Office of Public Sector Information
PART 1 continued
(1) Where—
(a) a person is detained under section 29, and
(b) the fiscal has not decided to take criminal proceedings in respect of the facts and circumstances which gave rise to the arrest,
the detained person must be brought, on the next court day on which it is practicable to do so, before the sheriff sitting as a court of summary jurisdiction for the district in which the person was arrested.
(2) Nothing in this section prevents the detained person from being brought before the sheriff on a day other than a court day if—
(a) the sheriff is sitting on such a day for the disposal of criminal business, and
(b) the fiscal has not decided to take criminal proceedings in respect of the facts and circumstances which gave rise to the arrest.
Where a person is brought before the sheriff under section 32, the fiscal must present to the sheriff a petition—
(a) giving the detained person’s particulars,
(b) stating the facts and circumstances which gave rise to the arrest,
(c) giving any information known to the fiscal—
(i) about the circumstances which gave rise to the banning order or temporary banning order concerned, and
(ii) which is relevant to an assessment of whether the detained person is likely to breach that order again, and
(d) requesting the sheriff to consider whether a longer period of detention is justified.
(1) The sheriff may, if satisfied—
(a) that the information which the fiscal presents under section 33 ostensibly discloses a breach of a banning order or temporary banning order, and
(b) that there is a substantial risk that the detained person will breach the order again,
by order authorise the continuation of the detention for a period of not more than 2 days (not counting days which are not court days).
(2) Where the sheriff refuses to authorise such a continuation, the detained person must be released from custody (unless that person is in custody in respect of any other matter).
(3) Before deciding whether to grant an order under this section, the sheriff must give the detained person the opportunity to make representations.
(1) The sheriff must not make a protection order if the sheriff knows that the affected adult at risk has refused to consent to the granting of the order.
(2) A person must not take any action for the purposes of carrying out or enforcing a protection order if the person knows that the affected adult at risk has refused to consent to the action.
(3) Despite subsections (1) and (2), a refusal to consent may be ignored if the sheriff or person reasonably believes—
(a) that the affected adult at risk has been unduly pressurised to refuse consent, and
(b) that there are no steps which could reasonably be taken with the adult’s consent which would protect the adult from the harm which the order or action is intended to prevent.
(4) An adult at risk may be considered to have been unduly pressurised to refuse to consent to the granting of an order or the taking of an action if it appears—
(a) that harm which the order or action is intended to prevent is being, or is likely to be, inflicted by a person in whom the adult at risk has confidence and trust, and
(b) that the adult at risk would consent if the adult did not have confidence and trust in that person.
(5) Subsection (4) does not affect the generality of subsection (3).
(6) Neither subsection (3) nor any other provision of this Part authorises a council officer or a health professional or other council nominee to ignore a refusal by a person to consent to participate in—
(a) an interview, or
(b) a medical examination.
(7) In this section, a “protection order” means any—
(a) assessment order,
(b) removal order,
(c) banning order, or
(d) temporary banning order,
and “affected adult at risk”, in relation to a protection order, means the person whose well-being or property would be safeguarded by the granting, carrying out or enforcement of the order.
(1) A council officer may visit a place at reasonable times only.
(2) A council officer must, while visiting any place—
(a) state the object of the visit, and
(b) produce evidence of the officer’s authorisation to visit the place.
(3) A council officer may, while visiting any place—
(a) examine the place,
(b) take into the place—
(i) any other person, and
(ii) any equipment,
as may be reasonably required in order to fulfil the object of the visit, and
(c) do anything else (under this Part or otherwise) which is reasonably required in order to fulfil the object of the visit.
(4) A council officer may not use force during, or in order to facilitate, a visit (but this does not prevent the sheriff from granting a warrant for entry authorising a constable to use force).
(5) A refusal to allow a council officer, or any person accompanying a council officer, to carry out a visit which is not authorised by a warrant for entry does not constitute an offence under section 49(1).
(1) A “warrant for entry” is a warrant which authorises—
(a) a council officer to visit any specified place under section 7 or 16 together with a constable, and
(b) a constable who so accompanies a council officer to do anything, using reasonable force where necessary, which the constable considers to be reasonably required in order to fulfil the object of the visit.
(2) A warrant for entry—
(a) expires 72 hours after it is granted, and
(b) does not entitle any person to remain in a place which that person has entered in pursuance of the warrant after the warrant has expired.
(1) A sheriff who grants an assessment order must also grant a warrant for entry in relation to a visit under section 7 of a place from which a person may be taken in pursuance of the assessment order.
