Adult Support and Protection (Scotland) Act 2007

Adult Support and Protection (Scotland) Act 2007
7 Adult Support and Protection (Scotland) Act 2007 The Duties, Roles and Responsibilities of Services and Staff under the Act 1

Detailed Course Programme
7 09.30 Aims of the Day 09.45 Principles, Definitions, Inquiries Section 1. General principle on intervention in an adult’s affairs S2. Principles for performing Part 1 functions S3. Adults at risk S53. Harm S4. Council’s duty to make inquiries S5. Co-operation S6. Duty to consider providing advocacy and other services 10.15 Group Exercise 10.45 Feedback BREAK 11.15 Investigations S Definition of Council Officer S7. and S36. Visits S37, 38 and 40. Warrants for Entry S8. Interviews S9/52. Medical examinations S10. Examination of records S Offences 12.00 Group Exercise 12.30 Feedback 12.45 LUNCH 13.30 Protection Orders ASP – AWI – MHCTA Overview of ASP Protection Orders S12/15/20 Serious Harm S35. Consent and Undue pressure 13.45 Group Exercise 14.15 Feedback 14.30 Assessment and Removal orders S Assessment orders S Removal orders S40. Urgent cases S18. Protection of moved person’s property S37, 38, 39, 40, 41. Warrants for entry 15.00 BREAK 15.15 Banning orders S19>27, 51. Banning and Temporary Banning Orders S25-28 to 34. Powers of arrest, Arrest and Detention 16.00 Group Exercise 16.30 Feedback Learning Outcomes 16.30 CLOSE 2

Fire exits and alarms Breaks Refreshments Toilet facilities
Domestic arrangements for the training course 3

Please switch off mobile phones
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The national training group has defined three levels for training with different requirements at each level

A S P 7 National Training Material Level
7 Level Briefing/Training Material Produced Nationally Level One Members A report for governance Committees or Boards A 20 minute briefing presentation to Committees or Boards. Level Two General staff A one-hour briefing session for staff at Level 2, including presentation material, which could be potentially delivered by supervisors and managers, as part of a cascade briefing process.* A one-day training course.* Level Three Council officers and specialists A two day training course for people in Level 3 on the legislation and its operational implementation, plus a half day awareness raising course, for those who have not previously attended such a course.** Slide can be deleted for local training – shows what national material has been produced, including the two-day training material to follow. * Requires to be supplemented by full awareness training ** Requires to be supplemented by specific skills training 6

One-day training course
P 7 One-day training course Designed for: certain groups of general staff at Level 2 Intended for: multiagency and multidisciplinary use Covers: Legislation and its operational implementation; Developed by: staff from Scottish Borders, West Lothian, Midlothian, and Perth & Kinross, with staff from the Scottish Government’s Adult Support and Protection Team and Legal Services Use and Delivery: local discretion Customisation: can be customised as necessary with reference to local protocols and procedures Trainer notes: accessed via menu bar by clicking on ‘View’ and then ‘ Notes Page’. Slide can be deleted for local training, but the contribution of the staff from the four local authorities should be acknowledged alongside reference to the fact that the training material to follow has been produced by the Scottish Government. 7

A S P 7 Group exercises The course is designed to promote multi-professional consideration of the practice issues arising from the implementation of the legislation. It is important to respect the contribution of all participants, and to ensure that everyone within the group is encouraged and has an opportunity to contribute. All personal information shared within the room is confidential unless it raises concerns about an adult at risk. The course is based on a mix of presentations and group discussions. 8

A S P 7 Aims of training This one day training course is intended to provide: knowledge of the Adult Support and Protection (Scotland) Act the requirements of implementation; and an understanding of its practice implications. The course is intended to complement other training dealing with issues such as: awareness of abuse indicators and responses; skills in communication and interviewing; and risk assessment and protection planning. We will not be going into explicit detail of the skill sets, which are required for good professional practice. This course is intended to build on practitioners’ existing skill sets, and complement awareness and skill training delivered elsewhere. 9

A S P 7 Course Content Morning
7 Course Content Morning Session One – Principles, Definitions and Inquiries Session Two – Investigations Afternoon Protection Orders Session Three – ASP/AWI/MHCTA Serious Harm, Consent and Undue Pressure Offences Session Four – Assessment, Removal and Banning Orders We will now turn to a brief overview of the course contents. Any questions? 10

This one-day session will focus on Part 1 of the Act
7 This one-day session will focus on Part 1 of the Act Protection of adults at risk of harm 11

A S P 7 Existing legislation
7 Existing legislation The Adults with Incapacity (Scotland) Act 2000 provided means to protect those with incapacity, for example through part 6 of financial and welfare guardianship. The Mental Health (Care & Treatment) (Scotland) Act 2003 set out powers and duties in relation to people with mental disorder including those who are subject to ill-treatment or neglect. The Adult Support and Protection (Scotland) Act 2007 (ASP) was passed by the Scottish Parliament in February 2007, with Part 1 implementation due in October 2008. The ASP Act was designed to fill in gaps in previous legislation related to the protection of certain adults and concerns both adults with capacity and adults without capacity, including adults with a mental disorder. ASP is part of a suite of legislation – including the AWI and MHCT Acts. All require principles based decision making and all are rights based legislation. The MHCT Act was enacted in October 2005. We will be looking at how the ASP compares with the AWI and MHCT Acts this afternoon the AWI Act basically deals with decision making the MHCT Act with treatment, and the ASP Act with support and protection The ASP Act is scheduled to commence 29 October 2008. 12

A S P 7 What does the ASP Act do?
7 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 13

A S P 7 Code of Practice Section 48
7 Section 48 Certain groups have a duty under ASP section 48(5) to have regard to the Code of Practice: Councils and Council Officers; Health Professionals. The Code of Practice identifies other organisations performing functions under Part 1, which should have regard to the code: The Police; The Care Commission; The Mental Welfare Commission; The Office of The Public Guardian. It is also relevant to those working in the voluntary and private sectors. The code of practice contains guidance about the performance of functions under Part 1 of ASP, by councils / council officers, health professionals, the police and other groups and organisations. We will be considering who is defined for those functions later. It has been published on the Scottish Government website – you should have a link to it. Can you indicate by a show of hands whether you feel you are familiar with the Code of Practice. 14

A S P 7 Definition and interpretation
7 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. The Adult Support and Protection Act includes certain terms which are defined within the legislation, but also includes a number of terms which can be subject to interpretation. 15

7 Adult Support and Protection (Scotland) Act 2007 Principles ASP Sections 1 and 2 16

Section 1: Overarching principles
7 Section 1: Overarching principles A public body or office holder must be satisfied that an intervention: will provide benefit to the adult which could not reasonably be provided without intervening in the adult’s affairs; and is, of the range of options likely to fulfil the object of the intervention, the least restrictive to the adult’s freedom. 17

