2007 Chapter 10

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These Notes relate to the Adult Support and Protection (Scotland) Act (asp 10) which received Royal Assent on 21 March 2007

ADULT SUPPORT AND PROTECTION (SCOTLAND) ACT 2007

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or part of a section or schedule, does not seem to require any explanation or comment, none is given.

THE ACT - AN OVERVIEW

3.     The Act is in 5 parts. The main provisions of the Act are as follows:

Part 1 - Protection of Adults at Risk of Harm

• Introduces measures to identify and protect adults at risk from harm. It defines 'adults at risk' and 'harm'. Where it is known or suspected that an adult is being harmed, the Act places a duty on councils to make the necessary enquiries to establish whether or not further action is required to stop or prevent harm occurring. A general principle on intervention in an adult's affairs requires action which is the least restrictive to the adult whilst providing benefit to him or her. Protection orders include assessment orders, removal orders and banning orders, which require approval by a sheriff.

• Requires councils to set up Adult Protection Committees to review procedures and practices of specified public bodies relating to the safeguarding of adults at risk.

Part 2 - Adults with Incapacity

• Amends the Adults with Incapacity (Scotland) Act 2000 with a view to improving how it operates in practice.

• Follows a two year project monitoring the implementation of this Act which resulted in a consultation paper "Improving with Experience" issued by the Scottish Executive in August 2005.

• Makes changes to the regime for intromission with the funds of an adult with incapacity; in connection with powers of attorney, intervention orders and guardianship orders; and in connection with orders about incapable adults' nearest relatives.

Part 3 - Adult Support etc: Miscellaneous amendments and repeals

• Repeals the liable relatives rule as it applies to charging for accommodation provided under the Social Work (Scotland) Act 1968 and section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003. It also clarifies and updates the financial responsibility for community care services when provided in an area other than the area in which the individual is ordinarily resident.

• Amends the Social Work (Scotland) Act 1968 to enable Scottish Ministers to delegate powers to councils in relation to direct payments for social care services.

• Amends the Social Work (Scotland) Act 1968 to clarify that where a local authority have decided that an adult needs community care services and is incapable in relation to decisions about those services that they may take such steps as are necessary to enable the adult to benefit from those services.

• Amends the Social Work (Scotland) Act 1968 to define responsibility for provision of social services where a person receives a service outwith the council area or outwith Scotland.

Part 4 - Mental Health: Miscellaneous amendments and repeals

• Amends the Mental Health (Care and Treatment) (Scotland) Act 2003 in relation to the duty of Mental Health tribunals to review compulsory treatment orders.

• Amends the Mental Health (Care and Treatment) (Scotland) Act 2003 to add an additional test to the criteria for revocation of a patient's transfer for treatment direction or hospital direction. This allows the direction to be revoked where it is no longer considered necessary for the patient to receive treatment compulsorily in hospital.

• Amends the Mental Health (Care and Treatment) (Scotland) Act 2003 to extend the scope of the regulation-making power to provide for the reception into Scotland of patients subject to corresponding or similar community-based compulsory treatment orders and compulsion orders. Amends section 316(1)(c) of the 2003 Act to extend the scope of the offence of knowingly inducing or assisting a patient to abscond or harbouring a patient to such transfers.

• Amends the Mental Health (Care and Treatment) (Scotland) Act 2003 to provide for a power to make regulations for and in connection with the keeping in charge of a person who is subject to escorted leave of absence authorised under legislation in force in another part of the UK.

• Amends the Mental Health (Care and Treatment) (Scotland) Act 2003 to make provision which allows patients subject to compulsion orders with restrictions to be absolutely discharged where it is no longer necessary for such patients to receive that treatment compulsorily.

• Amends Part 3 of Schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act 2003 to ensure that where a relevant application is made in the relevant period but withdrawn before being determined, the application is to be treated for the supervisory review sections of the Act (sections 101,189 and 213) as not having been made.

• Repeals sections 88 and 128 of the Mental Health Act 1983, insofar as they extend to Scotland, in relation to the taking into custody in Scotland of persons who have absconded and the offence of inducing or assisting a patient detained under the Mental Health Act 1983 to abscond.

• Amends the Criminal Procedure (Scotland) Act 1995 to provide that the court may adjourn the case without calling on the accused to plead at the first calling when they may be unfit to do so.

