Adult Support and Protection (Scotland) Act 2007

Adult Support and Protection (Scotland) Act 2007

The Duties, Roles and Responsibilitiesof

Services and Staff under the Act

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

11. 00 BREAK

11.15 Investigations

S52-53. Definition of Council OfficerS7. and S36. Visits

S37, 38 and 40. Warrants for EntryS8. Interviews

S9/52. Medical examinations S10. Examination of records

S49-50. Offences12.00 Group Exercise

12.30 Feedback

12.45 LUNCH

Detailed Course Programme

13.30 Protection Orders ASP – AWI – MHCTA

Overview of ASP Protection OrdersS12/15/20 Serious Harm

S35. Consent and Undue pressure 13.45 Group Exercise

14.15 Feedback

14.30 Assessment and Removal orders S11-12-13. Assessment ordersS14-15-16-17. 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 ordersS19>27, 51. Banning and Temporary Banning OrdersS25-28 to 34. Powers of arrest, Arrest and Detention

16.00 Group Exercise 16.30 Feedback

Learning Outcomes

16.30 CLOSE

Fire exits and alarms

Breaks

Refreshments

Toilet facilities

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All sectors - Home care, support and housing staff, day care and care home staff, hospital and community nurses, allied health professionals, police constables, advice workers, criminal justice and children/family

services staff -- and supervisory staff (all groups)

Other Groups: National and Local Advocacy staff, Benefits Agency staff, appropriate College/University teaching staff, Adult Protection Committee clerical and administrative

staff, Case Conference minute takers

‘Council Officers’, specialist staff in social care (all sectors), police and health services and service managers, AP Conf. Chairs, Trainers

Adult Protection Committee members, national and local Advocacy staff, Care

Commission Regulators, Health Regulatory Bodies (NHS QIS), SWIA, Mental Welfare

Commission, and other Regulators/ Inspectorates (e.g. HMIC, HMIE), Office of

the Public Guardian

Councillors, NHS, CHP and Police Board members

Others with governance role in other bodies, e.g. Care Commission, Voluntary Organisation Board

Awareness raising, knowledge and understanding

Awareness raising, basic knowledge

and understanding

Detailed knowledge and understanding

Adult Protection Training Framework

Training Levels Training Outcomes

Level 3.

Level 2.

Level 1.

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.**

National Training Material

* Requires to be supplemented by full awareness training** Requires to be supplemented by specific skills training

One-day training course

• Designed for: certain groups of general staff at Level 2

• Intended for: multiagency and multidisciplinary use

• Covers: Legislation and its operational implementation;

• Developed by: staff from Scottish Borders, West Lothian, Midlothian, and Perth & Kinross, with staff from the Scottish Government’s Adult Support and Protection Team and Legal Services

• Use and Delivery: local discretion

• Customisation: can be customised as necessary with reference to local protocols and procedures

• Trainer notes: accessed via menu bar by clicking on ‘View’ and then ‘ Notes Page’.

Group exercises

The course is designed to promote multi-professional consideration of the practice issues arising from the implementation of the legislation.

It is important to respect the contribution of all participants, and to ensure that everyone within the group is encouraged and has an opportunity to contribute.

All personal information shared within the room is confidential unless it raises concerns about an adult at risk.

Aims of training

This one day training course is intended to provide:

• knowledge of the Adult Support and Protection (Scotland) Act

• the requirements of implementation; and

• an understanding of its practice implications.

The course is intended to complement other training dealing with issues such as:

• awareness of abuse indicators and responses; • skills in communication and interviewing; and• risk assessment and protection planning.

Morning

Session One – Principles, Definitions and Inquiries

Session Two – Investigations

Afternoon

Protection Orders

Session Three – ASP/AWI/MHCTASerious Harm, Consent and Undue Pressure Offences

Session Four – Assessment, Removal and Banning Orders

Course Content

This one-day session will focus on Part 1 of the Act

Protection of adults at risk of harm

Existing legislation

The Adults with Incapacity (Scotland) Act 2000 provided means to protect those with incapacity, for example through part 6 of financial and welfare guardianship.

The Mental Health (Care & Treatment) (Scotland) Act 2003 set out powers and duties in relation to people with mental disorder including those who are subject to ill-treatment or neglect.

The Adult Support and Protection (Scotland) Act 2007 (ASP) was passed by the Scottish Parliament in February 2007, with Part 1 implementation due in October 2008.

The ASP Act was designed to fill in gaps in previous legislation related to the protection of certain adults and concerns both adults with capacity and adults without capacity, including adults with a mental disorder.

What does the ASP Act do?

The ASP Act introduces new adult protection duties and powers, including:

• Councils duty to inquire and investigate

• Duty to co-operate

• Duty to consider support services such as independent advocacy

• Other duties and powers - visits, interviews, examinations

• Protection Orders: assessment, removal, banning and temporary banning

• Warrants for Entry, Powers of Arrest and Offences

• Duty to establish Adult Protection Committees across Scotland

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.

Code of Practice

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.

Principles


ASP Sections 1 and 2

Section 1: Overarching principles

A public body or office holder must be satisfied that an intervention:

a) will provide benefit to the adult which could not reasonably be provided without intervening in the adult’s affairs; and

b) is, of the range of options likely to fulfil the object of the intervention, the least restrictive to the adult’s freedom.

Section 2: Guiding principles

In addition to the overarching principles, public bodies or office holders must have regard to:

a) the adult’s ascertainable wishes and feelings (past and present);

b) any views of the adult’s nearest relatives, primary carers, guardian or attorneys and any other person who has an interest in the adult’s well-being or property;

c) the importance of :• the adult participating as fully as possible in the performance of the

function, and• providing the adult with such information and support as is necessary to

enable the adult to participate

d) the importance of the adult not being, without justification, treated less favourably than the way in which a person who is not an adult at risk of harm would be treated in a comparable situation; and

e) the adult’s abilities, background and characteristics.

