take the adult;
• may require written confirmation from the owner/manager of the place;
• would benefit from written confirmation of the suitability of the place;
• should detail the type of assessment and estimated length of time
needed.
Assessment orders – procedures
Section 41
Only the council can apply for an assessment order.
Protection orders may be applied for at any time in the process.
Council’s solicitor and council officer present evidence to a sheriff.
The sheriff has discretion to appoint a safeguarder to safeguard the
interests of the adult in proceedings.
The sheriff may instruct the safeguarder to report on the issue of consent.
An assessment order cannot be appealed.
Assessment order – notifications
The council must –:
• notify the affected adult in writing of the application (s.41);
• inform the adult of his/her right to be heard or represented ; and
• inform the adult of his/her right to be accompanied by a friend, relative or any other
representative of choice.
The council should inform the sheriff :
• before hearing if person suspected of harming adult may attend;
• if the adult concerned has indicated does not wish legal representation; or
• it appears that the adult does not understand the process.
The sheriff –may:
•
•
•
•
appoint a person to safeguard the interests of the adult at risk in proceedings s.41;
disapply the requirement for notification to protect the adult s.41;
apply the provisions of the Vulnerable Witnesses (Scotland) Act 2004;
appoint Curator ad Litem where person does not have full mental capacity.
Assessment order – consents
No need for court applications if assessment carried out by agreement.
The council should always consider the merit of the application if it considers that the
adult will refuse consent to the granting of the Assessment order, or compliance with it.
Application only if no steps could reasonably be taken with the adult’s consent.
The affected adult can be taken to, but not detained at, place specified on the order.
The adult has rights:
•
•
•
•
to refuse to answer all or some of the questions when interviewed;
to refuse a medical examination;
to leave the place at any time;
to be informed of these rights.
Assessment orders – incapacity
Where the adult is incapable of consent:
• any known proxy should be approached who may be authorised to consent;
If not aware of any proxy, the Office of the Public Guardian may be able to assist with
whether there is a proxy who may be authorised.
Where the adult does not have the capacity to consent, evidence of lack of capacity
will be required by the Sheriff.
Warrants for entry
A warrant for entry will be granted with an assessment order – s.38.
The warrant authorises entry only to the place specified - s.37.
An accompanying constable, authorised by the warrant, can do anything,
including the use of reasonable force, to fulfil the object of the visit – s.37.
Warrants for Entry – Reasonable Force
Section 37(1)(b) states that a constable who accompanies a council officer may
do anything, including reasonable force where necessary, which the constable
considers to be reasonably required, in order to fulfil the object of the visit.
The object of the visit is not simply to gain entry but to gain entry to carry out
an assessment order or a removal order, so the constable may do anything to
fulfil the object of that visit, including using reasonable force where necessary.
This could mean holding someone back whilst a person is removed.
(If ‘reasonable force’ could only be used to facilitate entry, that would be
specified).
Only the constable, accompanying the council officer, is authorised to use
reasonable force, where necessary.
Assessment order – implementation
The council must plan:
•
•
•
•
•
•
to minimise distress and risk to the adult;
always on the basis of the principle of “least restrictive alternative”;
to keep adult fully informed of rights, options, events
where the adult is going to moved to;
how the move is to be carried out;
transport arrangements if applicable.
Good practice:
•
•
•
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.
Assessment order – timescales
Valid for up to 7 days after the date specified in the order (may not be date order
granted) – s.11(3).
The adult must only be taken to the place specified on the order.
Adult’s consent to being taken elsewhere does not invalidate the original terms of
the order.
The assessment must be undertaken in the shortest time practicable.
The adult is free to leave at any time.
Order does not provide for the adult to be taken from a place more than once.
Expiry of order or choice to leave
Act not explicit 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.
The council may consider:
•
•
•
•
discussing a Support Plan with the adult at risk;
providing support, advice or other services;
convening multi-disciplinary meeting on care and protection;
taking further action under this ASP Act or other legislation.
Assessment orders - practice
implications
The council must have regard to:
•
•
•
The principles of the Act;
Referral for independent advocacy or provide other services;
The possible benefit of assessment where under undue pressure.
