The general principle on intervention in an adult’s affairs is that a person may intervene, or authorise an intervention, only if satisfied that the intervention—
(a) will provide benefit to the adult which could not reasonably be provided without intervening in the adult’s affairs, and
(b) is, of the range of options likely to fulfil the object of the intervention, the least restrictive to the adult’s freedom.
This section applies for the purposes of section 2 only.
A public body or office-holder performing a function under this Part in relation to an adult must, if relevant, have regard to—
(a) the general principle on intervention in an adult’s affairs,
(b) the adult’s ascertainable wishes and feelings (past and present),
(c) any views of—
(i) the adult’s nearest relative,
(ii) any primary carer, guardian or attorney of the adult, and
(iii) any other person who has an interest in the adult’s well-being or property,
which are known to the public body or office-holder,
(d) the importance of—
(i) the adult participating as fully as possible in the performance of the function, and
(ii) providing the adult with such information and support as is necessary to enable the adult to so participate,
(e) the importance of ensuring that the adult is not, without justification, treated less favourably than the way in which any other adult (not being an adult at risk) might be treated in a comparable situation, and
(f) the adult’s abilities, background and characteristics (including the adult’s age, sex, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage).
(1) “Adults at risk” are adults who—
(a) are unable to safeguard their own well-being, property, rights or other interests,
(b) are at risk of harm, and
(c) 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.
(2) An adult is at risk of harm for the purposes of subsection (1) if—
(a) another person’s conduct is causing (or is likely to cause) the adult to be harmed, or
(b) the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm.
A council must make inquiries about a person’s well-being, property or financial affairs if it knows or believes—
(a) that the person is an adult at risk, and
(b) that it might need to intervene (by performing functions under this Part or otherwise) in order to protect the person’s well-being, property or financial affairs.
(1) This section applies to—
(a) the Mental Welfare Commission for Scotland,
(b) the Care Commission,
(c) the Public Guardian,
(d) all councils,
(e) chief constables of police forces,
(f) the relevant Health Board, and
(g) any other public body or office-holder as the Scottish Ministers may by order specify.
(2) The public bodies and office-holders to which this section applies must, so far as consistent with the proper exercise of their functions, co-operate with—
(a) a council making inquiries under section 4, and
(b) each other,
where such co-operation is likely to enable or assist the council making those inquiries.
(3) Where a public body or office-holder to which this section applies knows or believes—
(a) that a person is an adult at risk, and
(b) that action needs to be taken (under this Part or otherwise) in order to protect that person from harm,
the public body or office-holder must report the facts and circumstances of the case to the council for the area in which it considers the person to be.
(1) 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.
(2) Where this section applies, the council must have regard to the importance of the provision of appropriate services (including, in particular, independent advocacy services) to the adult concerned.
(3) “Independent advocacy services” has the same meaning in subsection (2) as it has in section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).
(1) A council officer may enter any place for the purpose of enabling or assisting a council conducting inquiries under section 4 to decide whether it needs to do anything (by performing functions under this Part or otherwise) in order to protect an adult at risk from harm.
(2) A right to enter any place under subsection (1) includes a right to enter any adjacent place for the same purpose.
(1) A council officer, and any person accompanying the officer, may interview, in private, any adult found in a place being visited under section 7.
(2) An adult interviewed under this section is not required to answer any question (and the adult must be informed of that fact before the interview starts).
(3) The power given by subsection (1) applies regardless of whether the sheriff has granted an assessment order authorising the council officer to take the person to another place to allow an interview to be conducted.
(1) Where—
(a) a council officer finds a person whom the officer knows or believes to be an adult at risk in a place being visited under section 7, and
(b) the officer, or any person accompanying the officer, is a health professional,
that health professional may conduct a private medical examination of the person.
(2) A person must be informed of the right to refuse to be examined before a medical examination is carried out (whether under this section or in pursuance of an assessment order).
(3) The power given by subsection (1) applies regardless of whether the sheriff has granted an assessment order authorising the council officer to take the person to another place to allow a medical examination to be conducted.
(1) A council officer may require any person holding health, financial or other records relating to an individual whom the officer knows or believes to be an adult at risk to give the records, or copies of them, to the officer.
(2) Such a requirement may be made during a visit or at any other time.
(3) Requirements made at such other times must be made in writing.
