Kathryn Mackay Fiona Sherwood-Johnson University of Stirling

Adult Support and Protection (Scotland) Act 2007: Principles, powers, protection orders and practice Kathryn Mackay Fiona Sherwood-Johnson University of Stirling

Aims of Session Discuss Scottish definition of adult at risk of harm Provide overview of the statute Highlight key findings from research Apply statute to case study

Adult Support and Protection (Scotland) Act 2007 (ASPSA) • Perceived as filling gap between general adult care law and mental health and adults with incapacity legislation • The Act “raises difficult ethical issues about the role of society to protect people who are vulnerable, even if they themselves deny their need for help” (Patrick 2007, p.11). • Arguably the Act has again moved the boundary between public intervention and private lives. • It is (mainly) about short-term intervention, you need to have some long-term ‘plan’

Definition of “Adults at Risk” S.3 Unable to safeguard 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 ~ Neglect by inaction is also considered Harm can be self inflicted or by another person What constitutes serious harm will be different for different persons

Discuss with your neighbour How does the definition of an adult at risk of harm differ from the Welsh definition What are the advantages and disadvantages to this?

ASPSA Principles • Least restrictive • Benefit • Gaining views • Participation in decision making • Not treating less favourably than any other adult in comparable situation • Taking into account abilities, background and characteristics

Duty of NHS, police &public bodies: Notify the council if they know or believe a person is an adult at risk, and that protective action needs to be taken So far as is consistent with the proper exercise of their functions, co-operate with the council making inquiries and with each other Adult Protection Committees

ASPSA Inquiries & Investigations Duty for LAs to make inquiries (initial assessment) Where adult may be at risk of harm, Duty to investigate (full assessment) Power to examine records, medical notes to be read by health practitioner. Many banks now complying with requests Powers to: -visit the person’s home - arrange medical assessment -request private interview with person who may be being harmed

Protection Orders Assessment, removal to a place of safety and banning orders are all considered to be protectionorders. Threshold raised to risk of seriousharm Application by Council Officer to Sheriff Court Can request Warrant of Entry (to be enforced by police) Must have person’s consent, unless Undue pressureby third party can be proven Mental incapacity does not rule out use of this statute

ASPSA decisions and rights processes Evidence level: balance of probability Sheriff can decide not to notify person about proceedings if this is likely to cause harm Sheriff can appoint a safeguarder to investigate aspects of the person’s situation Person has right to representation and legal aid Council duty to consider the provision of appropriate services including, in particular, independent advocacy services to facilitate person's participation in assessment and decision-making

Key findings from research project Complex, interconnected nature of harm Skilled and open minded practitioners Building and maintaining respectful relationships Thresholds not as clear cut as we might like them to be Protecting needs support services Interagency work is variable Opportunities for justice through court are still limited

Complexity • Multiple factors (harmer and/or harmed): • Substance misuse in two thirds • Poor mental health in half • Person experienced more than one type of harm • More complex than neat phrases such as: • Has capacity • Unpicking ‘life style choice’

Complexity of relationship between harmed and harmer • Not always clear who is harmed and harmer So, at that point we had gone right, who’s the victim here? Well we’ve actually got two perpetrators and two victims and they’re interchangeable….and, if we hadn’t been talking about elderly vulnerable people, if these had been a couple in their thirties, the police might have been looking on this in a quite different manner. Practitioner 19 • An interdependency There was the question of whether they have a relationship, if it was solely for financial gain or emotional support, or caring support. Practitioner 11

Skilled & open minded practitioners Much time was needed to assess complex situations: following up lines of inquiry, trying to establish ‘facts’, understanding different perspectives Expert advice sought re communication and understanding but mainly with people with learning disabilities Work can be emotionally demanding. Practitioners appreciated good supervision and other opportunities that supported them in this work.

