Consultation on guidance on the involvement of GPs in multi-agency adult protection arrangements

Section 2: GP roles and responsibilities in adult protection

Overview of GP responsibilities

18. GPs might become involved in the adult protection process in a number of ways. This section sets out the various responsibilities GPs have under the 2007 Act and the type of activities they may be asked to undertake as part of multi-agency adult protection arrangements. It also offers advice to APCs and others involved in the management of adult protection on the issues that local policy, procedure and strategy might cover to ensure appropriate and effective GP involvement in the delivery of adult protection.

19. There are four main ways in which GPs are most likely to be involved in adult protection:

• taking appropriate steps when they identify possible adult protection cases
• carrying out medical examinations when requested to do so by a council undertaking action under the 2007 Act
• providing relevant information from healthcare records to a council officer who is carrying out certain functions under the 2007 Act
• participating in other activity subsequent to action being taken under the 2007 Act, such as attending case conferences, providing reports and, on some occasions, providing evidence during court proceedings

20. In order to be able to respond promptly where there is cause for concern that an adult is at risk of harm, GPs should be familiar with:

• the guiding principles of the 2007 Act and the duties they may be required to perform (see Annex A)

• local multi-agency adult protection arrangements, including key contacts in the network, particularly in the council Social Work Department
• how to make an adult protection referral and how the council is obliged to respond
• the Code of Practice² to the 2007 Act (which offers useful practical advice on carrying out functions)

Identifying and responding to harm

21. Where a GP knows or believes that a patient is or may be an adult at risk of harm they will seek to make a referral to the council. If the circumstances require it, it may also be necessary to alert the police. For example, a suspected case of neglect might be referred to the council only, but where it is suspected that a crime is being committed, such as physical or financial harm, the GP should alert the police as well. When a council is made aware of a possible case of adult harm it has a duty under section 4 of the 2007 Act to make the necessary inquiries to decide if action is required to stop or prevent harm from occurring. This will include considering whether the adult meets the 'adult at risk' definition as per the three-point test at section 3. Where the test is not satisfied the 2007 Act will not apply; however, this decision will not prevent the council from working to identify alternative and appropriate means of support and/or protection for the individual using means other than the 2007 Act.

22. The dynamics of harm can be complex and a number of factors may need to be considered. Some types of harm are subtle and have no obvious physical trace, such as psychological harm or financial harm. It should also be borne in mind that harm may be inadvertent: it may be a result of poor care or self-neglect on the part of the adult, rather than as the result of any deliberate action. Some harm may the result of lifestyle choices made by the adult. As such, care should be taken to avoid implying that deliberate or malicious abuse has occurred.

23. Councils have a legal obligation to instigate an adult protection inquiry if they know or believe that an individual is or may be an adult at risk of harm. A council will be able to provide general advice on adult protection, including the kind of steps that will be taken when a referral is received and the sorts of services an adult may be offered. However, it is best to avoid asking for this kind of advice in relation to an actual case, as this will trigger the council's duty to inquire. It is preferable that GPs are familiar with adult protection generally so that they understand what processes will be set in motion by a referral. This will be made easier by involving GPs in multi-agency adult protection procedures.

24. Before referring a case, GPs may wish to seek advice from an experienced colleague, including, for example, a Caldicott Guardian.

25. GPs should be reassured that any subsequent action taken as a result of council inquiries will be guided by the 2007 Act's overarching principle that any intervention provides benefit to the individual that would not be provided without the intervention and is the least restrictive option of those available. Furthermore, where an adult is capable of consenting, no such intervention can take place without that consent. The exception to this is where it appears that consent is being withheld because of coercion by a third party. The issue of patient consent in the referral process is explored in the sub-heading below.