(4) Records given to a council officer in pursuance of such a requirement may be inspected by—
(a) the officer, and
(b) any other person whom the officer, having regard to the content of the records, considers appropriate,
for the purposes of enabling or assisting the council to decide whether it needs to do anything (by performing functions under this Part or otherwise) in order to protect an adult at risk from harm.
(5) Nothing in this section authorises a person who is not a health professional to inspect health records (other than to determine whether they are health records).
(6) A requirement under subsection (1) which is transmitted by electronic means is to be treated as being in writing if it is received in legible form and capable of being used for subsequent reference.
(7) “Health records” are records relating to an individual’s physical or mental health which have been made by or on behalf of a health professional in connection with the care of the individual.
(1) A council may apply to the sheriff for an order (“an assessment order”) which authorises a council officer to take a specified person from a place being visited under section 7 in order to allow—
(a) a council officer, or any council nominee, to interview the specified person in private, and
(b) a health professional nominated by the council to conduct a private medical examination of the specified person,
for the purposes set out in subsection (2).
(2) Those purposes are to enable or assist the council to decide—
(a) whether the person is an adult at risk, and
(b) if it decides that the person is an adult at risk, whether it needs to do anything (by performing functions under this Part or otherwise) in order to protect the person from harm.
(3) An assessment order—
(a) is valid from the date specified in the order, and
(b) expires 7 days after that date.
The sheriff may grant an assessment order only if satisfied—
(a) that the council has reasonable cause to suspect that the person in respect of whom the order is sought is an adult at risk who is being, or is likely to be, seriously harmed,
(b) that the assessment order is required in order to establish whether the person is an adult at risk who is being, or is likely to be, seriously harmed, and
(c) as to the availability and suitability of the place at which the person is to be interviewed and examined.
A person may be taken from a place in pursuance of an assessment order only if it is not practicable (due to a lack of privacy or otherwise) to—
(a) interview the person under section 8, or
(b) conduct a medical examination of the person under section 9,
during a visit under section 7.
(1) A council may apply to the sheriff for an order (“a removal order”) which authorises—
(a) a council officer, or any council nominee, to move a specified person to a specified place within 72 hours of the order being made, and
(b) the council to take such reasonable steps as it thinks fit for the purpose of protecting the moved person from harm.
(2) A removal order expires 7 days (or such shorter period as may be specified in the order) after the day on which the specified person is moved in pursuance of the order.
(1) The sheriff may grant a removal order only if satisfied—
(a) that the person in respect of whom the order is sought is an adult at risk who is likely to be seriously harmed if not moved to another place, and
(b) as to the availability and suitability of the place to which the adult at risk is to be moved.
(2) A removal order may require a council to allow any specified person to have contact with the adult at risk to whom the order relates—
(a) at any specified time during which the order has effect, and
(b) in accordance with any specified conditions.
(3) But the sheriff must, before including such a requirement, have regard to—
(a) any representations made by the council as to whether persons should be allowed to have contact with the adult at risk, and
(b) any relevant representations made by—
(i) the adult at risk,
(ii) any person who wishes to be able to have contact with the adult at risk, and
(iii) any other person who has an interest in the adult at risk’s well-being or property.
(1) A council officer may enter any place in order to move an adult at risk from the place in pursuance of a removal order.
(2) A right to enter any place under subsection (1) includes a right to enter any adjacent place for the same purpose.
(1) The sheriff may vary or recall a removal order if satisfied that the variation or recall is justified by a change in the facts or circumstances in respect of which the order was granted or, as the case may be, last varied.
(2) A removal order may not be varied so as to authorise the council to do anything after the day which falls 7 days after the day on which the adult at risk to whom the order relates is moved in pursuance of the order.
(3) Where an adult at risk has been moved from any place in pursuance of a removal order which is recalled, the sheriff may direct the council to—
(a) return the adult to that place, or
(b) take the adult to any other place which the sheriff, having regard to the adult’s wishes, may specify.
(4) A removal order may be varied or recalled only on the application of—
(a) the adult at risk to whom the order relates,
(b) any person who has an interest in the adult at risk’s well-being or property, or
(c) the council.
(1) The council must take reasonable steps to prevent any property owned or controlled by a person moved in pursuance of a removal order from being lost or damaged because—
(a) the moved person is unable to protect, care for or otherwise deal with it, and
(b) no other suitable arrangements have been or are being made for the purposes of preventing such loss or damage.