The council must plan:
•
•
•
Where the assessment is going to take place;
How assessment order is to be carried out;
Transport arrangements if applicable.
Where practicable, adults must be kept fully informed of rights, options, events.
Protection orders – practice issues
• How client meets 3 point test for “Adult at Risk
• Type of harm and risk assessment
• Views of service user, family, carers professionals and interested parties,
which may possibly include the person who has harmed them
• What other options have been considered and tried
• How urgent is action needed
• Prepare plan on how to carry out protection order
• Case conference to get multi-disciplinary view.
Adult Support and Protection (Scotland) Act 2007
Removal Orders
ASP Section 14
Removal orders – purpose
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 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)
•
•
•
•
•
used for very specific purposes;
reflect the principles of the Act;
the least restrictive action;
necessary to provide a benefit to the adult;
adult’s wishes and needs considered.
Removal orders – evidence
The council should present evidence that:
•
•
•
•
•
voluntary approaches and other legislation considered;
all other options have been explored and exhausted;
adult at risk is likely to be seriously harmed if not moved to another place;
The place proposed is available and suitable;
the action is in accord with the principles of the Act.
A protection plan could be submitted by the council.
If the adult has capacity to consent and has made known their refusal to consent:
• council must prove the adult has been “unduly pressurised”.
Removal orders – procedures
Only the council can apply for a removal order, which authorises - s.14(1):
• council officer, or a council nominee, to move person to a specified place;
• reasonable steps by council to protect person from harm.
Consider the provision of appropriate services to the adult, for example independent
advocacy or other practical or emotional support.
The sheriff has discretion to appoint a safeguarder, to safeguard the interests of the
adult in proceedings.
The sheriff may instruct the safeguarder to report on the issue of consent.
Protection orders may be applied for at any time in the process.
Removal orders – notifications
Council should:
•
•
•
•
notify the affected adult in writing of the application s.41 ;
inform the adult of his/her right to be heard or represented; and
be accompanied by a friend, relative or any other representative of choice;
if appropriate, advise any other interested persons of the application.
Council should inform sheriff :
• before hearing if person suspected of harming adult may attend;
• if the adult concerned has indicated does not wish legal representation; or
• it appears that the adult does not understand the process.
The sheriff may:
• the sheriff may appoint a person to safeguard the interests of the adult at risk in
proceedings s.41 ;
• disapply requirement for notification to protect the adult from serious harm
s.41;
• apply the provisions of the Vulnerable Witness (Scotland) Act 2004;
• appoint Curator ad Litem where person does not have full mental capacity.
Removal orders – timescales
The removal order:
•
•
•
•
•
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);
can be specified by the sheriff to expire in a shorter period;
as short a removal period as possible;
principles of benefit, least restriction and the adult’s wishes.
Adult cannot be returned home and removed again within period.
Further application for removal must not be made to extend the order.
Removal orders – place
The adult at risk:
• can be removed from any place – the sheriff will decide whether to
specify the place in the order;
• could be at home or in public, private or commercial premises;
• must be removed to an available and suitable “specified place”.
Good practice for the council:
• to get a written agreement from the owner of the proposed place;
• provide a suitability report to the sheriff of both the place and the
person.
The adult must only be taken to the place specified on the order.
Adult’s consent to being taken elsewhere does not invalidate the original
terms of the order.
Removal orders – consents
If the adult does not consent, then application may only be made if no steps could
reasonably be taken with the adult’s consent.
The affected adult can be taken to, but not detained at, the place specified on the
order.
The adult has rights:
• to leave the place at any time;
• to be informed of these rights.
The council should re-consider the merit of the application, if it considers that the
adult will refuse consent to the granting of the Removal order, or compliance with it.
Removal orders – incapacity
Where the adult is incapable of consent:
• any known proxy should be approached who may be authorised to consent;
• if not aware of any, the Office of the Public Guardian may be able to assist with
whether there is a proxy who may be authorised.
Where the adult does not have the capacity to consent, evidence of lack of capacity
will be required by the Sheriff.
Warrants for entry
A warrant for entry will be granted with a removal order. s.39
The warrant authorises entry only to the place specified. s.37
An accompanying constable, authorised by the warrant, can do anything,
including the use of reasonable force, to fulfil the object of the visit. s.37
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.
