Adult Support and Protection (Scotland) Act 2007: guidance for Adult Protection Committees

Annex: The Adult Support and Protection (Scotland) Act 2007

The following summarises the provisions of Part 1 of the Act other than those previously set out in this guidance. This should be read in conjunction with the ASP Code of Practice.

Sections 1-2: Principles

The overarching principle underlying Part 1 of the Act is that any intervention in an individual's affairs should provide benefit to the individual and should be the least restrictive option of those that are available which will meet the purpose of the intervention.

This is supported by a set of guiding principles which, together with the overarching principle, must be taken account of in performing functions under Part 1 of the Act. These are:

• the ascertainable wishes and feelings of the adult at risk (past and present);
• the views of other significant individuals, such as the adult's nearest relative; their primary carer, guardian, or attorney; or any other person with an interest in the adult's well-being or property;
• the importance of the adult taking as active a part as possible in the performance of the function under the Act;
• providing the adult with the relevant information and support to enable them to participate as fully as possible;
• the importance of ensuring that the adult is not treated less favourably than another adult in a comparable situation; and
• the adult's abilities, background and characteristics (including their age, sex, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage).

Section 3: Definition of adult at risk

The Act defines 'adults at risk' as individuals, aged 16 years or over, who:

• are unable to safeguard their own well-being, property, rights or other
• interests;
• are 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 others who are not so affected.

This is commonly known as the three-point test but reference to three-point criteria is preferable.

It should be noted that the Code of Practice makes clear that infirmity does not necessarily rely upon a medical diagnosis in the way that disorder or illness do, and neither is infirmity only related to age.

Section 3(2) makes clear than an adult is "at risk of harm" if:

• another person's conduct is causing (or is likely to cause) the adult to be harmed, or
• the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm

For the purposes of the Act, 'harm' includes all harmful conduct and, in particular, includes:

• conduct which causes physical harm;
• conduct which causes psychological harm (e.g. by causing fear, alarm or distress);
• unlawful conduct which appropriates or adversely affects property, rights or interests (e.g. theft, fraud, embezzlement or extortion); and
• conduct which causes self-harm.

Duties and powers of Councils, NHS, Police, and other bodies

The Act establishes certain duties and powers for Councils and other statutory bodies in relation to:

• Inquiries, which may require an investigatory stage (including co-operation, the duty to consider independent advocacy and other services); and
• Protection Orders.

Sections 4-5: Inquiries and co-operation

The Act places a duty on councils to make inquiries about an individual's well-being, property or financial affairs where the council knows or believes that the person is an adult at risk and that it may need to intervene to protect him or her from being harmed.

The Act requires the following public bodies to co-operate with local councils and with each other, where harm is known or suspected: all councils; the chief constable of Police Scotland; the relevant NHS Board; Healthcare Improvement Scotland; the Care Inspectorate; the Public Guardian; the Mental Welfare Commission for Scotland; and any other public body or office holder that Scottish Ministers specify. The public bodies or officers must advise the relevant council if they know or believe that a person is an adult at risk and that action needs to be taken in order to protect that person from harm.

Section 6: Adult representation including advocacy and support services

Councils have a duty to consider providing appropriate services, including independent advocacy, to support adults where an intervention under the Act is considered to be necessary.

The principles underlying the Act emphasise the importance of striking a balance between an individual's right to freedom of choice and the risk of harm. These must always be taken into account when an intervention under Part 1 of the Act is being considered.

Sections 7-10: Investigatory powers and council officers

These sections of the Act give a Council Officer powers in relation to making visits, entering premises and carrying out interviews within investigations concerning adults at risk. If a Council Officer is accompanied by a health professional, that professional may carry out a medical examination of the adult. An adult has the right not to respond to questions, and to refuse a medical examination. The Act gives a Council Officer the right to require the provision of medical, financial or other documents or copies of them related to an adult at risk, although medical records can only be inspected by a health professional.

Sections 52 & 53 and a subsequent order made by Scottish Ministers define who may perform the functions of a council officer.

Sections 11- 41 and 49-50: Protection orders and offences

The Act allows a council to apply to the sheriff for a warrant for entry or a protection order.

A protection order can take one of three forms:

• an assessment order;
• a removal order; or
• a banning or temporary banning order.

The Act establishes powers of arrest in relation to Banning Orders; offences of preventing or obstruction of a protection order; and offences committed by bodies corporate etc. in breach of the Act.

Section 48: Code of Practice

Section 48 of the Act requires the Scottish Ministers to prepare a Code of Practice containing guidance about the performance of functions by councils and their officers and health professionals under the Act.