(2) A council officer may enter any place which the council knows or believes to contain any property in respect of which it has a duty under subsection (1) in order to enable or assist the council to perform that duty.
(3) A right to enter any place under subsection (2) includes a right to enter any adjacent place for the same purpose.
(4) A council officer who finds any property in respect of which the council has a duty under subsection (1) may do anything which the officer considers reasonably necessary in order to prevent the property from being lost or damaged (and may, in particular, move the property to another place).
(5) The council is not entitled to recover from a moved person any expenses it incurs in performing functions under this section in relation to property owned or controlled by that person.
(6) The duty imposed by subsection (1) applies only while the removal order concerned has effect.
(7) A council which moves any property in pursuance of the duty imposed by subsection (1) must, as soon as is reasonably practicable after the removal order concerned ceases to have effect, return the property to the adult concerned.
(1) A banning order is an order granted by the sheriff which bans the subject of the order (“the subject”) from being in a specified place.
(2) A banning order may also—
(a) ban the subject from being in a specified area in the vicinity of the specified place,
(b) authorise the summary ejection of the subject from the specified place and the specified area,
(c) prohibit the subject from moving any specified thing from the specified place,
(d) direct any specified person to take specified measures to preserve any moveable property owned or controlled by the subject which remains in the specified place while the order has effect,
(e) be made subject to any specified conditions,
(f) require or authorise any person to do, or to refrain from doing, anything else which the sheriff thinks necessary for the proper enforcement of the order.
(3) A condition specified in a banning order may, in particular, authorise the subject to be in the place or area from which the subject is banned in specified circumstances (for example, while being supervised by another person or during specified times).
(4) The sheriff must, before including a condition of the type mentioned in subsection (3), have regard to any relevant representations made by—
(a) the applicant for the order,
(b) the adult at risk,
(c) any other person who has an interest in the adult at risk’s well-being or property, and
(d) the subject.
(5) A banning order expires on the earliest of the following dates—
(a) any specified expiry date,
(b) if the banning order is recalled, the date on which it is recalled,
(c) the date which falls 6 months after the date on which it is granted.
The sheriff may grant a banning order only if satisfied—
(a) that an adult at risk is being, or is likely to be, seriously harmed by another person,
(b) that the adult at risk’s well-being or property would be better safeguarded by banning that other person from a place occupied by the adult than it would be by moving the adult from that place, and
(c) that either—
(i) the adult at risk is entitled, or permitted by a third party, or
(ii) neither the adult at risk nor the subject is entitled, or permitted by a third party,
to occupy the place from which the subject is to be banned.
(1) The sheriff may grant a temporary banning order pending determination of an application for a banning order.
(2) A temporary banning order may include any provision which may be included in a banning order.
(3) Where a temporary banning order is granted, the sheriff must determine the related application for a banning order within such period as may be specified in rules made under section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58).
(4) A temporary banning order expires on the earliest of the following dates—
(a) the date on which the sheriff determines the related application for a banning order,
(b) the date by which subsection (3) requires the sheriff to determine the related application for a banning order,
(c) if the temporary banning order is recalled, the date on which it is recalled,
(d) any specified expiry date.
(1) An application for a banning order may be made only by or on behalf of—
(a) an adult whose well-being or property would be safeguarded by the order,
(b) any other person who is entitled to occupy the place concerned, or
(c) where subsection (2) applies, the council.
(2) The council must apply for a banning order if it is satisfied—
(a) as to the matters set out in section 20,
(b) that nobody else is likely to apply for a banning order in respect of the circumstances which caused the council to be satisfied as to those matters, and
(c) that no other proceedings (under this Part or otherwise) to eject or ban the person concerned from the place concerned are depending before a court.
(3) An applicant for a banning order may also apply for a temporary banning order in respect of the same case.
The granting of a banning order or a temporary banning order does not affect any right the adult at risk has by virtue of being a non-entitled spouse to occupy a home within the place from which the subject is banned under section 1(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c. 59).
(1) The sheriff may vary or recall—
(a) a banning order, or
(b) a temporary banning order,
if satisfied that the variation or recall is justified by a change in the facts or circumstances in respect of which the order was granted or, as the case may be, last varied.