Principles of the Act

Sections 1 and 2

The ASP principles apply to ANY public body or office holder performing a function under the Act.

Any person or body taking a decision must be able to demonstrate that the principles have been applied to their decision making and their interventions.

Certain people are NOT bound by the principles:

• the adult; • the adult’s nearest relative; • the adult’s primary carer; • an independent advocate; • the adult’s legal representative; • and any guardian or attorney of the adult.

Definitions


ASP Section 3

Section 3 (1): Adults at risk

The Act defines adults at risk as:

Adults (aged 16 or over) who:

a) are unable to safeguard their own well-being, property, rights or other interests;

b) are at risk of harm; and

c) because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.

All three of these criteria must be met before any action can be taken under the ASP Act.

Section 3 (2): Adults at risk of harmSection 3 (2) of the Act says that an adult is at risk of harm if:

a) another person’s conduct is causing (or is likely to cause) the adult to be harmed; or

b) the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm.

Section 53 of the Act states that harm includes all harmful conduct and, in particular, includes:

a) conduct which causes physical harm;

b) conduct which causes psychological harm (for example: by causing fear, alarm or distress);

c) unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud; embezzlement or extortion); and

d) conduct which causes self-harm.

A sheriff must be satisfied that an adult is at risk of serious harm before granting any protection order.

Considerations - adults at risk

• The presence of a particular condition does not automatically mean an adult is an “adult at risk”.

• A person could have a disability, physical and/or mental health problem and be able to safeguard his/her well-being etc.

• All three elements of the definition must be met i.e. unable to safeguard / at risk of harm / because they are affected by….

• It is the whole of an adult’s particular circumstances which can combine to make her/him more vulnerable to harm than others and this could be very different from individual to individual.

Inquiries


ASP Section 4

Section 4: Inquiries

A council must make inquiries about a person’s well-being, property or financial affairs if it knows or believes:

(a) that the person is an adult at risk, and

(b) that it might need to intervene (by performing functions under Part 1 of ASP or otherwise) in order to protect the person’s well-being, property or financial affairs.

Inquiry process

Initial inquiries - duty to inquire

• Information passed on under local adult protection guidelines

• Inquiries are made under section 4 of the Act by the council

• May consult with other agencies and conduct preliminary inquiries

• Others, e.g. police or health professionals, may be asked to assist

• Next steps could involve a wide range of interventions, including under ASP and/or AWI 2000, MHCTA 2003, SWSA 1968

• Intervention should be informal wherever possible and allow information, advice and support for the adult or a carer

• No further action decisions should be fully recorded and justified

• Where an inquiry indicates that a criminal offence may have been committed, the role of the police should not be undermined

• Council responsibility to take any immediate protective action

Inquiries - practice implications

• Take seriously any adult at risk of harm report, including anonymous referrals.

• Be open-minded in considering cases - don’t make assumptions.

• Consider carefully all referrals - make measured responses.

• Be flexible and professional, e.g. arrange an initial discussion with a familiar worker.

• Assess the carer’s situation, if the allegation involves unpaid carer.

• Keep adult fully informed at every stage of the process, unless this might prejudice investigations.

Cooperation


ASP Section 5

Section 5: Duty of co-operationThis section applies to:

• The Mental Welfare Commission for Scotland• The Care Commission• The Public Guardian• All councils• Chief constables of police forces• The relevant Health Board• Any other public body or office-holder as the Scottish Ministers may by order specify.

They have the following statutory duties:

• They must co-operate with a council making inquiries and with each other where that would assist the council; s.5(2)

• Where they know or believe that a person is an adult at risk, and that protective action is needed they must report the facts and circumstances of the case to the council. S.5(3)

Voluntary and private organisations

Factors relevant to voluntary and private organisations, including providers:

• no specific legal duties or powers under the Act

• legal duty to comply with requests for examination of records;

• may be source of advice and expertise for statutory agencies;

• good practice that all relevant stakeholders co-operate with assisting inquiries;

• have a responsibility to involve themselves where appropriate by contributing to investigations.

Co-operation - practice implications

Duty of confidentiality, but if ASP s. 5(3) conditions met (person is an adult at risk, and protective action is needed), then facts and circumstances must be reported to the council.

All relevant stakeholders should co-operate with inquiries.

A multi-agency and multi-disciplinary approach to inquiries and training is appropriate.

Staff should also be clear who they have a duty to report to within their own organisations.

Co-operation and information sharing required in adult protection case conferences and risk management.

Support and Advocacy


ASP Section 6

Section 6: Duty to consider advocacy and other services

The ASP Act places as much of an emphasis on support as it does protection of an adult at risk.

Section 6 applies where, after making inquiries under section 4, a council considers that it needs to intervene in order to protect an adult at risk of harm.

It places a duty on the council to consider the provision of appropriate services, including independent advocacy services, to the adult concerned.

Advocacy and supportIndependent Advocacy issues:

• ASP definition - independent advocacy is not provided by a local authority, or NHS Board or a member of the local authority or NHS Board.

• There may be a conflict of interest within certain organisations providing (non-independent) advocacy and also housing, financial advice and support services.

• The adult should not be expected to pay for advocacy services.

Communication support considerations:

• Adult’s preferred format for communication; technical aids; interpreted and translation; human aids to communication; the surrounding environment.

Other support services identified by the Code of Practice include:

• Victim Support Scotland• Support through the Vulnerable Witnesses (Scotland) Act 2004• Appropriate Adult Scheme• Carers’ support services.

Advocacy and support - practice implications

Assistance or intervention must be well planned with the right support, to enable people to express needs, consider options and make informed decisions.