PART 1

PROTECTION OF ADULTS AT RISK OF HARM

Introductory

Section 1 - General principle on intervention in an adult's affairs

4.     This section sets out the general principle on intervention in an adult's affairs. It applies for the purposes of section 2 of the Act only. The general principle states that a person may intervene or authorise an intervention in an adult's affairs, only where the person is satisfied that the intervention will provide benefit to the adult and that it is the least restrictive option of those that are available which will meet the objective of the intervention.

Section 2 - Principles for performing Part 1 functions

5.     Any public body or official who carries out any functions under this Part must give consideration to the general principle set out above, the feelings of the adult at risk (as far as they can be ascertained) and the views of other significant individuals with an interest who are known to the public body or office-holder.

6.     Consideration should also be given to the importance of the adult at risk participating as fully as possible by making sure that appropriate information and support is provided. The adult at risk should not be treated any less favourably than any other adult in a comparable situation and due regard should be given to the adult's abilities, background and characteristics.

Section 3 - Adults at risk

7.     This section defines 'adults at risk'. These are adults (aged 16 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 adults who are not so affected. 'Harm' is defined in section 53.

Inquiries

Section 4 - Council's duty to make inquiries

8.     This section places a duty on councils to make inquiries about an adult's well-being, property or financial affairs in certain circumstances. These circumstances are where the person falls within the definition of an adult at risk, and the council knows or believes it may have to intervene in order to protect the adult's well-being, property or financial affairs.

Section 5 - Co-operation

9.     This section addresses the requirement for public bodies to co-operate with the council and each other, where harm is known or suspected.

10.     Subsection (1) lists the public bodies as the Mental Welfare Commission for Scotland, the Scottish Commission for the Regulation of Care (the Care Commission), the Public Guardian, all councils, chief constables of police forces and the relevant Health Board. It also gives Scottish Ministers power to prescribe other public bodies or office-holders in regulations.

11.     Subsection (2) requires these public bodies to co-operate both with each other and with the council making inquiries where this is likely to assist the council to make inquiries in accordance with the duty described in section 4 above. The duty to co-operate is subject to any other functions the bodies may have.

12.      If one of the public bodies listed above knows or believes an adult is at risk from harm and believes action is required to protect that person from harm, then subsection (3) requires them to report the facts and circumstances to the council for the area in which it considers the person to be.

Section 6 - Duty to consider importance of providing advocacy and other services

13.      This section applies where, after making inquiries under section 4, a council considers that it needs to intervene in order to protect an adult at risk from harm. It requires the council to have regard to the importance of the provision of appropriate services (including, in particular, independent advocacy services) to the adult concerned.

Investigations

Section 7 - Visits

14.     This section enables relevant council officers, as defined in section 53, to enter premises to make the necessary investigations which will establish whether or not further action is needed to protect an adult at risk from harm.

Section 8 - Interviews

15.     This section permits a council officer and anyone accompanying the officer to interview an adult in private within the place being visited under section 7. This right exists regardless of whether or not the sheriff has granted an assessment order. In circumstances where it is not practicable to carry out a private interview in the place of the visit and the council officer requires to take the person to other premises, an assessment order must be obtained from a sheriff (see section 11, Assessment Orders). Subsection (2) states that an adult interviewed under this section is not required to answer any question and the adult must be informed of this fact before the interview starts.

Section 9 - Medical examinations

16.     This section allows a health professional, as defined in section 52(2), to conduct a private medical examination of the adult at risk in the place being visited under section 7. Where an assessment order is obtained (see section 11, Assessment Orders), the person may be taken to another place for a medical examination. This may be necessary if, for example, a health professional is not present during the initial visit, or where it is not practicable to conduct a private medical examination. Whether action is taken under this section or in pursuance of an assessment order, the adult at risk must be informed of his or her right to refuse to be examined before the examination is carried out. A health professional is defined in section 52(2) as a doctor, a nurse, a midwife or any other suitably qualified individual described, by reference to appropriate skills, qualifications and experience, in an order made by the Scottish Ministers.

Section 10 - Examination of records

17.      This section gives council officers the right to require those holding health, financial or any other records relating to an adult known or believed to be at risk to produce them for inspection, either at the time of the visit or subsequently, if this is required to establish whether further action is required to protect that adult from harm. Records may be examined by the council officer or an appropriate person, but health records can only be inspected by a health professional (as defined in section 52(2)).

Assessment orders

Section 11 - Assessment orders

18.     This section allows a council to make an application to a sheriff for an assessment order to allow a council officer to conduct a private interview or a health professional to conduct a private medical examination. Such orders will be valid for up to 7 days. An assessment order would only be necessary where it was not possible to carry out a private interview or medical examination within the place being visited under section 7 (see section 13). Applications can only be made where this action is required to establish whether the person is an adult at risk, and if so, to establish whether further action is required to protect them from harm.

