Adult Support and Protection

1. Adult Support and Protection Financial Harm – Private and Public Sector Roles

2. Adult Support and Protection (Scotland) Act 2007 - Who is an adult at risk of harm? • No singularly defined service user group:- • 16 or over • Unable to safeguard their own well-being, property, rights or other interests • At risk of harm • Affected by disability, mental disorder, illness or physical or mental infirmity – are more vulnerable to being harmed than adults who are not so affected

3. Causes of Harm • Another person’s conduct is (or is likely to) cause an adult to be harmed • The adult is (or is at risk of) self harming

4. Types of Harm • Harm includes ALL harmful conduct and includes but is not limited to: • Physical harm • Psychological harm (causing fear/distress) • Unlawful conduct (theft, fraud etc.) • Financial harm • Self harm • Sexual harm • Information – withholding information about rights or entitlements

5. Inquiries and the Duty to Co-operate • Councils have a duty to inquire where they know or believe an adult is at risk of harm • Other agencies named must co-operate with such inquiries and with each other • Other agencies named in the Act must refer any concerns where they know or believe an adult is at risk of harm

6. Duty to Co-operate – named agencies • Mental Welfare Commission • Care Commission • Office of the Public Guardian • Councils (all departments) • Police • Health Boards • Scottish Government guidance to GPs states the duty extends to them

7. Know or Believe • The Act is worded in such a way that a concern or suspicion is enough to place the duty on those named to share their concerns. • This is a useful way for anyone to think about harm. Do you know OR believe someone is being harmed?

8. Section 10 Requests • Under Section 10 of ASPA 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. • Health records can only be inspected by a health professional

9. Section 10 requests continued • The records may then be inspected by the officer and any other person whom the officer considers appropriate to assist the council to decide if it needs to take action to protect an adult at risk from harm.

10. Sharing without consent – all sectors • Existing law allows information to be disclosed without consent where such disclosure is required by law - either a court order or statute or where such disclosure is in the public interest. • Crime detection and prosecution, as well as prevention, may provide legitimate grounds for disclosure.

11. Offences: Obstruction - Section 49 ASPA • Obstruction - it is an offence to prevent or obstruct authorised staff from doing anything they are entitled to do under the Act. • It is an offence to refuse, without reasonable excuse, to comply with a request to provide information made under section 10 (examination of records etc.). • A person found guilty of these offences is liable on summary conviction to a fine or imprisonment (adult at risk - not subject to these provisions).

12. Offences: corporate bodies etc. • Offences are committed in this regard where the “relevant person” (or someone acting as such) either had knowledge of the decision or the decision was due to neglect. • That person and the body corporate, partnership or unincorporated association is also guilty of an offence. • A “relevant person” includes but is not limited to; a director, manager, secretary or other similar officer of a body corporate such as limited company or PLC.

13. Practice Issues: barriers to sharing information • Fears remain around breaching confidentiality based upon anxieties of being struck off or disciplined. • Consent –obtaining consent is clearly best practice and is required to progress work with the adult post referral. For agencies named in the Act though, are staff clear about the balance between consent and protection concerns and their duties to refer? • For those in the private and voluntary sector are staff clear about company policy? • In both cases are staff still assuming they cannot report the issue without consent?

14. Getting the policy right ‘Evidence from key banking personnel suggests that policy differed between individual banks as financial institutions, and that the implementation of operational and data protection polices at bank branch level tended to take any personal knowledge of the older person by counter staff out of the process.’ Gilbert, A., Stanley, D., Penhale, B. and Gilhooly, M. (2013) Elder Financial abuse in England: a policy analysis perspective related to social care and banking. Journal of Adult Protection 15(3) 153-163.

