(Revised July 2013)
All adults have the right to be safe, secure and protected from all forms of abuse, neglect and exploitation, wherever they choose to live. It is recognised that some adults may be at risk and may need support through these procedures to ensure their rights are maintained and they are appropriately supported and protected. The partner agencies promote the principles that when meeting the needs of adults requiring support and protection, the emphasis will be placed, wherever possible, upon the prevention of abuse and that as adults, people have the right to be as involved as possible in any decisions made concerning them. It is the professional duty of all health, social care and voluntary sector staff to report any concerns they may have relating to the possible or suspected abuse or neglect of any adult.
The Committee is chaired by an Independent Convener and Members are:
This policy and procedure is aimed at all staff in all the agencies that are part of the local area Adult Protection Committee. These include Local Authority staff, NHS staff, Police and voluntary sector staff including volunteers working under the umbrella of one of the member organisations. It is also available to anyone who might be working with adults in the community, people using any health or social care services or arranging their own care, family members, paid and unpaid carers, and anyone else with an interest in protecting adults from harm, as a source of information.
Most adults with mental or physical health issues, physical or learning disabilities, or other special needs live comfortably and securely, either independently or with assistance from caring relatives, friends, neighbours, professionals and volunteers. Development of person centred services to adults has created a more enlightened and empowering climate which offers service users choice and participation in making decisions about their own lives. This has resulted in people being supported in a variety of settings within the community, increasing use of personal carers and an expansion of the scope of responsibility of care staff. This involves an increase in complexity as the venues in which people are cared for become more varied. Safeguarding adults who may at certain times or due to certain circumstances be vulnerable, has high priority and places legal obligations on the parties to this policy but the key to ensuring that these individuals are appropriately supported and cared for lies with the empowerment of the individual and their carers, a knowledge of what can be expected, a knowledge of their own individual rights, and access to a responsive complaints and advocacy service.
These guidelines have tried to be mindful of the complexities which surround adult protection and while it is not possible to cover all the eventualities it is hoped that they will be an effective guide for those working in the field of health and social care. This document should be read in conjunction with other appropriate legislation and associated local policies and procedures, particularly those that relate to the Adults with Incapacity (Scotland) Act 2000, Mental Health (Care and Treatment) (Scotland) Act 2003, the Psychiatric Emergency Plan, and local multi agency Child Protection Procedures and relevant legislation. Practitioners carrying out functions under the Act should also consult the Scottish Government Codes of Practice for the application of the Adult Support and Protection (Scotland) Act 2007 and the legislation itself, which gives more detailed guidance.
The aims of this document, and the multi-agency agreement that it represents are:
The objectives of the document are:
The following values should inform and guide the application of these adult support and protection procedures:
These procedures are also based on the expectation that all adults are entitled to:
In addition, agencies should comply with the following practice standards, they should:
Although specific pieces of legislation and national guidance lead to the creation of separate services, policies and frameworks for specific service user groups or types of incident, the local Adult Protection Committee is keen to recognise that, in practice, the circumstances of any individual might cross a number of these boundaries. For this reason the local Adult Protection Committee aims to ensure close and effective links with other local protection frameworks.
At the level of Chief Officers Group, there are close links between the local Child and Adult Protection Committees, with a number of Chief Officer level shared members. From 2013, the Adult Support and Protection and Child protection Committees have met together between their separate meetings. There is also a joint Communication and Training subgroup. At an operational level, children’s and adult’s services are co-located, which facilitates the exchange of information in relation to referrals and cases. Staff from either service will also take part in planning meetings; investigations and ongoing case work in the other service as appropriate.
Case that may transition between child and adult protection are discussed on a case by case basis.
The Management of Offenders (Scotland) Act 2005 created provisions for Local Authorities, the Police, the Scottish Prison Services and (in some cases) Health Boards to jointly establish arrangements for the assessment and management of risks posed by certain categories of offenders. This work comes under the heading of MAPPA (Multi-Agency Public Protection Arrangements), and is subject to phased introduction, with the arrangements relating to Registered Sex Offenders already in place. In relevant cases, inter agency risk management plans are formulated, and their implementation is reviewed on a regular basis. There can clearly be instances where the MAPPA arrangements apply in an Adult Support and Protection case. The Principal Social Worker Adult Services and the Service Manager, Criminal Justice provide links between the two sets of procedures as appropriate on a case by case basis.
The provision of good quality, secure and appropriate housing is an important aspect of supporting people to live safely in the community. Housing Services provide housing for general and particular needs and provide various services to assist in the protection of vulnerable service users. These include adaptations and equipment to allow someone to live independently or to allow them to remain in their own home. In addition equipment such as CCTV may be used to assist in the protection of people from abuse where that abuse is perpetrated by someone from out with their home. A range of strategies and protocols underpin housing provision many of which link closely to adult protection procedures. These include the Local Housing Strategy, the Homelessness Strategy, Older Person’s Housing Strategy and Young Person’s Housing Strategy. In addition, Housing Services work closely with a range of partner agencies to ensure that supported accommodation is available for various groups within society. This includes young person’s supported accommodation projects and supported accommodation for those seeking to tackle drug or alcohol problems. This range of supported accommodation projects may provide both physical safety, community safety and/or the means for that household to feel secure. The range of processes available link closely to adult protection procedures and Housing Services work closely with other departments and agencies to ensure a joined up approach.
