« Previous | Contents | Next »
Listen
Introduction to the Act
Background
1. In 1997 the Scottish Law Commission published recommendations and a draft Bill in respect of 'vulnerable adults'. Since then policy in this area has developed considerably, resulting in the Adult Support and Protection Act 2007.
2. The Act makes new provisions intended to protect those adults who are unable to safeguard their own interests, such as those affected by disability, mental disorder, illness or physical or mental infirmity, and who are at risk of harm or self harm, including neglect.
3. Underpinning the provisions of the Act are the fundamental principles, contained in Section 1, namely that any intervention must provide benefit to the adult, that this benefit could not have reasonably achieved without intervention and that any intervention is the least restrictive option to the adult's freedom.
What does Part 1 of the Act do?
4. Part 1 introduces new measures to identify and to provide support and protection for those individuals who are vulnerable to being harmed whether as a result of their own or someone else's conduct. These measures include:
- a set of principles which must be taken into account when performing functions under the Act;
- placing a duty on Councils to make the necessary inquiries and investigations to establish whether or not further action is required to protect the adult;
- clarifying the roles and responsibilities in adult protection;
- a duty to consider the importance of the provision of advocacy or other services after a decision has been made to intervene;
- permitting practitioners to investigate circumstances where individuals may have capacity to choose but not the ability to exercise that choice because of undue pressure;
- requiring specified public bodies to co-operate with local councils and each other about adult protection investigations;
- a range of protection orders which are defined in the Act to include:
- assessment orders;
- removal orders; and
- banning orders.
- the establishment of multi-disciplinary Adult Protection Committees.
How does Part 1 safeguard the adult?
5. There are a number of safeguards in place.
- The principles emphasise the importance of striking a balance between an individual's right to freedom of choice and the risk of harm to that individual. Any intervention must be reasonable and proportionate.
- Statements expressed in advance about an individual's preferred care or treatment must be taken into account in line with the guiding principles.
- The principles must always be taken into account when an intervention under Part 1 of the Act is being considered.
- Protection orders cannot be made if the court knows that the affected adult at risk has refused to consent to the granting of such an order. The only exception to this is where the adult at risk is found to have been unduly pressurised to refuse to consent and there is no other protective action, which the adult would consent to, which could be taken.
- The adult at risk may refuse to be medically examined or interviewed.
- Applications for all protection orders will be heard before a sheriff, where there will be an opportunity to make representations to the sheriff. However the sheriff may decide not to hold a hearing where they are satisfied that this will protect an adult a risk from serious harm or not prejudice any persons affected.
- The adult at risk may apply for a banning order to ban a person from a specified place ( e.g. the home of the adult at risk.
- An appeals mechanism allows relevant parties to appeal against the granting of, or refusal to grant, a banning or temporary banning order.
How is this code structured?
6. This code is divided into 13 chapters.
Chapter 1: Principles and definition of adult at risk
7. This chapter provides a description of the principles of the legislation as set out in Sections 1 and 2 of the Act and the definition of "Adults at risk" and "harm" (under Sections 3 and 53).
Chapter 2: Council duties and powers, definition of council officer, duty to co-operate and role of voluntary organisations
8. This chapter sets out the duties and powers of councils. It sets out who may act as "council officers" undertaking investigations and other duties under the Act. The chapter concludes with information about the duty of other bodies to co-operate with the council and a short overview on the role of other bodies, for example voluntary bodies.
Chapter 3: Adult representation
9. This chapter examines issues which can be grouped together under the heading of representation. It looks at an adult's right to independent advocacy, advance statements, the appointment of safeguarders and provides a short overview of persons with communication difficulties. It concludes with examples of other assistance that may be available for an adult as well as support available for carers.
Chapter 4: Inquiries
10. This chapter covers Section 4 of the Act which places a duty on councils to make inquiries about an adult at risk's well-being, property or financial affairs where the council knows or believes intervention may be necessary to protect the adult.
Chapter 5: Visits
11. This chapter provides guidance on Section 7 of the Act. Under Section 7 certain council officers have the power to enter a residence or other property where an adult at risk may be, to investigate whether any action is required to protect the adult from harm.
Chapter 6: Interviews
12. This chapter provides guidance on Section 8 of the Act which permits a council officer, or a person accompanying them, to interview any adult present at the place of the visit. It highlights the requirement for the adult to be made aware that they are not required to answer any questions. This interview can be carried out without applying for an assessment order.
Chapter 7: Medical examinations
13. This chapter provides guidance on Section 9 of the Act which states that a medical examination can be carried out on an adult at risk, at the place being visited, or elsewhere if an assessment order is granted. This can be carried out only by a health professional, who may or may not be a council officer.
Chapter 8: Examination of records
14. This chapter provides guidance on Section 10 of the Act which permits council officers to obtain copies of health, financial or other records relating to an adult known or believed to be at risk, if this is required to establish whether further action is necessary to protect that adult from harm. Only a health professional may inspect health records.
Chapter 9: Assessment orders
15. This chapter provides guidance on Section 11 of the Act which allows a council to apply to a sheriff for an assessment order. This allows a council officer to conduct a private interview, and a health professional to conduct a medical examination in private. This order would be necessary only if it were not possible to carry out the interview or examination at the place of the visit. An assessment order will be granted only where there is reasonable cause to suspect that the subject of the order is an adult at risk of serious harm, and that the action specified is necessary to establish this and to identify what further action may be required.
Chapter 10: Removal orders
16. This chapter provides guidance on Section 14 of the Act which allows a council to apply to the sheriff for a removal order. If granted, a removal order allows the council to remove the adult at risk to a specified place in order to assess their situation and to support and protect them.
Chapter 11: Banning and temporary banning orders
17. This chapter provides guidance on applications for banning orders and temporary banning orders. These orders will only be granted where the adult at risk is in danger of being seriously harmed, and that banning the subject of the order from a specified place is likely to safeguard the adult's well-being and property more effectively than would the removal of the adult at risk. Any decision to grant or refuse to grant a banning or temporary banning order can be appealed to the sheriff principal.
Chapter 12: Offences
18. This chapter provides a short overview of the offences under the Act.
Chapter 13: Adult Protection Committees
19. This chapter covers Sections 42 to 47 of the Act which set out the provisions relating to the establishment, composition and functions of Adult Protection Committees.
Annexes
20. Annex A provides links to other relevant guidance and Annex B contains a glossary.
« Previous | Contents | Next »