Adult Support and Protection (Scotland) Act 2007: Code of Practice

Chapter 6: Adult protection investigative powers

This and the following three chapters provide guidance on sections 7 to 10 and the powers that council officers have when conducting adult protection investigations. This includes guidance on making visits, undertaking interviews, arranging medical examinations and examining records.

Investigations: Investigative powers used during inquiries

The purpose of investigative powers under the Act is to enable the council to fulfil its obligation to conduct inquiries under section 4. Investigative powers under Sections 7-10 can be used:

• to determine what action is required to protect the adult from harm;
• to gather further information not already captured in order to determine whether the adult is at risk; or
• to gather further information not already gathered to determine whether further action is required to protect the adult from harm.

An adult protection investigation will contain any or all of the following elements, all of which require the involvement of a council officer:

• a visit;
• an interview with the adult;
• a medical examination of the adult;
• the examination of records.

A combination of these actions may then lead on to an application for a protection order.

The Act states that:

• a visit may be undertaken to assist the council in conducting inquiries;
• interviews may be undertaken with any adult present during a visit;
• medical examinations and the examination of records may be undertaken when the council officer knows or believes the adult may be at risk of harm (i.e. examinations can be undertaken as part of an inquiry but before a determination has been made as to whether or not the adult is at risk of harm);
• the purpose of an assessment order is to establish whether the person is an adult at risk.

As per Section 4, a council has a duty to inquire to decide whether it needs to do anything in order to protect an adult at risk from harm. That harm may relate to their wellbeing, property or financial affairs. As part of those inquiries, there are some activities (use of investigative powers under the Act) which may only be undertaken by a council officer or by another person accompanying them, including visits, interviews, a medical examination, and examination of records.

Investigation activity should be carefully planned and managed to ensure that:

• i. all available information is gathered and considered;
• ii. the adult is fully supported to contribute;
• iii. any medical evidence and medical intervention is provided; and
• iv. the police are notified if it is thought a crime may have been committed
• v. a determination can be made as to whether the adult meets the three-point criteria as an adult at risk; and
• vi. appropriate arrangements can be made for support for, and protection of, the adult, by performing functions under the Act or otherwise.

What is the purpose of a visit?

It is likely that a visit to the adult and the interview with them will be central to adult support and protection processes, including information gathering, determination of the three-point criteria, risk assessment, and determination of actions to be taken.

Section 7 of the Act allows a council officer to enter any place and adjacent place to make the necessary investigations to:

• enable orassist the council in conducting inquiries under Section 4 to decide whether the adult is an adult at risk of harm; and
• establish whether the council needs to take any action in order to protect the adult at risk from harm.

Circumstances may arise where an interview would not be undertaken as a physical visit to meet with the adult. The experience of the coronavirus pandemic in 2020 and 2021 showed that there were options for the use of telephone and new technology to allow for virtual meetings with both individuals and wider groups. In the context of an interview under Section 8 of the Act such options should only be used if there are strong reasons to do so (largely related to safety and infection control concerns arising out of a physical visit), and these reasons should be recorded.

It is reasonable to assume that a virtual encounter with an adult thought to be at risk of harm, for the purposes of inquiring into or investigating their circumstances, should be regarded as an interview in exactly the same way as if it had been a physical encounter. This means that in such cases all the requirements of a physical visit should still be met, including the council officer providing evidence of their authorisation.

The council officer's power to interview an adult found in a place being visited, is a power to interview them in private. Where such virtual meetings and interviews do take place, council officers should be alert to whether there may be other people in the room of the person being interviewed who may therefore be in a position to influence by word or gesture the responses from the adult.

What should be considered prior to a visit?

Any person performing a function under the Act must have regard to the principles of the Act. These include whether the action is the least restrictive option necessary whilst providing benefit to the adult. The views of the adult, the adult's nearest relative, primary carer, guardian, attorney, and others so far as relevant, must also be taken into account.

If the council considers intervention is necessary it must also have regard to the importance of providing appropriate services to the adult, for example independent advocacy or services to assist the adult, or other person in the household, to communicate.

Consideration should be given to the relevance of provisions contained in other legislation, for example the Adults with Incapacity (Scotland) Act 2000, the Mental Health (Care and Treatment) (Scotland) Act 2003, or other social work, police, health, housing or regulation of care legislation.

Who may undertake the visit?

Only a council officer, as defined in Section 53 of the Act and who meets the requirements of the Order described previously, can undertake a visit. The council officer may be accompanied by another person. A joint visit with another person could assist the investigation in a number of ways, for example by:

• allowing the council officer to jointly investigate concerns with, for example, a key worker, a police officer, health professional or representative from the Care Inspectorate or Office of the Public Guardian;
• assisting an assessment of the risk to the adult, such as with a general practitioner, community nurse, key worker or other person already known to the adult and any other members of the household;
• assisting in record taking of the interview, and potentially being available as a second witness in the event of court proceedings; and
• assisting communication with the adult (or any other member of the household) by being accompanied by an interpreter in British Sign Language, lip speakers, a Makaton communicator, a deaf-blind communications interpreter, or a language interpreter where English is not the visited person's first language.

Local multi-agency procedures should specify when it is appropriate for the council officer to be assisted in the investigation by appropriately qualified and trained staff from either within the council or from other identified bodies or agencies.