There are close links between domestic abuse and adult support and protection. Locally, links are made at a strategic level through the Principal Social Worker, Adult Services attendance at the quarterly Domestic Abuse Forum Meetings. There is also joint working in relation to training development as and when appropriate. At an operational level, information in relation to referrals and cases will be exchanged on a case by case basis as appropriate. Staff across services, including staff from Women’s Aid Orkney, will also take part in planning meetings, investigations and ongoing case work as required.
Abuse is an emotive term and can be subject to wide interpretation. The starting point for a definition is the following statement: Abuse is a violation of an individual’s human and civil rights by any other person or persons.
Abuse has also been defined as:
The wrongful application of power by someone in a dominant position. Whether abuse occurs in institutions or in the home, it involves the elements of a power imbalance, exploitation and the absence of full consent. It also involves acts of omission and commission.
These procedures apply to adult protection action in respect of adults who may be at risk of abuse. All adults could be considered potentially vulnerable from time to time but this guidance focuses on those who for reason of ill health, disability, frailty or special circumstances depend on others to provide and promote their well-being and/or protection, within the remit of the Adult Support and Protection (Scotland) Act 2007. The legislation refers throughout to ‘harm’ and protecting adults from harm, rather than the term ‘abuse’. Part One of the Act sets out measures to identify, and to provide support and protection for those individuals who fall into the category of adults at risk of harm.
The Act was intended to work alongside:
The Act came into force on 29th October 2008. You can find the legislation in full on the following web address: http://www.legislation.gov.uk/asp/2007/10/contents
Any public body or office holder authorising, or carrying out any intervention or function in relation to the Act must take account of the underpinning principles.
This includes any care service or health service provider. The first part of the principles requires that any intervention in the adult’s affairs should:
The next part of the principles requires any public body or office holder performing a function or making a decision under the Act to have regard for:
The principles of the Act apply to any public body or office holder authorising any intervention or carrying out a function under the Act in relation to an adult. For example, they apply to any social worker, care provider or health professional intervening or performing a function under the Act. The following persons are not bound by the principles of the Adult Support and Protection (Scotland) Act 2007:
However, guardians appointed under the Adults with Incapacity (Scotland) Act 2000 are obliged to act in line with the principles of that Act. There may be occasions where the circumstances of an adult support and protection case will lead to some or all of the information not being shared with the adult, or their nearest relative, primary carer, guardian, attorney or other interested person. This may occur in relation to areas that are exempted under the Data Protection Act, for example, for reasons of the prevention and detection of crime, and the apprehension or prosecution of offences. Cases of this nature will however be seen as the exception, and consideration will always be given to the principles of the Act.
The Act defines an adult as someone who is 16 years old or older. An adult at risk is defined as an adult who:
All three elements of the definition must be met for action to be taken under the Act. This is often referred to as the three point test. The presence of only one of these factors does not automatically mean that an adult is an ‘adult at risk’. For example, a person could have a disability, physical and/or mental health problem and be able to safeguard their well-being.
The Act makes it clear that an adult is at risk of harm if:
This time, only one of the above conditions needs to be met.
Harm is defined in Section 53 of the Act, which states that harm includes all harmful conduct and, in particular includes:
The definition of harm in the Act sets out the main broad categories of harm that are included. The list in the definition is not exhaustive and no category of harm is excluded simply because it is not explicitly listed. In general terms, behaviours that constitute harm to others can be physical (including neglect), emotional, financial, sexual or a combination of these.
In making an application for any of the protection orders available under the Act it will be necessary to demonstrate that the adult is at risk of ‘serious harm’.
Neither the Act nor the Code of Practice defines ‘serious harm’ apart from the Code noting that what constitutes serious harm will be different for different persons.
In practice, the threshold for ‘serious harm’ will be considered on a case by case basis taking account of the individual circumstances at the time.
Harm can take many forms and in practice categories/types frequently overlap. The following have been identified as the main forms of harm; however, this list is not exhaustive and should be used as a tool in conjunction with professional judgement when considering an individual’s specific circumstances:
Any or all of these types of abuse may be perpetrated either as a result of deliberate targeting of adults at risk or through negligence or ignorance. In some cases it may result from an extreme level of stress experienced informal carer, which may be contributed to by aggressive or violent behaviour by the adult being cared for toward the carer. In these cases a sensitive approach in supporting the carer has to be combined with a determination to deal with the harmful behaviour and prevent it, and placing the protection of the adult at risk at the forefront of intervention.