(2) The sheriff may, on the application of the council, otherwise grant a warrant for entry in relation to a visit under section 7 only if satisfied, by evidence on oath—
(a) that a council officer has been, or reasonably expects to be—
(i) refused entry to, or
(ii) otherwise unable to enter,
the place concerned, or
(b) that any attempt by a council officer to visit the place without such a warrant would defeat the object of the visit.
(1) A sheriff who grants a removal order must also grant a warrant for entry in relation to a visit under section 16.
(2) Where—
(a) a removal order is varied, and
(b) the subject of the varied order has not yet been moved in pursuance of the order,
the warrant for entry granted under subsection (1) in relation to the order is, regardless of whether the warrant has already expired, to be treated for the purposes of section 37(2) as having been granted on the date of variation.
(1) A council which believes that the circumstances set out in subsection (2) have arisen may apply to a justice of the peace instead of the sheriff for—
(a) a removal order, or
(b) a warrant for entry in respect of a visit under section 7.
(2) Those circumstances are—
(a) that it is not practicable to apply to the sheriff, and
(b) that an adult at risk is likely to be harmed if there is any delay in granting such an order or warrant.
(3) A justice of the peace may grant a removal order only if satisfied, by evidence on oath—
(a) that the circumstances set out in subsection (2) have arisen, and
(b) as to the matter set out in section 15(1).
(4) Subsections (3) to (7) of section 41 do not apply in relation to an application to a justice of the peace for a removal order.
(5) A justice of the peace who grants a removal order must also grant a warrant for entry in relation to a visit under section 16.
(6) A justice of the peace may grant a warrant for entry in relation to a visit under section 7 only if satisfied, by evidence on oath—
(a) that the circumstances set out in subsection (2) have arisen, and
(b) as to either of the matters set out in section 38(2).
(7) A removal order granted under this section must—
(a) despite section 14(1)(a), specify a period of 12 hours beginning when the order is made as the period within which the person specified in the order may be moved in pursuance of the order, and
(b) specify a period of no longer than 24 hours as the period within which the order is to have effect.
(8) Despite section 37(2)(a), a warrant for entry granted under this section expires 12 hours after it is granted.
(1) This section applies in relation to any application for—
(a) an assessment order,
(b) a removal order,
(c) a banning order,
(d) a temporary banning order,
(e) the variation or recall of a removal order, banning order or temporary banning order.
(2) The sheriff may disapply any of the following provisions in relation to an application if satisfied that doing so will protect an adult at risk from serious harm or will not prejudice any person affected by the disapplication—
(a) subsections (3) to (7),
(b) section 15(3),
(c) section 19(4).
(3) The applicant must give notice of an application to—
(a) the subject of the application, and
(b) the affected adult at risk (where that person is neither the applicant nor the subject of the application).
(4) The sheriff must, before determining an application, invite—
(a) the subject of the application, and
(b) the affected adult at risk (where that person is neither the applicant nor the subject of the application).
to be heard by, or represented before, the sheriff.
(5) The affected adult at risk may be accompanied at any hearing conducted in respect of an application by a friend, a relative or any other representative chosen by the adult.
(6) The sheriff may appoint a person to safeguard the interests of the affected adult at risk in any proceedings relating to an application.
(7) Such an appointment may be made on such terms as the sheriff thinks fit.
(8) Nothing in this section affects the Court of Session’s power to make further provision under section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58) in connection with the procedure and practice to be followed in connection with an application.
(9) For the purposes of this section, the “affected adult at risk” is—
(a) where an application relates to an assessment order or removal order, the subject of the application,
(b) where an application relates to a banning order or a temporary banning order, the person whom that order would protect, or is protecting, from harm.
(1) Each council must establish a committee (an “Adult Protection Committee”) with the following functions—
(a) to keep under review the procedures and practices of the public bodies and office-holders to which this section applies which relate to the safeguarding of adults at risk present in the council’s area (including, in particular, any such procedures and practices which involve co-operation between the council and other public bodies or office-holders to which this section applies),
(b) to give information or advice, or make proposals, to any public body and office-holder to which this section applies on the exercise of functions which relate to the safeguarding of adults at risk present in the council’s area,
(c) to make, or assist in or encourage the making of, arrangements for improving the skills and knowledge of officers or employees of the public bodies and office-holders to which this section applies who have responsibilities relating to the safeguarding of adults at risk present in the council’s area,
(d) any other function relating to the safeguarding of adults at risk as the Scottish Ministers may by order specify.
(2) In performing its functions, an Adult Protection Committee must have regard to the desirability of improving co-operation between each of the public bodies and office-holders to which this section applies for the purpose of assisting those bodies and office-holders to perform functions in order to safeguard adults at risk present in the council’s area.
