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

Chapter 4: Adult Participation

This chapter discusses the principle of ensuring that full regard is given to the wishes of the adult, and the principle of the adult participating as fully as possible in all aspects of the adult protection process. It also covers the importance of providing advocacy and other services.

1. The adult's views and wishes are central to adult support and protection, and every effort should be made at each stage of the process to ensure that barriers to the adult's participation are minimized. Undue pressure on the adult from another party is one barrier which can occur. It is good practice to consider the best ways to check at various stages with the adult how included they feel and ensure they have the opportunity to highlight if they feel excluded at any point. All decisions must be clearly recorded and explained to the adult.

2. The adult should be provided with assistance or material appropriate to their needs to enable them to make their views and wishes known. Reasonable adjustments should be made to support the adult's needs wherever identified. The communication needs of the adult should be considered and the adults should be asked what support if any they wish. It may be that they wish assistance from a relative or primary carer. They may wish a particular format for communication. This could be technical aides to support communication or information to be interpreted, translated or adapted. It could be translation for persons whose first language is not English. The Royal Society of Speech and Language Therapists has developed a set of principles, standards and practical guidance for ensuring that an individual is enabled to understand and communicate effectively:

The Office for Disability has guidance around accessible communication formats, whilst Inclusion Scotland have also produced a guide, available online.

3. Other aids and adaptations that can support and enable communication include British Sign Language interpreters, lip speakers, Makaton, deaf-blind communicators. Where possible, materials should also be available in alternative formats such as large print, audio tape, Braille and computer disc. Consideration should also be given to the surrounding environment. This can affect communication due to, for example, noise levels, provision of loop systems or lighting. These are just some examples of areas that should be taken into consideration.

Independent advocacy services

4. Section 6 of the Act places a duty on the council, if it considers that it needs to intervene after making inquiries under Section 4 of the Act, to protect an adult at risk of harm, and to have 'regard to the importance of the provision of appropriate services including independent advocacy services to the adult concerned'. Independent advocacy aims to help people by supporting them to express their own needs, gain access to information, understand the options available and make their own informed decisions.

5. The adult should be asked if they know about and would like advocacy. Where advocacy is offered, declined by the adult or not deemed appropriate, the reasons for this should be clearly recorded, as should the reasons for not referring to any other 'appropriate' services. This decision should be re-visited and recorded at each formal review e.g. multi-agency meetings, review or professional meetings.

6. The definition and principles of independent advocacy services used in the Act is that given in Section 259 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which states that:

'Every person with a mental disorder shall have a right of access to independent advocacy; and accordingly it is the duty of –

a. each local authority, in collaboration with the (or each) relevant Health Board; and

b. each Health Board, in collaboration with the (or each) relevant local authority, to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services'.

8. The duty in the legislation therefore only extends to persons with a mental disorder. However, the section 2 principles need to also be considered. It may well be that independent advocacy in a particular case will be appropriate even where a person does not suffer from a mental disorder as defined in the 2003 Act.

9. The 2003 Act also states (and these expectations should apply to all advocacy services in relation to adults at risk of harm irrespective of whether they fall within the ambit of the 2003 Act) that :

• independent advocacy providers cannot be involved in the welfare, care or provision of other services to the individual for which it is providing advocacy
• independent advocacy should be provided by an organisation whose sole role is independent advocacy or whose other tasks either complement, or do not conflict with, the provision of independent advocacy.

For further information about advocacy, please refer to the Scottish Independent Advocacy alliance.

10. Under Section 41(6) of the Act, the sheriff has discretion to appoint a person to safeguard the interests of the affected adult at risk in any proceedings relating to an application under the Adult Support and Protection (Scotland) Act 2007. It may be that the sheriff will instruct the safe-guarder to report on the issue of consent.

Appropriate adults

11. The role of the Appropriate Adult is to facilitate communication between a mentally disordered person and the police and, as far as is possible, ensure understanding by both parties.

12. Section 42 of the Criminal Justice (Scotland) Act 2016places a duty on the police to ensure this type of support is provided during custody procedures, while The Criminal Justice (Scotland) Act 2016 (Support for Vulnerable Persons) Regulations 2019 place a duty on local authorities to provide an Appropriate Adult when such a request is made by the police. The duty on the local authorities extends to requests made in relation to victims and witnesses, as well as to those made for suspects and accused persons. In addition to custody processes, Appropriate Adults can be used in any number of police procedures, including interviews, the taking of witness statements, identification procedures, medical examinations and property searches.

13. Appropriate Adults are selected for their experience of working with adults who have a mental disorder and/or experience of assisting vulnerable adults with communication. Appropriate Adult services are informed by the expectations related to supported decision making through the commitment to ensuring that that appropriate measures are taken to provide access to the support individuals may require in exercising their legal capacity.