Removal orders – implementation
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.
The council must plan:
•
•
•
•
•
•
to minimise distress and risk to the adult;
always on the basis of the principle of "least restrictive alternative“;
to keep adult fully informed of rights, options, events
where the adult is going to removed to;
how removal is to be carried out;
transport arrangements if applicable.
Good practice:
•
•
•
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;
advise any person with interest in adult’s welfare of the removal.
Removal orders - conditions
Sheriff must have regard to oral or written representations by the council - and
s.15 (3)
any relevant representations made by:
s.15 (3)
• the adult at risk
• any person who wishes to have contact with the adult at risk; and
• any other person who has interest in adult at risk’s well-being or property.
Sheriff may allow specified person to have specified contact with the adult. s.15(2)
Good practice where conditions for contact specified by the Sheriff:
• council to prepare some form of access plan;
• plan may include dates, times, location, supervision arrangements.
Contact with other persons may be beneficial, e.g. relatives or friends.
Removal orders – protection of
property
Section 18
With owned or controlled property of person moved, Council must:
•
•
•
•
take any reasonable steps to safeguard the property;
prevent it from being lost or damaged;
enter any place to remove the property;
return the property to the adult as soon as reasonably practicable.
This could be agreed in advance with the adult in the form of a Protection Plan.
Property could include house contents, vehicles, animals, monies and clothing.
The Council is not entitled to recover any expenses.
Removal orders – variation & recall
Section 17
Application to the sheriff to recall or vary a removal order by:
• the adult at risk;
• any person who has an interest in the adult at risk’s well-being or property;
• the council.
Variation or recall has to be justified by a change in the facts or circumstances.
Where removal order recalled, sheriff may direct the council to:
• return the adult to the place from which the adult was removed; or
• take adult to another specified place, having regard to the adult’s wishes,
within reason.
The sheriff has the discretion to disapply the notification requirements if it would
be to the adults detriment.
Expiry of order or choice to leave
Act not explicit what happens after order expiry or adult chooses to leave.
Council duty of care to return the adult safely to the place from which he/she
was removed or to a place of his/her choice, within reason.
The council may consider:
•
•
•
•
discussing a Support Plan with the adult at risk;
providing support, advice or other services;
convening multi-disciplinary meeting on care and protection;
taking further action under this ASP Act or other legislation.
Wherever practicable keep adult fully informed at every stage of process.
Removal orders - practice questions
•
•
•
•
•
•
•
•
Where will service user be moved to?
Has consent of owner who will accommodate service user been obtained?
How long is the order for (up to 7 days)?
How will their property be protected and secured?
Are there any specific conditions e.g to disapply notification?
Having regard to circumstances and previous responses of the adult at risk ?
Is there a plan on how to carry out removal order?
Is there a plan on what happens on expiry of order?
Group exercise 6
Identify cases in which the use of an Assessment order or a Removal order
would have been of benefit to an adult at risk.
Then create a group list with two columns noting the circumstances in which
an Assessment order or a Removal order would have had such benefits.
You may also wish to note the potential difficulties and drawbacks of using
orders in these circumstances.
Please discuss in your groups and flipchart your answers.
Adult Support and Protection (Scotland) Act 2007
Banning Orders
ASP Section 19
Banning orders – purpose
Subject of the order banned from being in a specified place for up to 6 months.
The “subject” may be a child.
Intended for circumstances where banning the subject from a specified place is
likely to:
• better safeguard the well-being and property of adult at risk of being
seriously harmed more effectively than would the removal of the adult
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.
Necessary to provide benefit to adult that subject banned from a specific place.
Will usually be from where adult lives, but subject not necessarily living there.
Application for order must be accompanied by a plan clearly identifying the place and
area from which the subject is to be banned.
Removal/Banning orders – evidence
The council should present evidence that:
•
•
•
•
•
•
the “affected adult” is an adult at risk, with risk of serious harm;
action will be the least restrictive action;
the action is necessary to provide benefit to affected adult;
the adult’s wishes and needs have been considered;
the action is in accord with the principles of the Act;
all other options have been explored and exhausted.