26. Where a GP has made a referral the council should keep the GP informed about what action is being taken as result. Social workers carrying out adult protection activity should be mindful that GPs are likely to have ongoing relationships with any patient who they have referred to the council. Being kept up to date with progress will be important in informing any future interactions between the GP and their patient. More generally, this will help to build strong links between adult protection leads in councils and GPs. Local multi-agency adult protection arrangements should therefore ensure that where a GP has made a referral that he or she is subsequently provided with information on:

• any intervention made to support and protect the adult
• whether the adult is safer as a result of any intervention
• whether the adult has an improved quality of life as a result of any intervention

27. GPs should ensure that all actions carried out, including conversations and meetings with public bodies, and decisions made are documented fully in the patient's healthcare records.

Patient consent in the referral process

28. When responding to a suspected case of harm, the duty of confidentiality will be a key consideration for GPs, as it is for all public bodies involved in adult protection. Where the adult is capable of consenting, GPs will always seek to gain his or her consent before taking action on their behalf and this includes when making a referral under the 2007 Act. There are a number of sources of advice on patient confidentiality including:

• the NHS Code of Practice on Protecting Confidentiality
• the General Medical Council's guidance document Confidentiality³
• the BMA's Confidentiality and Disclosure of Information Toolkit
• the BMA's Handbook of Ethics and Law

29. It should be assumed that an adult has capacity to consent to a particular action until proven otherwise. It is not the case that an adult who has a mental disability automatically lacks capacity. Similarly, no assumptions should be made about an adult's capacity on the basis of age, appearance, condition or any aspect of behaviour.

30. Capacity is decision-specific and not necessarily static: for example, it may fluctuate from one day to the next, and may apply differently to specific decisions. An adult's capacity should therefore be judged based on specific circumstances at a given time, including consideration of the nature of the decision which requires to be made.

31. Where an adult's ability to consent to an adult protection referral being made is in question, an assessment of his or her capacity should be undertaken. There is no single test of capacity, and any test should not be so high that it undermines an adult's right to autonomy. Efforts should be made to assist the adult in understanding why an assessment of his or her capacity is needed, to assist their consideration of the result of that assessment and to enable them to communicate this to other significant individuals, such as their carer or nearest relative.

32. Where the patient has a Responsible Medical Officer (RMO), it is expected that the RMO would provide advice on the patient's ability to consent, as well as assisting with an assessment of capacity as necessary. Where there is no RMO, the GP should make arrangements for an assessment to be carried out by an appropriately skilled medical practitioner. It is unlikely that GPs will have the skills to carry out an assessment of capacity alone.

33. Assessments of capacity should be undertaken on a multi-agency basis. The decision as to whether or not an adult has capacity will be made by a single medical practitioner, usually a psychiatrist, but other professionals from different backgrounds who have a long-standing or ongoing relationship with an adult may be able to offer a view on whether the adult's behaviour or ability at the time of the assessment is typical, whether they have demonstrated capacity in particular regards in the past or whether there are certain methods of helping the adult make a decision which have previously proved successful.

34. Seeking the views and contribution of relevant professionals with whom the adult is familiar may also provide the adult with the support and confidence necessary to make the decision to give their consent to the proposed action being taken. The relevant GP should be involved in this process.

Adults with incapacity

35. Adults assessed as being unable to consent to an adult protection referral being made may be particularly at risk. GPs must immediately take action on their behalf and make a referral to the council, and, if they judge it to be appropriate, also alert the police. Any subsequent intervention made under the 2007 Act will be guided by the 'least restrictive' principle (see Annex A).

36. GPs may wish to seek reassurance from senior colleagues or professional representative bodies such as the BMA, medical defence unions, Caldicott Guardians, and the GMC, but should not delay taking action. The sources of information on patient confidentiality listed at paragraph 28 may also be of use and councils will also be a good source of advice on how best to respond in these type of circumstances, bearing in mind that councils have a duty to make inquiries when they know or believe that a person is an adult at risk of harm and that they might need to intervene.