The Act also covers self-harm, where the adult at risk is engaging in behaviour which is causing (or is likely to cause) self-harm. This is a broad term but will include:
The category of self-harm could also include instances where the conduct of others is considered to be a cause of an adult at risk self-harming. Self-harm is a complex matter and definitions can be contentious. In practice, adult protection referrals that involve self-harm will be looked at on an individual basis. Patterns of Harm Patterns of harm vary and reflect very different dynamics. These include:
The Act identifies that ‘conduct’ includes neglect and other failures to act, which includes actions which are not planned or deliberate, but have harmful consequences. Potential signs of harm Concern over possible adult abuse or neglect can arise in a number of ways. The clearest indicator is a statement or comment by the adult themselves, by their regular carer or by others, disclosing or suggesting abuse or neglect. Such statements must always be taken seriously, whether they relate to a specific incident, a pattern of events or a more general situation.
There are of course many other factors which may indicate abuse or neglect. These may include the following, however this list is not exhaustive, and any of these possible indicators may have a cause unrelated to abuse. It is important to evaluate possible signs in the context of the person and their situation. Possible signs of abuse:
There can be both formal and informal caring arrangements. A carer is someone who, without pay, provides care, help and assistance to someone else who is disabled, frail or unwell, and may be a parent, spouse, other family member, neighbour or friend. Care Staff or care workers are contracted to work by an employer, for example:
Adults at risk may be abused by a wide range of people, including relatives and family members, professional staff, paid care workers, volunteers, other service users, neighbours, friends and associates, people who deliberately exploit vulnerable people and strangers. There is often particular concern when abuse is perpetrated by someone in a position of power or authority who uses his or her position to the detriment of the health, safety, welfare and general well-being of another person. Agencies not only have a responsibility to all adults who have been abused but may also have responsibilities toward agencies/people with whom the perpetrator is employed or works as a volunteer. The roles, powers and duties of the various agencies in relation to the perpetrator will vary depending on whether the latter is a:
Assessment of the environment or context is vital because exploitation, deception, misuse of authority or coercion may render the adult incapable of making his or her own decisions or disclosing harm by others even though they are deemed to have ‘mental capacity’. Harmful behaviour within institutional settings may feature one or more of the following:
A person who has been abused may pursue an action in damages against his or her abuser. He or she may also be able to take proceedings preventing the abuser from acting improperly or contacting him or her further. Criminal injuries compensation may also be available to anyone who has been the victim of a serious violent crime, and it should be noted that such compensation may be available even if there has been no prosecution in respect of the crime in question. A distinction in law is made between those adults who are capable of managing their affairs and those who are not. Until a person is recognised in law as being incapable of managing their affairs or making decisions in their own best interests, no care agency can intervene in a relationship against the adult’s wishes because they deem it to be unsuitable or abusive unless there is evidence of undue pressure on the adult. The statutory powers and duties of any care agency are underpinned by Human Rights legislation and this works both ways so that, as well as protecting an individual’s right to live his or her life peaceably and without fear, an authority must also (within reason) respect the manner in which the individual chooses to live his or her life. Where an individual has the capacity to express their free will, understand the implications of the decisions that they make, retain the memory of the decision, and they are not under undue pressure in that decision making, care agencies can do no more than give information about the services and, where appropriate, help the adult to take up those services/options. They should not try to direct an individual to use these services in a manner that might be regarded as coercive.
It is for the foregoing reason that when approaching the kind of situation where there is the suspicion of abuse of a type which requires to be remedied by legal intervention (civil or criminal) the preliminary issue to be settled in every instance is whether the alleged victim has capacity.
The Act introduces measures to identify and to provide support and protection for those individuals who are at risk of being harmed whether as a result of their own or someone else’s conduct. The measures provided for in the Act include:
The Act introduced a range of protection orders, which are defined in the Act to include:
Decisions about protection orders must reflect the principles of the Act. Protection orders should not be granted without the consent of the adult at risk. However, the sheriff can ignore an adult’s refusal to consent where it is believed the adult has been unduly pressurised to refuse consent, and there are no other steps which could reasonably be taken with the adult’s consent to protect the adult from the harm. Investigating whether an adult is under undue pressure and making a case about this will be up to the Council Officer, taking account of all the information gathered in the case, however the final decision is the Sheriff’s.
A Sheriff must be satisfied that an adult is at risk of serious harm before granting any Protection Order. The Act does not define serious harm. What constitutes serious harm will be different for different persons and will have to be established to the Sheriff’s satisfaction on a case by case basis.
The Sheriff has discretion to appoint a person to safeguard the interests of the adult at risk in any proceedings relating to an application. It may be that the Sheriff will instruct the safe guarder to report on the issue of consent.
The Act also establishes local multi-disciplinary Adult Protection Committees, which oversee the application of the Act in the local area and report directly to the Scottish Government.
The Adults with Incapacity (Scotland) Act 2000 is another very significant piece of legislation in the protection of adults. It enables arrangements to be put in place for decision making for people who are not able to do so for themselves. Until the 2000 Act was passed the law did not address directly the question of how to proceed when faced with the deterioration of an individual’s capacity. Developed over a period in history when the majority life expectancy was much shorter than today and the economic divide was such that few people held assets of a value worth protecting at home, the law comprised what was in recent times recognised as an unsatisfactory mixture of appropriate legislative provisions, expensive curatories and uncertain powers of attorney.
