Adult Protection and the Law in Scotland
Margaret Burns
Adult Protection Coordinator
Legislation Relevant to Adult Protection• Human Rights Act
• Criminal Law
• Community Care/Housing Law
• Civil Remedies
• Anti Social Behaviour Law
• The Adults with Incapacity Act
• The Mental Health (C&T) Act
• The Adult Support and Protection Act
Adult Support and Protection (Scotland) Act 2007
Who is Covered ?
• An adult at risk is a person aged 16 or over who :-– Is unable to safeguard their own well being, property,
rights or other interests – Is 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 adults not so affected.
• Note : All 3 points must be satisfied. Sometimes referred to as the 3 point test .
Risk of Harm
• An adult is at risk of harm if– Another person’s conduct is causing (or likely
to cause ) the adult to be harmed.
– The adult is engaging (or is likely to engage) in conduct which causes self harm.
– Types of harm can include:
– Physical, Sexual, Financial, Psychological, Neglect, Institutional, Discriminatory, Self Harm, Self Neglect .
Powers of the ASP Act 2007
• Visit, make inquiries, interview, investigate.• Request medical examinations (adult needs
to consent).• Access to Records (Only a health
professional may inspect health records).• Cooperation.• Statutory Orders.• Adult Protection Committees.
Co-operation. Practice Implications• Section 5(3):-
– “Where [public bodies and office holders] know or believe that a person is an adult at risk of harm, and that protective action is needed they must report the facts and circumstances of the case to the council”.
• Duty of confidentiality unless the above applies.
Rights and Choices – NHS Glasgow and Clyde Guidance
• Regardless of the adult at risk’s wishes immediate appropriate action requires to be taken if– The adult is at immediate risk of significant
harm.– There is a public safety issue.– The situation involves a service provider.– The adult does not have capacity to understand
their choice or its consequences.– There is a responsibility to report suspected or
actual criminal acts to the police.
Potential Use in Adult Protection
• Harm suspected but individual has capacity to make decisions and refuses to cooperate.
• A third party is obstructing investigations.
• There is a real risk of immediate harm.
Mental Health (Care and Treatment) (Scotland) Act
2003
Mental Health (Care and Treatment) (Scotland) Act 2003
• People who have a ‘mental disorder’.
• Certain characteristics such as sexual deviancy, drug or alcohol dependence or failure to act as a prudent person would do not, in isolation, indicate mental disorder.
The Scope of the Legislation
• Investigation• Cooperation• Detention• Mental Health Tribunals• Advance statements
Potential use in Adult Protection• Where a person needs treatment for a
mental disorder and is suffering harm.• Where someone is already under a
compulsory treatment order.• Where person has mental disorder and
needs detained for his/her own protection or protection of others.
Adults with Incapacity (Scotland) Act 2000
Who is covered?
Adults who are unable to • Act;• Make decisions;• Communicate decisions;• Understand decisions; or• Remember decisions.
The Scope of the Legislation
• Attorneys.• Investigations.• Financial management.• Medical decisions.• Intervention/Guardianship orders.
Potential use in Adult Protection• Where welfare, finances or property is at risk
and adult is unable to make decisions or protect own interests.
• Where guardian/attorney already appointed.• Financial abuse.
Remedies Self Harm/Neglect
• Assessment Order and/or Removal Order under ASP.
• Application under MH (C&T) Act.• Guardianship or intervention order under the
AWIA.
Remedies – Unable to Manage Welfare/Finances• Planning for future - power of attorney,
advance statement and living will.• Guardian, appointee or attorney.• Compulsory powers under the MH (C&T)
Act.
Remedies – Harm From a Third Party• Criminal prosecution.• Order against abuser, including interdict,
banning order under ASP.• Remedies under matrimonial legislation.• Antisocial behaviour order.• Removal of Department for Work and
Pensions appointee.
Remedies – Harm From a Third Party• Removal or supervision of person with
powers under Adults with Incapacity Act.• Reporting health or social care professional
to professional body.• (In the future) placing a worker on local
authority list prepared under Protection of Vulnerable Groups (Scotland) Act.
General Principles
.Principle ASP MH(CT) AWI
Benefit √ √ √
Least restrictive option √ √ √
Find out and consider the adult’s views √ √ √
Consider the views of significant others √ √ √
Encourage use and development of skills √
Involving carers √
Child welfare √
Non discrimination √ √
Reciprocity √
Respect for diversity √ √
Support adult to participate in decisions √ √
Questions/Comments
Case Studies
• What would you do or could you do?• Who would you contact?• What pieces of legislation might be
appropriate if required?• Does such a scenario create any dilemmas?• Any other comments.