Section 12 - Criteria for granting assessment orders

19.     This section prescribes the circumstances in which a sheriff may grant an assessment order. The sheriff must be satisfied that the council has reasonable cause to suspect the subject of the order is an adult at risk who is being, or is likely to be, seriously harmed and that an order is necessary to establish this. He or she must also be satisfied as to the availability and suitability of the place at which the person is to be interviewed and examined.

Section 13 - Restriction on exercise of assessment order

20.     This section states that an assessment order must only be used in those circumstances where it is not possible for the adult at risk to either be interviewed or medically examined during the course of a visit.

Removal orders

Section 14 - Removal orders

21.     This section deals with applications to the sheriff for removal orders, which allow the removal of an adult at risk to a specified place. Such orders are effective for a maximum period of 7 days. The council can also take such steps during that period as the council thinks reasonable in order to prevent the adult from suffering harm. The application for the removal order must be made by the council, but the council may choose to nominate another person (e.g. someone from one of the co-operating public bodies) to actually move the adult at risk. This may be important if, for example, the nominated person is more familiar to the adult at risk concerned than the council officer. The removal must be made within 72 hours of the order being made.

Section 15 - Criteria for granting removal order

22.     This section specifies that a sheriff may only grant a removal order if satisfied that the person for whom the order is sought is an adult at risk and that person is likely to be seriously harmed if he or she is not moved. In addition, the sheriff must be satisfied that the place to which the adult at risk is to be moved, in pursuance of the order, is available and suitable.

23.     Subsection (2) allows the sheriff to specify in the removal order whether a named individual can have contact with the adult at risk during the period of the removal order, and whether this should be subject to specified conditions. Before including such requirements, subsection (3) states that the sheriff must have regard to representations from the council and any relevant representations from the subject of the order (the adult at risk), anyone who wishes to have contact with the adult at risk or any other person who has an interest in the adult at risk's well-being or property.

24.     However, a sheriff can decide to disapply the provisions contained within subsection (3) in relation to representations if he or she can be satisfied that doing so will protect an adult at risk from serious harm or will not prejudice any person affected by the disapplication (see section 41(2), Applications: procedure).

Section 16 - Right to move adult at risk

25.     This section gives the council officer the right to enter any place to remove a person from that place in accordance with a removal order.

Section 17 - Variation or recall of removal order

26.     This section allows the sheriff to vary or recall a removal order. Applications for variation or recall can only be made by the subject of the removal order, or anyone claiming an interest in his or her well-being or property, or by the council. Variation or recall can only be done where the sheriff is satisfied that the circumstances in respect of which the removal order (or subsequent variation order) was granted have changed. However, the variation cannot permit the council to do anything beyond 7 days after the adult is first moved. Where an order is recalled, the sheriff can direct the council to return the person to the place he or she was removed from, or to any other place which the sheriff, having considered the adult's wishes, may specify.

Section 18 - Protection of moved person's property

27.     This section requires a council which has secured a removal order in respect of an adult at risk to take reasonable steps to prevent any property owned or controlled by the removed person being lost or damaged for the duration of the removal order, where no other arrangements to protect such property have been, or are being, made. A council officer may enter any place where the council believes that property belonging to the adult at risk is contained in order to carry out his or her duty under this section. A council which moves property must return any property to the adult concerned as soon as is reasonably practicable after the removal order ceases to have effect. The council is not entitled to recover expenses incurred. "Property owned or controlled" can include pets.

Banning orders

Section 19 - Banning orders

28.     This section deals with applications to the sheriff for banning orders, which specify the place from which, and the length of time for which, a person is banned. The specified place may, for example, be the adult at risk's home or place of residence.

29.     Subsection (2) enables a banning order to ban the subject from the vicinity of the specified place, permit the summary ejection of the subject from the specified place or its vicinity, and prohibit the subject from moving anything set out in the order from the place. The banning order may also direct any specified person to take measures to preserve the moveable property of the subject which remains in the premises during the order. The subsection also gives the sheriff flexibility to specify other conditions, or to place requirements on individuals to allow proper enforcement of the order.

30.     Subsection (3) permits the inclusion of conditions within a banning order which allow the subject of a banning order, under certain specified circumstances, to be in the place from which he or she is banned. Examples of such circumstances are when the subject is being supervised by another person (e.g. a council officer) or during specified times only. Subsection (4) states that before including this type of condition within a banning order, the sheriff must have regard to the views of the applicant of the order, the adult at risk, the subject of the order and any other person with an interest in the adult at risk's well-being or property.