The Adults with Incapacity (Scotland) Act 2000 introduced a more flexible system of providing for care for adults who are incapable, as well as protecting the individual and their assets. It is important to note that the 2000 Act does not simply address the needs of individuals who have capacity but is concerned with incapable adults who are defined as being:
Incapable of acting, making decisions, communicating decisions, understanding decisions or retaining the memory of decisions, by reason of mental disorder or physical disability.
An adult will not fall within this definition if their inability to communicate or understand communications can be ‘made good by human or mechanical aid’. For example, an adult with speech difficulties may have an inability to communicate his/her wishes or desires but if this can be overcome by the use of a computer or other mechanism, he or she will not fall within the terms of the Act. Likewise, where a family member is able to interpret the wishes of an adult who is otherwise incapable of communication the adult will likely not fall within the terms of the Act. Interpretation of wishes via a family member must always be treated carefully and sensitively as it carries with it the potential for the adult’s wishes to be misinterpreted in the interests of the family member, although it is acknowledged that there will only be a limited number of occasions where this would be the case.
Any party with an appropriate interest in the welfare of an individual can make an application to the Court for an Order to maximise the interests and protect the wellbeing of that individual. The Court has broad discretion in hearing evidence and is not limited to considering only evidence proffered by the applicant. The Court has an equal discretion in making any Order and is bound to make its Order not necessarily in accordance with the terms of the application, but rather in accordance with how it sees the best interests of the subject of the application might be served. Any order must endeavour to provide for the minimum intervention necessary as the purpose of the Act is not only to protect the individual but also to allow them as much autonomy in their life as is possible.
It is an offence for any person exercising powers under the Adults with Incapacity (Scotland) Act 2000 relating to the personal welfare of an adult to ill-treat or wilfully neglect that adult.
This Act replaces the Mental Health (Scotland) Act 1984, and deals with the admission, detention, and treatment of persons with mental disorders. The Act also sets up the Mental Health Tribunal for Scotland, which has jurisdiction to hear appeals from persons in respect of Orders granted in respect of them (including Treatment Orders).
Mental Health Officers have the right to apply for a number of Orders in relation to accessing property, and detaining persons for the purpose of medical examination. It also created a range of criminal offences:
It is important to note that this provision is now no longer in place and cannot be used, having been superseded by the Adult Support and Protection (Scotland) Act 2007.
The criminal law in Scotland permits the prosecution of any person accused of a criminal act. In order to decide whether or not a particular circumstance or alleged offence is within the criminal law it is necessary to liaise with the local Police force. If, as a result of any police investigation, sufficient evidence of a crime is found, the police will submit a report to the Procurator Fiscal, who will decide on any subsequent prosecution. The Procurator Fiscal will take into account matters of public interest, the evidence that is available, and the interests of the victim. In some serious cases it may be necessary for the Procurator Fiscal to interview the adult to obtain further information.
All criminal offences that are applicable to adults, who are not vulnerable, are also applicable to adults who are. In addition, there are laws in place which aim to give protection to people who are considered to be vulnerable. They generally relate to the protection of people with a mental disorder from unlawful sexual intercourse and the prevention of ill-treatment or neglect of a person who is under the care of a Guardianship or similar order. The police must be involved in the investigation of any crimes of this nature.
When the victim of a crime is elderly or vulnerable the case may be considered to be aggravated, i.e. more serious, and the intentional targeting of vulnerable people is always viewed as being particularly serious.
In criminal law, regard will always be given to the balance between the inconvenience and upset that a criminal investigation may have on the victim and the public interests served by a prosecution.
The Vulnerable Witnesses (Scotland) Act 2004 sets out a range of special measures for vulnerable adult and child witnesses. These measures are designed to support people to give evidence in difficult circumstances. They include provisions for giving evidence behind a screen and therefore unseen by the public, giving evidence by video link and therefore not in the presence of the accused, giving evidence by prior statement with only examination and cross examination of evidence taking place in Court (which could be behind a screen) and the option of a support person for the witness. Special measures can be used in combination.
When sharing information with an adult during the investigation process it is important that the adult fully understands the nature of the concerns and the choices facing them as best they can. Therefore the adult’s capacity in relation to decision making must be established. Any communication difficulties experienced by the adult through sensory impairment, language or any other factor should be addressed with the assistance of appropriately trained interpreters, or visual or mechanical aids. An inability to communicate an opinion or decision that is the result only of communication difficulties that could be rectified by some means does not constitute incapacity.
An assessment of the adult’s intellectual capacity and level of understanding forms a vital part of the initial interview with the adult in terms of whether the adult is able to give informed consent both to stages within the investigation (such as further interviews or a medical examinations) and to any action proposed to protect the adult including applications for orders.