Meeting the 3 point test: ‘ ’clearly’, ‘a fine balance’ or ‘a bit iffy’ • Most challenging parts of definition: • More vulnerable than adult not so affected • Unable to safeguard • It was certainly two. He had a disability, he was at risk of some type of harm…..Whether he was unable to protect, I mean, that was in doubt …I think he was unable to hold back from the urges that he would have to react in a certain way Practitioner 17

Thresholds: Defined as more vulnerable to being harmed, if More severe impact of disability Impaired decision making due to poor mental and/or physical health, cognitive impairment Person feels they have no choice but to accept harm Severity of harm Physical and emotional, as well as financial harm Police investigation Health crisis forces contact with services

Protection plans: Protective measures • Practitioner/adult AROH relationship was a key instrument of change • Support for harmer as well as harmed • Housing: re-housed, cleaned, made secure, use of CCTV and panic alarms • Financial: securing bank cards, budgeting, appointeeship, financial guardianship for people with dementia, • Others:charging harmers, neighbour chasing harmers away and alerting agencies, police identifying offenders who target isolated older and disabled people.

Protection Plans : Emotional and social Positive and encouraging relationships with care staff Support with daily living and decision- making Helping people to review negative risk taking Specialist counselling around trauma or addiction Promoting opportunities for wider involvement in community Supervising access between harmer and harmed.

Use of protection orders • No assessment order used: seen as of limited value • Removal order: one discussed in sample- a last resort • Banning orders: three discussed, one lapsed, some debate about their effectiveness if harmer breaches it • In sample, 7 out of the 32 case instances involved mental health or capacity legislation.

Positive outcome From a woman who experienced ongoing harm from a son who lived with her and now lives on her own with support: • It takes me a while to get to know somebody……Well, in a way it was good. Although I was scared……but I know it was good because I was hoping they could help me. • I was always terrified. But I’m getting more confidence now. Adult AROH 1

Not so positive outcome From a man who got into difficulties ( not specified) and whose money is managed through social work but who would now like to regain more direct control of his own money • I can see it’s been helpful in one way but in another way it’s not helpful. About going to the office to pick up his money:- • It’s begging money… Adult AROH 4

Loss and change Whilst feeling safer there was often a sense of loss about the changed relationship where harmer was a relative. I think that’s the time …he did, he put his hand up, but it wasn’t a bad, you know what I mean. But it’s the thought; aye, your boy doing that to you, you know; he couldn’t have done anything worse… and I miss him terrible. He was never a bad bairn, you know, it was just the going to the pub. And I still miss him terrible. Adult AROH 5

Police and Justice • Police receive very positive feedback for work during investigation and protection planning • Less so around ‘vulnerable person reports’: nature and number • Concern that Procurator Fiscals deem cases not in the ‘public interest’ where people are older or have cognitive impairments • Danger is that issue of societal justice ( see offender punished ) becomes issue of individual protection ( for the harmed) • Also might bail and probation be more effective than banning orders?

NHS Awareness and Assistance: Real mixed picture • NHS staff vary in degree of awareness of nature of harm • NHS staff vary in fulfilling their duties under the ASPSA • NHS staff vary in their willingness to work alongside social work staff Recommendations • Promote awareness of nature of harm • Responsibilities in relation to ASPSA • Joint events to improve cross agency understanding and collaboration

Paired discussion Select a situation of adult concern you are working with/aware of Discuss in pairs: What would you do now under Welsh law and policy Would an equivalent ASPSA help? Why/why not?

Recommendations: Practitioners • Review increased paper work –repetitive • Clarify distinction between inquiry and investigation • Residential staff not wholly grasping ‘harm’, not reporting, and not following agreed plans. • Support with 3 point test and thresholds • Good supervision • Peer support • More time to discuss, share and compare work • Building up agency’s own ‘like for like’ comparisons to build a shared knowledge base • Continued support for relationship-based work

Recommendations: Adult at risk of harm Growing self determination and positive risk taking Involving adults AROH more effectively in case conferences Recognising and reducing their stress Recognising losses as well as gains Promoting choice and control-remember people grow in skills and confidence Consider different ways of communicating Improving access to justice

Kathryn Mackay Fiona Sherwood-Johnson University of Stirling