Adult Protection and the Law in Scotland Margaret Burns Adult Protection Coordinator
Adult Protection and the Law in Scotland
Margaret Burns
Adult Protection Coordinator
Legislation Relevant to Adult Protection• Human Rights Act
• Criminal Law
• Community Care/Housing Law
• Civil Remedies
• Anti Social Behaviour Law
• The Adults with Incapacity Act
• The Mental Health (C&T) Act
• The Adult Support and Protection Act
Adult Support and Protection (Scotland) Act 2007
Who is Covered ?
• An adult at risk is a person aged 16 or over who :-– Is unable to safeguard their own well being, property,
rights or other interests – Is 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 not so affected.
• Note : All 3 points must be satisfied. Sometimes referred to as the 3 point test .
Risk of Harm
• An adult is at risk of harm if– Another person’s conduct is causing (or likely
to cause ) the adult to be harmed.
– The adult is engaging (or is likely to engage) in conduct which causes self harm.
– Types of harm can include:
– Physical, Sexual, Financial, Psychological, Neglect, Institutional, Discriminatory, Self Harm, Self Neglect .
Powers of the ASP Act 2007
• Visit, make inquiries, interview, investigate.• Request medical examinations (adult needs
to consent).• Access to Records (Only a health
professional may inspect health records).• Cooperation.• Statutory Orders.• Adult Protection Committees.
Co-operation. Practice Implications• Section 5(3):-
– “Where [public bodies and office holders] know or believe that a person is an adult at risk of harm, and that protective action is needed they must report the facts and circumstances of the case to the council”.
• Duty of confidentiality unless the above applies.
Rights and Choices – NHS Glasgow and Clyde Guidance
• Regardless of the adult at risk’s wishes immediate appropriate action requires to be taken if– The adult is at immediate risk of significant
harm.– There is a public safety issue.– The situation involves a service provider.– The adult does not have capacity to understand
their choice or its consequences.– There is a responsibility to report suspected or
actual criminal acts to the police.
Potential Use in Adult Protection
• Harm suspected but individual has capacity to make decisions and refuses to cooperate.
• A third party is obstructing investigations.
• There is a real risk of immediate harm.
Mental Health (Care and Treatment) (Scotland) Act
2003
Mental Health (Care and Treatment) (Scotland) Act 2003
• People who have a ‘mental disorder’.
• Certain characteristics such as sexual deviancy, drug or alcohol dependence or failure to act as a prudent person would do not, in isolation, indicate mental disorder.
The Scope of the Legislation
• Investigation• Cooperation• Detention• Mental Health Tribunals• Advance statements
Potential use in Adult Protection• Where a person needs treatment for a
mental disorder and is suffering harm.• Where someone is already under a
compulsory treatment order.• Where person has mental disorder and
needs detained for his/her own protection or protection of others.
Adults with Incapacity (Scotland) Act 2000
Who is covered?
Adults who are unable to • Act;• Make decisions;• Communicate decisions;• Understand decisions; or• Remember decisions.
The Scope of the Legislation
• Attorneys.• Investigations.• Financial management.• Medical decisions.• Intervention/Guardianship orders.
Potential use in Adult Protection• Where welfare, finances or property is at risk
and adult is unable to make decisions or protect own interests.
• Where guardian/attorney already appointed.• Financial abuse.
Remedies Self Harm/Neglect
• Assessment Order and/or Removal Order under ASP.
• Application under MH (C&T) Act.• Guardianship or intervention order under the
AWIA.
Remedies – Unable to Manage Welfare/Finances• Planning for future - power of attorney,
advance statement and living will.• Guardian, appointee or attorney.• Compulsory powers under the MH (C&T)
Act.
Remedies – Harm From a Third Party• Criminal prosecution.• Order against abuser, including interdict,
banning order under ASP.• Remedies under matrimonial legislation.• Antisocial behaviour order.• Removal of Department for Work and
Pensions appointee.
Remedies – Harm From a Third Party• Removal or supervision of person with
powers under Adults with Incapacity Act.• Reporting health or social care professional
to professional body.• (In the future) placing a worker on local
authority list prepared under Protection of Vulnerable Groups (Scotland) Act.
General Principles
.Principle ASP MH(CT) AWI
Benefit √ √ √
Least restrictive option √ √ √
Find out and consider the adult’s views √ √ √
Consider the views of significant others √ √ √
Encourage use and development of skills √
Involving carers √
Child welfare √
Non discrimination √ √
Reciprocity √
Respect for diversity √ √
Support adult to participate in decisions √ √
Questions/Comments
Case Studies
• What would you do or could you do?• Who would you contact?• What pieces of legislation might be
appropriate if required?• Does such a scenario create any dilemmas?• Any other comments.