About the Act
The act introduced new measures to identify and protect individuals who fall into the category of adults at risk. These measures include:
- requiring councils to make the necessary enquiries and investigations to see if action is needed to stop or prevent harm happening
- requiring specific organisations to cooperate with councils and each other about adult protection investigations
- the introduction of a range of protection orders including assessment orders, removal orders and banning orders, and
- a legislative framework for the establishment of local multi-agency Adult Protection Committees across Scotland
The act defines adults at risk as people aged 16 or over who:
- are unable to safeguard themselves, their property (their home, the things they own), their rights or other interests
- are at risk of harm, and
- because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than others who are not so affected
Having a particular condition such as a learning disability or a mental health problem does not automatically mean an adult is at risk. Someone can have a disability and be perfectly able to look after themselves. For an adult to be considered at risk, all three parts of the definition must be met.
Underlying principles
The overarching principle underlying Part 1 of the Act is that any intervention in an individual's affairs should provide benefit to the individual, and should be the least restrictive option of those that are available which will meet the purpose of the intervention.
This is supported by a set of guiding principles that, together with the overarching principle, must be taken into account when performing functions under Part 1 of the Act. These are:
- the wishes and feelings of the adult at risk (past and present)
- the views of other significant individuals, such as the adult's nearest relative; their primary carer, guardian, or attorney; or any other person with an interest in the adult's well-being or property
- the importance of the adult taking an active part in the performance of the function under the Act
- providing the adult with the relevant information and support to enable them to participate as fully as possible
- the importance of ensuring that the adult is not treated less favourably than another adult in a comparable situation
- the adult's abilities, background and characteristics (including their age, sex, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage)
What the act can do
Services
Where general enquiries progress to interventions, the Act places a duty on the council to consider providing the adult with services tailored to the individual's needs. While the only service explicitly mentioned in the Act is independent advocacy, the council will also give consideration to what practical and emotional support may be provided by social work, health, voluntary sector and private sector providers. For example, the provision of mainstream health and social care services such as housing, independent living, occupational therapy, counselling and support for carers.
Action
The Act places a duty on councils to make enquiries about an individual's well- being, property or financial affairs where the council knows or believes that the person is an adult at risk and that it may need to intervene to protect him or her from being harmed. It authorises council officers to:
- carry out visits
- conduct interviews
- be accompanied by a doctor or nurse to carry out a medical examination in private
- require health, financial or other records to be produced in respect of the adult at risk
The council can also apply for a protection order if they think the adult is at risk of, or is being seriously harmed.
The Act requires the following public bodies to co-operate with local councils and with each other, where harm is known or suspected:
- the Mental Welfare Commission for Scotland
- the Care Inspectorate
- the Public Guardian
- all councils
- chief constables of Police Scotland
- Healthcare Improvement Scotland
- the relevant Health Board
- any other public body or officeholder that Scottish Ministers specify
The public bodies or officers must advise the relevant council if they know or believe that a person is an adult at risk and that action needs to be taken in order to protect that person from harm.
What we mean by harm
Harm is defined in the legislation as including all harmful conduct and, in particular, includes:
- conduct which causes physical or psychological harm - for example by causing fear, alarm or distress)
- unlawful conduct which appropriates or adversely affects property, rights or interests - for example, theft, fraud, embezzlement or extortion)
- conduct which causes self-harm
Therefore, harm can be physical (including neglect), psychological, financial, sexual or a combination of these. The definition should not be read as an exhaustive list. It has been drafted broadly so as to include a wide range of behaviours. Just because a particular category of harm is not listed does not mean it is not included in the definition.
When an adult is at risk
An adult is at risk of harm if:
- another person's conduct is causing (or is likely to cause) the adult to be harmed, or
- the adult is engaging (or is likely to engage) in conduct that causes (or is likely to cause) self-harm
The purpose of the Act is to provide protection from both deliberate and unintentional harm.
When the act became law
The Adult Support and Protection (Scotland) Act 2007 (the Act) was passed by the Scottish Parliament in February 2007 and received royal assent on 22 March 2007.
Part 1 of the Act, which deals with the protection of adults at risk of harm became law on 29 October 2008.
Parts 2, 3 and 4 of the Act aim to streamline and improve policy measures in existing legislation and include amendments to the Adults with Incapacity (Scotland) Act 2000; the Mental Health (Care and Treatment) (Scotland) Act 2003; and the Social Work (Scotland) Act 1968. Part 5 is mainly concerned with procedural provisions to ensure that the Act operates as intended.
Who the act effects
The Act affects several groups of people, including:
- adults at risk and their families/carers
- health and social work practitioners and managers, whom the Act confers a number of powers and duties on
- police, who have a role regarding protection orders and any attached powers of arrest
- courts - Sheriffs have powers and duties relating to the granting of protection orders
- public bodies with powers of investigation or with a duty to co-operate with investigations
- holders of financial information, for example, banks, who may be required to produce the financial records of an adult at risk at the request of a council officer
- providers of advocacy and support services