15. The Public Protection information sharing jigsaw Text here

16. The importance of the jigsaw ‘…it seemed to me that every agency had a small piece of information or even quite a large piece of information but they looked at that information as though it was disconnected from anything else and one of the principal findings of the serious case review was that every agency had a piece of a jigsaw…’ Margaret Flynn - Safeguarding Adults: Lessons from the murder of Steven Hoskin SCIE Social Care TV

17. Co-occurring Harm and Scale of Harm • An Adult at Risk of Harm often experiences more than one type of harm, your knowledge of financial harm could be the tip of the iceberg. • UK residents subject to scam mail are estimated to lose £10 billion per year to such scams. Think Jessica http://www.thinkjessica.com/

18. Questions at strategy and practice levels • Are you and your organisation’s policies clear about when consent and breach of confidentiality do and don’t apply? • Are you and your organisation’s policies clear about what is relevant and appropriate to share? • Do you and your organisation’s policies assume Data Protection legislation is there to enable or block the sharing of relevant and appropriate information?

19. Do the MASH http://www.londonscb.gov.uk/mash/Largely written for public bodies but useful to consider REMEMBER THAT THE DATA PROTECTION ACT IS NOT A BARRIER TO SHARING INFORMATION BE OPEN AND HONEST with the person (and/or their family where appropriate) from the outset about why, what, how and with whom information will, or could be shared, and seek their agreement unless it is unsafe or inappropriate to do so. but provides a framework to ensure that personal information about living persons is shared appropriately.

20. SEEK ADVICE IF IN ANY DOUBT SHARE WITH CONSENT WHERE APPROPRIATE and, where possible, respect the wishes of those who do not consent to share confidential information. You may still share information without consent, if in your judgement, that lack of consent can be overridden if it is in the public interest. You will need to base your judgement on the facts of the case. without disclosing the identity of the person if possible.

21. CONSIDER SAFETY AND WELL-BEING NECESSARY, PROPORTIONATE, RELEVANT, ACCURATE, TIMELY AND SECURE Ensure that the information you share is necessary for the purpose for which you are sharing it, is shared only with the people who need to have it, is accurate and up to date, is shared in a timely fashion and is shared securely. base information sharing decisions on considerations of the safety and well-being of the person and others who might be affected by their actions.

22. KEEP A RECORD OF YOUR DECISION AND THE REASONS FOR IT - CONSIDER THE CALDICOTT PRINCIPLES whether it is to share information or not. If you decide to share, then record what you have shared, with whom and for what purpose.

23. CALDICOTT PRINCIPLES • Justify the purpose for needing the information • Do not use person identifiable information unless it is absolutely necessary • Use the minimum amount necessary of person identifiable information • Access to person identifiable information should be on a strictly need to know basis • Everyone should be aware of their responsibilities • Everyone should understand and comply with the law • The duty to share information can be as important as the duty to protect patient confidentiality.

24. Other Ideas • Check the Information Sharing protocol used between statutory agencies – usually based around Local Authority areas. • Review the ICOs Data Sharing Code of Practice • Consider the protection of a customers finances (and hence their broader wellbeing) within the ‘products’ you offer and how reference to ASPA could enhance them

25. The Way Forward • New coordination group - initially to review draft terms of reference which include: • Stakeholder engagement • The Pledge • Referral processes and information exchange • Seeking solutions to issues arising across all sectors • Gathering business intelligence • Sharing best practice and informing training

26. Who to tell right now • If you believe someone is at risk of harm – Local Authority • If you know there is a PoA, Financial Guardian or Withdrawer – the OPG or LA • If you think a crime has been committed – Police Scotland • Act Against Harm - website has Local Authority contact numbers • Each APC has a webpage with contact details.

27. Language Referring to a Local Authority Referring to OPG Be clear about the type of financial intervention that is in place and why you believe it is being misused. An example would be when it appears that an adult’s funds are not being used for their benefit, to meet their needs, or in line with their wishes. • If you feel the person is an ‘Adult at Risk of Harm’ - use the phrase • More general concerns - Community Care • Is it Trading Standards • Crime – none of this replaces the Police role where a crime is suspected.