Capacity should be assessed in relation to the specific activity or issue being considered. It should not be assumed that capacity or lack of capacity in one area, for example, consent to medical treatment, signifies a similar degree of capacity in another area, for example, consent to an intimate relationship. The assessment of capacity needs to determine whether the person:
Discussion of capacity issues should form part of any Planning Meeting convened to plan the investigation. An assessment of capacity may need to be completed involving medical and other relevant professionals. Decisions should not be based on assumptions of capacity that are dependent on assessments undertaken a deal of time ago.
Consideration must be given to the adult’s current capacity and all cases must be considered on their own merit. Consideration must also be given to the principles of the Adults with Incapacity (Scotland) Act 2000 in any intervention in the affairs of an adult without capacity. Disagreements or differences of opinion in relation to an adult’s capacity may occur in this complex area of assessment, in which case the matter must be referred immediately to the adult’s GP, if not already involved, for an assessment of capacity or further onward referral for specialist assessment. Any essential action required to protect the adult should not be delayed as a result of this matter. It will also be necessary to record this clearly.
It is always preferred that any information sharing or action taken under the Act, including making enquiries and investigations, will be done with the consent and involvement of the adult at risk however, this will not always be possible. Various laws protect information. The rights to privacy and seeking consent should always be considered, but various laws also allow information sharing without consent:
These existing laws allow information to be disclosed without consent:
The Adult Support and Protection (Scotland) Act 2007 supports information sharing without consent when it is felt to be necessary in order to protect adults at risk. The Adult Support and Protection (Scotland) Act 2007 says that where a public body (Local authorities, NHS Boards, Police Forces, the Care Commission, the Mental Welfare Commission for Scotland, the Office of the Public Guardian) or office-holder knows or believes that a person is an adult at risk, and that action needs to be taken 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 where the person is.
The same requirement does not apply to people working in voluntary organisations; however information sharing in line with the above is seen by the Scottish Government as a matter of good practice.
The Act also provides for the examination of records and says that a Council Officer may require any person to give her/him health, financial or any other records relating to an individual whom the officer knows or believes to be an adult at risk. Only a health professional can then inspect the health records (other than to determine whether they are health records).
During an Adult Support and Protection investigation a Council Officer should first of all ensure that the adult is seen in a physically and emotionally safe environment. If at all possible, this should not be in the presence of the person alleged to have caused harm to him/her.
The 2007 Act requires that the consent of the adult at risk of harm be obtained to any of the following actions:
The adult must also be advised of their right not to take part in any interview, or part of an interview, assessment or application for an order. The Council Officer should discuss with the individual the immediate situation and explain the possible next steps and potential outcomes. It is important to be clear about what information can be kept confidential from whom, but also what information needs to be discussed and recorded and shared with appropriate other agencies in order to protect the individual.
There are two stages at which the individual’s act of consent (and his/her ability to give such consent) requires to be considered:
Council Officers will be faced with one of the following scenarios:
It is important to bear in mind that a possible further scenario where the adult has been judged to lack capacity but nevertheless is complying with or even appears to ‘consent’ to the proposed action. In this situation consideration has to be given to the rights of the individual and it will be necessary for staff to be able to evidence why a specific action was taken. Where the adult has full capacity and refuses consent this should not automatically be a ‘no further action’ outcome. Further consideration must be given to the circumstances of the case in discussion with relevant others in order to ensure that issues of undue pressure have been considered.
The consent of an adult who is judged to have capacity may in some circumstances be influenced by the fact that they are experiencing coercion or intimidation from the person causing harm or another person. When this situation is believed to apply, all efforts should be made to offer the adult ‘distance’ from the situation in order to minimise the influence of the person causing harm, or others, and to facilitate uncontaminated decision-making. A removal order or banning order may be an appropriate course of action in these circumstances.
Section 35 of the 2007 Act provides that where the adult at risk has refused to consent, the Sheriff in considering making an order, or a person taking action under an order, may ignore the refusal where the Sheriff reasonably believes:
The Code of Practice suggests that the most obvious relationships to assume confidence and trust would be between parent/child, siblings, partnerships and friendships.
The assessment of undue pressure may include the development of the relationship and how the suspected harmful circumstances may have resulted in the affected adult’s refusal to consent.
However Section 35(5) also indicates that ‘undue pressure’ can also be applied by an individual who may or may nor be the person suspected of harming the adult, such as a neighbour, carer or other person. For example, a relative who is not suspected of causing the harm but does not, for whatever reason, wish the Council to apply for an order. Undue pressure may also be applied by a person that the adult is afraid of or who is threatening them and that the adult does not trust. Where the adult is judged capable of making an informed decision and chooses to remain in the harmful situation even after the risks have been fully discussed with him or her, this should be clearly recorded. The process of applying adult protection procedures should continue if the risk of harm is likely to continue and an action plan (or protection plan via a case conference) should be drawn up detailing how continuing support to, and monitoring of, the individual will be achieved even if this has to be done without the involvement of the adult at risk. It is recommended that in these situations the Council Officer will arrange for a full discussion of the situation with the Council’s Legal Section in terms of examining if there is any statutory basis for intervening in such cases. It should also be noted that in some cases, although the adult consents to remaining in the situation of risk, the behaviour causing the risk of harm may constitute an offence, in which case, Northern Constabulary will be required to follow their usual process in relation to the prevention and detection of crime. Further discussion should also be held with the adult around the giving of consent to see if, with the passing of time, his or her position changes.