(3) The public bodies and office-holders to which this section applies are—
(a) the council,
(b) the Care Commission,
(c) the relevant Health Board,
(d) the chief constable of the police force maintained in the council’s area,
(e) any other public body or office-holder as the Scottish Ministers may by order specify.
(1) It is for the council to appoint the convener and the other members of its Adult Protection Committee in accordance with this section.
(2) Each public body and office-holder to which section 42 applies (other than the council and the Care Commission) must nominate a representative who appears to the body or office-holder to have skills and knowledge relevant to the functions of the Adult Protection Committee to be a Committee member.
(3) The Care Commission may nominate a representative who appears to it to have skills and knowledge relevant to the functions of the Adult Protection Committee to be a Committee member.
(4) The council must appoint the representatives nominated under subsections (2) and (3) as Committee members.
(5) The council may also appoint as Committee members such other persons who appear to it to have skills and knowledge relevant to the functions of the Adult Protection Committee.
(6) The Committee convener must not be a member or officer of the council.
(1) It is for an Adult Protection Committee to regulate its own procedures.
(2) But those procedures must allow a representative of—
(a) the Mental Welfare Commission for Scotland,
(b) the Public Guardian,
(c) the Care Commission (where it has not nominated a representative to be a member of the Committee), and
(d) any other public body or office-holder as the Scottish Ministers may by order specify,
to attend Committee meetings.
(1) Each of the public bodies and office-holders set out in subsection (2) must provide the Adult Protection Committee with any information which the Committee may reasonably require for the purposes of performing the Committee’s functions.
(2) Those public bodies and office-holders are—
(a) each of the public bodies and office-holders represented on the Adult Protection Committee by virtue of section 43(4),
(b) the Mental Welfare Commission for Scotland,
(c) the Public Guardian,
(d) the Care Commission (where it is not represented on the Committee), and
(e) any other public body or office-holder as the Scottish Ministers may by order specify.
The convener of an Adult Protection Committee must, as soon as practical after such date as the council may direct biennially—
(a) prepare a general report on the exercise of the Committee’s functions during the 2 years ending on that date, and
(b) after securing the Committee’s approval of the report, send a copy of it to—
(i) each of the public bodies and office-holders represented on the Adult Protection Committee by virtue of section 43(4),
(ii) the Scottish Ministers,
(iii) the Mental Welfare Commission for Scotland,
(iv) the Public Guardian,
(v) the Care Commission (where it not represented on the Committee), and
(vi) any other public body or office-holder as the Scottish Ministers may by order specify.
Adult Protection Committees, and councils, must have regard to any guidance issued by the Scottish Ministers about their functions under sections 42 to 46.
(1) The Scottish Ministers must prepare a code of practice containing guidance about the performance of functions under this Part by—
(a) councils and their officers, and
(b) health professionals.
(2) The Scottish Ministers must review the code of practice from time to time and may, following such a review, revise it.
(3) Before preparing the code of practice, and when reviewing it, the Scottish Ministers must consult—
(a) such councils (or persons representing councils),
(b) such health professionals (or persons representing health professionals), and
(c) such other persons appearing to them to be interested in the code of practice,
as they think fit.
(4) The Scottish Ministers must publish the code of practice and any revisions to it.
(5) Councils, council officers and health professionals performing functions under this Part must, if relevant, have regard to the code of practice.
(1) A person commits an offence by, without reasonable excuse, preventing or obstructing any other person from doing anything which the other person is authorised or entitled to do by virtue of—
(a) an assessment order,
(b) a removal order,
(c) a banning order,
(d) a temporary banning order,
(e) a warrant for entry, or
(f) any provision of this Part.
(2) A person commits an offence by, without reasonable excuse, refusing or otherwise failing to comply with a requirement made under section 10.
(3) A person who is guilty of an offence under this section is liable, on summary conviction—
(a) to a fine not exceeding level 3 on the standard scale,
(b) to be imprisoned for a term not exceeding 3 months, or
(c) to both such a fine and such imprisonment.
(4) Nothing done by a person whose well-being or property another person is attempting to investigate or safeguard constitutes an offence under this section.
(1) Where—
(a) an offence under this Part has been committed by—
(i) a body corporate,
(ii) a Scottish partnership, or
(iii) an unincorporated association other than a Scottish partnership, and
(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of—
(i) a relevant person, or
(ii) a person purporting to act in the capacity of a relevant person,
that person as well as the body corporate, partnership or, as the case may be, unincorporated association is guilty of the offence and is liable to be proceeded against and punished accordingly.