Adults must feel that their perspective is being actively considered.

Good practice to inform carers, providing a substantial amount of care, of their right to an assessment.

Other services should be considered:

• practical and emotional support provided by statutory/other providers;

• mainstream health and social care and housing services.

Group exercise

Group members should introduce themselves and say which organisation they come from and what their job is.

They should agree a chair and identify group members to record on the flip chart and report back at the plenary feedback session.

In every session the group should identify the three most important points it wishes to report back.

Group exercise 1Case example: Agnes

Agnes lives with her husband Ian in a ground floor flat. She has multiple sclerosis and

anxiety states. A couple of years ago her health deteriorated and now she cannot walk very far. The only time Agnes goes out is when she attends a luncheon club twice a week. Both an OT and a home care worker have been involved for some time. There have been concerns in the past when Agnes has said he has not got any money left. She has never said where the money has gone. Service staff see very little of Ian, who seems to spend a lot of his time out of the house. There are often empty bottles of spirits in the house -- Agnes does not drink alcohol -- and old betting slips left lying around. During an assessment visit, Ian did say he did what he could for Agnes, but he had worked all his life and paid his taxes and it was up to services to provide what support she needed. Agnes has never been critical of him, and always seems highly anxious to keep things in order in case he gets angry with her. Agnes's doctor has been called out by a neighbour, who had heard Agnes shouting for help through the wall. When the neighbour went in she found Agnes crying and saying she was starving. She had not eaten for three days. She seemed to be extremely dehydrated and cried out when the neighbour touched her arm. Her neighbour helped her to the toilet, and Agnes said it was painful to pass urine. The neighbour phoned the health centre, but by the time the doctor visited Ian had returned home, said his wife was fine and they did not need any help. The doctor was only able to see Agnes very briefly, when she said she was fine and did not need any help or want anyone else involved.

Group exercise 1

The group task is to agree a group view of the case study on the flipchart What are the implications of the definitions of ‘adult at risk' and 'harm'? In this case is there a duty to inquire, and what might be the issues, dilemmas and challenges in relation to the duty of cooperation, and the duty to consider advocacy and other services?

How should staff and agencies deal with the dilemmas concerning self-determination and reporting concerns raised in operational practice?

Please flipchart your comments, and identify three key points to feed back.



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

Section 3:Definitions:

“adults at risk”“risk of harm”

Section 7:Visits

Section 4:Duty to inquire

Section 6Duty to consider

providing advocacy& other services

Section 5Duty to

co-operate

Section 8:Interviews

Section 9:Medical

examinations

Section 10:Examination of

records etc

Section 11-13:Assessment

orders

Section 14-18:Removal orders

Section 19-34:Banning &Temporary

Banning orders

Section 35Consent of adult

at risk

Sections 37-40Warrants for entry

Section 41Applications

procedure

Council Officer


Council Officer – draft definitionCouncil officers will be council employees (appointed under Local Government (Scotland) Act 1973 S. 64.)

Council officers working under sections 7-11, 14, 16, and 18 of the Act will need, as a minimum, to be registered as:

• social workers (SSSC); or occupational therapists (HPC); or nurses (NMC); and• have at least 12 months post qualification experience identifying, assessing and managing adults at risk

Additional flexibility will be provided in terms of council officers working under sections 7-10 of the Act. As a minimum they will need to be registered:

• social service workers (SSSC); and • have at least 12 months post qualification experience identifying, assessing and managing adults at risk.

The assumption is that:

• registration standards for continuous professional development will assure the necessary competence to identify, assess and manage adults at risk; and• local authorities will ensure the competence of their council officers.

Definition of responsibilitiesCouncil Registered Staff

Health Professionals

Police

ASP Act SectionSocial

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

√ √√*

Risk AssessmentSupport and Protection Planning

Risk assessment/protection plans

The requirements of the ASP Act and the terms of the Code of Practice have implications for risk assessment and protection planning, including:

• taking account of the principles and definitions;• involving the adults at risk and others at all stages;• responding to their communication needs and capacity;• multidisciplinary and multiagency co-operation at all stages;• multidisciplinary and multiagency communication at all stages;• considering support as well as protection needs;• assessing and planning in a comprehensive holistic fashion;• reaching conclusions about immediate and longer-term needs;• weighing up the advantages/disadvantages, gains/losses to the adult’s quality

of life, or freedom, or independence which might result from actions; and• defining comprehensive plans for support and actions, with clearly defined

Roles, Responsibilities, Timescales/Deadlines, Intended Outcomes.

The JIT/Glasgow/Tayside Risk Assessment And Protection Plan Formats take account of all of these issues.

Visits


ASP Section 7

Section 7: Visits

Powers

A council officer may enter any place to enable or assist an inquiry. s.7(1)

There is a right to enter any adjacent place for the same purpose. s.7(2)

Purpose

The purpose of a visit - s.7(1) - is to assist the council:

• to decide whether the adult is an adult at risk of harm; and

• to establish whether the council needs to take any action in order to protect the adult at risk from harm.

Identity and authorisation

A council officer must under s.36(2):

• produce evidence of the officer’s authorisation to visit the place; and

• state the object of the visit.

Considerations - prior to visit

Before a visit, consideration should be given to the implications of:

• the principles of the Act;

• providing appropriate services to the adult, e.g. independent advocacy or services to assist an adult, or other person in the household, to communicate;

• other legislation, e.g. AWI, MHCT or other;

• local inter-agency protocols and procedures; and

• ensuring staff are protected and supported (consider local procedures – working in pairs – liaising with the police);

• the likelihood of barred entry and any need to apply for a warrant for entry.

Interdisciplinary discussion whenever possible of who, when and how.

Visits - Who? Where? When?Who?