Where an adult lacks capacity and is refusing consent, consideration may be given to intervening under Adults with Incapacity or mental health legislation before considering action under the 2007 Act under ‘undue pressure’, for example, a warrant under the Mental Health (Care & Treatment) (Scotland) Act 2003. The use of these alternatives will depend on the urgency of the situation in terms of risk to the adult and the timescales involved for other options.
In making any application for an order where the adult lacks capacity it is important to be able to evidence that all possible methods have been utilised to communicate with the adult around maximising decision-making. Reference should be made to the Scottish Government publication ‘Adult with Incapacity (Scotland) Act 2000: A Guide to Communication and Assessing Capacity’.
In general, information sharing, recording and reporting practices locally are underpinned by the requirements of the Data Protection Act. In addition, local practice agreement is further set out in the multi-agency Information Sharing Protocol; however there are a number of practice situations where further guidance and legal provision is appropriate in order to ensure the best services for people who may be in need of protection. The overwhelming majority of professionals from other agencies will recognise the imperative to pass on concerns and relevant information about an adult at risk or subject to harm. However, in some cases Social Work staff may encounter uncertainty on the part of practitioners from other organisations about sharing essential information or referring on allegations or concerns they have obtained through a professional interaction where confidentiality would normally be preserved.
Section 10 of the Adult Support and Protection (Scotland) Act 2007 permits staff accredited as ‘Council Officers’ to request and obtain copies of health, financial and other records relating to an adult known or believed to be at risk if this is required to establish whether further action is necessary to protect that adult from harm. Reference should be made to the Act and accompanying Code of Practice in order to guide staff in making such requests for information.
The adult’s consent should be sought prior to the information being requested from another agency. Where this is not practicable, for reasons of urgency regarding the adult’s safety, because the adult is unable to give consent, or for reasons excluded under the Data Protection Act, wherever possible the adult should be informed about the information sharing.
The principles of the Act also require that the views of the adult, and of significant other people, should as far as possible be taken in account in deciding what information is sought and with whom it is shared, particularly if sharing with a particular person might place the adult at further risk of harm. Practitioners working within the Act are required to have regard to these principles.
The adult’s right to confidentially must also be considered and if practicable discussed with the adult and the agency/professional providing the information however the Code of Practice is clear that this is not an absolute right although the information requested must be proportionate to the purpose for which it is requested. Where the health records of an adult are requested the Act requires that these can only be examined by a health professional, although it is the Council Officer who has the authority under the Act to request the record.
To provide adequate structures there has to be awareness at all levels of the potential need for support in relation to this sensitive area of work. The need for support does not just extend to people who have been subject to harm but can also be relevant to staff, other services users, carers and potentially also the perpetrators of harm.
People who have been subject to harm will require action to ensure their immediate and future safety. There should also be awareness that symptoms and reactions to abuse may be immediate or can be delayed. Therapeutic interventions and/or counselling input may be appropriate. It may also be appropriate to arrange for assertiveness training or awareness raising in relation to sex education or other areas of education relating to personal safety. Adults may also need support and preparation in relation to any Court appearances. Families and carers may also require support including the opportunity to discuss what has occurred and share and acknowledge their feelings. Consideration should be given to counselling input.
Staff who have been involved in identifying or reporting concerns about abuse need opportunities to debrief in a supportive environment. Line managers should arrange group or individual de-brief sessions as appropriate. It may be necessary to consider access to independent counselling services. Staff members against whom an allegation of abuse has been made need access to their professional and legal rights and to be reassured that appropriate procedures will be followed. They should be appointed a support person in relation to any ongoing investigations.
If the assessment has been in relation to an allegation against a staff member and it has been concluded that the allegation is unfounded, it is vital that this information is properly recorded and shared with the relevant agency’s Human Resources/Personnel Section or other relevant manager so that this matter, and its outcome, can be formally recorded in the agency’s employee file. This is done in order to ensure that the staff member’s employment is not adversely affected where it should not be. The agency concerned should also give consideration to arrangements for support for the staff member.
Abuse of one service user may be very distressing to other service users in shared services. Service users may need opportunities to discuss and acknowledged their feelings about what has occurred and reassurance that protective actions have been taken. Staff groups will need to, in consultation with the service manager, devise a support and communications strategy for incidents affecting groups of service users.
Abusers themselves may be in need of support, particularly if the abuse has come about as a result of an overburdened or unsupported caring role, or a lack of knowledge in relation to appropriate care. Consideration should be given to arranging support and respite services and training or education aimed at reducing risks. Independent Advocacy via Advocacy Orkney Individuals may have limited personal power and resources to put across their points of view and express their wishes. This can be particularly the case for people who are vulnerable and dependent on services, or informal carers for their general health, welfare and support needs. People, who have communication difficulties, cannot read or write, or are particularly physically frail may have even more difficulty in exercising their personal choices. In addition, some individuals lack the capacity to make, understand or remember decisions.