37. When an adult has been assessed as having incapacity, GPs should ordinarily seek to speak to anyone who has guardianship powers or welfare power of attorney in regard of the adult. This engagement may also help the GP and/or council decide on the most relevant course of action. However, in some cases it may be someone with guardianship or welfare responsibilities who is the source of the harm so GPs must make a careful consideration about discussing the case with such individuals. If there is any doubt the GP should liaise with the council as necessary.

Adults with capacity who withhold consent

38. The decision on how to respond to a suspected case of harm is made additionally complex where the adult has the capacity to consent to the GP making a referral under the 2007 Act, but chooses not to do so.

39. Competent adults have considerable rights about the extent to which their information is used and shared and these are protected both by law and by professional and ethical standards. Although the 2007 Act requires relevant information to be shared with the council, or any other public body, for the purposes of protecting an adult at risk of harm, where a competent adult explicitly states that an adult protection referral should not be made, this should ordinarily be respected.

40. Where a competent adult refuses to agree to an adult protection referral that would seem in their best interests and could help to mitigate a potential harm, the GP might consider it appropriate to employ the following strategies when discussing the matter with their patient:

• advise them of the risks of failing to alert relevant authorities and the benefits of doing so
• sensitively explore the reasons for their refusal to grant consent
• encourage them to speak to the council directly, emphasising that it is in their best interest to allow the council to carry out an inquiry under the 2007 Act
• explain the 'least restrictive' principle that guides any intervention made
• assist or empower them to take steps to safeguard themselves, including providing advice on advocacy services and other services which could offer support and protection. This may include the GP, with the adult's consent, contacting advocacy services in the local multi-agency adult protection network on their behalf

41. It is reasonable to ensure that the adult is informed about and understands the consequences of his or her decision, but an adult with capacity has the right to make his or her own decisions without interference or coercion.

42. Pressure should not be exerted on an adult to consent, nor should another professional exert pressure on a GP to take action, including sharing information, where an adult with capacity has refused to consent to action being taken.

43. While competent adults have the right to consent or otherwise to the GP making a referral, this right is not absolute and may be overridden. The multi-agency approach to adult support and protection means that, where it is lawful and ethical to do so, appropriate information should be shared between relevant agencies to ensure that support that is right for the individual can be provided. GPs should take a proportionate approach to make balanced decisions about whether to share information without consent.

44. Where it appears to the GP that a crime is being, or has been, committed, the GP must report it to the police. In such circumstances, a GP should keep the patient informed as much as possible, even though the report may have been made against the patient's wishes. In addition to informing the police, the GP may also choose to notify the council if it appears necessary or appropriate to safeguard the adult or his or her interests. In such cases, it may also be necessary to invoke Multi-Agency Public Protection Arrangements⁴ (MAPPA) protocols if the safety of other people is at risk. Failure to report a crime may lead to a GP being held accountable for a serious failing of his or her duty to protect the adult or other people.

45. GPs should also be alert to the possibility that consent may be withheld because the adult in question is being unduly pressurised to refuse. Undue pressure could include, for example, threats, blackmail, manipulation, dependency on the harmer, or a sense of responsibility or loyalty to the harmer. If a GP suspects that consent is being withheld because of undue pressure from another party, it is reasonable to take action in the patient's best interests and make a referral to the council. Similarly, if the GP considers it appropriate in the circumstances, for example if the adult is at risk of ongoing harm if no intervention is made, they may wish to refer the case to the council, even though consent has not been given. In such circumstances, the GP must consider the need to balance his or her duty of care to the patient and towards public protection with the need to protect the patient's confidentiality and autonomy.

46. GPs may seek advice in such situations from senior colleagues and/or professional representative bodies such as the BMA, medical defence unions, Caldicott Guardians, and the GMC.

Protection Orders and consent

47. A protection order cannot be made in respect of an adult who has refused to consent to the making of the order, except where it is believed that:

• undue pressure has been put on the adult to refuse consent
• there are no steps which could reasonably be taken with the adult's consent which would protect them from harm

48. However, a protection order can be made in respect of an adult who has incapacity and is therefore unable to consent.