Section 2: Guiding principles
A S P 7 Section 2: Guiding principles In addition to the overarching principles, public bodies or office holders must have regard to: a) the adult’s ascertainable wishes and feelings (past and present); b) any views of the adult’s nearest relatives, primary carers, guardian or attorneys and any other person who has an interest in the adult’s well-being or property; c) the importance of : the adult participating as fully as possible in the performance of the function, and providing the adult with such information and support as is necessary to enable the adult to participate d) the importance of the adult not being, without justification, treated less favourably than the way in which a person who is not an adult at risk of harm would be treated in a comparable situation; and e) the adult’s abilities, background and characteristics. These principles are in relation to any person performing functions under the Act. Efforts to assist and facilitate communication must be made (whatever method is most appropriate to the needs of the individual) for example, due consideration of any advance statement made under section 275 of the MHCT Act. Take account of any views of ‘relevant others’ such as…. The importance of the adult’s participation, for example, the adult must be kept fully informed at every stage of the process and supported with any communication needs and assistance with information. There is quite a wide range of people whose views need to be taken into account. 18

A S P 7 Principles of the Act the adult; Sections 1 and 2
7 Principles of the Act Sections 1 and 2 The ASP principles apply to ANY public body or office holder performing a function under the Act. Any person or body taking a decision must be able to demonstrate that the principles have been applied to their decision making and their interventions. Certain people are NOT bound by the principles: the adult; the adult’s nearest relative; the adult’s primary carer; an independent advocate; the adult’s legal representative; and any guardian or attorney of the adult. These principles underpin the spirit of the Act. The definition of the adult’s nearest relative is the same as that taken in the MHCT Act. 19

7 Adult Support and Protection (Scotland) Act 2007 Definitions ASP Section 3 20

Section 3 (1): Adults at risk
P 7 Section 3 (1): Adults at risk The Act defines adults at risk as: Adults (aged 16 or over) who: are unable to safeguard their own well-being, property, rights or other interests; are at risk of harm; and because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected. All three of these criteria must be met before any action can be taken under the ASP Act. What is really important to ensure is that all three aspects of the three point test are met before any action under the ASP Act can be taken. Also there are some people who the Act cannot protect. A number of people meet only two out of the three criteria and these would not be covered under the Act. From Section 53 of the Act, “adult” means a person age 16 or over. 21

Section 3 (2): Adults at risk of harm
P 7 Section 3 (2): Adults at risk of harm Section 3 (2) of the Act says that an adult is at risk of harm if: another person’s conduct is causing (or is likely to cause) the adult to be harmed; or the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm. Section 53 of the Act states that harm includes all harmful conduct and, in particular, includes: conduct which causes physical harm; conduct which causes psychological harm (for example: by causing fear, alarm or distress); unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud; embezzlement or extortion); and conduct which causes self-harm. A sheriff must be satisfied that an adult is at risk of serious harm before granting any protection order. Conduct includes neglect and other failures to act – this includes self-neglect. It is important to note that the legislation includes acts of: omission (where neglect or harm is not deliberate or planned) as well as commission (where harm is deliberate or intentional) 22

Considerations - adults at risk
P 7 Considerations - adults at risk The presence of a particular condition does not automatically mean an adult is an “adult at risk”. A person could have a disability, physical and/or mental health problem and be able to safeguard his/her well-being etc. All three elements of the definition must be met i.e. unable to safeguard / at risk of harm / because they are affected by…. It is the whole of an adult’s particular circumstances which can combine to make her/him more vulnerable to harm than others and this could be very different from individual to individual. Previously,’ vulnerable’ was used inappropriately – this term was previously used to refer to, for example, people with a learning disability, mental health disorder or some form of disability. It should be noted that this is not the true meaning of the term under ASP. All three parts of the definition have to be met. For example, people could have a disability and be fully able to safeguard their own property, welfare etc. 23 23

7 Adult Support and Protection (Scotland) Act 2007 Inquiries ASP Section 4 24

A S P 7 Section 4: Inquiries
7 Section 4: Inquiries A council must make inquiries about a person’s well-being, property or financial affairs if it knows or believes: that the person is an adult at risk, and 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. The Act is very clear about when the duty to inquire is present. 25

A S P 7 Inquiry process Initial inquiries - duty to inquire
7 Inquiry process Initial inquiries - duty to inquire Information passed on under local adult protection guidelines Inquiries are made under section 4 of the Act by the council May consult with other agencies and conduct preliminary inquiries Others, e.g. police or health professionals, may be asked to assist Next steps could involve a wide range of interventions, including under ASP and/or AWI 2000, MHCTA 2003, SWSA 1968 Intervention should be informal wherever possible and allow information, advice and support for the adult or a carer No further action decisions should be fully recorded and justified Where an inquiry indicates that a criminal offence may have been committed, the role of the police should not be undermined Council responsibility to take any immediate protective action Any report than an adult may be at risk of harm, including anonymous referrals, should be taken seriously. You must be very clear when the duty to inquire applies. Initial inquiries – carried out by the council’s social work services, following local adult protection procedures. The council may consult / work in partnership with other agencies at this stage for example, the police, Care Commission, health professionals, may be asked to assist. The duties in relation to a ‘council officer’ are introduced in a later section of the Act. At this stage the duty to inquire concerns the council and can be carried out by any appropriate staff. This is a flexible system – for example initial discussion with the adult may be undertaken by a person who the adult is familiar with rather than a professional with whom they have had no previous contact. 26

Inquiries - practice implications
7 Inquiries - practice implications Take seriously any adult at risk of harm report, including anonymous referrals. Be open-minded in considering cases - don’t make assumptions. Consider carefully all referrals - make measured responses. Be flexible and professional, e.g. arrange an initial discussion with a familiar worker. Assess the carer’s situation, if the allegation involves unpaid carer. Keep adult fully informed at every stage of the process, unless this might prejudice investigations. How does this affect us as practitioners? Community Care & Health (Scotland) Act 2002 amends the SWSA 1968 to give carers a right to have their needs assessed by the council. 27

7 Adult Support and Protection (Scotland) Act 2007 Cooperation ASP Section 5 28

Section 5: Duty of co-operation
7 Section 5: Duty of co-operation This section applies to: The Mental Welfare Commission for Scotland The Care Commission The Public Guardian All councils Chief constables of police forces The relevant Health Board Any other public body or office-holder as the Scottish Ministers may by order specify. They have the following statutory duties: They must co-operate with a council making inquiries and with each other where that would assist the council; s.5(2) Where they know or believe that a person is an adult at risk, and that protective action is needed they must report the facts and circumstances of the case to the council. S.5(3) What one organisation or body might know may only be part of a more concerning picture so it is very important to work with others. Staff should be clear also who they have a duty to report to within their own organisation. Individuals should also be clear who they have a duty to report to another body/agency for example the Care Commission, Mental Welfare Commission etc. . 29