If these people do not have well-motivated and capable family, friends or others to speak up for them they may be at risk, they may not have their own views, wishes and feelings taken into account properly, as is their right. They are also often the least likely people to independently exercise their right to make a complaint.
The role of the independent advocate is to ensure that the voice of the adult is heard, and that consultation is evidenced throughout the procedural process. The advocate can enable an adult at risk to express their needs and thoughts and to make these known to those who are making decisions about their care and welfare. Many of those decision-makers are required to take the adult at risk’s views into account and an independent advocate can play a vital part in ensuring that this can be done. The role of an independent advocate is to help an adult at risk understand the options and to convey their views. While it is not the role of the independent advocate to make decisions for the person, they are there to offer support to facilitate the adult at risk’s decision-making. The role of the advocate is therefore important for the facilitation and support to the adult throughout the key steps.
The involvement of independent advocacy does not change the level of responsibility on other professionals involved with the adult at risk. Those professionals are still required to exercise their professional judgement in the adult at risk’s case. Nor does the involvement of advocacy affect an adult at risk’s rights with regard to seeking advice from a solicitor or access to legal aid.
Where abuse is suspected or known, the role of an independent advocacy service should be considered as a matter of good practice at the start of any investigation or procedural process. The Act makes it clear that in any case where intervention is actively taken under the Act, the Council has a duty to consider the provision of independent advocacy.
In addition, the Mental Health (Care and Treatment) (Scotland) Act 2003 states that ‘Every person with a mental disorder shall have the right to access independent advocacy’; and accordingly it is the duty of each local authority, in collaboration with the relevant health board; and Each Health Board, in collaboration with the relevant local authority, to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services.
A mental disorder is defined under the Mental Health (Care and Treatment) (Scotland) Act 2003 as any mental illness; personality disorder; or learning disability, however caused or manifested. It may well be the case that adult for whom an investigation or action is being undertaken under the Adult Support and Protection (Scotland) Act 2007 would also fall within the remit of the Mental Health (Care and Treatment) (Scotland) Act 2003. It is therefore important to consider the involvement of independent advocacy at an early stage in order to ensure that access to rights is promoted for adults.
The role of advocacy may be in relation to the victim but could also be in relation to the suspected perpetrator of the harm. Where an independent advocate is in place in relation to these procedures, that advocate will be invited to all formal meetings in relation to the adult for whom they are advocating. In instances where an advocate suspects or becomes aware of abuse in the course of their work, they will make an appropriate referral in line with these procedures. The referral protocol for Advocacy Orkney is attached as at appendix two.
In addition to the role of independent advocacy, as set out in the Act, there is an expectation and, where there has been an intervention under the Act, a duty, on statutory services to consider the provision of other appropriate support services for the adult. This might be support in the form of advice, guidance, direct care, support for carers, support for victims of crime or witnesses of crime, counselling services or a range of other services. Practitioners must be mindful of these avenues of support when following these procedures. Information about available services can be found in the Orkney Community Directory, on the Orkney Communities website or by contacting Voluntary Action Orkney or the Community Care section of Community Social Services.
Adults and carers can expect:
The protection of adults, even more so than the protection of children, raises a variety of complex issues. There may be a number of conflicts which must be considered. Some of these are introduced below. It is beyond the scope of this document to fully explore all of the issues that are presented but this section is included to highlight the need for awareness of these matters and consideration of them in relation to any referral that is made or received.
Staff have a duty to report suspicions, allegations or disclosures made about any adult who appears to be at risk of harm. While this may cause the individual worker difficulties, a failure to report is a failure in their duty of care. Staff must report any concerns of suspected or actual abuse to their line manager. Where a staff member feels that their line manager is part of the abuse, and as such they are not able to report their concerns in this way, they can report the matter to the duty worker in Adult Services or directly to the Police. Where there are health concerns of any nature or health needs which are identified, during assessment, these should be passed to the person’s General Practitioner.
Concern about adults’ needs for protection may lead to a tendency to regard their rights to choose as secondary. Adults are individuals in their own right and, if they are capable of making decisions and understanding the consequences of those decisions, must be allowed to exercise these rights even if that means they choose to enter or remain in a situation which other people consider to be inappropriate or abusive. This does however sit within a general framework of abiding by the law. Every effort should be made to inform the adult of the consequences of the choice he or she may be making and of the opinions available to support them to change their circumstances should they wish. There may be cases where an adult who is capable of making decisions and understanding the consequences of those decisions is still not in a position to make a truly informed choice because they are under ‘undue pressure’ from another person. If, during the course of an adult protection investigation, an adult is believed to be under undue pressure there are a number of possible legal options available to the Local Authority to take action to protect the adult, against their wishes. If the Local Authority wishes to pursue this course of action it will be necessary to establish undue pressure in Court. The Act and accompanying Codes of Practice do not define undue pressure. This is the type of scenario where the involvement of an independent advocate would be very appropriate.