14. The Appropriate Adult is not providing advocacy or speaking on behalf of a person with a mental disorder, but is an independent third party checking that effective communication is taking place and that the person being interviewed is not disadvantaged in any way due to their mental disorder.

15. Appropriate Adults should not be requested for individuals who lack capacity, as defined in the Adults with Incapacity (Scotland) Act 2000. If an Appropriate Adult attends a request and feels that this definition applies to the person they are supporting the Appropriate Adult should relinquish their participation and the police should obtain assistance from a relevant specialist.

16. Further information on Appropriate Adults can be obtained online.

Meetings of agencies with the adult at risk

17. There should be a basic assumption that the adult will be involved in all meetings that are about them. There will be times when this will not be appropriate but in all cases reasons should be recorded in the minute of the meetings explaining why the adult was not present.

18. If the fullest possible participation of the adult at risk in supporting and protecting them from harm is to be achieved, they should be included in the best way taking into account their needs and capacity, in all decision-making processes about their support and protection. Good practice in adult protection is no different from good practice in other areas such as care and treatment of mental illness, self-directed support, or commissioning of services to meet assessed individual needs.

• The Social Care (Self-directed Support) (Scotland) Act 2013 was founded on the principles of dignity, empowerment and collaboration enshrined in law that people have the right to be involved in decisions about what their support looks like and how it is delivered.
• Its introduction means that people receiving social care support in Scotland have the right to choice, control and flexibility to meet their personal outcomes. Health and social care partnerships are required to ensure that people are offered a range of choices on how they receive their social care support.

19. The adult at risk should (unless it is considered not to be in their best interests) be invited to and involved in setting up of meetings to consider risks to which they are exposed and how best they can be protected or enabled to make informed decisions concerning potential risks. If they are not invited the reason should be recorded and communicated to the person in a format they can understand along with a method for the person to appeal the decision provided.

20. It should be the responsibility of the relevant adult protection practitioners and of those chairing case conferences to ensure that the adult has been invited to meetings and that they are involved to maximise the likelihood of their attending. This can include the provision of information, by asking them about the date, time and venue, the number of other attendees, video conference options, and travel arrangements. Pre meetings with the adult (and advocate if appropriate) to fully explain the purpose of the meeting will assist in this, and can cover the agenda, discuss concerns regarding confidentiality or any other matters, consider language and communication needs, advocacy or other representation). The main aim is to assist the adult to understand the purpose of the meeting, their role within it and their participation.

21. There will be occasions and circumstances where it is not in the adult's best interest to attend meetings or may not wish to attend, due to illness or incapacity. It may be that such a meeting would be intimidating or distressing for an already distressed or traumatised adult. Support and information should be offered to the adult and as appropriate their carer or family to assist with the options.

22. The adult also has the right to refuse to attend. It is important that the adult does not feel pressurised, however, the possibility of undue influence affecting the adult's hesitancy to participate should be considered. In all cases where the adult is not attending the views of the adult should be sought and recorded in advance of the meeting and another individual should represent those views such as an advocacy worker or other designated person. The reason for the adult not being present needs to be recorded as part of the minute of the meeting and alternative methods identified for explaining fully to the adult what options were considered, what decisions were taken and why.

23. Local procedures should stipulate that the allocated adult support practitioner should offer to visit the adult (and carer if appropriate) after any meeting to explain the discussions and decisions, and to ascertain whether any issues remain unaddressed or new issues have arisen.

24. Section 2(c) of the Act outlines the importance of the views of the adult's nearest relative, primary carer and any guardian or attorney. The steps described above will help to meet this standard.

25. However, it will always be important to distinguish between the needs and perspectives of each person. There may be conflict between the needs of the adult and the carer due to differing perspectives and needs which will both require to be taken into account by workers throughout the adult support and protection process.

26. It may be that someone in a caring role or a guardian may cause harm either intentionally or unintentionally, and they might themselves also be at risk of harm. There can be significant complexity in a relationship, creating the potential for both parties to be both victim and harmer at different times.

27. In such situations information and assessments, for both the carer and cared for person, will need to be carefully considered. Some carers may have needs for support in communication and/or may benefit from independent advocacy support which must be independent of any advocacy worker for the adult.

28. Caring often has a significant impact on a carer's health and wellbeing. It may be that the adult's carer requires support with their caring responsibilities. The Carers (Scotland) Act 2016, and associated guidance, provides information on the rights of cares to a carer support plan (or for young carers a carer statement) and associated matters.

Audit of adult participation

29. Adult Protection Committees should consider regular audits of the extent to which adults are enabled to participate fully in decision making, for example monitoring the number of meetings which adults at risk are invited but do not attend, auditing the recording of reasons why and including questions about this issue in regular audits of the experience of being protected. The uptake of advocacy services should also be included.

30. Any audit of adult participation should seek to ensure contributions from adults themselves including their own comments on the process and outcomes.