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Chapter 5: Visits
1. This chapter provides guidance on Section 7 of the Act. Under Section 7 council officers have the power to enter a residence or other property to investigate whether any action is required to protect the adult from harm.
What is the purpose of a visit?
2. Section 7 of the Act allows a council officer to visit premises to make the necessary investigations to establish whether or not further action is needed to protect an adult at risk of harm. The purpose of a visit under Section 7 is to:
- assist the council in conducting inquiries under Section 4 to decide whether the adult is an adult at risk of harm; and
- establish whether the council needs to take any action in order to protect the adult at risk from harm.
(For further information on the definition of an adult at risk, please refer to Chapter 1)
What should be considered prior to a visit?
3. Any person performing a function under the Act must have regard to the principles. These include whether the action is the least restrictive necessary whilst providing benefit to the adult. The views of the adult's nearest relative, primary carer and others so far as relevant must also be taken into account. (For further information on the principles of the Act, please refer to Chapter 1)
4. The council must also have regard to the importance of providing appropriate services to the adult, for example independent advocacy or services to assist an adult, or other person in the household, to communicate. (For further information please refer to Chapter 3)
5. Consideration may have to be given to the use of the appropriate provisions contained in other legislation, for example the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003, or other social work, police, health, housing or regulation of care legislation. Consideration should be given to local inter-agency protocols and procedures.
Who may undertake the visit?
6. A council officer, as defined in Section 53 of the Act, may undertake the visit. The council officer may be accompanied by another person. A joint visit with another person could assist the inquiries in a number of ways, for example by:
- allowing the council officer to jointly investigate concerns with, for example, a key worker, a police officer, health professional or representative from the Care Commission or Office of the Public Guardian;
- assisting an assessment of the risk to the adult, such as with a general practitioner, community nurse, key worker or other person already known to the adult and any other members of the household; or
- assisting communication with the adult (or any other member of the household) by being accompanied by an interpreter in British Sign Language, lip speakers, Makaton communicator, deaf-blind communications interpreter or a language interpreter where English is not the visited person's first language.
7. Local multi-agency procedures should specify when it is appropriate for the council officer to be assisted in the investigation by appropriately qualified and trained staff from either within the council or from other identified bodies or agencies.
8. In circumstances where inquiries indicate that the council officer carrying out the visit may encounter resistance from the person believed to be at risk of harm or from others at the premises, including the threat of verbal or physical violence, steps should be taken to ensure that staff are protected and supported in planning and executing the visit. Reference will be made to the council's violence to staff or lone working procedures to assess any potential risks and measures, such as staff visiting in pairs or liaising closely with the police, where necessary.
What places may be visited?
9. Section 7 permits a council officer to enter any place. In many cases this will mean visiting the place where the adult normally resides, for example:
- the adult's rented or owner-occupied accommodation;
- the home of relatives, friends or others with whom the person resides;
- supported or sheltered accommodation staffed by paid carers;
- temporary or homeless accommodation; or
- a care home or other residential accommodation.
10. A place could also include entering premises where the person is residing temporarily or spends part of their time, for example:
- a day centre;
- a place of education, employment or other activity;
- 'respite' residential accommodation; or
- a hospital or other medical facility.
11. The council is allowed access to all parts of the place visited which might have a bearing on inquiries into the welfare, care and safety of the adult at risk. This right also includes access to any adjacent places, such as sheds, garages and outbuildings.
12. In the case of the visited adult's place of residence, this could include all areas used by or on behalf of the adult such as sleeping accommodation, facilities for hygiene, meal preparation areas and general living space.
13. The place visited need not necessarily be the adult's own home. This could be any public, private or commercial premises. For example, the place may be somewhere that the adult stays in temporarily or periodically, such as a day care centre or hospital. The interpretation of "place" is therefore very broad-based.
When can a council officer visit?
14. Section 36 makes supplementary provision for visits carried out under Part 1 of the Act. 36(1) states that a council officer may only visit a place at 'reasonable times'. The Act recognises that a balance needs to be struck between the timeous investigation of allegations of harm and the requirement, where practicable, to fully involve the visited adult and any other individuals in the process of investigation and assessment.
15. It may be that the visit is timed to take into account the likelihood of being able to speak to the adult in private. However good practice would be to give notice of the proposed visit, or to the purpose of the visit, to the individual(s) concerned where this would not be prejudicial to the safety or welfare of the adult at risk. In some cases visiting during the evening, at night or at the weekend may be the only way to make contact with the adult at risk, the primary carer or other individual.
16. Professional judgement will be required as to the level and nature of the suspected risk to the visited adult and whether the adult is at risk of imminent physical harm. It is recognised that there may be times when the concern is such that an immediate visit at a time that might not otherwise be regarded as reasonable may be conducted in order to assess the risk and, if necessary, take action to protect the individual. Whenever possible such action will have been the result of inter-disciplinary discussion and consideration of the likely impact on the adult and any carer.
What evidence must a council officer produce?
17. A council officer must:
- produce evidence of their own identity and that of any person accompanying them;
- state the object of the visit, and
- produce evidence of the officer's authorisation to visit the place.
18. There is an obligation to be clear that the purpose of the visit is to investigate a suspected risk of harm. Wherever possible, other people in the household should also be offered an explanation as to what is happening and why, without breaching the adult's right to confidentiality.
19. Every effort should be made to ensure that any information provided is in an appropriate form that the adult, or other person present, can understand.
What if entry is refused?
20. There may be times where the council officer is refused entry to the premises. Where this happens, the council officer should initially consider how entry may be achieved without resorting to seeking a warrant authorising entry as a first course of action. Provided delay would not increase the risk to the adult, it would be good practice to have a multi-disciplinary discussion and plan to co-ordinate action by those involved before deciding whether to apply for a warrant. Particular regard should be given to minimising distress and risk to the adult. The views of any other persons who may be concerned for the welfare of the adult should be taken into account. Where a warrant authorising entry to premises is sought and provided, this will allow a constable to use reasonable force to fulfil the object of the visit.
Who can apply for a warrant?
21. Section 37 of the Act makes provision for warrants of entry. Only the council can apply for a warrant for entry.
Granting of a warrant
22. The sheriff may only grant a warrant for entry where they are satisfied that:
- a council officer has been, or reasonably expects to be refused entry or otherwise will be unable to enter; or
- any attempt by a council officer to visit the place without such a warrant would defeat the object of the visit.
23. A warrant for entry granted by a sheriff expires 72 hours after it has been granted. Once a warrant has been executed, it cannot be used again.
What can be done in cases of urgency?
24. Section 40 of the Act provides that application for a warrant for entry can be made to a justice of the peace only if it is impracticable to make the application to the sheriff and that an adult at risk is likely to be harmed if there is any delay in granting the warrant. An application must be made to the sheriff wherever possible.
25. A warrant for entry granted by a justice of the peace expires 12 hours after it has been granted. Once a warrant has been executed, it cannot be used again.
What does a warrant allow?
26. A warrant authorises a council officer to visit any place specified in the warrant, accompanied by a constable. The accompanying constable may use reasonable force where necessary to fulfil the object of the visit. This may include the constable opening lock-fast places, therefore it would be expected that the council would take all reasonable steps to ensure the security of the person's premises and belongings if force has been required to enter the premises.
27. Wherever possible, entry to premises should first be attempted without force. It must be borne in mind that the use of force is an absolute last resort, to be used in very exceptional circumstances, and only when all other options have been exhausted.
28. A warrant for entry does not entitle any person to remain in the place entered in pursuance of the warrant after the warrant has expired.
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