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ADULT SUPPORT AND PROTECTION (SCOTLAND) ACT 2007
Role of council officer
Definition of council officer
Introduction
1. Part 1 of the Adult Support and Protection (Scotland) Act 2007 (the Act) creates new measures to protect adults who are believed to be at risk of harm. Where it is known or suspected that an adult is at risk, the Act places a duty on councils to make the necessary inquiries and investigations to establish whether or not further action is required to stop or prevent harm occurring.
2. In the Act, council officer functions start at the "investigative" stage i.e. section 7 of the Act. Only those individuals with appropriate skills, training, and experience of working with adults who may be at risk, will be authorised to carry out the important and often sensitive work required by this legislation.
3. During the passage of the Act through the Scottish Parliament, the previous administration made a commitment to restrict the group of people who can perform the functions of council officer to those who are competent to perform it in terms of qualifications and experience and to consult on the proposals. This consultation exercise fulfils that commitment.
Discussion
4. We want to create a system that is both flexible and professional in its approach. Our primary aim is to ensure that a suspected victim of harm is able to disclose what is going on in their life so that appropriate steps may be taken to support and protect them. However, for a concern to be investigated it must first of all be identified and referred to a council. Furthermore, it is important to keep in mind that the Act was developed to protect adults from harm and as such they are central to any activities.
5. It is impossible to legislate who an adult at risk may disclose to as there are a broad range of possibilities from members of the public to service workers. There will also be situations where it is not the adult at risk, but an individual coming into contact with them who identifies a possible issue. Irrespective of who an individual confides in, their concerns must be looked into. We acknowledge that councils will already have their own procedures in place to carry out inquiries and this aspect of their work will continue as previously as the Act does not restrict who can undertake these pre-existing functions.
6. Following an initial inquiry, in some cases no further action will be needed, while in others a more formal investigation will be required. Where this happens, the Act prescribes that a council officer requires to be involved and secondary legislation, to be made under the Act, will prescribe that a council officer must have the necessary level of skills, training and experience working with adults.
Proposed council officer definition
7. Section 53 (1) of the Act defines a council officer as an individual appointed by a council under section 64 of the Local Government (Scotland) Act 1973. Section 52 (1) of the Act qualifies this definition by enabling Scottish Ministers to restrict the type of individual who may be authorised by a council to perform council officer functions. At its most basic level, this enables Scottish Ministers to exclude those council officers who do not have the relevant skills, knowledge and experience to undertake these important functions.
8. In considering who might be best able to undertake the council officer functions set out in the Act, we acknowledge a need to retain as much flexibility as possible, especially to accommodate the smaller and more rural councils. We also recognise that while it is important to specify a formal qualification as a basic requirement for undertaking council officer functions, what this qualification should be is not so clearly defined at present. Nor is the issue of whether we should specify a certain level of experience post qualification, mainly because experience does not always equate to competence. Councils themselves will be more able to determine the knowledge skills and abilities of their own staff.
9. Our proposal for those who may undertake council officer functions has two parts. The first sets out a requirement which would enable appropriately qualified staff to undertake all of the functions set out in sections 7-11, 14, 16 and 18 of the Act. The second is aimed at increasing the range of staff who can perform those functions set out in sections 7-10 of the Act. Annex A details these functions.
Part one
10. We propose that 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) or equivalent, as social workers 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 six months post qualification experience in identifying, assessing and managing adults at risk.
11. The assumption would be that:
- the standard for continuous professional development required by the SSSC and the continuing registration requirements of both the Health Professions Council and Nursing and Midwifery Council would ensure that council officers have the necessary competence to identify, assess and manage adults at risk; and
- the authorities would also have a role in ensuring the continued competence of those they employ to undertake council officer functions.
Question 1. Is this the right level of experience and responsibility for a council officer undertaking the functions set out in sections 7 - 11,14, 16 and 18 of the Act?
Question 2. If you do not feel this is the right level of experience and responsibility, please state your reasons why and any alternative proposal with supporting evidence.
Question 3. Are there any other groups of health professionals, appointed by a council under section 64 of the Local Government (Scotland) Act 1973, that could undertake the council officer functions set out in sections 7 - 11,14, 16 and 18 of the Act?
Question 4. If you have answered yes, please state which groups and why?
Part two
12. We also propose building in some additional flexibility by specifying social care and other health professionals, in addition to social workers and occupational therapists, who might undertake those investigative functions set out in sections 7-10 of the Act. The intention therefore would be to do this by also including council officers who are registered social service workers on the SSSC register under section 44 (1) of the Regulation of Care (Scotland) Act 2001 and have at least 12 months post qualification experience.
13. Details about SSSC registration are on the SSSC website.
Question 5. Do you consider that council officers fulfilling the requirements of paragraph 12 above would have the necessary level of experience and responsibility to perform the functions set out in sections 7-10 of the Act?
Question 6. If you have answered yes, please state your reasons.
Question 7. Are there any other groups appointed by a council under section 64 of the Local Government (Scotland) Act 1973 that could undertake the council officer functions set out in sections 7-10 of the Act?
Question 8. If you have answered yes, please state which groups and why.
Mental Health Officers
14. We are also considering whether a Mental Health Officer ( MHO), appointed under section 32 of the Mental Health (Care and Treatment) (Scotland) Act 2003, should undertake the functions under sections 11, 14, 16 and 18 of the Act in cases where it is known or suspected that the adult may have a mental disorder. MHOs possess the necessary skills, training and experience in dealing with people with mental disorders and are considered to be best placed to decide on the appropriate course of action and whether the powers available in any other legislation should be used.
Question 9. At what stage in an inquiry should a case be referred to an MHO?
Question 10. What are your views on requiring MHOs to conduct functions under the Act where the adult is suspected of having a mental disorder?
Question 11. Should any other class of person undertake these functions?
Question 12. If you have answered yes, which persons? Please provide your reasons.
Question 13. How does this compare with what happens currently under existing legislation?
Question 14. Would any of these suggestions have implications for the workforce? If so, please provide details.
Annex A: Reference to council officer functions in the Act
Visits (section 7)
A council officer may enter any place where an adult at risk may be, to investigate whether any action is required to protect that adult from harm.
Interviews (section 8)
This allows a council officer to interview, in private, any adult present at the place of the visit. However the adult must be notified, before the interview starts, that they are not required to answer any questions.
Medical examinations (section 9)
Where a council officer finds a person whom the officer knows or believes to be an adult at risk in a place being visited, a private medical examination can be carried out on the adult. The examination can only be carried out by a health professional, who may or may not be a council officer. The adult must be informed of their right to refuse to be examined before it is carried out.
Examination of records (section 10)
This allows a council officer to obtain copies of health, financial or other records relating to an adult known or believed to be at risk, to enable the council to decide whether it needs to do anything in order to protect that adult at risk from harm. Health records may be inspected only by a health professional.
Assessment order (section 11)
An assessment order allows a council officer to take a specified person from a place being visited to a place where they can interview them in private, or where a health professional can conduct a confidential medical examination.
Removal order (sections 14 and 16)
A removal order authorises a council officer, or council nominee, to remove a specified person to a specified place for up to 7 days within 72 hours of the order being made.
Protection of moved person's property while removal order has effect (section 18)
This allows a council officer to enter any place which the council knows or believes to contain property owned or controlled by a person who has been moved in pursuance of a removal order for the purpose of taking reasonable steps to prevent that property from been lost or damaged.
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