49. When a council is applying for a protection order and consent has been refused, evidence of lack of capacity to consent to the making of the order will be required by the Sheriff, as set out by the Code of Practice⁵ for the 2007 Act. A GP may be asked to carry out an assessment of the adult's capacity for such a purpose. As in other circumstances, the GP may not be the best person to carry out such an assessment, but should be involved in the multi-agency assessment where he or she has a professional relationship with the adult. In these circumstances completion of an assessment is likely to be time-critical in order to secure the protection of an adult from a harmful situation.

50. The possibility of involvement with court processes will mean that GPs will want to seek advice from the BMA and their medical defence organisation.

Requests to undertake medical examinations

51. The 2007 Act creates powers for councils to ask a nominated health professional to undertake a medical examination for the purposes of establishing whether an adult is at risk and to inform the council's decision on whether any further action is required.

52. In the context of the 2007 Act, 'health professional' means a doctor, nurse, midwife or any other type of individual described (by reference to skills, qualifications, experience or otherwise) by order made by the Scottish Ministers (to date, no such order has been made).

53. Two sections of the 2007 Act relate specifically to medical examinations. Section 9 allows a medical examination in private to be carried out where a council officer is carrying out a visit under section 7 of the 2007 Act and finds a person who is, or may be, an adult at risk of harm. The council officer must be accompanied by a health professional for this purpose and before any examination is carried out the adult must be informed of his or her right to refuse.

54. Section 11 allows a council to apply for an assessment order for the purpose of taking a specified person from a place being visited under section 7 to allow a council officer, or a person nominated by the council, to interview the person in private, and to allow a health professional nominated by the council to conduct a medical examination of the specified person in private.

55. In most cases covered by sections 9 and 11, the adult's GP may be the most appropriate health professional to carry out a medical examination. GPs are an important part of multi-agency adult protection arrangements and must consider favourably requests to carry out examinations and other activity under the 2007 Act.

56. In practice, councils should try to nominate GPs or other health professionals who know the adult. This will mean they are more likely to be familiar with the circumstances of the case. GPs may be asked to carry out such an examination at any time. It is therefore necessary for them to be familiar with the 2007 Act and local multi-agency adult protection arrangements so that they understand why they are being asked to carry out an examination. A GP will not be compelled to perform an examination if there is a valid reason for not doing so (if, for example, the adult is unwilling to agree to a medical examination, or if doing so would damage the doctor-patient relationship).

57. Where a GP carries out an initial medical examination and indicates that a further examination is required to identify the specific cause of harm, it will be necessary to involve a specialist medical professional. If the police are involved in a case, it is likely that a Forensic Physician (also known as a Forensic Medical Examiner or police surgeon) will carry out a medical examination of the adult. In such cases, the GP may still have a role to play, particularly where the adult is well-known to them; however, a GP is unlikely to have the specialist skills required to carry out the actual examination.

58. Depending on the circumstances of the case, it may be appropriate for a specialist medical professional to undertake the initial assessment. In such cases, it may be useful for relevant information about the patient to be shared between the GP and the special medical professional, in line with professional standards.

59. The council should seek to involve GPs from the outset of a case where possible. In particular, sufficient notice should be given to a GP that he or she may be asked to carry out a medical examination. This will allow the GP to prepare, including arranging locum cover where necessary. However, in some instances it will not be possible to give advance notice, but where GPs are a key part of the local multi-agency adult protection arrangements, they will have a general awareness of adult protection issues and the need for their involvement at short timescales on occasion.

60. Local policies, procedures and strategies relating to medical examinations carried out under the 2007 Act will be developed jointly under multi-agency arrangements for adult protection. This will provide consistency and clarity for all involved, including on the issue of fees. Policies should be developed in conjunction with all relevant stakeholders, including GPs through the Local Medical Committee, CHCP/CHPs, Health Boards, the local Adult Protection Committee and any other relevant organisation or body.