Evidence may include how the use of other legislation has been considered, for
example, child protection, mental health, civil law or criminal justice legislation.
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.
Banning orders – procedures
Banning order may be made – s.22 - by or on behalf of:
• an adult whose well-being or property would be safeguarded by the order; or
• any other person who is entitled to occupy the place concerned;
• in some circumstances, a Council.
Council obliged apply for a banning order if satisfied that:
• Criteria met (section 20) ;
• nobody else is likely to apply for a banning order in the circumstances – s.22;
and
• no other relevant banning proceedings are pending before a court. s.22
Application for a temporary banning order where inadvisable to wait for a full hearing
on the banning order application.
If the adult at risk is the applicant, it would be good practice for the council to assist
with the application.
Sheriff has discretion to appoint safeguarder, to safeguard interests of the adult in
proceedings and may instruct safeguarder to report on the issue of consent.
Banning orders – notifications
The council should:
• notify subject of the order and affected adult in writing of application s.41;
• inform the subject and adult of right to be heard or represented;
• inform the subject and adult of right to be accompanied by a friend, relative or
any other representative of choice;
• consider notification in writing of others with an interest; and
• consider referral to Children’s Reporter if banning application is about a child.
The council should inform sheriff:
• of prejudice to adult’s welfare re. dispensation with intimation of the hearing;
• before hearing if person suspected of harming adult may attend;
• if the adult concerned has indicated does not wish legal representation; or
• it appears that the adult does not understand the process;
The sheriff may:
• appoint a person to safeguard the interests of the adult at risk in proceedings – s.41;
• disapply requirement for notification to protect adult from serious harm – s.41;
• apply the provisions of the Vulnerable Witnesses (Scotland) Act 2004;
• appoint Curator ad Litem where person does not have full mental capacity.
Banning orders – consents
No need for court applications if protective measures carried out by agreement.
Application only if no steps could reasonably be taken without the adult’s
consent.
Consider the provision of appropriate services to the adult, for example
independent advocacy or other practical or emotional support.
The council should re-consider the merit of the application, if it considers
that the affected adult will refuse consent to the granting of the Banning order.
This consideration may take place in a multi-disciplinary case conference or
discussion.
Banning orders – lack of consent
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 a 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.
Banning orders – incapacity
Where the adult is incapable of consent:
• any known proxy should be approached who may be authorised to consent;
If not aware of any proxy, the Office of the Public Guardian may be able to assist with
whether there is a proxy who may be authorised.
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.
Banning orders – occupancy rights
Where the adult at risk is entitled to occupy a place, her/his occupancy
rights are not affected if husband, wife, partner etc. is banned from the place.
Where the adult at risk is a non-entitled spouse under the Matrimonial Homes
(Family Protection) (Scotland) Act 1981, she/he still has rights to occupy the
home from which the subject of the order is banned. s.23
If the adult at risk is not entitled to occupy a place, the Act does not allow a
person who is entitled to occupy that place to be banned.
Banning orders may be used in respect of public places.
Banning orders may be used where neither the adult at risk nor the subject
has a right to occupy a property.
Banning orders – protection of
property
Banning order may direct person to preserve moveable property owned or
controlled by the subject of the order which remains in the specified place
during the order. s.19(2)(d)
Property could include house items, computers, vehicles, animals, clothing.
The applicant should obtain an inventory of subject’s relevant property.
Obtain a signature from the subject confirming that the inventory is correct.
Subject can formally request what should happen to their property.
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
Banning orders - conditions
Sheriff must have regard to any relevant representations made by – s.19(4):
• the applicant for the order;
• the adult at risk;
• any other person who has interest in adult at risk's well-being or property;
• the subject of the application.
Order may authorise 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 - 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.
Order granted / power of arrest
Order granted - Banning Order, Temporary Banning Order, Variation or Recall
Applicant* (where not the adult), the applicant’s solicitor, a sheriff officer or such other
person as may be authorised by the sheriff, must deliver copy of the order and power of
arrest to adult at risk and such other persons as may be specified; s.26
Failure to deliver an order does not invalidate it.