(2) A variation may not vary the date on which the order expires—
(a) in the case of a banning order, beyond the date which is 6 months after the date on which the order was granted,
(b) in the case of a temporary banning order, beyond the date by which section 21(3) requires the sheriff to determine the related application for a banning order.
(3) An order may be so varied or recalled only on an application by or on behalf of—
(a) the subject of the order,
(b) the applicant for the order,
(c) the adult at risk to whom the order relates,
(d) any other person who has an interest in the adult at risk’s well-being or property.
(1) The sheriff may attach a power of arrest to any—
(a) banning order, or
(b) temporary banning order.
(2) Any such power of arrest—
(a) becomes effective when it is served (together with such documents as may be prescribed) on the subject of the order, and
(b) expires together with the order to which it is attached.
(1) This section applies where the sheriff—
(a) grants a banning order or temporary banning order, or
(b) varies or recalls such an order,
on the application of a person other than the adult whose well-being or property is safeguarded by the order.
(2) Where this section applies, the applicant (or such other person as may be prescribed) must deliver the document mentioned in subsection (3) to—
(a) the adult whose well-being or property is safeguarded by the order, and
(b) any other person with an interest in that adult’s well-being or property as the sheriff may specify.
(3) The document which is to be delivered under subsection (2) is a copy of—
(a) the order (and any power of arrest attached),
(b) the varied order, or, as the case may be,
(c) the order of recall.
(4) Failure to comply with subsection (2) does not invalidate the order, variation or recall concerned.
(1) The applicant for a banning order or temporary banning order (or such other person as may be prescribed) must, as soon as possible after any power of arrest attached to the order becomes effective, deliver to the chief constable—
(a) a copy of the order (with the power of arrest attached), and
(b) such other documents as may be prescribed.
(2) Where a banning order or temporary banning order is varied or recalled, the applicant for the variation or recall (or such other person as may be prescribed) must, as soon as possible after the variation or recall, deliver to the chief constable—
(a) a copy of the varied order or, as the case may be, a note of the recall, and
(b) such other documents as may be prescribed.
(3) In this section, “chief constable” means the chief constable of the police force maintained for the area in which the place specified in the order concerned is situated.
(1) A constable may arrest without warrant the subject of any banning order, or temporary banning order, to which a power of arrest is attached if the constable—
(a) reasonably suspects the subject to be breaching, or to have breached, the order, and
(b) considers that there would, if the subject were not arrested, be a risk of the subject breaching the order again.
(2) The constable must—
(a) immediately inform the arrested person of the reason for the arrest, and
(b) take the arrested person as quickly as is reasonably practicable to a police station.
(1) The officer in charge of a police station to which any person arrested under section 28 is taken (“the officer in charge”) must detain the arrested person in custody until the person is—
(a) accused on petition or charged on complaint with an offence in respect of the facts and circumstances which gave rise to the arrest, or
(b) brought before the sheriff under section 32.
(2) The officer in charge must ensure that the facts and circumstances which gave rise to the arrest are reported to the fiscal as soon as is practicable.
(1) Where a person is detained under section 29, the officer in charge must ensure that the detained person is informed immediately of—
(a) the right to have, on request, intimation of the detention and of the place of detention given, without delay, to—
(i) a solicitor, and
(ii) one other person reasonably named by the person,
(b) the right to have, on request, intimation given to a solicitor that the solicitor’s professional assistance is required,
(c) the right to have, on request, the solicitor informed, as soon as the information is available, of the court to which the person is to be taken and the date when that is to happen, and
(d) the right to have, on request, a private interview with the solicitor before any appearance before the sheriff under section 32.
(2) Where the officer in charge knows or believes that a person detained under section 29 is a child, the officer must, where practicable, give intimation, without delay, of the detention and of the place of detention to any person known to have parental responsibilities and rights in relation to the detained person.
(3) Any person to whom intimation is given under subsection (2) must be permitted reasonable access to the detained person.
The officer in charge must ensure that the following matters are recorded in connection with the detention of a person under section 29—
(a) the time at which the person was arrested,
(b) the police station to which the person was taken,
(c) the time when the person arrived at that police station,
(d) the address of any other place to which the person is, during the detention, taken,
(e) the time when the person was informed of the rights set out in section 30(1),
(f) the time and nature of any request made by the person to exercise any of those rights, and
(g) the time and nature of any action taken by a police officer under section 30.