61. Policies should set out the full range of issues relevant to this process, including:

• when medical examinations may need to be carried out
• the process by which this will be arranged
• the level of fee a health professional and the process for claiming this
• when GPs might be involved beyond the initial medical examination
• what specialists may be involved in assessing adults under the 2007 Act

62. In particular, policies should help GPs understand the purpose of examinations and why tight time timescales will often apply. However, policies will also need to take account of work pressures faced by GPs, and should emphasise why integrating GPs into the multi-agency adult protection network will, at the very least, ensure they are aware of typical adult protection procedures and have access to key contacts where they can get advice.

63. It is important that councils know that they will be able to call on GPs to carry out medical examinations when required and have an agreed process in place for doing so. Local policies should address this, and it may be useful to develop a memorandum of understanding between the council and the Local Medical Committee, Health Boards and CHCPs/CHPs as appropriate which takes account of their work and of GPs and the need to act swiftly to protect adults who are at risk.

Providing relevant information from healthcare records

64. In carrying out inquiries and investigations under the 2007 Act, a council officer may request health records (as well as financial and other records) relating to an individual who the officer knows, or believes, to be an adult at risk of harm. This is an important part of a council carrying out its functions under the 2007 Act, as it will help to ascertain whether the individual is an adult at risk, as well as potentially indicating the nature and extent of any harm which has been experienced. This will not only allow appropriate support and protection to be offered to the adult, but it may lead to action being taken against the person who caused the harm.

65. Section 10 requires any person holding health records to disclose them to a council officer carrying out an adult protection inquiry or investigation for the purpose of enabling the council to decide whether it needs to do anything further to protect an adult at risk. Under section 49(2), it is an offence for a person to refuse or otherwise fail to comply with a request made under section 10, without reasonable excuse.

66. Only a health professional may physically inspect health records. The Adult Support and Protection (Scotland) Act 2007 (Restriction on the Authorisation of Council Officers) Order 2008 allows a council to authorise a person to carry out the council officer functions under the 2007 Act if they are a nurse and have at least 12 months' post qualifying experience of identifying, assessing and managing adults at risk. If the council officer requesting health records under section 10 does not meet this definition, he or she must pass the records to a health professional for examination and the GP should be informed of this.

67. In carrying out this function, the council officer must speak to the GP to provide context as to why the records are being requested, in particular emphasising that only information relevant to the assessment of risk and to allow the council officer to assess whether any further action is required to safeguard the adult is needed. There is not necessarily a need for entire healthcare records to be provided; only information relevant to the case need be provided, and this may not need to be in writing if that is sufficient for the council officer to carry out his or her duties under the 2007 Act. The council officer must discuss the nature of the case with the GP to decide jointly what medical information is required for this purpose.

68. Those involved in the management of adult protection, such as APCs, should work with their local partners to develop policies and procedures that facilitate these type of requests. For example, GPs may prefer that a standardised format for requests is agreed and that this includes the provision of identification as a matter of course.

69. GPs considering a request for information under section 10 (or any other part of the 2007 Act) must take account of the confidentiality of the patient and should discuss the request with the adult to ensure they understand the reasons for it and the likely benefits. Often, where the adult is competent, they will have already agreed to action being taken on their behalf by this point. However, even where consent has not been granted to share information with relevant agencies, GPs are under a legal obligation to provide relevant records under section 10 of the 2007 Act. Again, close joint working between the GP and council may help overcome any obstacles, including working together to ensure the adult agrees to the relevant information being shared.

Participating in other activity

70. Local policies should also set out what other involvement GPs may have beyond initial medical examinations and provision of relevant information from healthcare records. This might usefully cover the value of attending case conferences where appropriate and providing reports, and the possibility of attending court as a professional witness if criminal proceedings are brought.

Further information

71. The Scottish Government Mental Health Legislation and Adult Protection Policy Team can be contacted on 0131 244 1800 or aspunit@scotland.gsi.gov.uk.