Adult Support and Protection (Scotland) Act 2007: code of practice

Chapter 9: Medical examinations conducted as part of an adult protection investigation

This chapter provides guidance on Section 9 of the Act, which allows a health professional to conduct a medical examination, in private, of the adult known or believed to be at risk of harm. This therefore applies to any adult from the point at which an inquiry has been initiated until such times as it has been determined that they are not an adult at risk of harm.

1. A medical examination includes any physical, psychological or psychiatric assessment or examination. The examination can take place either at a place being visited under Section 7 of the Act, or at the premises where the adult has been taken under an assessment order granted under Section 11.

Who may conduct a medical examination and what is its purpose?

2. A medical examination may only be carried out by a health professional as defined under Section 52(2) as a doctor, nurse, midwife or any other type of individual described (by reference to skills, qualifications, experience or otherwise) by order made by Scottish Ministers.

(As at March 2021, no such order has been made)

3. A medical examination may be required as part of an investigation for a number of reasons including:

• the adult's need of immediate medical treatment for a physical illness or mental disorder;
• to provide evidence of harm to inform a criminal prosecution under police direction or application for an order to safeguard the adult;
• to assess the adult's physical health needs; or
• to assess the adult's mental capacity.

4. Examples of circumstances where a medical examination should be considered include:

• the adult has a physical injury which he or she states was inflicted by another person;
• the adult has injuries where the explanation (from the adult or other person) is inconsistent with the injuries and an examination may provide a medical opinion as to whether or not harm has been inflicted, or whether there are concerns around self-harm;
• there is an allegation or disclosure of sexual abuse and the type of assault may have left physical evidence (following local procedures for liaison with the police);
• the adult appears to have been subject to neglect or self-neglect and is ill or injured and no treatment has previously been sought.

Considering the adult's wishes with regard to a medical examination

5. Section 9(2) of the Act states that the person to be examined must be informed of their right to refuse to be examined before a medical examination is carried out. In an emergency and where consent cannot be obtained doctors can provide medical treatment to anyone who needs it, provided that the treatment is necessary to save life or avoid significant deterioration in a patient's health. However, doctors are advised to respect the terms of any valid advance refusal, which they know about, or is drawn to their attention. Doctors are also advised to tell the patient what has been done, and why, as soon as the patient is sufficiently recovered to understand. An example of an emergency situation where consent cannot be obtained is where the person is unconscious.

Where it is not possible to obtain the informed consent of the adult because they lack the mental capacity or have difficulty communicating in order to provide consent, the council should contact the Office of the Public Guardian to ascertain whether the person has appointed a welfare attorney, or has a court appointed welfare guardian. Where no guardian or attorney has such powers, consideration may be given to whether it is appropriate to use the provisions in the Adults with Incapacity (Scotland) Act 2000 or the Mental Health (Care and Treatment) (Scotland) Act 2003. Refer to Chapter 5 for advice on advocacy and addressing communication needs. For all medical examinations undertaken, consideration should be given to the importance of where and how medical examinations are conducted. Where a forensic medical examination is required/referred due to concerns around harm caused by rape or sexual assault, this must occur in a suitable healthcare facility i.e. a forensic medical suite in a Sexual Assault Referral Centre (SARC), where the suite has been properly decontaminated.