Voluntary and private organisations
7 Voluntary and private organisations Factors relevant to voluntary and private organisations, including providers: no specific legal duties or powers under the Act legal duty to comply with requests for examination of records; may be source of advice and expertise for statutory agencies; good practice that all relevant stakeholders co-operate with assisting inquiries; have a responsibility to involve themselves where appropriate by contributing to investigations. The code of practice is very clear that voluntary and private organisations should discuss any situation about adults at risk with the council. Although they have no specific legal duties or powers under the Act, as care providers they have a responsibility to involve themselves with the Act where appropriate – for example in inquiries or investigations. For example – staff may have a specific skill set only voluntary and private organisations can bring to an inquiry. Although there is a legal duty to comply with request for examination of records, the code of practice makes clear that they should discuss and share information with statutory agencies. How could voluntary and private organisation justify not doing so? Could also come within the terms of section 49 of the Act. (offence of obstruction). 30

Co-operation - practice implications
7 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. Procedures and processes across agencies should be very clear. All registered professionals have their own duty of confidentiality. However they all allow for information sharing under specific circumstances. The risk management procedures should be clear across all agencies. 31

7 Adult Support and Protection (Scotland) Act 2007 Support and Advocacy ASP Section 6 32

Section 6: Duty to consider advocacy and other services
P 7 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. Note the difference with the MHCT Act where there is a duty to provide independent advocacy. The reason it is not mandatory under the ASP Act is that not all persons who fall within the definition of adults at risk will lack capacity. The ASP therefore recognises that not all persons will either need or choose to access independent advocacy as they may be well able to represent their own views, either on their own or with existing forms of support. . Support services should be tailored to the needs of the individual. 33

A S P 7 Advocacy and support Independent Advocacy issues:
7 Independent Advocacy issues: ASP definition - independent advocacy is not provided by a local authority, or NHS Board or a member of the local authority or NHS Board. There may be a conflict of interest within certain organisations providing (non-independent) advocacy and also housing, financial advice and support services. The adult should not be expected to pay for advocacy services. Communication support considerations: Adult’s preferred format for communication; technical aids; interpreted and translation; human aids to communication; the surrounding environment. Other support services identified by the Code of Practice include: Victim Support Scotland Support through the Vulnerable Witnesses (Scotland) Act 2004 Appropriate Adult Scheme Carers’ support services. The definition of independent advocacy is the same as is given under the MHCTA – section 259. The advocacy service has to be completely independent. 34

Advocacy and support - practice implications
7 Advocacy and support - practice implications Assistance or intervention must be well planned with the right support, to enable people to express needs, consider options and make informed decisions. Adults must feel that their perspective is being actively considered. Good practice to inform carers, providing a substantial amount of care, of their right to an assessment. Other services should be considered: practical and emotional support provided by statutory/other providers; mainstream health and social care and housing services. Adults must feel that their perspective is being actively considered and professionals must demonstrate this. Are there any queries you would wish to raise at this stage? 35

A S P 7 Group exercise Group members should introduce themselves and say which organisation they come from and what their job is. They should agree a chair and identify group members to record on the flip chart and report back at the plenary feedback session. In every session the group should identify the three most important points it wishes to report back. 36

A S P 7 Group exercise 1 Case example: Agnes
7 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. Remember that what you are learning is cumulative so expect discussion to include reference to the definition and three point test. 37

A S P 7 Group exercise 1 The group task is to agree a group view of the case study on the flipchart What are the implications of the definitions of ‘adult at risk' and 'harm'? In this case is there a duty to inquire, and what might be the issues, dilemmas and challenges in relation to the duty of cooperation, and the duty to consider advocacy and other services? How should staff and agencies deal with the dilemmas concerning self-determination and reporting concerns raised in operational practice? Please flipchart your comments, and identify three key points to feed back. 38

Feedback from group exercise
7 Feedback from group exercise Duty to inquire ASP Principles require consideration including within inquiries. 3 point test requires to be applied to determine whether person is an ‘adult at risk’ Questions about inquiries duties under AWI or MHCT Acts or criminal investigation? Issue of capacity Information about Ian – what is known about him? Issues about why inquiries not previously carried out. Duty of co-operation Definition between agencies Interdepartmental information - or crime Referral routes – GP? Consent and confidentiality issues. Other services – requirement to consider Advocacy; Victim support; Domestic abuse liaison officer; Women’s aid; Health services; Criminal Justice service Factors: Risk assessment Links to other legislation Right to take risk and make choices After feedback: This morning has been the foundation for what we will learn today. It is important for us to keep going back to the principles and three point test We need to hold onto these as we move forward. 39

A S P 7 BREAK 40

Section 3: Definitions: “adults at risk” “risk of harm” Section 41 Applications procedure Section 1 & 2: Principles Benefit Least restrictive Adult’s past & present wishes Views of relevant others Adult’s participation Non-discrimination & Equality Respect for the adult’s diversity Sections 37-40 Warrants for entry Section 4: Duty to inquire Section 35 Consent of adult at risk Section 5 Duty to co-operate Section 19-34: Banning & Temporary Banning orders Section 14-18: Removal orders Section 6 Duty to consider providing advocacy & other services Section 11-13: Assessment orders Section 7: Visits Section 8: Interviews Section 9: Medical examinations Section 10: Examination of records etc

7 Adult Support and Protection (Scotland) Act 2007 Council Officer Regulations are still in the process of being finalised It should be emphasised that these are only proposals as yet. 42

Council Officer – draft definition
S P 7 Council Officer – draft definition Council officers will be council employees (appointed under Local Government (Scotland) Act 1973 S. 64.) Council officers working under sections 7-11, 14, 16, and 18 of the Act will need, as a minimum, to be registered as: social workers (SSSC); or occupational therapists (HPC); or nurses (NMC); and have at least 12 months post qualification experience identifying, assessing and managing adults at risk Additional flexibility will be provided in terms of council officers working under sections 7-10 of the Act. As a minimum they will need to be registered: social service workers (SSSC); and have at least 12 months post qualification experience identifying, assessing and managing adults at risk. The assumption is that: registration standards for continuous professional development will assure the necessary competence to identify, assess and manage adults at risk; and local authorities will ensure the competence of their council officers. Draft regulations provided follow the consultation process – unlikely to change when finally issued. Note council officers require to be council employees 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 at least 12 months post qualification relevant experience. Additional categories are included in relation to specific restricted functions. It will be for individual councils whether or not to designate certain registered social service workers as council officers. 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 would be 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.