(2) In subsection (1), “relevant person” means—
(a) in relation to a body corporate other than a council—
(i) a director, manager, secretary or other similar officer of the body,
(ii) where the affairs of the body are managed by its members, a member,
(b) in relation to a council, an officer or member of the council,
(c) in relation to a Scottish partnership, a partner, and
(d) in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.
(1) No appeal is competent against the granting of—
(a) an assessment order,
(b) a removal order, or
(c) a warrant for entry.
(2) Any decision of a sheriff to grant, or to refuse to grant, a banning order or temporary banning order may be appealed to the sheriff principal.
But an appeal under this subsection against the granting of, or a refusal to grant, a temporary banning order is competent only with leave of the sheriff.
(3) The sheriff principal’s decision on an appeal under subsection (2) may be appealed to the Court of Session.
But an appeal under this subsection against a decision relating to a temporary banning order is competent only with leave of the sheriff principal.
(4) Where a sheriff principal decides to quash a banning order or temporary banning order, the order concerned is (despite the sheriff principal’s determination) to continue to have effect until—
(a) the end of the period during which the decision to quash the order may be appealed to the Court of Session (if no such appeal is made),
(b) where such an appeal is made, the day on which—
(i) the appeal is abandoned, or
(ii) the Court of Session confirms the sheriff principal’s decision to quash the order, or
(c) any other day on which—
(i) the order otherwise expires by virtue of section 19(5) or 21(4), or
(ii) in the case of a temporary banning order, the sheriff principal refuses leave to appeal against the decision to quash the order.
(1) The Scottish Ministers may by order restrict the type of individual who may be authorised by a council to perform functions given to council officers by virtue of this Part.
(2) For the purposes of this Part, a person is a “health professional” if the person is—
(a) a doctor,
(b) a nurse,
(c) a midwife, or
(d) any other type of individual described (by reference to skills, qualifications, experience or otherwise) by order made by the Scottish Ministers.
(1) In this Part—
“adult” means an individual aged 16 or over,
“adult at risk” has the meaning given by section 3,
“Adult Protection Committee” means a committee established under section 42,
“assessment order” has the meaning given by section 11,
“attorney” means a continuing attorney or welfare attorney (within the meaning of the Adults with Incapacity (Scotland) Act 2000 (asp 4)),
“banning order” has the meaning given by section 19,
“Care Commission” means the Scottish Commission for the Regulation of Care,
“child” means an individual under the age of 16,
“conduct” includes neglect and other failures to act,
“council” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39); and references to a council in relation to any person known or believed to be an adult at risk are references to the council for the area which the person is for the time being in,
“council officer” means an individual appointed by a council under section 64 of the Local Government (Scotland) Act 1973 (c. 65) (but “council officer” must, where relevant, also be interpreted in accordance with any order made under section 52(1)),
“court day” means a day which is not—
a Saturday,
a Sunday, or
a court holiday prescribed for the relevant court under section 8 of the Criminal Procedure (Scotland) Act 1995 (c. 46),
“doctor” means a fully registered person within the meaning of the Medical Act 1983 (c. 54),
“fiscal” means the procurator fiscal,
“harm” includes all harmful conduct and, in particular, includes—
conduct which causes physical harm,
conduct which causes psychological harm (for example: by causing fear, alarm or distress),
unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud, embezzlement or extortion),
conduct which causes self-harm,
“health professional” has the meaning given by section 52(2),
“midwife” means an individual registered in the register maintained under article 5 of the Nurses and Midwives Order 2001 (S.I. 2002/253) by virtue of qualifications in midwifery,
“nearest relative” has the meaning given by section 254 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13),
“nurse” means an individual registered in the register maintained under article 5 of the Nurses and Midwives Order 2001 (S.I. 2002/253) by virtue of qualifications in nursing,
“officer in charge” has the meaning given by section 29(1)
“parental responsibilities and rights” has the same meaning as in the Children (Scotland) Act 1995 (c. 36),
“prescribed” means prescribed by rules of court,
“primary carer” has the same meaning as in the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13),
“relevant Health Board”, in relation to any council, means any Health Board or Special Health Board constituted by order under section 2 of the National Health Service (Scotland) Act 1978 (c. 29) which exercises functions in relation to the council’s area,
“removal order” has the meaning given by section 14,
“specified”, in relation to any order or warrant, means specified in the order or warrant,
“temporary banning order” has the meaning given by section 21,
“visit” has the meaning given by subsection (2),
“warrant for entry” has the meaning given by section 37.
(2) References in this Part to visiting any place are, unless the contrary intention appears, to be read as references to a council officer exercising a right of entry conferred by section 7, 16 or 18 (including any such right which is authorised by a warrant for entry).
Adult Support and Protection (Scotland) Act 2007