Report
on the Review of the Mental Health (Scotland) Act 1984Annex
9 SCOTTISH LAW COMMISSION - REPORT ON VULNERABLE ADULTS
LIST OF RECOMMENDATIONS 1. The recommendations set out
in the rest of this report should apply in relation to individuals aged 16 or
over.
(Paragraph 2.11) 2. A vulnerable adult should be defined
for the purposes of this report as an adult who is unable to safeguard his or
her personal welfare, property or financial affairs, and is:
(a) in
need of care and attention arising out of age or infirmity, or
(b) suffering
from illness or mental disorder, or
(c) substantially handicapped
by any disability.
(Paragraph 2.11) 3. (1) No intervention in
relation to an adult should be authorised or carried out if the adult objects
unless those authorising or carrying out the intervention reasonably believe that
the adult is vulnerable and is either mentally disordered or subject to undue
pressure.
(2) For this purpose an intervention does not include mere
enquires or authorised inspections carried out to determine whether it is necessary
to intervene to protect the welfare and property of adults who are, or who may
be, vulnerable.
(Paragraph 2.26) 4. (1) Local authorities should
have the primary role in dealing with vulnerable adults who are, or are thought
to be, mentally disordered. The Mental Welfare Commission should be entitled to
act but should not be bound to do so.
(2) Local authorities and the
Mental Welfare Commission should be under a duty to collaborate with each other
in relation to investigations and other matters concerning such vulnerable adults.
(Paragraph 2.29) 5. Without prejudice to the existing powers and
duties of other persons:
(a) A local authority should be under a duty
to enquire as to whether steps need to be taken to protect the welfare or property
of adults who are, or whom it believes to be, vulnerable.
(b) The
Mental Welfare Commission should retain its existing duty under section 3(2) of
the Mental Health (Scotland) Act 1984 to investigate cases of suspected ill-treatment,
deficiency in care or treatment, improper detention or loss or damage to property
of persons who may be mentally disordered. It should also be entitled to enquire
as to whether steps need to be taken to protect the welfare or property of adults
who are, or it believes to be, vulnerable by reason of mental disorder.
(Paragraph
3.12) 6. (1) A mental health officer or other prescribed officer
of the local authority should be entitled to demand admission to premises if he
or she reasonably believes that entry to the premises would assist him or her
with the enquiries under Recommendation 5. A commissioner or officer of the Mental
Welfare Commission should be similarly entitled but only in relation to adults
who are, or are reasonably believed to be mentally disordered.
(2) The
person demanding admission should be required to show written authority from the
Commission or local authority as the case may be. Admission may be demanded at
all reasonable times and the person should be entitled to be accompanied by one
or more other individuals.
(3) The Secretary of State should have
power to make regulations prescribing other categories of officers of the local
authority for the purpose of paragraph (1) above and the form of written authority
referred to in paragraph (2) above.
(4) This power to demand admission
should be in addition to other statutory powers under the Social work (Scotland)
Act 1968 or other legislation, but should replace existing powers of mental health
officers and medical commissioners under section 117 of the Mental Health (Scotland)
Act 1984.
(Paragraph 3.23) 7. (1) A warrant for forcible entry
to specified premises where a vulnerable adult or suspected vulnerable adult is
should be capable of being granted
if a person from the local authority entitled
to demand admission under Recommendation 6 has been refused admission or a refusal
is apprehended.
(2) A sheriff (including an honorary or a temporary
sheriff) should be empowered to grant a warrant. A justice of the peace should
be similarly empowered but only if a sheriff is not reasonably available and delaying
until a sheriff is available would be likely to be prejudicial to the adult.
(3) The application should be made in writing signed by a duly authorised
person from the local authority. It should no longer be a requirement that the
applicant swears to the truth of the information in the application. The applicant
should have to appear personally before the sheriff or justice dealing with the
application.
(4) A warrant should authorise the police to take such
steps (including the use of reasonable force) as are necessary to ensure that
a duly authorised person from the local authority and those accompanying that
person can enter and carry out their functions in Recommendation 8.
(5) A
warrant should cease to be effective 72 hours after it was granted.
(6) Paragraphs
(1) to (5) above should apply to a duly authorised person from the Mental Welfare
Commission but only in relation to a mentally disordered adult or a suspected
mentally disordered adult. They should replace the existing provisions for forcible
entry in section 117 of the Mental Health (Scotland) Act 1984.
(Paragraph
3.35) 8. (1) The duly authorised person from the local authority
and other persons (including any police constable) who have gained admission to
premises under Recommendations 6 and 7 should be entitled:
(a) to inspect
the premises
(b) to have access to the vulnerable adults or suspected
vulnerable adult and to other adults present.
(c) to interview in private
any adult on the premises
(d) if the duly authorised person or other person
is a medical practitioner, to examine in private any adult on the premises who
is or appears to be vulnerable.