A council officer, making a visit, may be accompanied by another person. This could help inquiries by enabling a joint investigation with e.g. key worker, police officer, health professional, Care Commission officer or member of the Office of the Public Guardian (OPG); improved assessment of the risk to the adult; or better communication with the adult.

Where?

Section 7 allows a council officer to enter any place i.e.:

• the place where the adult normally resides such as their own home or care home; or

• a place where the adult is there temporarily or spends part of their time there such as a day centre; hospital or commercial premises.

When?

Section 36 (1) states that visits should only be at ‘reasonable times’. There is a need to consider timeous investigation; fully involving the adult and others; speaking to the adult in private; urgency of assessing risk and, if necessary, taking protective action, giving notice/possible prejudice to safety of giving notice.

Warrants for Entry


ASP Section 37

Visits - if entry is refused?

Consider first how entry may be achieved without seeking an entry warrant.

Ensure delay would not increase risk to the adult.

Good practice - multi-disciplinary discussion and plan to co-ordinate action.

Decide whether to apply for a warrant.

Consider minimising distress and risk to the adult.

Take account of the views of any other persons who may be concerned for the welfare of the adult.

Section 37: Warrants for entryOnly 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.

.

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.

Warrants for entry – urgent cases

Interviews


ASP Section 8

Section 8: Interviews

A council officer, and any person accompanying the officer, may interview, in private, any adult found in a place being visited under section 7.

The adult must be told of their right not to answer any questions before the interview starts. Section 8 (2)

The adult, and any other person interviewed, can choose to answer some questions but not others.

It is not necessary to have an assessment order to carry out visits and interviews. Section 8 (3)

Interview – purpose

The aims of the interview will be to establish:

• if the adult has been subject to harm;

• what is the source, nature and level of any risk to the adult;

• establish if the adult feels his or her safety is at risk and from whom;

• whether any action is needed to protect the adult; and to

• discuss what action, if any, the adult wishes or is willing to take to protect him or herself.

Interview – who, where, how and when?

Who:

Need to consider who should be interviewed – adult at risk and others – whether in private or supported – and whether council officer should be accompanied.

Where:

May take place within any place being visited, e.g. the adult’s home, a day centre, care home or hospital.

How:

Communication or other support may be needed to ensure the adult can participate as fully and freely as possible.

Consideration should also be given to the adult’s capacity.

When:

Guided by the urgency of the situation, and a planned process in line with local inter-agency protocols and procedures.

Medical Examinations


ASP Section 9

Section 9: Medical examinations

Section 9 of the Act allows a health professional (a doctor; a nurse; or a midwife) to conduct a medical examination of an adult at risk in private.

A medical examination includes a physical, psychological or psychiatric assessment or examination; and can take place at a place being visited; or can take place where an adult has been taken under an assessment order.

Where it appears that a criminal offence may have been committed, the police must be informed at the earliest opportunity.

Medical examinations – purpose

Possible reasons for a medical examination include:

• the need for immediate medical treatment for a physical illness or mental disorder; • a need to assess physical health, injuries, sexual abuse, neglect including 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.

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.

Examination of Records


ASP Section 10

Section 10: Examination of records

Section 10

Council officers may require someone to give them health, financial or other records, or copies of the records (audio, visual or other formats).

The requirement may be made during a visit or at any other time, but if at any other time must be made in writing.

Inspection can be by the officer and any other appropriate person.

It is an offence for a person to fail to comply with a requirement to provide information, except with reasonable excuse.

Examination of health records

Health records defined - s.10(7) - as:

• relating to an individual’s physical or mental health;• made by or on behalf of a health professional.

Health records may – s.10(5) be:

• sought and obtained by a council officer; but • inspected only by a health professional.

Health professionals holding records must act within their professional guidance.

Records - practice implications

Records should be accessed and information shared, giving consideration and in accordance with:

• the principles of the Act;• the council officer providing authorisation to access records;• action which is relevant and proportionate to concern involving those who need to know;• the need to consider relevant child protection information;• the adult’s wishes and right to confidentiality;• gaining the adult’s consent, wherever practicable and possible; • seeking information where it is not possible to obtain consent or where there are grounds for disclosure without consent;• capacity issues and the need to contact the Office of the Public Guardian;• whether there is a need for action under the AWI or MHCT Acts;• making efforts to resolve disagreements, including the use of conciliation;• the requirements of professional regulatory bodies;• agreeing with the record holder how the records obtained are to be treated, e.g. returned or destroyed.

Offences


ASP Section 49

Offences - obstruction

Section 49

Offences

• to prevent or obstruct any person from acting under the Act;

• to refuse, without reasonable excuse, to provide information. (examination of records etc).

An adult at risk cannot commit such an offence.

A person found guilty is liable on summary conviction to:

• a fine not exceeding level 3 on the standard scale; and/or• imprisonment for a term not exceeding 3 months.

Offences – bodies corporate etc.

Section 50

Obstruction consent or connivance or attributable neglect can mean offence by:

• a body corporate, partnership or unincorporated association;• a “relevant person”

A “relevant person” for the purposes of this section means:

• a director, manager, secretary or other similar officer of the body;• a member, where the affairs of the body are managed by its members;• an officer or member of the council;• a partner in a Scottish partnership;• a person who is concerned in the management or control of an unincorporated association other than a Scottish partnership.

An unincorporated association is the most common form of organisation within the voluntary sector in Scotland.

Group exercise 2Case Example

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

Group exercise 2

How do the legislative principles, definitions, and the legal powers and duties in relation to visits, interviews medical examinations and the examination of records relate to the case study?

Consider what dilemmas and challenges are posed in this case, and what next steps should be taken?

Then, identify more broadly issues concerning implementing the legislation when this concerns managed social care, health or housing settings.

Flipchart your views, and identify three key points to feed back.