Definition of responsibilities
Council Registered Staff Health Professionals Police ASP Act Section Social Workers, OTs, Nurses Social Services Staff Doctors, Nurses, Midwives Constable* OIC** S7. Visits √ S8. Interviews S9. Medical examinations S10. Examination - records S10. Exam – health records S11. Assessment orders S14. Removal orders S16. Right to move S18. Protection property S28. Arrest √* S29/30/31. Detention √** S37/40. Warrants for Entry Only the 2 columns headed council registered staff concern council officers The health professional groups identified are those defined as ‘health professionals’ in the Act. 44

Support and Protection Planning
7 Risk Assessment Support and Protection Planning 45

Risk assessment/protection plans
7 Risk assessment/protection plans The requirements of the ASP Act and the terms of the Code of Practice have implications for risk assessment and protection planning, including: taking account of the principles and definitions; involving the adults at risk and others at all stages; responding to their communication needs and capacity; multidisciplinary and multiagency co-operation at all stages; multidisciplinary and multiagency communication at all stages; considering support as well as protection needs; assessing and planning in a comprehensive holistic fashion; reaching conclusions about immediate and longer-term needs; weighing up the advantages/disadvantages, gains/losses to the adult’s quality of life, or freedom, or independence which might result from actions; and defining comprehensive plans for support and actions, with clearly defined Roles, Responsibilities, Timescales/Deadlines, Intended Outcomes. The JIT/Glasgow/Tayside Risk Assessment And Protection Plan Formats take account of all of these issues. The mental Welfare Commission for Scotland inquiry reports have repeatedly recommended the need for a common risk assessment tool to be used across agencies. This has also been a frequent recommendation from SWIA. A common risk assessment tool should be considered at local levels and overseen by Adult protection Committees. The JIT risk assessment and planning tool can be accessed through the Joint Improvement Team website. 46

7 Adult Support and Protection (Scotland) Act 2007 Visits ASP Section 7 47

A S P 7 Section 7: Visits Powers
7 Powers A council officer may enter any place to enable or assist an inquiry. s.7(1) There is a right to enter any adjacent place for the same purpose. s.7(2) Purpose The purpose of a visit - s.7(1) - is to assist the council: to decide whether the adult is an adult at risk of harm; and to establish whether the council needs to take any action in order to protect the adult at risk from harm. Identity and authorisation A council officer must under s.36(2): produce evidence of the officer’s authorisation to visit the place; and state the object of the visit. 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. 48

Considerations - prior to visit
7 Considerations - prior to visit Before a visit, consideration should be given to the implications of: the principles of the Act; providing appropriate services to the adult, e.g. independent advocacy or services to assist an adult, or other person in the household, to communicate; other legislation, e.g. AWI, MHCT or other; local inter-agency protocols and procedures; and ensuring staff are protected and supported (consider local procedures – working in pairs – liaising with the police); the likelihood of barred entry and any need to apply for a warrant for entry. Interdisciplinary discussion whenever possible of who, when and how. Principles, - should be borne in mind that it is the least restrictive alternative, must be benefit to the adult and the views of the adult’s nearest relative etc should be taken into account, where relevant. Other legislation to be taken into account – for example, this could include social work, police, health, housing or regulation of care legislation. Ensure staff are protected and supported to safely execute the purpose of the visit – for example the use of risk assessment, gathering as much information and history as possible from across the agencies. 49

A S P 7 Visits - Who? Where? When? Who?
7 Visits - Who? Where? When? Who? A council officer, making a visit, may be accompanied by another person. This could help inquiries by enabling a joint investigation with e.g. key worker, police officer, health professional, Care Commission officer or member of the Office of the Public Guardian (OPG); improved assessment of the risk to the adult; or better communication with the adult. Where? Section 7 allows a council officer to enter any place i.e.: the place where the adult normally resides such as their own home or care home; or a place where the adult is there temporarily or spends part of their time there such as a day centre; hospital or commercial premises. When? Section 36 (1) states that visits should only be at ‘reasonable times’. There is a need to consider timeous investigation; fully involving the adult and others; speaking to the adult in private; urgency of assessing risk and, if necessary, taking protective action, giving notice/possible prejudice to safety of giving notice. Assessment of the risk to the adult, information may come from a GP, nurse, or other person known to the adult Communication with the adult – could be a lip-reader, sign language, language interpreter where English is not the visited person’s first language, or independent advocate 50

7 Adult Support and Protection (Scotland) Act 2007 Warrants for Entry ASP Section 37 51

Visits - if entry is refused?
A S P 7 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. If entry is refused and you still need to visit, you can apply for a warrant for entry under Section 37 of the Act. 52

Section 37: Warrants for entry
P 7 Section 37: Warrants for entry Only the council can apply for a warrant for entry. The Sheriff (section 38(2)) must be satisfied: that a council officer has been, or reasonably expects to be refused entry or otherwise unable to enter; or that any attempt by a council officer to visit the place without such a warrant would defeat the object of the visit. Council officer authorised to visit any specified place, with a constable, who can use reasonable force as an absolute last resort to fulfil the object of the visit. S.37(1) A warrant for entry expires 72 hours after it has been granted. S.37 (2) Once executed, a warrant for entry cannot be used again. The council should ensure the security of the person's premises and belongings if force has been required to enter the premises. . Consider – does the visit need to take place? Is a warrant required? Best practice would be to hold a multi-agency meeting/discussion to ascertain if there is any informal way to access? Note that every “specified place” will require an individual warrant. Address must be accurate i.e. 14A Smith Street and curtilages (boundaries) and outbuildings Note also the police powers of entry under common law in particularly urgent situations? 53

Warrants for entry – urgent cases
P 7 Warrants for entry – urgent cases Section 40 An application must be made to a sheriff wherever possible. An application can be made to a Justice of the Peace only if: it is impracticable to make the application to the sheriff; and an adult at risk is likely to be harmed if there is any delay; A Justice of the Peace warrant for entry expires 12 hours after it has been granted. Once executed, it cannot be used again. A warrant for entry by a sheriff or a Justice of the Peace does not entitle any person to remain in the place entered after the warrant has expired. There is no timescale between doing something and then applying for a warrant. Any questions about section visits or warrants for entry? 54

7 Adult Support and Protection (Scotland) Act 2007 Interviews ASP Section 8 55

A S P 7 Section 8: Interviews
7 Section 8: Interviews A council officer, and any person accompanying the officer, may interview, in private, any adult found in a place being visited under section 7. The adult must be told of their right not to answer any questions before the interview starts. Section 8 (2) The adult, and any other person interviewed, can choose to answer some questions but not others. It is not necessary to have an assessment order to carry out visits and interviews. Section 8 (3) Note skills required in maintaining a balance between positive encouragement to engage and respond to concerns about harm whilst informing about right not to answer questions. 56

A S P 7 Interview – purpose
7 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. This last point is a really important one. 57

Interview – who, where, how and when?
S P 7 Interview – who, where, how and when? Who: Need to consider who should be interviewed – adult at risk and others – whether in private or supported – and whether council officer should be accompanied. Where: May take place within any place being visited, e.g. the adult’s home, a day centre, care home or hospital. How: Communication or other support may be needed to ensure the adult can participate as fully and freely as possible. Consideration should also be given to the adult’s capacity. When: Guided by the urgency of the situation, and a planned process in line with local inter-agency protocols and procedures. “communication or other support” – where required, make available an independent advocate to assist with the intervention. 58

7 Adult Support and Protection (Scotland) Act 2007 Medical Examinations ASP Section 9 59

Section 9: Medical examinations
P 7 Section 9: Medical examinations Section 9 of the Act allows a health professional (a doctor; a nurse; or a midwife) to conduct a medical examination of an adult at risk in private. A medical examination includes a physical, psychological or psychiatric assessment or examination; and can take place at a place being visited; or can take place where an adult has been taken under an assessment order. Where it appears that a criminal offence may have been committed, the police must be informed at the earliest opportunity. There is no way that a person can be compelled to have a medical examination against his/her will. 60