31.     However, a sheriff can decide to disapply the provisions contained within subsection (4) in relation to representations if he or she can be satisfied that doing so will protect an adult at risk from serious harm and will not prejudice any person affected by the disapplication (see section 41(2), Applications: procedure).

32.     The sheriff has the power to attach a power of arrest to any banning order (see section 25). Subsection (5) states that the period of the banning order may not exceed 6 months.

Section 20 - Criteria for granting banning order

33.     This section specifies that a sheriff may only grant a banning order where satisfied that an adult at risk is likely to be seriously harmed, and that banning the other person from a place occupied by the adult (for example, their home or place of residence) would better safeguard the adult's well-being and property than the removal of the adult at risk. In addition, the sheriff must also be satisfied that the adult at risk is entitled, or permitted, to occupy the place from which the subject is to be banned or, alternatively, that neither the adult at risk nor the subject is so entitled or permitted. This means that a person who is entitled to occupy a place cannot be banned from that place by someone who is not so entitled.

Section 21 - Temporary banning orders

34.     This allows for temporary banning orders to be granted by a sheriff pending determination of a banning order. Temporary orders may include any of the provisions contained in a banning order. If a temporary banning order is granted, the sheriff must grant or refuse the full banning order within a time limit to be fixed in court rules. The expiry of a temporary banning order will be the earliest of: the date specified at the time of granting; the date the order is recalled; the date on which the sheriff determines the banning order or the date by which the sheriff is required to determine the banning order by virtue of court rules.

Section 22 - Right to apply for banning order

35.     This section limits those who are able to apply for a banning order to particular persons. These are the adult at risk, any other person entitled to occupy the property from which the subject would be banned, or the council. These persons are also entitled to apply for a temporary banning order in respect of the same case. An application can also be made by those who are acting on behalf of those listed above.

36.     The council can only apply for a banning order under certain circumstances. Where a council applies, it must be satisfied that an adult at risk is being, or is likely to be, seriously harmed by another person and that the adult would be more effectively safeguarded by banning the subject of the order than being removed themselves.

37.     In addition, the council must be satisfied that no other person is likely to apply for a banning order and no other proceedings are before a court to eject or exclude the subject of the order from the place concerned. Where so satisfied, a council must apply for a banning order.

Section 23 - Banning orders: occupancy rights of adult at risk

38. The granting of a banning or temporary banning order does not affect the adult at risk's rights, as a non-entitled spouse, to occupy a home within the place from where the subject of the order is banned under the Matrimonial Homes (Family Protection)(Scotland) Act 1981.

Section 24 - Variation or recall of banning order

39. This section allows the sheriff to vary or recall a banning order or temporary banning order, but only if he or she is satisfied that there has been a change in the facts or circumstances in respect of which the banning order was made or last varied.

40. An application for variation or recall can only be made by the banned person, the person who originally applied for the order, the adult who is being protected by the order, or any other person claiming an interest in the well-being or property of the adult at risk. An application can also be made by those who are acting on behalf of those listed above.

Section 25 - Powers of arrest

41. This section allows a sheriff to attach a power of arrest to any banning order or temporary banning order. The power of arrest becomes effective only when served on the subject of the order and it will expire at the same time as the order.

Section 26 - Notification to adult at risk etc.

42. Where the applicant seeking a banning order or temporary banning order (or its variation or recall) is not the adult at risk, this section imposes a duty on the applicant, or such other person who may be specified, to notify the adult at risk of the order by delivering a copy of the order (and any power of arrest attached) to the adult or any other person with an interest in the adult's well-being or property. Failure to deliver the order does not, however, invalidate it.

Section 27 - Notification to police

43. This section states that the police, via the chief constable, must be notified as soon as possible after any power of arrest attached to a banning order or temporary banning order becomes effective. This should be done by the applicant for the order (or another prescribed person e.g. sheriff officers). The police must also be notified in the event of a variation or recall of a banning order.

Section 28 - Arrest for breach of banning order

44. Subsection (1) sets out the two-step test that must be satisfied if a police constable is to carry out an arrest. The subject of a banning order or temporary banning order, to which a power of arrest is attached, may be arrested without warrant if a constable reasonably suspects the subject to be in breach of the order and that he or she is likely to breach the order again if not arrested. Subsection (2) states that the arrested person must be told immediately the reason for the arrest and then taken by the constable to a police station as soon as is reasonably possible.