Practice decisions

• Do they adhere to the principles of the Act?• Was the adult fully supported to participate?• Have consent and capacity issues been discussed ?• Have other professionals been consulted, as necessary?• How will intervention benefit the adult?• Have the consequences of intervention been considered?• Has all relevant past and current information (especially in relation

to adult protection history) been gathered from inter-agency colleagues and appropriate family & interested parties?

• Has comprehensive risk assessment been completed?• Have all options been considered – voluntary and statutory?

Section 10:Examination of records etc

Section 9:Medical

examinations

Section 8Interviews

Section 7Visits

Section 6Duty to consider the importance of

providing advocacy & other services

Section 5Duty to

cooperate

Section 4Duty to inquire

Adult Support & Protection (Scotland) Act 2007

Learning summary


Adult Support & Protection (Scotland) Act 2007

Relationship of the

Adult Support and Protection (Scotland) Act 2007to the

Adults with Incapacity (Scotland) Act 2000and the

Mental Health (Care and Treatment) (Scotland) Act 2003

Comparisons can be made in relation to:

• Definitions of those covered

• Principles

• Duties to inquire and investigate

• Potential interventions

Comparisons of ASP – AWI – MHCT

Subject of ASP – AWI – MHCTASP AWI MHCT

Adults at Risk Adults with IncapacityMentally

Disordered Adults

Adults, aged 16 years or over,

Adults, aged 16 years or over, Adults and children,

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.

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).

with a mental disorder.

The term mental disorder covers mental illness, personality disorder or learning disability.

Principles of ASP – AWI – MHCTASP 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

Duty to inquire and investigateASP AWI MHCT


• 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.

Local authorities have a duty to investigate:

Councils have duty to make inquiries:

• 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.

Local authorities should cause inquiries to be made:

• when it appears that a person with a mental disorder aged 16 or over is in their area as and certain circumstances apply;• these circumstances include, amongst others, that the person has been subject to ill treatment, neglect, some other deficiency in care or the safety of some other person may be at risk.

Office of the Public Guardian

The Public Guardian (PG) has a duty to investigate:

• complaints about the actions of those appointed under the AWI Act concerning financial issues (financial attorneys, Access to Funds Withdrawers, financial guardians or interveners); and also

• any concern raised where there appears to be a risk to adult’s property or financial affairs (i.e. there is no AWI appointment but funds do not appear to be managed for benefit of adult).

PG can only intervene when an adult is deemed by medical professional to lack capacity to safeguard his/her own property or financial affairs.

There is an overlap of investigative roles between council and OPG in relation to ASP and AWI, and local arrangements are required to determine referral routes, roles, communication and joint working.

Inquiry or investigation actions

ASP AWI MHCT

Adults at Risk Adults with Incapacity

Mentally Disordered

Adults

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)

Further actions – ASP–AWI–MHCTASP AWI MHCT


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 entry

Warrant for detention to allow medical assessment by doctor

Warrant for access to medical records by doctor

Removal order

Warrant to enter premises for purposes of retaking patient

Emergency detention certificate

Short-term detention certificate

Compulsory treatment order

Assessment Orders

Removal Orders

Banning Orders


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

Section 3:Definitions:

“adults at risk”“risk of harm”

Section 7:Visits

Section 4:Duty to inquire

Section 6Duty to consider


Section 5Duty to

co-operate

Section 8:Interviews

Section 9:Medical

examinations

Section 10:Examination of

records etc

Section 11:Assessment

orders

Section 14:Removal orders

Section 19-21:Banning &Temporary

Banning orders

Section 35Consent of adult

at risk

Sections 37-40Warrants for entry

Section 41Applications

procedure

The terms of the ASP Act and Code about definitions, principles, co-operation and support apply as much to Orders as inquiries and interviews.

Protection orders do not depend on a linear process. They can be applied for at any time in the process depending on the individual’s circumstances.

It is anticipated that the bulk of the work under the Act will be initial inquiries and investigations and putting support in place where needed.

However it is still important to know what further action we can take – what we can do if we need to.

Protection orders - introduction

Protection orders - overviewAn Assessment order allows a council officer to conduct an interview in private and/or a health professional to conduct a medical examination in private. This may be required to establish whether the person is an adult at risk and if further action is required to protect him/her.

A Removal order allows the council to remove the adult at risk to a specified place in order to assess the situation and to support and protect her/him.

Banning orders and Temporary Banning orders will ban the subject of the order from a specified place. They may have other conditions attached, for example contact under certain conditions.

Application may only be made for any of the orders, where the adult is at risk of serious harm.

When the adult at risk does not consent to the making of any of the orders, evidence is required that the adult has been subject to ‘ undue pressure’.

Provision is made for situations, where immediate protective action is needed.

Protection Orders Assessment Order Removal Order Banning Order

ASP Principles Yes Yes Yes

3 Point Test - Adults at Risk Yes Yes Yes

Serious Harm Yes Yes Yes

Incapacity, consent or undue pressure

Yes Yes Yes

Application Council Council Adult, Other with occupancy right, Council

Notification - Adult at Risk Yes Yes + others Yes + subject

Ad. represented/ accompanied Yes Yes Yes

Protection of Property Duties No Yes Where specified in the order

Appeal No No Yes

Variation or recall No Yes Yes

Disapply notification Yes Yes Yes

Safeguarder - Curator ad Litem Yes Yes Yes

Use Vuln. Witnesses Act 2004 Yes Yes Yes

Access Conditions to Order No Yes Yes + other conditions

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.

Protection orders – considerations

Definition of harmHarm (Section 53) includes all harmful conduct and, in particular, includes:

a) conduct which causes physical harm;

b) conduct which causes psychological harm (for example: by causing fear, alarm or distress);

c) unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud; embezzlement or extortion); and

d) conduct which causes self-harm.