Medical examinations – purpose
7 Medical examinations – purpose Possible reasons for a medical examination include: the need for immediate medical treatment for a physical illness or mental disorder; a need to assess physical health, injuries, sexual abuse, neglect including self-neglect needs; to assess situations in which the explanation for injuries is inconsistent with the injuries, or the adult is ill or injured and no treatment has previously been sought; to provide evidence of harm to inform a criminal prosecution under police direction; to support an application for an order to safeguard the adult;or to assess the adult’s mental capacity. 61

Medical examination – consent
P 7 Medical examination – consent Section 9 (2) of the Act requires an adult to be informed of their right to refuse to be medically examined before it is carried out. Emergency treatment considerations: can provide if to save life or avoid significant deterioration in health; need to tell the patient what has been done, and why, asap; need to respect any valid advance refusal. If the adult lacks capacity or has difficulty in communicating and consent is not possible, the council will: contact the Office of the Public Guardian to identify whether there is a proxy; consider whether it is appropriate to use the AWI 2000 or MHCT 2003 Acts. Valid refusal – for example an advance statement under the MHCT Act However if adult lacks capacity, then an examination may be conducted without their consent under Part 5 , section 47 of the AWI. Any questions? 62

Examination of Records
P 7 Adult Support and Protection (Scotland) Act 2007 Examination of Records ASP Section 10 63

Section 10: Examination of records
P 7 Section 10: Examination of records Section 10 Council officers may require someone to give them health, financial or other records, or copies of the records (audio, visual or other formats). The requirement may be made during a visit or at any other time, but if at any other time must be made in writing. Inspection can be by the officer and any other appropriate person. It is an offence for a person to fail to comply with a requirement to provide information, except with reasonable excuse. Council officers may require actual or copies of the records. Only a health professional can inspect health records. Local adult protection procedures should be followed. It is clear in the code that the requirement to request records must be made in writing. Local adult protection procedures must be sufficiently robust in respect of obtaining and inspecting records. 64

Examination of health records
P 7 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. 65

Records - practice implications
7 Records should be accessed and information shared, giving consideration and in accordance with: the principles of the Act; the council officer providing authorisation to access records; action which is relevant and proportionate to concern involving those who need to know; the need to consider relevant child protection information; the adult’s wishes and right to confidentiality; gaining the adult’s consent, wherever practicable and possible; seeking information where it is not possible to obtain consent or where there are grounds for disclosure without consent; capacity issues and the need to contact the Office of the Public Guardian; whether there is a need for action under the AWI or MHCT Acts; making efforts to resolve disagreements, including the use of conciliation; the requirements of professional regulatory bodies; agreeing with the record holder how the records obtained are to be treated, e.g. returned or destroyed. The Act allows for copies or the actual records. Records may be medical, financial or other records. In accordance with the principles of the Act, there must be benefit to the adult. Disclosure must therefore be necessary in order to benefit the adult. Adult’ consent should be obtained, prior to the information being accessed, wherever practicable and possible in accordance with the principles of the Act. If consent cannot be obtained,……. wherever possible, consent should be obtained. When requesting information from the OPG, it should be borne in mind that under section 12(2) the OPG has an obligation to share information. No fee should be charged in these circumstances. 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. Where you have sought financial records, you may want to seek the help of a finance expert. Councils should always make reasonable efforts to resolve disagreements when record holders refuse to disclose them. Informal or independent conciliation may be considered. However it is an offence under section 49 to provide information under section 10 unless there is reasonable excuse for doing so. Given the complexity involved, it would be good practice to nominate a person of a suitable seniority to make decisions on accessing records. Links to child protection – the code makes clear that a child protection investigation may trigger adult protection and vice versa. The link between the two needs to be maintained. Further overlap may be a person aged 16 to 17 classed as a child and an adult at risk. The code highlights the importance of transitional arrangements being in place between child and adult protection services. 66

7 Adult Support and Protection (Scotland) Act 2007 Offences ASP Section 49 67 67

Offences - obstruction
A S P 7 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. 68 68

Offences – bodies corporate etc.
7 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. 69 69

A S P 7 Group exercise 2 Case Example Muhammad
7 Case Example Muhammad Muhammad is a Scottish-Asian man, who has lived in Scotland for many years. He has a number of physical and mental health issues and his behaviour can be quite difficult at times. He has lived in a registered care setting for about a year. Staff are struggling to manage his behaviour and a social worker is involved in reviewing his care needs. The social worker is unhappy with the staff’s attitude to her client. Another registered service has assessed Muhammad, with a view to him moving to their specialist service. However, in their assessment, Muhammad does not need such a specialist unit. The Care Commission also has a number of concerns about this service. Muhammad’s cousin visits regularly, and has now reported to the social worker that as she arrived for her last visit she saw one of the staff angrily pushing Muhammad along the corridor and saying to him, " I told you -- you can't come along here – you people never learn". The Senior officer later told the cousin about an accident that had happened to Muhammad a few days before leaving bruising down one arm -- it was not a very convincing explanation, but Muhammad was not able to tell her cousin what had happened. The cousin also expressed concern that Muhammad never seemed to have much left from his weekly income. 70

Flipchart your views, and identify three key points to feed back.
7 Group exercise 2 How do the legislative principles, definitions, and the legal powers and duties in relation to visits, interviews medical examinations and the examination of records relate to the case study? Consider what dilemmas and challenges are posed in this case, and what next steps should be taken? Then, identify more broadly issues concerning implementing the legislation when this concerns managed social care, health or housing settings. Flipchart your views, and identify three key points to feed back. 71

7 Feedback from group exercise Implications for Medical examination Issues of privacy and setting for impartial medical examination Capacity / consent / AWI issues? Ethnicity / communication issues Examination of records Important to consider examination of a variety of records within managed care or health establishment. Consider client records & other institution records e.g day book / incident book Question of other service users at risk, and therefore whether Care Commission or other regulator should carry out fuller examination of service records. Council officer may identify and take or copy medical records held by the service for inspection by health professional. General Issues Co-ordination with regulatory bodies. Staff training in managed services. Social work review systems Relationship of ASP to racially motivated activity. Misuse of medication as adult protection issue 72

A S P 7 Practice decisions
7 Practice decisions Do they adhere to the principles of the Act? Was the adult fully supported to participate? Have consent and capacity issues been discussed ? Have other professionals been consulted, as necessary? How will intervention benefit the adult? Have the consequences of intervention been considered? Has all relevant past and current information (especially in relation to adult protection history) been gathered from inter-agency colleagues and appropriate family & interested parties? Has comprehensive risk assessment been completed? Have all options been considered – voluntary and statutory? 73

Learning summary There is a lot to reflect on as we move forward into day 2. 74

A S P 7 LUNCH 75

A S P 7 Adult Support & Protection (Scotland) Act 2007 Relationship
7 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 76

Comparisons of ASP – AWI – MHCT
7 Comparisons of ASP – AWI – MHCT Comparisons can be made in relation to: Definitions of those covered Principles Duties to inquire and investigate Potential interventions 77