(2 Where the duly authorised person
is from the Mental Welfare Commission only an adult who is, or appears to be,
mentally disordered should be liable to be examined.
(Paragraph 3.39) 9. (1) The
sheriff should be empowered, on an application by the local authority, to grant
an order authorising a private interview and a private examination by a doctor
of an adult reasonably believed to be vulnerable in order to assess the adult's
medical or care needs, or whether services or protective measures are necessary.
The Mental Welfare Commission should be entitled to apply but only in relation
to adults reasonably believed to be mentally disordered.
(2) Rules
of Court should provide for intimation of the application to the adult, the adult's
nearest relative and any other person thought appropriate by the sheriff. All
those receiving intimation should be given an opportunity of making representations.
(3) At any hearing the adult should be permitted to be accompanied
by a friend. The sheriff should consider whether to appoint a safeguarder to the
adult.
(4) Before granting the order the sheriff should have to be
satisfied that there is reasonable cause to believe that the adult is vulnerable
and that the examination or interview will assist the applicant with its enquiries.
(5) An order should last for a specified period of not more than seven
days. The period should start on a date specified in the order.
(6) Those
conducting the assessment should have power to interview (and in the case of a
doctor examine) the adult in private.
(7) The sheriff should have
power on granting the order or subsequently to make any ancillary order required
to make the principal order effective.
(8) The sheriff may dispense
with intimation and grant the order forthwith but only if satisfied that the delay
if the normal procedure were to be followed would be prejudicial to the adult.
(Paragraph 4.8) 10. (1) Where documents, records or accounts
belonging to or relating to the vulnerable adult are not produced voluntarily,
inspection of such material should require an order to that effect from a sheriff.
An application by the local authority should be made to a sheriff who should have
the power to grant an order for a duly authorised person to inspect (and if necessary
search for) specified material or material of a specified class if satisfied that
there is reasonable cause to believe that the adult is vulnerable and that the
material is likely to be of substantial value to the investigation. Only a doctor
should be allowed to inspect medical records. The premises in which inspection
and search are authorised should have to be specified in the order.
(2) The
Mental Welfare Commission and persons authorised by it should have the above functions,
but only in relation to adults who are, or who are reasonably believed to be mentally
disordered.
(Paragraph 4.15) 11. The provision in section 47 of
the National Assistance Act 1948, the National Assistance (Amendment) Act 1951
and section 117 of the Mental Health (Scotland) Act 1984 dealing with compulsory
removal of people from premises to hospitals and other places of safety should
be replaced by the following provisions:
(1) A local authority should
be entitled to apply to a sheriff for an order authorising the removal of an adult,
whom it reasonably believes to be vulnerable, from premises to a specified place
within 72 hours of the granting the order. The Mental Welfare Commission should
be entitled to apply only in relation to adults reasonably believed to be mentally
disordered.
(2) The order should further authorise the adult's detention
in the specified place for a specified time, not exceeding seven days.
(3) An
application for a removal order should be required to be intimated to the adult
sought to be removed. Rules of Court should provide for intimation to his or her
nearest relative and any other person the sheriff thinks should receive it. The
Mental Welfare Commission should receive intimation of an application by the local
authority and vice versa. All those receiving intimation should be given an opportunity
to make representations.
(4) The sheriff may dispense with intimation
and grant the order forthwith but only if satisfied that the delay if the normal
procedure were to be followed would be prejudicial to the adult.
(5) At
any hearing the adult should be permitted to be accompanied by a friend. The sheriff
should have to consider whether to appoint a safeguarder to an otherwise unrepresented
adult.
(6) The sheriff should not grant an order unless satisfied
that the adult sought to be removed is vulnerable and is at risk of significant
harm unless removed.
(7) The order should authorise the police to
take such steps (including the use of reasonable force) as are necessary to ensure
that a duly authorised person from the applicant authority and other personnel
can gain entry to the premises and remove the adult from there to the specified
place.
(8) A justice of the peace may deal with an application for
the immediate grant of an order dispensing with intimation only if a sheriff is
not reasonably available. A justice should not be empowered to deal with any other
kind of application for removal.
(Paragraph 4.35) 12. The sheriff
should, on application, have power to make an order excluding a person living
in the same house as a vulnerable adult if satisfied that:
(a) the
vulnerable adult is entitled to occupy the home by virtue of ownership, tenancy
or otherwise;
(b) the vulnerable adult is suffering, or is likely
to suffer, significant harm to health as a result of any conduct, or any threatened
or reasonably apprehended conduct, of the person sought to be excluded; and
(c) the making of an exclusion order -
(i) is necessary for the
protection of the vulnerable adult, irrespective of whether he or she is for the
time being residing in the home, and
(ii) would better safeguard the vulnerable
adult's welfare than removal of the vulnerable adult from the home.