An adult is at risk of harm – s.3(2) - if:

a) another person’s conduct is causing (or is likely to cause) the adult to be harmed, or

b) the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm

N.B “conduct” includes neglect and other failures to act (Section 53)

Protection orders – lack of consentor incapacity

(Section 35) If the affected adult has capacity and refuses to consent, the council must prove that the adult has been “unduly pressurised” to refuse to consent to the granting of an order.

The sheriff may ignore the refusal of consent if he/she reasonably believes:

• that the affected adult at risk has been unduly pressurised to refuse consent; and

• that there are no steps which could reasonably be taken with the adult’s consent which would protect the adult from the harm which the order or action is intended to prevent.

Where the adult does not have the capacity to consent, the requirement to prove undue pressure does not apply. However, evidence of lack of capacity will be required by the Sheriff.

“undue pressure”

Undue pressure can be applied by an individual:

• who may not be the person suspected of actually harming the adult; or

• who the adult is afraid of or who is threatening her/him.

The Act provides another example at Section 35(4) of what may be considered to be undue pressure:

• harm which the order or action is intended to prevent is being, or is likely to be, inflicted by a person in whom the adult at risk has confidence and trust; and

• the adult at risk would consent if they did not have confidence and trust in that person.

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

Note on flipcharts 3 key points about harm and undue pressure to report back.


Protection Orders Assessment Order Removal Order

ASP Principles Yes Yes

3 Point - At Risk and Serious Harm

Yes Yes

Application Council Council

Identify/evidence suitable place Yes Yes

If Order granted:

Warrant for Entry automatic Yes Yes

Place specific entry Warrant Yes Yes

Constable – reasonable force Yes Yes

Council right to take to place Yes Yes

Order identifies specified place Yes Yes

Council right to detain at place No No

Use Order more than once No No

Adult’s rights:

To not answer some/all questions Yes Yes

To refuse medical examination Yes Yes

To leave place at any time Yes Yes

To be informed of rights Yes Yes

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 orderspractice implications

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.

Assessment Orders


ASP Section 11

Assessment orders - purpose

The purpose is to ascertain – s.11(2) whether:

• the adult is an adult at risk; and• there is reasonable cause to suspect that the adult at risk is being, or is likely to

be, seriously harmed.

The council may take an adult at risk of serious harm to a suitable place specified by the sheriff, so that – s.11(1):

• a council officer or council nominee may conduct an interview in private; or• a health professional may conduct a medical examination in private.

An Assessment order is valid for up to 7 days after the date specified in the order (may not be date order granted) – s.11(3), and can only be used on one occasion. The adult must only be taken to the place specified on the order.

Assessment orders - grounds

Application only if not practicable to carry out the interview or examination at the place of the visit. s.13

The sheriff must be satisfied – s.12 - that:

• the council has reasonable cause to suspect the subject of the order is an adult at risk who is being, or is likely to be, seriously harmed;

• the order is required to establish whether the person is an adult at risk who is being, or is likely to be, seriously harmed; and

• the place at which the person is to be interviewed and examined is available and suitable.

Any proposed action must be judged to be of benefit to the individual, and reflect the principles of the Act.

Council should detail the type of assessment and estimated length of time needed.

Removal Orders


ASP Section 14

Removal orders – purposeOnly the council can apply for a removal order, which authorises - s.14(1):

• council officer, or a council nominee, to take someone from any place (at home or in public, private or commercial premises);

• to move person to a specified place; • the council to take reasonable steps to protect person from harm.

The purpose of a removal order is primarily for protection and:• to assess the adult’s situation and provide support and protection;• not primarily for a council interview or a medical examination;• permits the person named to be moved from any place;• requires return to own environment as soon as possible.

The order may only be used for very specific purposes, such as:• resolving issues between the adult and person suspected of harming;• relieving carer stress.

The order may provide for contact under specified conditions.

The removal must be for the purpose of preventing serious harm.

Removal orders – grounds

Council applications and sheriff decisions based on certain grounds:

• adult is likely to be seriously harmed if not moved to another place; and • there is a suitable place available to remove the adult to. S.15 (1)• is to be used for very specific purposes; • will reflect the principles of the Act;• will be the least restrictive action;• is necessary to provide a benefit to the adult;• takes account of the adult’s wishes and needs.

Variation or recall has to be justified by a change in the facts or circumstances.

Removal orders – implementation Timescales

The removal order:

• must be executed i.e the adult must be removed within 72 hours - s.14(1);• will expire up to seven days after the day the adult was moved – s.14(2);• cannot be extended beyond seven days;• can be specified by the sheriff to expire in a shorter period;• as short a removal period as possible.

Who

Council officer and constable have right to enter premises to remove adult. s.16

Council may arrange another person (maybe more familiar) to move the adult. The nominee should be specified in the application.

Good practice to advise any person with interest in adult’s welfare of the removal.

Removal orders – urgent cases

Section 40

In emergency situations council can apply to Justice of the Peace on the basis that:

• adult is likely to be seriously harmed if not moved to another place; and • there is a suitable place available to remove the adult to;• it is not practicable to make application to the sheriff; and• an adult at risk is likely to be harmed if there is any delay in granting the order.

Removal within 12 hours of order - expires after 24 hours.

Council should advise any person with interest in adult’s welfare of removal.

Banning Orders


ASP Section 19

Banning orders – purpose

Banning orders are intended for circumstances where banning the subject from a specified place or area is likely to:

• better safeguard the well-being and property of adult at risk of serious harm more effectively than would the removal of the adult; and

The ‘subject’ of the order can be banned from being in a specified place or area for up to 6 months.

Application can be made for a temporary banning order where inadvisable to wait for a full hearing on the banning order application.

The “subject” may be a child.