A S P 7 Subject of ASP – AWI – MHCT ASP AWI MHCT
7 Subject of ASP – AWI – MHCT ASP AWI MHCT Mentally Disordered Adults Adults at Risk Adults with Incapacity Adults, aged 16 years or over, Adults, aged 16 years or over, Adults and children, 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). 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. with a mental disorder. The term mental disorder covers mental illness, personality disorder or learning disability. 78

Principles of ASP – AWI – MHCT
7 ASP AWI MHCT Adults at Risk Adults with Incapacity Mentally Disordered Adults Intervention must: benefit the adult; be the least restrictive option; 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. Intervention: 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. Intervention must: 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. Under 18 – welfare of the child 79

Duty to inquire and investigate
P 7 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: Local authorities should cause inquiries to be made: 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. Office of Public Guardian duty to investigate financial concerns. Mental Welfare Commission duties to investigate under the Act. 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. 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. 80

Office of the Public Guardian
S P 7 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. 81

Inquiry or investigation actions
P 7 Inquiry or investigation actions ASP AWI MHCT Adults at Risk Adults with Incapacity Mentally Disordered Adults 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. 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) Local authorities also have a duty to investigate welfare matters. 82

A S P 7 Further actions – ASP–AWI–MHCT Warrant for entry
7 Further actions – ASP–AWI–MHCT ASP AWI MHCT Adults at Risk Adults with Incapacity Mentally Disordered Adults Warrant for entry Assessment order Removal order Banning order Temporary banning order Access to funds Management of resident’s finances Intervention order Guardianship order Warrant for detention to allow medical assessment by doctor Warrant for access to medical records by doctor Warrant to enter premises for purposes of retaking patient Emergency detention certificate Short-term detention certificate Compulsory treatment order 83

Assessment Orders Removal Orders Banning Orders
Protection Orders Assessment Orders Removal Orders Banning Orders Perhaps the most important thing to keep in mind as we start to look at protection orders is that they are unlikely to be used in the great majority of adults support and protection cases dealt with under the Act, but you do need to know about them and how they are used. 84

Section 3: Definitions: “adults at risk” “risk of harm” Section 41 Applications procedure Section 1 & 2: Principles Benefit Least restrictive Adult’s past & present wishes Views of relevant others Adult’s participation Non-discrimination & Equality Respect for the adult’s diversity Sections 37-40 Warrants for entry Section 4: Duty to inquire Section 35 Consent of adult at risk Section 5 Duty to co-operate Section 19-21: Banning & Temporary Banning orders Section 14: Removal orders Section 6 Duty to consider providing advocacy & other services Section 11: Assessment orders Section 7: Visits Section 8: Interviews Section 9: Medical examinations Section 10: Examination of records etc

A S P 7 Protection orders - introduction
7 Protection orders - introduction The terms of the ASP Act and Code about definitions, principles, co-operation and support apply as much to Orders as inquiries and interviews. Protection orders do not depend on a linear process. They can be applied for at any time in the process depending on the individual’s circumstances. It is anticipated that the bulk of the work under the Act will be initial inquiries and investigations and putting support in place where needed. However it is still important to know what further action we can take – what we can do if we need to. 86

Protection orders - overview
A S P 7 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. Assessment orders - It must be borne in mind that this order will only be necessary if it was not possible to carry out the interview or examination within the place being visited under Section 7 of the Act. Neither an assessment order nor a removal order allow the adult to be detained against their wishes. Orders will only be granted where it can be proven that the adult is at risk of “serious harm”. (We will be discussing what could constitute “serious” harm shortly.) With each order, where the adult at risk has the capacity to consent, and has refused to consent, then it must be shown that the adult is being “unduly pressurised”. (We will also be doing a group exercise to explore what could be considered to be undue pressure.) If the adult does not have capacity to consent, then it would be best practice to provide the sheriff/JP with proof of this to support the application. Applications for assessment orders, removal orders and banning and temporary banning orders are considered by the Courts to be sufficiently substantive to attract the full civil court procedure. The council’s legal department will require to be involved. The courts wish the procedure to be sufficiently flexible to allow the sheriff to make his or her decision taking account of the individual circumstances of each case.

3 Point Test - Adults at Risk Serious Harm
Protection Orders Assessment Order Removal Order Banning Order ASP Principles Yes 3 Point Test - Adults at Risk Serious Harm Incapacity, consent or undue pressure Application Council Adult, Other with occupancy right, Council Notification - Adult at Risk Yes + others Yes + subject Ad. represented/ accompanied Protection of Property Duties No Where specified in the order Appeal Variation or recall Disapply notification Safeguarder - Curator ad Litem Use Vuln. Witnesses Act 2004 Access Conditions to Order Yes + other conditions

Protection orders – considerations
7 Protection orders – considerations Protection orders may be applied for at any time in the process. Application only if no steps could reasonably be taken with the adult’s consent, and all other options have been explored and exhausted. Where the adult is incapable of consent, approaching any known proxy, who may be authorised to consent, or the Office of the Public Guardian. Need to consider demerits of non-compliance against potential benefits of order and opportunities from separating adult at risk from source of harm. Need to take account of the use of other legislation, for example, child protection, mental health, civil law or criminal justice legislation.

A S P 7 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: another person’s conduct is causing (or is likely to cause) the adult to be harmed, or the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm N.B “conduct” includes neglect and other failures to act (Section 53) We are now moving to a group discussion of the meaning of harm and serious harm, consent and undue pressure, and it may therefore be helpful to summarise what we have already presented about harm and introduce what the legislation and code say about undue pressure. 90

Protection orders – lack of consent or incapacity
7 Protection orders – lack of consent or incapacity (Section 35) If the affected adult has capacity and refuses to consent, the council must prove that the adult has been “unduly pressurised” to refuse to consent to the granting of an order. The sheriff may ignore the refusal of consent if he/she reasonably believes: that the affected adult at risk has been unduly pressurised to refuse consent; and that there are no steps which could reasonably be taken with the adult’s consent which would protect the adult from the harm which the order or action is intended to prevent. Where the adult does not have the capacity to consent, the requirement to prove undue pressure does not apply. However, evidence of lack of capacity will be required by the Sheriff. The Code of practice says……… 91

A S P 7 “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. An example of undue pressure by someone not suspected of harming the adult would be pressure by a relative who does not want harm caused within a family to become public. The pressure could also come within managed services from a staff member. 92

A S P 7 Group exercise 3 Serious Harm
7 Group exercise 3 Serious Harm How would you distinguish 'harm' from 'serious harm' within the context of the Adult Support and Protection Act? Create a group list after sharing and discussing these ideas, and identify three key points to report back. Undue Pressure The ASP Act allows consent to be dispensed with in certain circumstances and with evidence of 'undue pressure'. Create a list identifying what the group believes would constitute and evidence 'undue pressure' and any issues concerning this concept, and note 3 key points to report back. Note on flipcharts 3 key points about harm and undue pressure to report back. 93