(Paragraph
4.45) 13. The sheriff should not grant an exclusion order if the vulnerable
adult objects unless he or she considers that the vulnerable adult's objections
should be disregarded because of mental disorder or undue pressure.
(Paragraph
4.48) 14. (1) An exclusion order under Recommendation 12 should be
granted for a period not exceeding six months as specified by the sheriff. An
excluded person who occupied by permission of the vulnerable adult should not
become re-entitled to occupy merely because the period has elapsed.
(2) There
should be no statutory provisions preventing an excluded person from disposing
of the home or bringing an action for its division and sale.
(Paragraph 4.5)
15. The sheriff should have power pending the making of an exclusion
order under Recommendation 12 to make an interim exclusion order, provided the
person sought to be excluded has been afforded an opportunity of being heard.
(Paragraph 4.51) 16. (1) The sheriff granting an exclusion order
or an interim exclusion order should have power to grant an interdict against
re-entry, a warrant for summary ejection and other appropriate orders (including
attaching a power of arrest to any interdict and granting the interdict against
re-entry subject to conditions).
(2) The sheriff should have power
to vary or recall any exclusion order, interim order or associated ancillary order.
(Paragraph 4.56) 17. (1) Where the vulnerable adult is able
to apply for an exclusion order only he or she may do.
(2) Where the
vulnerable adult is not so able, an application may be made on the adult's behalf
by a curator bonis or other legal representative, or by the local authority. The
local authority should have a duty to apply if satisfied that:
(a) the
grounds for exclusion set out in recommendation 12 exist, and
(b) that
no application or other proceedings for removal of the abuser were pending or
consideration.
(3) The court should consider appointing a safeguarder
to the vulnerable adult in an application made by the local authority.
(Paragraph
4.59) 18. A person who is entitled to occupy a home which he or she
shares with the vulnerable adult and any other person should be able to apply
for that other person's exclusion on the same grounds as in Recommendation 12.
(Paragraph 4.6) 19. The duty of a local authority under section
48 of the National Assistance Act 1948 to protect property of people admitted
to hospital etc. should be extended to those removed to a place of safety under
section 118 of the Mental Health (Scotland) Act 1984 and vulnerable adults removed
under Recommendation 11.
(Paragraph 5.9) 20. A warrant granted
under section 117(3) of the Mental Health (Scotland) Act 1984 authorising a constable
to enter premises by force to retake a patient absent without leave should be
addressed to the police force for the area and should not be required to name
the constable.
(Paragraph 5.1) 21. The Secretary of State for Scotland
should, after consultation with appropriate bodies, prepare, publish and keep
under review a Code of Practice containing guidance to local authorities, medical
practitioners and the managers and staff of hospitals as to the exercise of their
functions under our recommendations.
(Paragraph 5.12) 22. It should
be an offence for any person, other than the vulnerable adult concerned, to obstruct
or hinder a duly authorised person from the local authority or Mental Welfare
Commission in carrying out the functions recommended in this report in relation
to that adult.
(Paragraph 5.14) 23. (1) The decision of a sheriff
or justice of the peace in relation to warrants for forcible entry to premises
(Recommendation 7), a sheriff's order for assessment and examination of vulnerable
adults and associated ancillary orders (Recommendation 9), and a sheriff's order
for production and inspection of documents and records relating to vulnerable
adults (Recommendation 10) should be final.
(2) The granting by a
sheriff or justice of an order for the removal of a vulnerable adult (Recommendation
11) should be capable of being reviewed. The vulnerable adult or any person with
an interest in the vulnerable adult's welfare should be entitled to apply for
review. The review application should be determined within three working days
of its being made or as soon as practicable thereafter
(3) An order
granted by sheriff excluding a person living with a vulnerable adult (Recommendation
12) should be appealable either to the sheriff principal or the Court of Session
in accordance with sections 26 and 27 of the Sheriff Courts (Scotland) Act 1907.
Any appeal against an interim exclusion order should require the leave of the
sheriff whether or not the interlocutor contains one or more interdicts.
(Paragraph 5.18) 24. (1) In general, the local authority to take
action under the recommendations in this report should be the local authority
for the area in which the vulnerable adult or suspected vulnerable adult is habitually
resident.
(2) The local authority in whose area the vulnerable adult
or suspected vulnerable adult is present should be able to take action if the
adult has no habitual residence, if the adult's habitual residence can not be
readily determined, or if urgent action requires to be taken.
(3) The
local authority in whose area property belonging to a vulnerable adult or a suspected
vulnerable adult is situated should be able to take action in relation to that
property if urgent action requires to be taken.
(Paragraph 5.2) 25. An
application to the sheriff under the recommendations in this report (except for
an assessment order under recommendation 9) should be made to the sheriff in whose
sheriffdom the premises concerned are situated. An application for an assessment
order should be made to the sheriff in whose sheriffdom the adult to be assessed
is present.
(Paragraph 5.21) | 
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