Notification to the Chief Constable, where a power of arrest has been attached. s.27
Applicant* (where not the adult), the applicant’s solicitor, a sheriff officer or such other
person as may be authorised by the sheriff, must deliver copy of the order, copy of the
application, copy of the certificate of service and, where power of arrest attached after the
order has been granted, copy of the application for the power of arrest, copy of the order
granting, copy of the certificate of service and documents served with the original order.
The power of arrest becomes effective only when served on the subject.
* to be prescribed
Banning orders – variation & recall
Section 24
Application may be made to the sheriff to recall or vary an order by:
•
•
•
•
the subject of the order;
the applicant for the order;
the adult at risk to whom the order relates; or
Any person with an interest in the adult at risk’s well-being or property.
Justified by a change in the facts or circumstances.
Variation:
•
•
•
order can be varied any number of times within the specified period;
may not vary the date on which the order expires;
Cannot extend beyond six months – new application would be needed.
Recall
•
•
grounds for recall – where justified by the facts and the circumstances
e.g. further harm is not likely to take place;
with recall, the order ceases to have effect.
Banning orders – appeals
Section 51
Right of appeal against a decision to grant, or a refusal to grant:
Banning order
•
must be made to the sheriff principal and then there may be a
further opportunity to appeal to the Court of Session.
Temporary banning order
•
•
to the sheriff principal, only with the leave of the sheriff;
to the Court of Session only with the leave of the sheriff principal.
Time appeal effected
•
when appeal process completed or abandoned.
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.
Before raising an action, confirmation should be obtained from the Procurator Fiscal
that no criminal proceedings are to be commenced. Where a criminal offence has been
committed, this will be dealt with in the usual manner.
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 – detention
notifications
The arresting officer must:
•
•
immediately inform the arrested person of the reason for the arrest; and
take the person as quickly as practicable to a police station.
The arrested person must be detained in custody until he/she is:
•
•
•
accused on petition; or
charged with offence; or
brought before the sheriff under section 32.
If the subject is a child:
• any person known to have parental responsibilities for the child must be notified
of the detention; and
• it is expected that the police will make a referral to the Children’s Reporter.
Banning orders – detention
The ASP Act and Code of Practice set out further requirements concerning
detention and further action concerning Banning orders:
•
•
•
•
•
•
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 implications
The council must have regard to:
•
•
•
•
•
•
The principles of the Act;
The adult’s wishes and needs;
Referral for independent advocacy or provide other services;
The benefit to the adults at risk of a banning order;
Whether actions are the least restrictive necessary to provide benefit;
Assisting with application, if the adult at risk is the applicant.
Where practicable, adults must be kept fully informed of rights, options, events.
Banning orders – practice issues
•
•
•
•
•
•
•
•
•
•
•
•
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?
Who notifies police if power of arrest attached to condition?
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 7
Use post-its individually for 5/10 minutes to identify case situations in which
a Banning order might be of benefit.
Then, create a group list of these potential situations, noting any common
features amongst them.
You may also wish to note the potential difficulties and drawbacks of using
Banning orders and the circumstances.
Please discuss in your groups and flipchart your answers.
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.
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 – Day Two
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, in general terms, the function of Protection orders
under the ASP Act and the features which are common to them
b) Understand the term ' serious harm' and how it might be applied
in applications for Protection orders
c) Understand the requirements for consent and the term 'undue
pressure' and how they apply to applications for Protection orders
d) Understand the potential uses of Assessment orders, the
arrangements for them and the practice issues involved
e) Understand the potential uses of Removal orders, the
arrangements for them and the practice issues involved
Learning Outcomes – Day Two
Poor
1
2
3
4
5
6
7
Excellent
8
9 10
f) Understand the function and arrangements for Warrants for Entry
within the context of Protection orders
g) Understand the duties and responsibilities in relation to the
protection of a moved person's property
h) Understand the potential uses of Banning orders and Temporary
Banning orders, the arrangements for them and the practice
issues involved
i) Understand the police powers of arrest and duties of detention
under the ASP Act
j) Understand the offences of obstruction under the ASP Act and
refusal to provide information related to the Act
Please rate the value of the Day Two training overall
Please note any other comments:
Adult Support and Protection (Scotland) Act 2007