7 Feedback from group exercise Discussion points may include: Serious Harm Different threshold for different people, but may include reference to: Life and Limb, permanent loss of property / quality of life, prolonged actions, cumulative, level of intent, injury, permanency / duration / frequency / level of medical intervention required/ha a crime been committed/any risk to other adults at risk. Undue Pressure Threats of harm to adult at risk or others (e.g children / pets) Threats about or withdrawal of support Does adult have confidence and trust in the person Does adult have capacity 94 94

A S P 7 BREAK 95

Protection Orders Assessment Order Removal Order ASP Principles Yes 3 Point - At Risk and Serious Harm Application Council Identify/evidence suitable place If Order granted: Warrant for Entry automatic Place specific entry Warrant Constable – reasonable force Council right to take to place Order identifies specified place Council right to detain at place No Use Order more than once Adult’s rights: To not answer some/all questions To refuse medical examination To leave place at any time To be informed of rights

Assessment and removal orders practice implications
7 Consideration will require to be given to: the views of those concerned, the principles, alternative options, and urgency; what is the least restrictive alternative; keeping the adult fully informed of rights, options, events; minimising distress and risk to the adult; providing independent advocacy, support, advice or other services;

Assessment and removal orders - practice implications cont’d
7 Assessment and removal orders - practice implications cont’d a plan on how to carry out the order in the shortest time practicable; multi-disciplinary plan to co-ordinate action, including contingencies; where use of force may be necessary multi-disciplinary risk assessment; if force, management of the process should be passed on to the police; use of reasonable force to fulfil the object of the visit; a plan for what happens after order expiry or adult chooses to leave; Council duty of care to return the adult safely to the place from which they were removed or to a place of their choice, within reason; a Support Plan for the adult at risk beyond the order; convening a multi-disciplinary meeting on care and protection; taking further action under the ASP Act or other legislation.

7 Adult Support and Protection (Scotland) Act 2007 Assessment Orders ASP Section 11 99

Assessment orders - purpose
7 Assessment orders - purpose The purpose is to ascertain – s.11(2) whether: the adult is an adult at risk; and there is reasonable cause to suspect that the adult at risk is being, or is likely to be, seriously harmed. The council may take an adult at risk of serious harm to a suitable place specified by the sheriff, so that – s.11(1): a council officer or council nominee may conduct an interview in private; or a health professional may conduct a medical examination in private. An Assessment order is valid for up to 7 days after the date specified in the order (may not be date order granted) – s.11(3), and can only be used on one occasion. The adult must only be taken to the place specified on the order. We will come back to some of these terms today as we go through the training material 100

Assessment orders - grounds
P 7 Assessment orders - grounds Application only if not practicable to carry out the interview or examination at the place of the visit. s.13 The sheriff must be satisfied – s.12 - that: the council has reasonable cause to suspect the subject of the order is an adult at risk who is being, or is likely to be, seriously harmed; the order is required to establish whether the person is an adult at risk who is being, or is likely to be, seriously harmed; and the place at which the person is to be interviewed and examined is available and suitable. Any proposed action must be judged to be of benefit to the individual, and reflect the principles of the Act. Council should detail the type of assessment and estimated length of time needed. Section 13 of the Act. So just to remind you, the whole way through this we are keeping in mind the adult at risk definition and the principles Emphasise: This order will only be necessary if it is (or was) not possible to carry out the interview or medical examination within the place being visited under section.7. 101

7 Adult Support and Protection (Scotland) Act 2007 Removal Orders ASP Section 14 102

Removal orders – purpose
7 Removal orders – purpose Only the council can apply for a removal order, which authorises - s.14(1): council officer, or a council nominee, to take someone from any place (at home or in public, private or commercial premises); to move person to a specified place; the council to take reasonable steps to protect person from harm. The purpose of a removal order is primarily for protection and: to assess the adult’s situation and provide support and protection; not primarily for a council interview or a medical examination; permits the person named to be moved from any place; requires return to own environment as soon as possible. The order may only be used for very specific purposes, such as: resolving issues between the adult and person suspected of harming; relieving carer stress. The order may provide for contact under specified conditions. The removal must be for the purpose of preventing serious harm. This means that the place the adult can be removed from may not necessarily be their own home. It could be from public, private or commercial premises. You can remove a person from a day centre etc. 103

Removal orders – grounds
P 7 Removal orders – grounds Council applications and sheriff decisions based on certain grounds: adult is likely to be seriously harmed if not moved to another place; and there is a suitable place available to remove the adult to. S.15 (1) is to be used for very specific purposes; will reflect the principles of the Act; will be the least restrictive action; is necessary to provide a benefit to the adult; takes account of the adult’s wishes and needs. Variation or recall has to be justified by a change in the facts or circumstances. Again it must be demonstrated that the principles have been taken into account. 104

Removal orders – implementation
7 Removal orders – implementation Timescales The removal order: must be executed i.e the adult must be removed within 72 hours - s.14(1); will expire up to seven days after the day the adult was moved – s.14(2); cannot be extended beyond seven days; can be specified by the sheriff to expire in a shorter period; as short a removal period as possible. Who Council officer and constable have right to enter premises to remove adult. s.16 Council may arrange another person (maybe more familiar) to move the adult. The nominee should be specified in the application. Good practice to advise any person with interest in adult’s welfare of the removal. 105

Removal orders – urgent cases
P 7 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. 106

7 Adult Support and Protection (Scotland) Act 2007 Banning Orders ASP Section 19 107 107

Banning orders – purpose
7 Banning orders are intended for circumstances where banning the subject from a specified place or area is likely to: better safeguard the well-being and property of adult at risk of serious harm more effectively than would the removal of the adult; and The ‘subject’ of the order can be banned from being in a specified place or area for up to 6 months. Application can be made for a temporary banning order where inadvisable to wait for a full hearing on the banning order application. The “subject” may be a child. A banning or temporary banning order can be varied, recalled or appealed. 108

A S P 7 Banning orders – terms A banning order may – s19(2):
7 A banning order may – s19(2): ban the subject from a specified area in the vicinity of the specified place; authorise ejection of the subject from the place and area; prohibit the subject from moving any specified thing from that place; direct any specified person to take measures to preserve the moveable property of the subject; have specified conditions; and require or authorise any person to do, or to refrain from doing, anything else which the sheriff thinks necessary for the proper enforcement of the order. Application for order must be accompanied by a plan clearly identifying the place and area from which the subject is to be banned, and any conditions sought. Order may allow the subject to be in a place or area from which banned s.19(3): only in specified circumstances; e.g. while being supervised by another person or during specified times; or to allow the subject access to the adult at risk’s children or family. Could be in Access Plan, with dates, times, location, and purpose e.g. mediation. 109

Banning orders – timescales
P 7 A Banning order – s.19(5): period will be specified by the sheriff; can last for any period up to a maximum of six months; should be the shortest period possible in line with ASP principles; Temporary Banning order expires on – s.21(4): the date a banning order is made; the date on which it is recalled; or any specified expiry date. A banning or temporary banning order may be recalled or varied (s.24), but not extended beyond six months. 110