A banning or temporary banning order can be varied, recalled or appealed.

Banning orders – terms

A banning order may – s19(2):• ban the subject from a specified area in the vicinity of the specified place;• authorise ejection of the subject from the place and area;• prohibit the subject from moving any specified thing from that place;• direct any specified person to take measures to preserve the moveable property

of the subject;• have specified conditions; and • require or authorise any person to do, or to refrain from doing, anything else

which the sheriff thinks necessary for the proper enforcement of the order.

Application for order must be accompanied by a plan clearly identifying the place and area from which the subject is to be banned, and any conditions sought.

Order may allow the subject to be in a place or area from which banned s.19(3):• only in specified circumstances; e.g.• while being supervised by another person or during specified times; or• to allow the subject access to the adult at risk’s children or family.

Could be in Access Plan, with dates, times, location, and purpose e.g. mediation.

Banning orders – timescales

A Banning order – s.19(5):

• period will be specified by the sheriff;• can last for any period up to a maximum of six months;• should be the shortest period possible in line with ASP principles;

Temporary Banning order expires on – s.21(4):

• the date a banning order is made;• the date on which it is recalled; or• any specified expiry date.

A banning or temporary banning order may be recalled or varied (s.24), but not extended beyond six months.

Banning orders – grounds

Under Section 20 of the Act, the sheriff may grant banning order or temporary order only if satisfied that:

• an adult at risk is being, or is likely to be, seriously harmed by another person;• the adult at risk's well-being or property would be better safeguarded by

banning the other person from a place occupied by the adult than it would be by moving the adult from that place; and that either:

• the adult at risk is entitled, or permitted by a third party to occupy the place from which the subject is to be banned; or

• neither the adult at risk nor the subject is entitled, or permitted by a third party to occupy the place from which the subject is to be banned.

It is necessary to provide benefit to the affected adult that the subject will be banned from a specific place.

Will usually be from where adult lives, but subject not necessarily living there, and may be used in respect of public places.

The adult at risk must be entitled to occupy the place (sections 20 and 23)

Banning orders - breaches

Breaches - failure to comply with an order of court can be dealt with by:

• the applicant raising an action for breach; or• the adult at risk, where not the applicant, raising an action for breach.

An adult at risk is not required to report any breach of an order.

With power of arrest attached, constable can arrest subject if the constable – s.28:

• reasonably suspects subject to be breaching, or have breached, order; and• considers that there would be a risk of the subject breaching the order

again, if the subject were not arrested.

The constable cannot simply arrest subject for having breached the order alone.

Banning orders - power of arrest

Section 25

The sheriff can attach a power of arrest, to the banning or temporary order.

Evidence -- likelihood of the subject breaching order or conditions.

The power of arrest becomes effective only when served on the subject of the order and will expire at the same time as the order.

If conditions breached subject may be arrested without warrant:

• if constable reasonably suspects breach of the order; and• likely to breach the order again if not arrested.

If no power of arrest with original order, application may subsequently be made to the sheriff to attach a power of arrest.

Banning orders – detention

The ASP Act and Code of Practice set out further requirements concerning detention and further action concerning Banning orders:

• Duties after arrest - s.29.• Notifications about detention – s.30• Police duty to keep record of detention – s.31;• Duty to bring detained person before sheriff – s.32;• Information to be presented to sheriff – s.33;• Authorisation of further detention period by Sheriff – s.34;• Conditions of Banning order continue until expiry unless varied;• Application can be made for further banning order

Banning orders – practice issues• If the applicant is an adult at risk, does he/she need assistance?

• Who is to be banned?

• Is the person to be banned a child?

• What area does the ban cover?

• What length of ban is requested ( up to 6 months)?

• Should there be contact between the adult and the subject of the order?

• What conditions to be attached to ban e.g attach a power of arrest for breach of ban?

• Are the powers required immediately?

• Purpose of ban – what is going to be achieved?

• If banned person living in same accommodation, how is their property going to be secured and protected?

• What is the likelihood of appeal?

• Any impact/risk to others by banning person from the premises, e.g. rehousing of banned person?

Group exercise 4

Identify cases in which the use of an Assessment order, a Removal order or a Banning order would have been of benefit to an adult at risk. Then create a group list with three columns noting the circumstances in which an Assessment order, Removal order, or a Banning order would have had such benefits. You may also wish to note the potential difficulties and drawbacks of using orders in these circumstances.

Identify one key reason for each order to report back to the plenary session.


Part 1: Adult Support and Protection (Scotland) Act 2007Protection of adults at risk of harm

IntroductorySection 1 General principle on intervention in an adult’s affairs Section 2 Principles for performing Part 1 functions Section 3 Adults at risk

InquiriesSection 4 Council’s duty to make inquiries Section 5 Co-operationSection 6

Duty to consider importance of providing advocacy and other services

InvestigationsSection 7 Visits Section 8 Interviews Section 9 Medical examinations Section 10 Examination of records etc.

http://www.opsi.gov.uk/legislation/scotland/acts2007/asp_20070010_en_2















Assessment ordersSection 11 Assessment orders Section 12 Criteria for granting assessment order Section 13 Restriction on exercise of assessment order

Removal ordersSection 14 Removal ordersSection 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 ordersSection 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



















Notification to adult at risk etc. Section 27 Notification to police Section 28 Arrest for breach of banning orderSection 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: supplementarySection 35 Consent of adult at risk Section 36 Visits: supplementary provisions Section 37 Warrants for entry Section 38 Criteria for granting warrants for entry: section 7 visits Section 39 Duty to grant warrants for entry: removal orders Section 40 Urgent cases Section 41 Applications: procedure


















Section 16In pursuance of a Protection

Order, enter any place where the adult at risk is and to remove that adult where this is authorised

by a Removal Order

Section 11-22Apply to the Sheriff for the grant of a protection order.

