Self Directed Support (SDS) and Adult Support and Protection (ASPA)

Context

• ASPA is a multi-agency responsibility led by local social work services or their equivalent

• The modern social work department was effectively created the Social Work (Scotland) Act 1968

• This Act’s main aim was to promote social welfare through assessment and access to care and services and was later amended to include the use of direct payments

Adult Support and Protection (Scotland) Act 2007 – A refresher - Who is an adult at risk of harm?

• No singularly defined service user group:- • 16 or over• Unable to safeguard their own well-being,

property, rights or other interests• At risk of harm• Affected by disability, mental disorder, illness or

physical or mental infirmity – are more vulnerable to being harmed than adults who are not so affected

Know or Believe

• The Act is worded in such a way that a concern or suspicion is enough to place the duty on those named to share their concerns

• This is a useful way for anyone to think about harm, do you know or believe? Reflect on your feelings and impressions. Talk to a colleague to sound them out a little.

Undue Pressure – what is it?• Where someone in a position of trust or authority

is exerting influence to affect the adults decisions around protecting themselves from harm.

• Someone in a caring role or a guardian can cause harm intentionally or unintentionally, by using their power inappropriately, exerting undue pressure.

• Undue pressure can also be applied by an individual who may or may not be the person suspected of harming the adult, such as a neighbour, carer or other person. E.g. a relative who is not suspected of causing the harm but does not, for whatever reason, wish the council to apply for an order, may place undue pressure on the affected adult to refuse consent.

• Undue pressure may also be applied by a person that the adult is afraid of or who is threatening them.

INDEPENDENT AND THIRD SECTOR PROVIDERS

Adult Support and Protection Code of Practice

The Code of Practice - Independent Organisations

• Do not have specific legal duties or powers under the Act.• Have a responsibility to involve themselves where appropriate

by making referrals, assisting inquiries and through the provision of services to assist people at risk of harm.

• These organisations should discuss and share with relevant statutory agencies information they may have about adults who may be at risk of harm.

• Organisations will have a legal duty to comply with requests for examination of records.

Sharing without consent – all sectors

• Existing law allows information to be disclosed without consent where such disclosure is required by law, either a court order or statute or where such disclosure is in the public interest.

• Crime detection and prosecution, as well as prevention, may provide legitimate grounds for disclosure.

Practice Issues: barriers to sharing information

• Fears remain around breaching confidentiality based upon anxieties of being struck off or disciplined.

• Consent –obtaining consent is clearly best practice and is required to progress work with the adult post referral.

• Do you still assume you cannot report the issue without consent?

• Are you clear about your organisations policy?

Duty of Care

A Legal Obligation to:• Always act in the best interest of individuals and

others• Not to act or fail to act in a way that results in harm• Act within your competence and not take on anything

you do not believe you can safely do.• As a care worker you would owe a duty of care to the

people you support, your colleagues, your employer, yourself and the public interest.

• Everyone has a duty of care – it is not something that you can opt out of.

• SCIE advise that when acting in a person’s best interests you must normally do so with their consent unless you have evidence that the person lacks capacity to make that particular decision at the time it needs to be made.

• But with ASPA you need to balance Risk and Rights and consider your organisations policy on when to share without consent.

• ASPA is there to encourage you to share your concerns.• If you are employed directly to support someone in their own home,

duty of care still applies.

Capacity

• “Incapable” means incapable of—

(a) acting; or

(b) making decisions; or

(c) communicating decisions; or

(d) understanding decisions; or

(e) retaining the memory of decisions

Adults With Incapacity (Scotland) Act 2000

BUT

• It’s not really your job to assess if someone is actually at risk of harm and whether they have capacity.

• Your role is to notice harm or potential harm and report it in line with your organisation's policy

• Stay vigilant and understand the different types of harm including undue pressure.

The PrinciplesSDS Independent Advocacy ASPA

A person must be provided with any assistance that is reasonably required to enable them to express their views and make informed choices,

 Independent Advocacy is accessible  

• Provide benefit to the adult which could not reasonably be provided without intervening in the adult's affairs

A person must have as much involvement as they wish around assessment and support

 

Independent Advocacy is as free as it can be from conflicts of interest 

• Facilitate the maximum participation of the adult (including information)

• The option chosen is the least restrictive to the adult's freedom

A local authority must collaborate with the a person around their assessment and the provision of support

 

Advocacy puts the people who use it first 

• Take account of the adults wishes and feelings (past and present

• Take account of the views of those with an interest in the adult's well-being or property

 

A local authority must take reasonable steps to maintain the person’s dignity, ensure they are respected along with their right to participate in community life. 

Independent Advocacy is accountable 

• Ensuring that the adult is not, without justification, treated less favourably than any other adult

• Ensuring the adult's abilities, background and characteristics are considered

A local authority must have regard to the principles of its governing legislation e.g. Social Work (Scotland) Act

 

   

Pilotlight Project http://pilotlight.iriss.org.uk/sds/safeguarding

Chronically Sick and Disabled Person’s Act 1972

Human Rights Act

1998

Equalities Act 2010

Data Protection Act 1998

Local Government in Scotland Act 2003

Freedom of Information

Scotland Act 2002

Education Scotland Additional Support for

Learning Act 2009

Public Service Reform

Scotland 2010

Children’s Hearings Act

2011

Children Scotland Act

1995Adults with Incapacity

Scotland Act 2000

Mental Health Care & Treatment

Act 2003

Social Work Scotland Act

1968

Direct Payment Act

1996

Protection of Vulnerable

Groups Scotland Act 2007

Disability Discrimination Act 1995 Patients

Rights Scotland Act

2011

Domestic Abuse

Scotland Act 2011

NHS & Community

Care (Scotland) Act 1990

Adult Support & Protection

Act 2007 Welfare Reform Act

2012

Housing Scotland Act

2010

National Assistance Act 1948

Regulation of Care

Scotland Act 2001

Community Care &

Health Act Scotland

2002

Social Care (Self-directed Support)

(Scotland) Act 2013

ASPA and SDS - the only games in town?

Resource: SSSC Adult Protection Mobile App• Developed to be used as a reference resource for all workers

whose role includes supporting or caring for adults. • Designed to be used in conjunction with the worker’s own

organisation’s adult support and protection policies and procedures.

• Sections on signs and symptoms of harm and abuse; what workers should do if they have concerns; and the legislation that applies to adult support and protection.

http://learningzone.workforcesolutions.sssc.uk.com/course/view.php?id=56

Discussion:

Where do you feel you are between ASPA and SDS

How do you see the role of an advocate in supporting a person to live as freely and independently as possible and/or living safe from harm?

Risk

Choice & Control

If Confidentiality is respected to the point where (you) know or believe the person you are supporting or advocating for, or someone else, is at risk of harm - What does this mean for you in practice?

Risk

Choice & Control

Points to take away

Consider your role as an individual advocate to help someone see the risks as well as the opportunities

Does your organisation have a policy statement on what you should do when you identify serious risk and there is no consent