In circumstances where there is an indication that the council officer carrying out the visit may encounter resistance from the person believed to be at risk of harm or from others at the premises, including the threat of verbal or physical violence, steps should be taken to ensure that staff are protected and supported in planning and executing the visit. Reference should be made to the council's violence to staff or lone working procedures to assess any potential risks and measures, such as staff visiting in pairs or liaising closely with the police, where necessary.

What places may be visited?

Section 7 permits a council officer to enter any place. In the majority of cases this will mean visiting the place where the adult normally resides, for example:

• the adult's rented or owner-occupied accommodation;
• the home of relatives, friends or others with whom the person resides;
• supported or sheltered accommodation staffed by paid carers;
• temporary or homeless accommodation; or
• a care home or other care setting.

A place could also include entering premises where the person is residing temporarily or spends part of their time, for example:

• a day centre;
• a place of education, employment or other activity;
• respite residential accommodation; or
• a hospital or other medical facility.

The council officer is allowed access to, and can examine, all parts of the place visited which might have a bearing on the investigation into the welfare, care and safety of the adult at risk. This right also includes access to any adjacent places, such as sheds, garages and outbuildings.

In the case of the visited adult's place of residence, this could include all areas used by or on behalf of the adult such as sleeping accommodation, facilities for hygiene, meal preparation areas and general living space.

When can a council officer visit?

Section 36 makes supplementary provision for visits carried out under Part 1 of the Act. Section 36(1) states that a council officer may only visit a place at 'reasonable times'. The Act recognises that a balance needs to be struck between the investigation of allegations of harm and the requirement, where practicable, to fully involve the visited adult and any other individuals in the process of investigation and assessment.

It may be that the visit is timed to take into account the likelihood of being able to speak to the adult in private. However good practice would be to give notice of the proposed visit, and of the purpose of the visit, to the individual(s) concerned where this would not be prejudicial to the safety or welfare of the adult at risk.

Professional judgement will be required as to the level and nature of the suspected risk to the visited adult and whether the adult is at risk of imminent significant harm. It is recognised that there may be times when the concern is such that an immediate visit at a time that might not otherwise be regarded as reasonable may be reasonable in particular circumstances in order to assess the risk and, if necessary, take action to protect the individual.

What evidence must a council officer produce?

A council officer must:

• state the object of the visit; and
• produce evidence of the officer's authorisation to visit the place.

It is recommended that anyone supporting the Council Officer on a visit provide evidence of their professional identification, to ensure that the adult is fully aware of the identity of each individual attending for adult support and protection purposes. There is an obligation to be clear that the purpose of the visit is to investigate a suspected risk of harm. Wherever possible, other people in the household should also be offered an explanation as to what is happening and why, without breaching the adult's right to confidentiality.

Every effort should be made to ensure that any information provided is in an appropriate form that the adult, or other person present, can understand.

What if entry is refused?

There may be times when the council officer is refused entry to the premises. Where this happens, the council officer should initially consider how entry may be achieved, without resorting to seeking a warrant from a sheriff authorising entry as a first course of action. As stated in Section 36 (4) of the Act, a council officer may not use force during, or in order to facilitate, a visit. Provided delay would not increase the risk to the adult, it would be good practice to have a multi-disciplinary discussion and plan to coordinate action by those involved before deciding whether to apply for a warrant. Particular regard should be given to minimising distress and risk to the adult. The views of any other persons who may be concerned for the welfare of the adult should be taken into account. Where a warrant authorising entry to premises is sought and provided, this will allow a constable to accompany the council officer and to use reasonable force to fulfil the object of the visit.

What does a warrant allow?

A warrant authorises a council officer to visit (under section 7) any place specified in the warrant, accompanied by a constable. The accompanying constable may use reasonable force where necessary to fulfil the object of the visit. This may include the constable opening places which are secured by a lock, therefore it would be expected that the council would take all reasonable steps to ensure the security of the person's premises and belongings if force has been required to enter the premises.

Wherever possible, entry to premises should first be attempted without force. It must be borne in mind that the use of force is an absolute last resort, to be used in very exceptional circumstances, and only when all other options have been exhausted.

A warrant for entry does not entitle any person to remain in the place entered in pursuance of the warrant after the warrant has expired.

Granting of a warrant

Sections 37 and 38(2) of the Act make provision for warrants of entry in relation to section 7 visits. Only the council can apply for a warrant for entry.

The sheriff may only grant a warrant for entry in relation to a visit where they are satisfied that:

• a council officer has been, or reasonably expects to be, refused entry; or
• a council officer will otherwise be unable to enter; or
• any attempt by a council officer to visit the place without such a warrant would defeat the object of the visit.

The warrant expires 72 hours after it has been granted. Once a warrant has expired, the council officer must not re-enter or remain in that place on the basis of that warrant. Once a warrant has been executed, it cannot be used again.

What can be done in cases of urgency?

Section 40 of the Act provides that an application for a warrant for entry can be made to a justice of the peace, instead of the sheriff, only if it is impracticable to make the application to the sheriff and an adult at risk is likely to be harmed if there is any delay in granting the warrant. An application must be made to the sheriff wherever possible.

A warrant for entry granted by a justice of the peace expires 12 hours after it has been granted. Once a warrant has been executed, it cannot be used again.