This may be anAssessment Order

Removal OrderBanning Order or

Temporary Banning Order

Section 10Health, financial and other

records relating to an adult at risk may be requested

and examined. Only a health professional may inspect

health records

Section 8-9Council officers may interview, in private, any adult found at

the place being visited &arrange for a medical examination

of an adult at risk to be carried out by a

health professional

Section 7Visit any place

necessary toassist enquiries under Section 4

Council’spowersunder

ASPA 2007

Section 42Set up Adult ProtectionCommittees to carry out

various functions in its area and to

review proceduresunder the Act

Sections 36-40Visit a place at

reasonable times only;state the object of the visit;

produce evidence of authorisation to visit;

Council officers may not use forceto facilitate or during a visit

(but Sheriff or JOP may authorise Police

t o use force)

Section 18Protect property owned or controlled by an adult

who is removedfrom a place under

a removal order

Section 9Inform an adult

believed to be at risk that they may refuse

to consent to a medical

examination

Section 8Inform any adult interviewed that

they may refuse to answer any question

put to them.

Section 6Duty to considerthe importance of


Section 5Duty to cooperate

with other prescribed

bodies

Section 4Duty to Inquire

Council’s dutiesunder

ASPA 2007

Links to Issues and Agencies referenced in the training sessions:

Scottish Government:Adult Support and Protection (Scotland) Act 2007

http://www.scotland.gov.uk/Topics/Health/care/VAUnit/ProtectingVAAdult Support and Protection (Scotland) Act 2007 - code of practice

http://www.scotland.gov.uk/Publications/2008/07/17115228/0 Adults with Incapacity

http://www.scotland.gov.uk/Topics/Justice/Civil/awiAdults with Incapacity- communication and assessing capacity

http://www.scotland.gov.uk/Publications/2008/02/01151101/0Child Protection

http://www.scotland.gov.uk/Topics/People/Young-People/Children-Families/17834Appropriate Adults Scheme

http://www.scotland.gov.uk/Topics/Justice/criminal/18244/Appropriate-AdultMental Health (Care and Treatment) (Scotland) Act 2003

http://www.scotland.gov.uk/Topics/Health/health/mental-health/mhlawVulnerable Witnesses (Scotland) Act 2004 – information guidehttp://www.scotland.gov.uk/Publications/2005/04/04143522/35246

Scottish Courts – Rules and Forms http://www.scotcourts.gov.uk/library/rules/index.asp

Data Sharing: Legal Guidance for the Public Sectorhttp://www.scotland.gov.uk/Publications/2004/10/20158/45768

Office of Public Sector Information (Acts and Statutory Instruments):http://www.opsi.gov.uk/

Survivor Scotland http://www.survivorscotland.org.uk

Counselling, mediation, and victim support: www.victimsupportsco.demon.co.uk

Criminal Injuries Compensation Scheme ( CICS), 2001: www.cica.gov.uk

http://www.scotland.gov.uk/Topics/Health/care/VAUnit/ProtectingVA

http://www.scotland.gov.uk/Publications/2008/07/17115228/0

http://www.scotland.gov.uk/Topics/Justice/Civil/awi

http://www.scotland.gov.uk/Topics/Justice/Civil/awi

http://www.scotland.gov.uk/Publications/2008/02/01151101/0

http://www.scotland.gov.uk/Topics/People/Young-People/children-families/17834

http://www.scotland.gov.uk/Topics/Justice/criminal/18244/Appropriate-Adult

http://www.scotland.gov.uk/Topics/Health/health/mental-health/mhlaw

Links to Issues and Agencies referenced in the training sessions:

Office of the Information Commissioner's framework code of practice for sharing information http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/pinfo-framework.pdf

Office of the Public Guardian http://www.publicguardian-scotland.gov.uk/

Public Concern at Work - provides legal, practical and policy advice on whistle blowing http://www.pcaw.co.uk

Scottish Independent Advocacy Alliance http://www.siaa.org.uk/

The Mental Welfare Commission ( MWC) for Scotland www.mwcscot.org.uk

The Princess Royal Trust for Carers http://www.carers.org/

Victims of Crime in Scotland http://www.scottishvictimsofcrime.co.uk/exec_ccc/VC_FirstPage.jsp?

pContentID=275&p_applic=VC_CCC&p_service=Content.show&

Learning outcomesPoor Excellent1 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: a)Understand the principles of the ASP Act and their implications for practiceb)Understand what is meant by the terms “adult at risk” and “harm”c)Understand the Council’s duty to make inquiries, about the duty of Co-operation, the duty to consider the importance of providing advocacy and other services and some implications for practiced)Understand the functions of a council officer, health professional, police constable, and police officer in charge under the ASP Acte)Understand the duties and powers in relation to visits and interviews under the ASP Act and some practice implications f)Understand the duties and powers in relation to medical examinations and the examination of records under the ASP Actg)Understand some of the practice implications of applying the ASP Act in relation to adults within managed or registered services

Learning outcomesPoor Excellent1 2 3 4 5 6 7 8 9 10

h) Understand the offences of obstruction under the ASP Act and refusal to provide information related to the Act

i) Understand in broad terms the key distinctions between the ASP Act, the AWI Act and the MHCT Act

j) Understand the terms ' serious harm' 'undue pressure' and how they might be applied in applications for Protection orders

k) Understand the requirements for consent and the term 'undue pressure' and how they apply to applications for Protection orders

l) Understand the potential uses of Assessment orders, Removal orders, and Banning orders the arrangements for them and the practice issues involved

m) Understand that there are police powers of arrest and duties of detention under the ASP Act

Please rate the value of the training overall Please note any other comments:


Adult Support and Protection (Scotland) Act 2007

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