All professionals who have contact with adults at risk have a responsibility to refer concerns/anxieties/allegations/disclosures to the appropriate agency. However, it should be recognised that, at times, this may pose a dilemma for staff who may feel that by so doing this could alienate the individual and/or the family and adversely affect the potential for preventative work. It is important not to guarantee confidentiality, where you have a duty to report, as it may result in the adult feeling betrayed by your actions and a loss of trust. The appropriate option is to openly and honestly discuss with the individual and/or family any intention to report the information given, explaining the duty to do so. This is in line with the underpinning principles of the Act. If action under the Act has progressed to the stage of investigation and/or medical examination, the adult has a right to be advised that they are not obliged to actively take part in the process or agree to be interviewed or medically examined.
Concern over risk taking can stifle and constrain providers of care, leading to an inappropriate restriction of the individual’s rights. There is a challenge for all those involved in assessing or caring for an adult at risk to strike a balance between promoting and respecting an individual’s right to independence and self-determination whilst recognising their vulnerabilities and the right to protection.
Most organisations now have developed a policy on whistle blowing. This is to allow staff to alert organisations to matters of suspected or actual malpractice. These policies and procedures provide guidelines, protection and reassurance to staff in order to encourage such disclosures. Please consult your own organisation’s policy and procedure for more information.
There are some adults who present behaviour that is difficult to respond to safely and which requires to be managed either in their own home, day care setting, short-break facility setting, community setting or care home. This sort of behaviour is often referred to as challenging behaviour. Challenging behaviour is most often an outward expression of physical or mental distress, discomfort or anxiety rather than a considered attempt to create difficulties for staff providing care, or others in the adult’s environment. It is preferable to work towards understanding the cause or purpose of the behaviour so that effective strategies can be used to minimise or respond to it. However, on occasion issues of physical restraint and the use of medication to manage behaviour can arise. These issues require to be carefully thought through.
Action undertaken to manage an adult’s behaviour of this nature could be misinterpreted, potentially leading to an allegation of abuse or indeed constitute abuse.
Carers should be encouraged to seek advice and support if they are having difficulties dealing with dilemmas of this kind. Agencies must have in place practice guidelines to assist staff members who work in settings where challenging behaviour is likely to be a feature. Any decision to invoke any form of restraint or administer medication must be made and recorded as part of the care planning process. There must also be ongoing monitoring and reviewing of any decisions to undertake any form of restraint or use of medication, particularly if that medication is administered in a disguised manner. Equally, it is known that there have been historical and recent cases where restraint and medication have been used inappropriately and abusively. Any report of abuse of this nature will therefore be investigated as a potentially serious matter.
As people with increasingly complex needs require ongoing care, the prevalence of challenging behaviour is likely to increase. It is not possible to cover this degree of complexity in guidelines of this nature other than to pose it as another dilemma which requires to be faced in the field of adult protection. Allegations of abuse against staff members Where complaints about abuse or lack of care are made against staff-members, each agency is responsible for the management of its own internal processes to deal with issues of quality of service or misconduct. The service’s line manager will make initial assessment of the incident, allegation or complaint to determine whether there is a concern to be investigated; whether this is a quality of service, capability or conduct issue; and whether there are protection issues for service users, patients or members of the public.
Where there are protection issues for adults at risk, the Adult Support and Protection legislation, policy and procedures apply, and must take precedence . An Initial Planning Meeting must be held, chaired by the relevant Community Social Services Manager, to determine how any need for protection of the adult or others is to be assessed, and how protection procedures are to be coordinated with internal agency processes. The Initial Planning Meeting must include the relevant agency’s Personnel Services or other senior staff member with allocated responsibility for Human Resources or Personnel matters. This meeting will establish how the various necessary courses of action will be coordinated and sequenced in order to meet statutory requirements, such as reporting to the Care Commission, and ensure the best possible course of action for the protection of the adult(s).
In the absence of the organisation’s own Human Resources or Personnel Services or equivalent, the Council’s Personnel Section may be able to offer advice or assistance. The employer may also wish to seek advice from relevant national bodies or, for member organisations, Voluntary Action Orkney.
Where a potential criminal offence is alleged, Police must also be involved in the Initial Planning Meeting, to determine how any criminal investigation is to be coordinated with the protection investigation and any internal agency processes. Subject to the outcome of the Initial Planning Meeting, and the nature of the allegation or complaint being confirmed, the question of the suspension of the employee needs to be settled. If conduct incompatible with the employee’s remaining at work is clear, the employee should be suspended on full pay pending the outcome of protection and conduct/capability enquiries and any consequent procedural action as per the organisation’s Human Resources or Personnel Disciplinary Policy. The ability of the employing organisation to conduct its own procedural investigation and disciplinary/capability action in parallel with, and independently of, any police enquiries must be clearly established and maintained.
Where financial abuse has been perpetrated by a member of staff of one of the Adult Protection Committee’s partner agencies, issues of appropriate channels for recompense will be discussed during formal Planning Meeting and stage of the process will take account of legal advice.