Adult support and protection

What does the Act do?
Who is at risk of harm?
What is harm?
What are the main principles of the Act?
Statutory powers and duties
Offences
Protection Orders

What does the Act do?

The Adult Support and Protection (Scotland) Act 2007:

provides greater protection to adults at risk of harm through powers to investigate and take action to support and protect an adult in situations where concern exists;
places a duty on specified organisations to co-operate in investigating suspected or actual harm;
places a duty on Councils to make inquiries and investigations to find out whether or not further action is required to stop or prevent harm occurring;
introduces a range of protection orders including assessment orders, removal orders and banning orders; and
provides for the establishment of local multi-agency Adult Protection Committees across Scotland

The Act was passed by the Scottish Parliament in February 2007 and received royal assent on 21 March 2007. Part 1 of the Act, which deals with the support and protection of adults at risk of harm, came into effect on 29 October 2008.

External link to the full Act: http://www.opsi.gov.uk/legislation/scotland/acts2007/asp_20070010_en_1

Who is at risk of harm?

Adults at risk are adults, aged 16 years of age and over, who:

(a) are unable to safeguard their own well-being, property, rights or other interests,
(b) are at risk of harm, and
(c) because they are affected by disability, mental disorder, illness or physical
     or mental infirmity, are more vulnerable to being harmed than adults who are not so
     affected.

An adult is at risk of harm for the purposes of subsection (1) of the Act 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.

What is harm?

Harm includes all harmful conduct and, in particular, includes

(a) conduct which causes physical harm;
(b) conduct which causes psychological harm (e.g. by causing fear, alarm or distress)
(c) unlawful conduct which appropriates or adversely affects property, rights or
interests (e.g. theft, fraud, embezzlement or extortion)
(d) conduct which causes self-harm

Examples of Harm

Neglect and acts of omission
Financial or material
Psychological/emotional
Physical
Sexual

What are the main principles of the Act?

The overarching principle is that any intervention in an individual's affairs should provide benefit to the individual, and should be the least restrictive option of those that are available which will meet the purpose of the intervention.

Any function under Part 1 of the Act must also take into account:

the wishes and feelings of the adult at risk (past and present);
the views of other significant individuals, such as the adult's nearest relative; their primary carer, guardian, or attorney; or any other person with an interest in the adult's well-being or property;
the importance of the adult taking an active part in the performance of the function under the Act;
providing the adult with the relevant information and support to enable them to participate as fully as possible;
the importance of ensuring that the adult is not treated less favourably than another adult in a comparable situation; and
the adult's abilities, background and characteristics (including their age, gender, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage).

Statutory Powers and Duties

Inquiries and Investigations

Councils have a statutory duty to make inquiries about a person's well-being, property or financial affairs if they know or believe that the person is an adult at risk and that they might need to intervene to take protective action.

Council officers have the power to carry out investigations through visits and interviews and through examination of financial or other records (except health records)
Council officers can require health records to be produced in respect of an adult at risk, but these records can only be examined by a health professional such as a doctor or nurse
Health professionals have the power to carry out medical examinations as part of investigations
Adults have the right not to answer any questions and to refuse to be medically examined and must be told of these rights before an interview or medical examination
Councils have a duty to consider the importance of the provision of appropriate services to the adult, including, in particular, independent advocacy

Duty to co-operate

The Act sets out statutory duties of co-operation for certain public bodies and their office-holders

All Councils
The relevant Health Board
Chief Constables of police forces maintained in the council's area
Care Inspectorate
Healthcare Improvement Scotland
Mental Welfare Commission for Scotland
The Public Guardian
Any other public body or office holder specified by the Scottish Ministers

These public bodies and office holders must

co-operate with a Council making enquiries under the Act
report the facts and circumstances to the local Council when they know or believe that someone is an adult at risk of harm and that action is needed to protect that adult from harm.

Offences

The Act provides that it is an offence to prevent or obstruct any person from doing anything they are authorised to do under the Act.

It is also an offence to refuse, without reasonable excuse, to comply with a request to provide information made under the provisions for the examination of records. This offence does not apply to the adult at risk.

When an offence, for example obstruction, is committed with the consent or connivance of, or was attributable to any neglect on the part of a 'relevant person', or a person purporting to act in that capacity, that person as well as the body corporate, partnership or unincorporated association is also guilty of an offence.

A 'relevant person' for the purposes of this section means

a director, manager, secretary or other similar officer of the body corporate;
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; or
a person who is concerned in the management or control of an unincorporated association

Protection Orders

Part 1 of the Act allows a council to apply to a sheriff for a protection order, either:

an assessment order;
a removal order; or
a banning or temporary banning order

The sheriff may grant an order only if satisfied that certain criteria are met.

an assessment order allows for an adult at risk of serious harm to be taken to a more suitable place in order to conduct an interview and/or a medical examination in private.
a removal order permits an adult who is likely to be seriously harmed if not moved to another place to be moved to a suitable place for up to 7 days.
a banning order, or temporary banning order, bans the subject of the order from being in a specified place, or subject to specified conditions, for up to six months

Protection orders should not be granted without the consent of the adult. However the Sheriff may ignore a refusal to consent where it is believed the adult has been unduly pressurised to refuse consent, and there are no other steps which could reasonably be taken with the adult's consent to protect the adult from harm. Decisions about protection orders must reflect the principles of the Act

last updated 11/01/2012