Banning orders – grounds
P 7 Under Section 20 of the Act, the sheriff may grant banning order or temporary order only if satisfied that: an adult at risk is being, or is likely to be, seriously harmed by another person; the adult at risk's well-being or property would be better safeguarded by banning the other person from a place occupied by the adult than it would be by moving the adult from that place; and that either: the adult at risk is entitled, or permitted by a third party to occupy the place from which the subject is to be banned; or neither the adult at risk nor the subject is entitled, or permitted by a third party to occupy the place from which the subject is to be banned. It is necessary to provide benefit to the affected adult that the subject will be banned from a specific place. Will usually be from where adult lives, but subject not necessarily living there, and may be used in respect of public places. The adult at risk must be entitled to occupy the place (sections 20 and 23) 111

Banning orders - breaches
P 7 Banning orders - breaches Breaches - failure to comply with an order of court can be dealt with by: the applicant raising an action for breach; or the adult at risk, where not the applicant, raising an action for breach. An adult at risk is not required to report any breach of an order. With power of arrest attached, constable can arrest subject if the constable – s.28: reasonably suspects subject to be breaching, or have breached, order; and considers that there would be a risk of the subject breaching the order again, if the subject were not arrested. The constable cannot simply arrest subject for having breached the order alone. Criminal offences will be dealt with by the police under their legislation and not the ASP. Although the breach of an order is not in itself a crime, actions which result in a breach may be criminal offences, for example a breach of the peace or assault. Where there are no criminal proceedings, it is open to the person who obtained the order to raise a civil action for breach of the order. If the breach is established, the subject of the order is liable to held in contempt of court, attracting a penalty or a fine or imprisonment. 112

Banning orders - power of arrest
7 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. 113

Banning orders – detention
P 7 Banning orders – detention The ASP Act and Code of Practice set out further requirements concerning detention and further action concerning Banning orders: Duties after arrest - s.29. Notifications about detention – s.30 Police duty to keep record of detention – s.31; Duty to bring detained person before sheriff – s.32; Information to be presented to sheriff – s.33; Authorisation of further detention period by Sheriff – s.34; Conditions of Banning order continue until expiry unless varied; Application can be made for further banning order 114

Banning orders – practice issues
7 Banning orders – practice issues If the applicant is an adult at risk, does he/she need assistance? Who is to be banned? Is the person to be banned a child? What area does the ban cover? What length of ban is requested ( up to 6 months)? Should there be contact between the adult and the subject of the order? What conditions to be attached to ban e.g attach a power of arrest for breach of ban? Are the powers required immediately? Purpose of ban – what is going to be achieved? If banned person living in same accommodation, how is their property going to be secured and protected? What is the likelihood of appeal? Any impact/risk to others by banning person from the premises, e.g. rehousing of banned person? 115

A S P 7 Group exercise 4 Identify cases in which the use of an Assessment order, a Removal order or a Banning order would have been of benefit to an adult at risk. Then create a group list with three columns noting the circumstances in which an Assessment order, Removal order, or a Banning order would have had such benefits. You may also wish to note the potential difficulties and drawbacks of using orders in these circumstances. Identify one key reason for each order to report back to the plenary session. 116

7 Feedback from group exercise Assessment Orders Benefits: Legal Power available for specified actions; Adult at risk can blame authorities for having to go for interview or medical; A means of gaining an assessment of capacity / potentially less restrictive than going straight to AWI Establishing whether a person has been hurt / injured or not / medical assessment Issues: Do they meet 3 point test; Is there evidence of harm; Proportionality - can you justify not taking less restrictive action by other means; Consent v force; Unable to detain; Skills / experience of workers – how things are put to adult Dilemmas: Possible distress for adult at risk; How to prove undue pressure If inconclusive the person goes back to same situation / need to consider balance of benefit / potential harm Removal Orders Benefits: Having legal power; Potential immediacy of action; Breathing space in an abusive situation; Adult at risk can blame agencies for leaving the situation Dilemmas: Issue of consent; Potential distress for adult at risk Banning Orders Benefits: Supporting an adult at risk to be free of someone s/he could not on own keep at a distance; Allowing space for mediation work or consensual moving on from situation by adult at risk; Provides a way in which partner agencies can protect someone who is under undue pressure Difficulties: Various issues for police in relation to detention; Potential homelessness of subject (banned person) and need for rehousing – intentionally homeless? Subject may also be ‘vulnerable’ and require support – resource issue 117

7 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. 118

7 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 119

7 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 120

Links to Issues and Agencies referenced in the training sessions:
Scottish Government: Adult Support and Protection (Scotland) Act Adult Support and Protection (Scotland) Act code of practice Adults with Incapacity Adults with Incapacity- communication and assessing capacity Child Protection Appropriate Adults Scheme Mental Health (Care and Treatment) (Scotland) Act Vulnerable Witnesses (Scotland) Act 2004 – information guide Scottish Courts – Rules and Forms Data Sharing: Legal Guidance for the Public Sector Office of Public Sector Information (Acts and Statutory Instruments): Survivor Scotland Counselling, mediation, and victim support: Criminal Injuries Compensation Scheme ( CICS), 2001: 123

Links to Issues and Agencies referenced in the training sessions:
Office of the Information Commissioner's framework code of practice for sharing information Office of the Public Guardian Public Concern at Work - provides legal, practical and policy advice on whistle blowing Scottish Independent Advocacy Alliance The Mental Welfare Commission ( MWC) for Scotland The Princess Royal Trust for Carers Victims of Crime in Scotland 124

A S P 7 Learning outcomes Poor Excellent 1 2 3 4 5 6 7 8 9 10
7 Poor Excellent 1 2 3 4 5 6 7 8 9 10 Evaluate the degree to which the training has been effective in enabling you to achieve the following learning objectives: Understand the principles of the ASP Act and their implications for practice Understand what is meant by the terms “adult at risk” and “harm” Understand the Council’s duty to make inquiries, about the duty of Co-operation, the duty to consider the importance of providing advocacy and other services and some implications for practice Understand the functions of a council officer, health professional, police constable, and police officer in charge under the ASP Act Understand the duties and powers in relation to visits and interviews under the ASP Act and some practice implications Understand the duties and powers in relation to medical examinations and the examination of records under the ASP Act Understand some of the practice implications of applying the ASP Act in relation to adults within managed or registered services 125

A S P 7 Learning outcomes Poor Excellent 1 2 3 4 5 6 7 8 9 10
7 Poor Excellent 1 2 3 4 5 6 7 8 9 10 Understand the offences of obstruction under the ASP Act and refusal to provide information related to the Act Understand in broad terms the key distinctions between the ASP Act, the AWI Act and the MHCT Act Understand the terms ' serious harm' 'undue pressure' and how they might be applied in applications for Protection orders Understand the requirements for consent and the term 'undue pressure' and how they apply to applications for Protection orders Understand the potential uses of Assessment orders, Removal orders, and Banning orders the arrangements for them and the practice issues involved Understand that there are police powers of arrest and duties of detention under the ASP Act Please rate the value of the training overall Please note any other comments: 126

A S P 7 Adult Support and Protection (Scotland) Act 2007 127

Adult Support and Protection (Scotland) Act 2007

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Adult Support and Protection (Scotland) Act 2007

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